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Court of Criminal Appeal 18 March 2008

SWANSSON, David Anthony v R (Cth)

[2008] NSWCCA 56

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER VERDICT OF GUILTY UNREASONABLE MULTIPLE INDICTMENTS VERDICT OF GUILTY NOT UNREASONABLE NO MISCARRIAGE OF JUSTICE

Citation: SWANSSON, David Anthony v R (Cth) [2008] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 18 March 2008
Judge(s): McClellan CJ at CL, Grove J, Simpson J

Background

The appellant was convicted in the District Court of being an accessory to an attempt to import not less than the commercial quantity of MDMA (ecstasy) into Australia. The scheme involved concealing approximately 165,000 ecstasy tablets inside the foam door-linings of six refrigerators, shipped as part of a larger commercial consignment. The Australian Federal Police were aware of the shipment and substituted the drugs with harmless packages before delivery.

The appellant played a substantial logistical role in the importation. He rented storage facilities and a warehouse under false names, created false business stationery, opened a mobile telephone account under a false identity, arranged Customs clearance, and paid various costs using non-traceable money orders. His dealings with other syndicate members were conducted almost entirely through one co-offender, and all of this activity was carried out under assumed identities.

The central question at trial was whether the appellant actually knew about the drug importation, or whether he genuinely believed he was participating in a legitimate commercial venture. The trial judge certified the case as a fit one for appeal on the basis that there was a deficiency of evidence as to the requisite guilty mind.

  • Whether the verdict of guilty was unreasonable and unsupported by the evidence, specifically regarding whether the Crown had established beyond reasonable doubt that the appellant was aware that the importation involved drugs.
  • Whether, given an earlier finding that the trial was a nullity due to procedural anomalies (following the related appeal of a co-offender, Henry), the remaining grounds of appeal could still be pursued.

Decision

The Court had previously found, in related proceedings, that the trial was procedurally a nullity and had allowed co-offender Henry's appeal on that basis. By majority, the Court held that the appellant could nonetheless pursue his remaining grounds of appeal. The current judgment addressed those outstanding grounds.

The sole substantive question was whether the jury was entitled to find, beyond reasonable doubt, that the appellant knew the importation involved drugs. Simpson J (with whom McClellan CJ at CL and Grove J agreed) considered the competing arguments carefully. The appellant pointed to evidence from co-offender Alchikh and a conversation with another individual suggesting the appellant had been kept ignorant of the true nature of the importation.

The Court found, however, that the Crown's case was strong. The appellant's pervasive use of false names and identities went well beyond what any innocent involvement in a legitimate business transaction would require. His elaborate conduct in concealing financial dealings and distancing himself from every aspect of the transactions was consistent with a guilty awareness. The jury had been properly directed and had the benefit of full argument from both sides on the single narrow issue.

Applying the test for unreasonable verdicts established in M v The Queen and amplified in MFA v The Queen, the Court held that the verdict was open to the jury and was not unreasonable. No miscarriage of justice had occurred, and the ground of appeal was rejected.

Orders Made

  • The matter was to be re-listed for the purpose of making formal orders in relation to the proposed amendments to the notice of appeal (consequential upon the earlier nullity finding).

Key Takeaways

  • The Court of Criminal Appeal confirmed that a verdict is not unreasonable merely because arguments were available to the defence that warranted careful consideration; the test requires the appellate court to give substantial respect to the jury's findings.
  • Applying M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606, the court emphasised that where a single narrow issue was clearly identified and properly put to the jury, appellate intervention requires a compelling reason to conclude the verdict was one no reasonable jury could reach.
  • Conduct that goes substantially beyond what any legitimate commercial purpose could explain, such as pervasive use of false identities, non-traceable payments, and systematic concealment of dealings, can form a sufficient basis for a jury to infer guilty knowledge.
  • In dismissing the substantive grounds, the Court left intact the procedural consequence that the appellant remained entitled to orders for a new trial, flowing from the earlier nullity finding in the Henry proceedings.
  • Where a trial is found to be a nullity on procedural grounds, an appellate court may still, by majority, permit remaining grounds of appeal to be argued and determined on their merits.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Swansson v R; Henry v R [2007] NSWCCA 67