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6
Court of Criminal Appeal 16 September 2008

Campbell v R

[2008] NSWCCA 214

Also reported as (2008) 73 NSWLR 272 188 A Crim R 1
Drugs
CRIMINAL LAW DRUG OFFENCES CRIMINAL LAW DRUG OFFENCES WORDS & PHRASES “IMPORTS”

Citation: Campbell v R [2008] NSWCCA 214
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2008
Judge(s): Spigelman CJ, Weinberg AJA, Simpson J

Background

The appellant operated a furniture business and imported a shipping container of furniture from Indonesia. Unknown to her at the outset (on her account), 36 boxes of cold tablets containing pseudoephedrine, a border controlled precursor used in the manufacture of controlled drugs, had been concealed among the furniture in the container.

The appellant accepted at trial that she became aware of the concealed boxes only after the container was opened. The Crown submitted, however, that the act of "importing" extended beyond the moment of arrival and continued until a later point, meaning the appellant could be convicted even if she formed the requisite intention only upon seeing the boxes. The trial judge declined to withdraw this alternative theory from the jury, leaving it open for the jury to convict on that basis.

The appellant was convicted in the District Court of importing a commercial quantity of a border controlled precursor contrary to s 307.11(1) of the Criminal Code Act 1995 (Cth). She appealed against conviction; the Crown cross-appealed against sentence.

  • What is the meaning of "imports" in s 307.11 of the Criminal Code Act 1995 (Cth), and specifically at what point in time does the act of importing conclude?
  • Must the physical element (the act of importing) and the fault element (the relevant intention or belief) coincide in time for an offence under the Criminal Code Act 1995 (Cth) to be established?
  • Whether, in the absence of the impermissible jury direction, sufficient evidence remained to support a conviction, or whether a verdict of acquittal should be directed rather than a retrial ordered.

Decision

The Court of Criminal Appeal allowed the conviction appeal and ordered a new trial. All three judges agreed that the physical and fault elements of an offence under the Criminal Code Act 1995 (Cth) must coincide in time. It followed that a person cannot be convicted of importing simply because they formed the requisite intention after the act of importing had already concluded.

The court gave "imports" a precise rather than expansive meaning in the context of Div 307 of the Criminal Code. The word requires that controlled drugs or precursors arrive in Australia from abroad and be delivered to a point at which the goods would remain in Australia. This construction was informed by the contrast between the Criminal Code provisions and the broader language of earlier provisions in the Customs Act 1901 (Cth), as well as the general principle that statutory language must be construed in context from the outset, not only once ambiguity is identified.

Weinberg AJA (with the others agreeing) also addressed the proper approach to construing code language: unless a term is technical and intended to replicate its common law meaning, it should be given its ordinary natural meaning without presuming the legislature merely intended to restate existing law.

On the question of remedy, the court rejected the appellant's submission that a verdict of acquittal should be entered. There was evidence that could support a finding that the appellant had the requisite intention before the act of importing was concluded, particularly evidence that she expected the shipment to contain additional packages and the content of telephone intercepts. The matter was therefore remitted for a new trial.

Orders Made

  • Conviction appeal allowed.
  • Matter remitted for a new trial.
  • The Court indicated it did not wish to call on the appellant as respondent to the Crown sentence appeal, but declined to exercise its discretion to refrain from ordering a new trial given the significance of the conviction itself in terms of general deterrence and denunciation.

Key Takeaways

  • Under Div 307 of the Criminal Code Act 1995 (Cth), "imports" requires that the relevant goods arrive in Australia from abroad and be delivered to a point where they would remain in Australia. The word carries a precise, not expansive, meaning in this context.
  • A conviction under the Criminal Code Act 1995 (Cth) requires the physical element and the fault element to coincide in time. An intention formed only after the act of importing has concluded cannot supply the fault element for the offence.
  • Where code language is not technical in nature, it is to be construed according to its ordinary natural meaning, without any presumption that the legislature intended only to restate the common law.
  • In construing statutory language, context must be considered at the outset, not merely as a secondary resort when ambiguity arises. Context includes legislative purpose, surrounding provisions, circumstances at enactment, and related legislation.
  • A verdict of acquittal following a flawed trial direction is not automatic. Where evidence exists upon which a properly instructed jury could convict, the Court of Criminal Appeal may order a retrial rather than direct an acquittal.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.11
- Customs Act 1901 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
- Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)
- Crimes Act 1914 (Cth)

Key Cases
- Thabo Meli v R [1954] 1 All ER 373
- R v Church [1966] 1 QB 59
- Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131
- Chief Executive Officer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149
- The Queen v Bull (1974) 131 CLR 203
- K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Network Ten Pty Ltd v TCN Channel Nine Ltd (2004) 218 CLR 273
- Bank of England v Vagliano Brothers [1891] AC 107
- Vallance v The Queen (1961) 108 CLR 56
- Doney v The Queen (1990) 171 CLR 207
- Calderwood v R [2007] NSWCCA 180
- R v Sukkar [2005] NSWCCA 54
- King v The Queen (1986) 161 CLR 423