Calderwood v The Queen

Case [2007] NSWCCA 180

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      CALDERWOOD v R [2007]  NSWCCA 180

FILE NUMBER(S):
2005/2545

HEARING DATE(S):               12 March 2007

JUDGMENT DATE: 27 June 2007

PARTIES:
David Calderwood (Appl)
The Crown (Cth)

JUDGMENT OF:       McClellan CJ at CL Hulme J Hislop J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/11/1045

LOWER COURT JUDICIAL OFFICER:     Finnane DCJ

LOWER COURT DATE OF DECISION:    28 January 2005

COUNSEL:
D Calderwood (appeared in person on conviction)
J Stratton SC (appeared for appl on sentence)
M A Wigney (Crown Cth)

SOLICITORS:
Legal Aid Commission of New South Wales (Appl on sentence)
Commonwealth Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW
Conviction and sentence appeals
importation of MDMA
circumstantial case
 whether Crown had proved the elements of the offence irrelevant parts of record of interview blanked out
whether entire interview should have been excluded
whether the Crown and trial judge’s summing up was distorted and prejudicial
whether sentence manifestly excessive

LEGISLATION CITED:
Customs Act 1901
Crimes Act 1914 (Cth)

CASES CITED:
Harriman v R (1989) 167 CLR 590
M v R (1994) 181 CLR 487
Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Lam (1990) 46 A Crim R 402
R v Leff (1996) 86 A Crim R 212
R v McGregor (2000) 120 A Crim R 24
R v Meloh (2001) 10 NSWCCA 211
R v Muradian (2002) NSWCCA 371
R v Nai Poon (2003) 56 NSWLR 284; [2003] NSWCCA 42
R v Schofield (2003) 138 A Crim R 19
R v Sukkar (2005) NSWCCA 54
Wong v The Queen and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

DECISION:
1. Appeal against conviction dismissed
2. Leave to appeal against sentence granted but appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2545

McCLELLAN CJ at CL
HULME J
HISLOP J

WEDNESDAY 27 JUNE 2007

CALDERWOOD, David  v  R

Judgment

  1. McCLELLAN CJ at CL: The appellant was found guilty by a jury of an offence contrary to s 233B(1)(b) of the Customs Act 1901, in that, between 27 March and 30 April 2004, he imported not less than the trafficable quantity of methylenedioxymethamphetamine (MDMA). The maximum penalty prescribed for this offence is a fine not exceeding $550,000 or a term of imprisonment not exceeding 25 years or both.

  2. The quantity of drugs imported was 258.1 grams containing 99.1 grams of pure MDMA This is 180 times the trafficable quantity which is .5 grams.

  3. The appellant was sentenced to 6 years and 5 months imprisonment to date from 27 January 2005. A non-parole period of 4 years imprisonment was imposed.

    The essence of the Crown case

  4. It will be necessary in the course of these reasons to examine some of the evidence tendered by the Crown in detail. However, the essence of the Crown case was that on 8 April 2004 a 14 kilogram package from Hong Kong addressed to…

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Details
AGLC
Calderwood v The Queen [2007] NSWCCA 180
Case
[2007] NSWCCA 180
Decision Date

CaseChat Overview and Summary

In the case of Calderwood v The Queen, the appellant, Calderwood, appealed against his conviction and sentence for the importation of MDMA. The appeal was heard by the court which was required to decide various legal issues raised in the Notice of Appeal. These issues included whether the indictment should be set aside, whether the full brief of evidence should have been rejected, and whether the summing up by the Crown and the trial judge was prejudicial. Additionally, the court had to consider whether the sentence was manifestly excessive.

The court considered each ground of appeal and the Crown's response to it. The first ground of appeal related to the sufficiency of the evidence to prove the elements of the offence. The court noted that the Crown's case was circumstantial and appropriate directions were given to the jury. The trial judge correctly identified the fault element of the offence and directed the jury on the onus and burden of proof. The court found that the Crown had proved the elements of the offence.

The second ground of appeal was that the trial judge erred in not rejecting the full brief of evidence. The court found that there was no error in this regard. The third ground of appeal related to questions in the Record of Interview that related to two illegal importations of narcotics. The court found that there was no error in this regard either. The fourth ground of appeal related to the appellant not being present in court for the first day of his trial. The court found that this did not affect the fairness of the trial.

The fifth ground of appeal related to witnesses giving evidence prior to rulings on the admissibility of the evidence. The court found that this did not affect the fairness of the trial. The sixth, seventh, and eighth grounds of appeal related to the Crown and trial judge's summing up being distorted and prejudicial. The court found that there was no error in this regard.

Finally, the court considered whether the sentence was manifestly excessive. The court found that the sentence was not manifestly excessive.

