Citation: Su v R [2023] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 15 February 2023
Judge(s): Meagher JA (with Button J and Wright J agreeing)
Background
The applicant was convicted following a jury trial in the District Court on two counts of importing a commercial quantity of a border controlled precursor, namely ephedrine, contrary to s 307.11(1) of the Criminal Code (Cth). Ephedrine is a chemical used in the manufacture of methamphetamine. The two offences concerned consignments of framed pictures that arrived in Australia by air from Derby in the United Kingdom in December 2017 and February 2018, each containing several kilograms of ephedrine concealed within the corrugated backing of the frames.
The Crown's case was that the applicant had opened Australia Post parcel locker accounts in the names of real people who were unaware of either the accounts or the consignments, and that he operated those accounts as if he were the named account holders. In relation to the second consignment, the applicant tracked its movement from the United Kingdom using his mobile telephone and an IP address registered to his Sydney residence. The Crown alleged that the parcel locker addresses had been communicated to the UK senders with the applicant's knowledge and consent, though no direct evidence of communications with persons in the United Kingdom was adduced.
The applicant was sentenced to six years and six months imprisonment with a non-parole period of four years and six months. He sought an extension of time and leave to appeal against conviction on two grounds: first, that tendency evidence had been wrongly admitted; and second, that the verdicts were unreasonable.
Legal Issues
- Whether the trial judge erred in admitting tendency evidence concerning four additional consignments sent from Derby using names and identities other than the applicant's
- Whether the way that tendency evidence was relied upon at trial resulted in a miscarriage of justice
- Whether the verdicts were unreasonable and could not be supported having regard to the weight of the evidence
Decision
Tendency evidence (Ground 1): The tendency evidence related to four additional consignments that arrived in Australia between January and March 2018. That evidence was admitted solely on the question of importation, not on the recklessness element. The court found no error in the admission of this evidence or in the way it was used at trial, and rejected the argument that its admission or use produced a miscarriage of justice.
Unreasonable verdicts (Ground 2): Meagher JA undertook a comprehensive review of the whole of the evidence. His Honour found that the applicant's involvement went well beyond mere tracking or collecting the consignments. The evidence established that the applicant had opened parcel locker accounts in the names of others, was involved in preparation steps for the shipments, and was the person in Australia responsible for receiving and handling the consignments. The court held it was open to the jury to conclude beyond reasonable doubt that the applicant intended to import the substances.
On the recklessness element, the court found that the only reasonable inference available from the totality of the evidence was that the applicant was aware of at least a substantial risk that the shipments contained a concealed substance, and that the substance was ephedrine or at least a border controlled precursor. It was also open to the jury to find that taking that risk was unjustifiable in the circumstances. Both Button J and Wright J each conducted their own independent assessments of the evidence and agreed with Meagher JA that the Crown case was a powerful one on both disputed elements.
Orders Made
- Extension of time to appeal granted
- Leave to appeal granted
- Appeal against conviction dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that tendency evidence admitted only on one element of an offence (here, importation) does not automatically infect the jury's reasoning on a separate element (recklessness), provided the admission and directions are properly confined.
- In dismissing the ground of unreasonable verdict, the court applied the established principle that an appellate court must itself assess whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt on the whole of the evidence.
- A person may "import" a substance within the meaning of s 307.11(1)(a) and s 300.2 of the Criminal Code (Cth) by bringing it into Australia, with the required fault element being intention to engage in that conduct; tracking and collecting a consignment formed part of the evidentiary picture going to that element.
- Recklessness under s 5.4 of the Criminal Code (Cth) requires awareness of a substantial risk that the relevant circumstance exists, and proof of intention or knowledge will also satisfy that fault element by operation of s 5.4(4).
- No error was established merely because the Crown lacked direct evidence of the applicant's communications with overseas senders; circumstantial evidence of preparation, account operation, and tracking was sufficient to support the jury's findings.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Code (Cth), ss 5.2, 5.3, 5.4, 5.6, 300.2, 301.6(1), 307.11(1)
- Criminal Code Regulations 2019 (Cth), reg 16, item 3
- Criminal Procedure Act 1986 (NSW), s 161A
- Evidence Act 1995 (NSW), ss 97(1)(b), 101(2), Sch 2
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
Cases:
- AK v R [2022] NSWCCA 175
- Bektasovski v R [2022] NSWCCA 246
- Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- M v The Queen (1994) 181 CLR 487
- R v Baden-Clay (2016) 258 CLR 308
- R v Falzon (2018) 264 CLR 361
- Stephens v R [2022] HCA 31; (2022) 96 ALJR 871
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56
- Weiss v The Queen (2005) 224 CLR 300