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Court of Criminal Appeal 18 June 2012

R v Nolan

[2012] NSWCCA 126

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST ACQUITTAL DEFINITION OF IMPORTATION APPEAL DISMISSED.

Citation: R v Nolan [2012] NSWCCA 126
Court: Court of Criminal Appeal, New South Wales
Date: 18 June 2012
Judges: McClellan CJ at CL, Rothman J, Davies J

Background

The respondent was charged as an accessory to the intentional importation of pseudoephedrine, a tier 1 prohibited good under the Customs Act 1901 (Cth). The principal offender had arranged for approximately two kilograms of pseudoephedrine, concealed inside marble stools, to be shipped from Thailand to Sydney. Australian Customs intercepted the shipment on 24 April 2010 and made a complete substitution of the drug with self-raising flour before allowing the consignment to clear.

The respondent's involvement began no earlier than the afternoon of 3 May 2010, well after Customs had seized and replaced the drugs. The Crown alleged that the respondent conducted counter-surveillance near the delivery address on 4 May and collected the principal offender from Sydney Airport on 5 May, driving him to collect the stools. The vehicle was stopped almost immediately after leaving the premises and both men were arrested.

At the conclusion of the Crown case, the trial judge directed the jury to acquit the respondent. The Commonwealth Director of Public Prosecutions appealed that directed acquittal on questions of law alone, pursuant to s 107 of the Crimes (Appeal and Review) Act 2001.

  • Whether the trial judge correctly determined the point at which the process of importation had concluded for the purposes of s 233BAA of the Customs Act 1901 (Cth).
  • Whether the trial judge properly applied the definition of importation as established in Calderwood v R (2007) 172 A Crim R 208.
  • Whether the trial judge correctly distinguished between importation offences under the Customs Act 1901 and those under the Criminal Code (Cth), as considered in R v Campbell [2008] NSWCCA 214.
  • Whether, if an error of law was established, the acquittal should nonetheless be affirmed.

Decision

The trial judge had directed the acquittal primarily on the basis that the drug had been substituted with flour before the respondent became involved, meaning the principal offence was complete before the respondent did anything. The Crown argued this reflected a misapplication of the law on when importation ends.

The Court of Criminal Appeal accepted that the trial judge erred in his legal construction of when the process of importation concluded. On undisputed facts, the judge had determined that the principal offence was finished before the respondent's involvement began. The majority found this determination involved an error of law in the construction and extent of the term "imported." Rothman J, in particular, identified this as a ground involving a question of law alone and therefore properly within the scope of the appeal.

However, the Court concluded that even correcting that error did not produce a different outcome. The respondent's guilty verdict would have depended on a finding that the relevant fault element co-existed with his conduct, and such a verdict would have been unreasonable on the evidence. Additionally, an acquittal by direction remained available to the trial judge, albeit for different reasons.

All three judges agreed the acquittal should be affirmed. The appeal was dismissed.

Orders Made

• The acquittal is affirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an appeal against a directed acquittal under s 107 of the Crimes (Appeal and Review) Act 2001 is confined to grounds involving a question of law alone, but a ground that relies on a legal error in the trial judge's reasoning, which of itself could determine the appeal, satisfies that threshold.
  • A trial judge's determination, on undisputed facts, of when the process of importation had concluded was held to constitute a question of law capable of founding an appeal, not merely a question of fact.
  • Even where a legal error is established on appeal, the Court retains a residual discretion as to the appropriate orders, including the power to affirm the acquittal if a guilty verdict would be unreasonable on the evidence.
  • For a conviction as an accessory under s 11.2 of the Criminal Code (Cth), the fault element must co-exist with the accused's conduct, and the principal offence must have been committed by the other person.
  • In dismissing the appeal, the Court confirmed that Calderwood v R supplies the applicable framework for defining importation under the Customs Act 1901, while R v Campbell is relevant to the separate importation provisions of the Criminal Code (Cth).

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BAA
- Criminal Code (Cth), s 11.2
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Acts Interpretation Act 1901 (Cth)
- Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)

Cases:
- Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208
- R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
- Alramadan v DPP [2007] NSWCCA 322
- Krishna v DPP [2007] NSWCCA 318
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- Giorgianni v R (1985) 156 CLR 473
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- R v Bull (1974) 131 CLR 203
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
- Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384