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Court of Criminal Appeal 16 February 2011

Swansson v R

[2011] NSWCCA 29

Drugs
APPELLANT'S KNOWLEDGE CROWN CASE CIRCUMSTANTIAL WHETHER THE VERDICT IS UNREASONABLE WHETHER ADEQUATE CORRECTION

Citation: Swansson v R [2011] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 16 February 2011
Judges: McClellan CJ at CL, RS Hulme J, Davies J

Background

The appellant was convicted in the District Court in May 2009 of aiding, abetting, counselling or procuring an attempted importation of a commercial quantity of MDMA (ecstasy) into Australia. The offending occurred between September and December 2003 and related to a shipment of 54 mini-bar refrigerators, six of which concealed approximately 31.95 kilograms of ecstasy. Customs detected and confiscated the drugs before they were formally imported, which is why the underlying charge was framed as an attempt.

This was the appellant's second conviction on the same charge. An earlier conviction had been quashed by the Court of Criminal Appeal on two previous occasions. The second trial before Zahra DCJ resulted in a nine-year sentence with a non-parole period of five years and five months.

The appellant's role was logistical: he arranged shipping clearance, rented storage facilities and a warehouse under false names, paid various service providers in cash or untraceable money orders, and physically unloaded the refrigerators. The central contest at trial was whether he knew or believed the consignment contained prohibited drugs.

  • Whether the verdict was unreasonable or unsupported by the evidence, given there was no direct proof of the appellant's knowledge of the drugs
  • Whether the Crown Prosecutor's closing address contained unfairly prejudicial submissions that had no factual basis or drew impermissible inferences
  • Whether the trial judge erred in refusing to discharge the jury after those submissions
  • Whether the trial judge gave adequate corrective directions to cure any prejudice from the Crown's address

Decision

Ground 5: Unreasonable verdict. RS Hulme J (with whom McClellan CJ at CL and Davies J agreed) found the verdict was open to the jury. Although the Crown case was entirely circumstantial, the cumulative weight of the evidence was substantial. The appellant used multiple false identities, created false business documentation, conducted all financial transactions in cash or money orders, communicated through public phones or a phone registered in a false name, and used coded or evasive language in intercepted calls. These steps went well beyond what would have been necessary if, as the appellant maintained, the transaction was simply a legitimate commercial importation of refrigerators.

The court also noted specific features of the evidence that entitled the jury to reject the appellant's account of innocence. The financial logic of the transaction was questionable: on the appellant's own figures, the maximum legitimate return from the refrigerator deal was around $7,290, yet his total expenditure exceeded that amount. The intercepted phone calls, while cloaked in innocuous language, arranged face-to-face meetings and avoided any direct reference even to the word "refrigerators." Taking the evidence as a whole, including the notoriety of drug importations by 2003 and the appellant's prior involvement in importations, the jury was entitled to draw the inference of guilty knowledge.

Grounds 1, 2, 3 and 4: Crown Prosecutor's address and corrective directions. The court considered the challenged passages of the Crown's closing address but concluded there was no substantial risk of a miscarriage of justice. The judgment records that, where specific concerns were raised, the trial judge took corrective steps. The court was satisfied that the jury was adequately directed and that no discharge was required. These grounds were all rejected.

Orders Made

• The appeal against conviction should be dismissed.

Key Takeaways

  • A conviction for aiding a drug importation can rest entirely on circumstantial evidence, provided the jury is entitled to draw the inference of knowledge or belief beyond reasonable doubt from the totality of the circumstances.
  • Extensive use of false identities, false business documentation, cash payments, and deliberately evasive telephone communication can, in combination, form a sufficient evidential basis for a jury to infer guilty knowledge, even without direct proof.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the use of deception "going well beyond what could reasonably have been necessary" to achieve a stated legitimate purpose is a factor that strongly supports an inference of guilty knowledge (echoing Simpson J in the earlier Swansson appeal).
  • Where a Crown Prosecutor's closing address is challenged as unfairly prejudicial, the question for the appellate court is whether there was a substantial risk of miscarriage; adequate corrective directions by the trial judge can neutralise that risk without requiring a discharge of the jury.
  • No error was established in the trial judge's refusal to discharge the jury, provided appropriate corrective directions were given promptly and clearly.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Code Act 1995 (Cth), s 11.1(1)

Cases
- Swansson v R [2008] NSWCCA 56
- Swansson v R [2007] NSWCCA 67
- R v R (1997) 99 A Crim R 327
- Anderson (1991) 53 A Crim R 421
- R v Hall (1960) 77 WN (NSW) 605
- Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208
- Crofts v The Queen (1996) 186 CLR 427
- R v El-Hayek [2004] NSWCCA 25