Citation: INEGBEDION, Meredith v R [2013] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 22 November 2013
Judge(s): Hoeben CJ at CL, Rothman J, McCallum J
Background
The appellant was convicted by a jury of attempting to possess a marketable quantity of unlawfully imported heroin, contrary to s 307.6(1) of the Criminal Code Act 1995 (Cth). The charge arose from a controlled delivery operation in April 2010, in which Australian Federal Police intercepted a package addressed to a person at a residential address in western Sydney and arranged for an undercover officer to deliver it.
The appellant and a co-accused were observed sitting together in a parked car near the delivery address. The co-accused approached the undercover officer, identified himself as the intended recipient's contact, and sought to take delivery of the package. When arrested, he attempted to flee, and the appellant's car began moving before being intercepted. Police found $11,100 in cash in the car, along with a piece of paper in the appellant's wallet bearing the addressee's name and a separate note referencing an overseas money transfer recipient associated with that name.
The appellant appealed his conviction on two grounds: that the trial judge's directions on the law of attempt were defective, and that the verdict was unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the trial judge's jury directions on the offence of attempt under s 11.1 of the Criminal Code Act 1995 (Cth) were legally adequate, specifically whether the directions sufficiently separated the conduct element from the fault element.
- Whether, if there was error in the directions, a substantial miscarriage of justice resulted such that the conviction should be set aside.
- Whether the verdict was unreasonable or unsupported by the evidence.
Decision
Ground 1: Jury directions on attempt
Rothman J identified the two distinct elements that the Crown must prove for an attempt offence under s 11.1 of the Code. First, the accused must have intended to commit the offence, meaning they intended to bring about all of the physical elements of the completed crime. Second, the accused must have performed conduct that was more than merely preparatory, was immediately connected with the commission of the offence, and had no reasonable purpose other than its commission. These two aspects, intent and conduct, must each be proved beyond reasonable doubt and must be separately explained to a jury.
His Honour accepted that the trial judge's directions failed to adequately separate these two aspects, and that there was error in the summing-up. The directions conflated the conduct element with the fault element in a way that risked the jury not appreciating that both elements required independent proof.
However, the Court found that on the evidence as a whole, the error did not produce a substantial miscarriage of justice. The proviso under the Criminal Appeal Act 1912 was applied: the evidence against the appellant was strong, and no substantial miscarriage of justice had occurred.
Ground 2: Unreasonable verdict
McCallum J, having independently assessed both the sufficiency and quality of the evidence as required by the High Court's approach in SKA v The Queen, rejected the appellant's contention that the verdict was unreasonable. The appellant argued that, disregarding the co-accused's approach to the officer, the only evidence against him was his presence nearby. The Court found that characterisation to be an oversimplification. The totality of the evidence, including the cash, the written name of the addressee in his wallet, the consignment number, and the coordinated meeting with the co-accused, provided a sufficient evidentiary basis for the physical element of the attempt. McCallum J expressed no doubt as to that element.
Orders Made
- Leave to appeal granted to the extent necessary.
- Appeal dismissed.
Key Takeaways
- Under s 11.1 of the Criminal Code Act 1995 (Cth), a conviction for attempt requires proof of two distinct elements: a fault element (intention to commit the offence) and a conduct element (acts that are more than merely preparatory, immediately connected with the offence, and having no reasonable purpose other than its commission).
- Trial judges must direct juries separately on these two elements of attempt; conflating them in a summing-up constitutes legal error.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a misdirection on attempt is established, the proviso applies and no retrial is required if the evidence was sufficiently strong that no substantial miscarriage of justice resulted.
- A verdict of guilt for attempted possession is not unreasonable merely because the accused did not physically handle the drugs or personally approach the delivery officer, where the broader circumstances including cash, documentation, and coordinated conduct provided an adequate evidentiary foundation for the conduct element.
- Recklessness as to consequences is insufficient to satisfy the fault element in attempt; intention to commit the offence is required, consistent with the principles confirmed in Giorgianni v R and Knight v R.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 307.6
- Criminal Appeal Act 1912 (NSW)
Cases
- Britten v Alpogut [1987] VR 929
- Davey v Lee [1968] 1 QB 366
- Gillard v R [2003] HCA 64; (2003) 219 CLR 1
- Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473
- He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523
- Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
- Knight v R [1992] HCA 56; (1992) 175 CLR 495
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- Onuorah v R [2009] NSWCCA 238
- Singh v R [2011] NSWCCA 100
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300