The court dismissed the appeal and affirmed the conviction and sentence of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant filed a Notice of Appeal which contains 8 grounds. He also seeks leave to appeal against his sentence. He was only legally represented in relation to the sentence matter. The Notice of Appeal is lengthy, and parts of it are difficult to comprehend. On occasions the argument which the appellant seeks to advance is not made clear. I have endeavoured to comprehend each ground of appeal, and the Crown response to it. The appellant appeared for himself at the hearing and provided the court with detailed written submissions, including supplementary submissions filed after the hearing.Ground 1 – The indictment should be set aside as the Crown could not prove the elements of the offence (1) the elements of the offence (2) the question of the material time (3) insufficient evidence.Ground 2 – His Honour erred to not rejecting the full brief of evidenceGround 3 – Questions were asked in the Record of Interview that related to two illegal importations of narcotics.Ground 4 – The applicant was not present in court for the first day of his trialGround 5 – Witnesses gave evidence prior to rulings on the admissibility of the evidence.Ground 6 – The Crown summing up was “distorted and dangerously prejudicial.”Ground 7 – The trial judge’s summing up was “distorted and dangerously prejudicial.”Ground 8 – Trial judge’s answers to the jury question was based on “distorted misinformation and was dangerously prejudicial.”Ground 1: This ground has not been expressed with clarity. However, the Crown submitted that it should be understood as raising three matters:1. The elements of the offence;2.The question of the “material time” at which the appellant had the relevant intention; and3. There was insufficient evidence to prove the offence. The Crown case at the trial was circumstantial. This was recognised by the trial judge and appropriate directions were given to the jury. The judge identified that the real issue which the jury had to resolve was whether the Crown had proved the “fault” element of the offence, namely that the appellant knew or was aware that there was a real or significant likelihood that he was importing narcotics. The trial judge directed the jury that if they came to the conclusion that there was a reasonable possibility that the appellant did not know that the box contained narcotics they must find him not guilty. The jury were given clear directions on a number of occasions as to the onus and burden of proof. With respect to the “material time” the appellant complained in particular about the directions which the trial judge gave in relation to the definition of “importing.” As I understand the appellant’s submissions it was that there must be evidence, at the time the relevant items were actually imported, that the appellant was participating in that importation. A question was asked by the jury about this matter following which further directions were given. That direction was in the following terms:“Importing is a process of importing, it does not just stop the minute something lands in Australia because the person who is doing the importing is seeking to get his hands on it after the goods have landed in Australia, he would be seeking to go to the customs agent and pick it up. The evidence in this case is that the previous arrangements were, when parcels landed, the accused was told that he would then go to Mr Ngai’s premises and pick them up. So he would be involved in importing right to the time he actually got his hands onto those goods. In this case he never physically got his hands on any goods. Customs people kept them at all times. Now the process of the telephone calls shows you that from 8, 9, 10 April, 11 April, he is still making enquires and that process continued through. He in fact spoke to the Chinese man Phil on 11 April about the parcel not being there and he is still trying to get his hands on the parcel.Now on 13 April, Trissette has a discussion with him about the customs hold on the parcel and tells him that they are x-raying the parcel. It can mean that they are x-raying it so that they can open it up and look at everything. Then there is another discussion on 13 April between Trissette and the accused to say it still was not clear but she thought they will pick it up that day. Then there is a discussion on 13th between Phil and David, who is the accused, about this parcel. There are further discussions on the 13th. On the 14th there is another discussion between Trissette, this is April, and the accused, about what’s in the parcel and she raises for the first time any drugs or anything like that. He says, ‘No, no, no, just no.’ She asks, ‘You are not bringing in porn and what’s in there?’ and he says ‘CD’s and magazines’. Now if by this time he is trying, indeed during any period that he is still trying to get his hands on the parcel, he knows in the sense that I have explained to you, that there is a reasonable likelihood, he either know directly or there is a reasonable likelihood that these goods had drugs in them. Well the importing is not finished. If he acquires knowledge, if he gets knowledge and he still keeps trying to get his hands on the goods, then he is importing the goods.If however, he doesn’t have knowledge, he has suspicion, he is not even thinking clearly about it, or you are not sure if he has got knowledge, he may have merely suspicion but knowledge is something that comes to him over a period of time and perhaps becomes clear to him in May when the premises, his own house, is raided – by that stage it is too late.If his knowledge comes to him, say at the point the day that his house is raided, he realises that he has got a search warrant in his hand that is searching for drugs – well it must be drugs. By that stage his knowledge has passed the point at which they could be any importing. The importing is something that was still continuing from 8 April probably for some days afterwards. Now it is a matter for you to determine, not for me to determine, when that ceased. You should look again at those tapes and transcripts. You might think it ceased on 14th or 19th or the 20th or it continued right through. I should not tell you what I think. All I can say to you is that at some point it definitely stopped and I am expressing I suppose a view on facts which I say that by the time they went to his house, any question of importing has ceased.If he formed an opinion then, or it suddenly hit him that he’d been a bit of a fool and obviously drugs were involved and that is when it hit him, well he could not be guilty, but if he got that knowledge in the sense that I have directed you, in those written directions and he had that knowledge on the 8th, 9th, 10th dates around then of April and knowing there were drugs there, he kept trying to get them, then he is importing. I do not think I can make it any clearer than that you have to determine first of all, when you think his attempts to import that box stopped. If he acquired the knowledge before that point, and he kept trying to get the box nevertheless, then he is guilty. If he only got the knowledge, he had suspicion before that date, most and after that he got knowledge, then he is not guilty.”

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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