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Court of Criminal Appeal 21 August 2008

Keung, Bow, Liu v The Queen

[2008] NSWCCA 193

Also reported as 191 A Crim R 317
Drugs
DRUG IMPORTATION CHARGE OF CONSPIRACY TO IMPORT OR THE PARTICULAR QUANTITY IMPORTED CONVICTION APPEALS DISMISSED.

Citation: Keung, Bow, Liu v The Queen [2008] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 21 August 2008
Judges: Giles JA; Johnson J; Hall J

Background

A shipping container arrived in Sydney in June 2004 carrying approximately 342 kilograms of MDMA powder, concealed within boxes of wonton pastry. The pure MDMA content weighed nearly 235 kilograms, enough to produce over one million ecstasy tablets.

Three appellants were convicted after a lengthy trial in the District Court of conspiring to import a commercial quantity of MDMA, contrary to s 11.5(1) of the Criminal Code 1995 (Cth) and s 233B(1)(b) of the Customs Act 1901 (Cth). Each received a substantial term of imprisonment, with the longest sentence being life imprisonment with an 18-year non-parole period.

All three appealed against their convictions. Their main arguments centred on how the trial judge directed the jury regarding the quantity of MDMA and the treatment of recorded telephone intercept evidence. The appeals against conviction were heard together.

  • Whether the prosecution was required to prove, as an element of the conspiracy charge, that the appellants agreed to import not less than the commercial quantity of MDMA.
  • Whether the prosecution was required to prove that the appellants intended to import a particular quantity of MDMA.
  • Whether the trial judge erred by directing the jury to "put aside" telephone intercept transcripts to which they could ascribe no meaning.

Decision

Grounds A and B: Quantity as an element of the offence

The Court held that quantity is not a necessary ingredient of the substantive offence of importation under s 233B of the Customs Act. The penalty provisions under s 235 attach different consequences depending on quantity, but the quantity itself forms part of the sentencing regime rather than the definition of the offence. The description of the charge as involving "not less than the commercial quantity" served to identify the penalty tier applicable, not to create a separate element that the prosecution had to prove beyond reasonable doubt as part of guilt.

Turning to the conspiracy charge under s 11.5 of the Criminal Code, the Court reasoned that because quantity is not an ingredient of the substantive importation offence, it does not become an ingredient of the conspiracy to commit that offence. The prosecution therefore did not need to prove that each appellant agreed or intended to import a quantity meeting or exceeding the commercial threshold. The trial judge's directions to the jury on this point were not in error.

Ground C: Direction to "put aside" intercept evidence

Two appellants argued that the trial judge misdirected the jury when he told them to put aside telephone intercept conversations to which they could ascribe no meaning. The Court examined the summing-up as a whole and found no error. The direction that ambiguous or meaningless conversations should be put aside operated in the context of the Crown case only, where a conversation that cannot be given any meaning simply provides no assistance. Separately, the judge directed the jury that it could reject meanings put forward by the appellants if those meanings were inconsistent or made no sense, which is a different and proper instruction. The directions did not impose any burden on the appellants to prove the meaning of the intercepts, and they did not improperly exclude relevant doubt from the jury's consideration.

Orders Made

  • All three appeals against conviction dismissed.

Key Takeaways

  • Under s 233B of the Customs Act 1901 (Cth), the quantity of a narcotic substance is not an element of the importation offence itself; it operates within the penalty provisions under s 235 to determine the applicable sentencing range.
  • A conspiracy charge under s 11.5 of the Criminal Code 1995 (Cth) does not incorporate quantity as an ingredient merely because the indictment describes the prohibited import as being "not less than the commercial quantity." The prosecution is not required to prove that the accused agreed or intended to import that particular quantity.
  • No error was established in the trial judge's direction that the jury should put aside intercept conversations they could not interpret, provided that direction was confined to assessing the Crown's evidence rather than shifting any burden to the defence.
  • In dismissing all three conviction appeals, the Court of Criminal Appeal confirmed that jury directions must be assessed in the context of the summing-up as a whole, not by isolating individual passages.
  • The special leave application to the High Court was subsequently dismissed on 1 May 2009, leaving the Court of Criminal Appeal's analysis undisturbed.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 11.5
- Customs Act 1901 (Cth), ss 233B, 235
- Criminal Appeal Rules, r 4

Cases:
- Ansari v The Queen [2007] NSWCCA 204; (2007) 73 A Crim R 112
- Baladjam v R [2008] NSWCCA 85
- Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
- Germakian v R [2007] NSWCCA 373
- Kingswell v The Queen (1985) 159 CLR 264
- The Queen v Meaton (1986) 160 CLR 395
- R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242
- R v Tripodina (1988) 35 A Crim R 183