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Court of Criminal Appeal 27 March 2009

Rosenfeld v R

[2009] NSWCCA 74

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION PARTICULAR GROUNDS OF APPEAL MISDIRECTION OR NON DIRECTION

Citation: Rosenfeld v R [2009] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 27 March 2009
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The appellant was convicted in the District Court of importing a commercial quantity of MDMA into Australia, contrary to s 307.1 of the Criminal Code (Cth). The Crown's case was that he arranged the shipment of over 90 kilograms of MDMA concealed inside solar hot water tanks, which were transported from Israel to Port Botany in a sealed shipping container.

After the container arrived in Sydney, Customs officers discovered the drugs, substituted inert packages, and installed a tracking device. The appellant subsequently accessed the tanks at a self-storage facility, removed a canister, and passed it to another person at a prearranged meeting. He was then arrested.

The appellant denied any knowledge of the drugs. The sole contested issue at trial was whether he knew that MDMA was concealed in the tanks he was importing.

  • Whether the trial judge (Puckeridge DCJ) erred in directing the jury on the fault element (the mental element) required for the offence under s 307.1 of the Criminal Code (Cth).
  • Specifically, whether the directions confused the jury by dealing with recklessness as a fault element when the only live issue at trial was whether the appellant had actual knowledge of the drugs.

Decision

Section 307.1 of the Criminal Code (Cth) creates an offence of importing a commercial quantity of a border controlled drug. The fault element for the physical element that the substance is a border controlled drug is recklessness, not knowledge. Absolute liability applies to the quantity element. The trial judge's directions attempted to explain this structure but, in doing so, introduced unnecessary complexity.

McClellan CJ at CL accepted that the directions could have been improved. Because the only live issue was whether the appellant knew the MDMA was present, a direction focused squarely on knowledge would have been sufficient and clearer. An explanation of recklessness was unnecessary in circumstances where neither party contested it as relevant.

However, the Court was satisfied that any error in the directions did not warrant overturning the conviction. The Court applied the proviso, finding that the Crown case was overwhelming. The appellant had personally loaded the tanks onto a container in Israel, observed them being sealed, arranged their clearance through customs, purchased tools, and opened the tanks himself at a storage facility. None of those actions were consistent with an innocent importer who had stumbled upon drugs hidden by others.

All three judges agreed that the appeal should be dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 307.1 of the Criminal Code (Cth), the fault element for the "border controlled drug" physical element is recklessness, while absolute liability applies to the commercial quantity element. This structure can create complexity in jury directions.
  • Where the only live issue at trial is actual knowledge, a trial judge may focus directions on that issue alone, without elaborating on fault elements that neither party has put in dispute.
  • No error was established that warranted setting aside the conviction, because the Crown's evidence was so strong that no substantial miscarriage of justice had occurred even if the directions were imperfect.
  • The Court of Criminal Appeal confirmed that the proviso operates to dismiss an appeal where the evidence supporting conviction is overwhelming, regardless of any identified deficiency in the judge's directions.
  • In dismissing the appeal, the Court noted that counsel at trial can assist by identifying the genuinely contested issues so that directions are confined to those matters, reducing the risk of jury confusion arising from explanations of legally complex but practically irrelevant elements.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.1 (importing a commercial quantity of a border controlled drug, including fault element of recklessness and absolute liability for quantity)

Cases:
No specific cases were cited in the portions of the judgment provided.

Note: Special leave to appeal to the High Court was refused on 4 September 2009.