CLIMO -v- THE QUEEN [No 2] [2016] WASCA 233

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 233
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:223/2015	Heard:	2 DECEMBER 2016
Coram:	MAZZA JA MITCHELL JA BEECH J	Delivered:	23/12/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for leave to appeal against sentence dismissed Appeals dismissed
Category:	B
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Parties:	BENJAMIN GORDON CLIMO THE QUEEN
Catchwords:	Criminal law Appeal against conviction Importing marketable quantity of a border controlled drug Whether trial judge erred in directing the jury as to the applicable fault element of recklessness Criminal law Application for leave to appeal against sentence Manifest excess
Legislation:	Criminal Code (Cth), s 307.2
Case References:	Alford v Magee (1952) 85 CLR 437 Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 Kenworthy v The Queen [2016] WASCA 207 Lau v The Queen [2011] VSCA 324 Nell v The Queen [2014] WASCA 193 Ng v The Queen [2012] WASCA 180 R v UE [2016] QCA 58 So v The Queen [2014] WASCA 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CLIMO -v- THE QUEEN [No 2] [2016] WASCA 233 CORAM : MAZZA JA

MITCHELL JA

BEECH J

HEARD : 2 DECEMBER 2016 DELIVERED : 23 DECEMBER 2016 FILE NO/S : CACR 223 of 2015

CACR 224 of 2015

BETWEEN : BENJAMIN GORDON CLIMO

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : LEVY DCJ

File No : IND 1112 of 2014

Catchwords:

Criminal law - Appeal against conviction - Importing marketable quantity of a border controlled drug - Whether trial judge erred in directing the jury as to the applicable fault element of recklessness

Criminal law - Application for leave to appeal against sentence - Manifest excess

Legislation:

Criminal Code (Cth), s 307.2

Result:

Application for leave to appeal against sentence dismissed

Appeals dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Mr H C Quail

Solicitors:

Appellant : Go To Court Lawyers

Respondent : Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Alford v Magee (1952) 85 CLR 437
Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
Kenworthy v The Queen [2016] WASCA 207
Lau v The Queen [2011] VSCA 324
Nell v The Queen [2014] WASCA 193
Ng v The Queen [2012] WASCA 180
R v UE [2016] QCA 58
So v The Queen [2014] WASCA 169

REASONS OF THE COURT

Statutory framework

1 The appellant was convicted of importing a marketable quantity of a substance, methamphetamine, which is a border controlled drug. That is an offence against s 307.2(1) of the Criminal Code (Cth), which relevantly provides:

A person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Climo v The Queen [No 2]

Details

AGLC: Climo v The Queen [No 2] [2016] WASCA 233
Case: [2016] WASCA 233
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

In the case of Climo v The Queen, the appellant faced a conviction for importing a marketable quantity of a border controlled drug. The appellant sought leave to appeal against both the conviction and the sentence. The central legal issue was whether the trial judge had correctly directed the jury regarding the applicable fault element of recklessness for the offence. The appellant argued that the trial judge had misdirected the jury by suggesting that a reasonable person in their position would have been aware of the likely presence of the drug in the luggage. The court considered whether this direction was an error and if it had influenced the jury's decision.

The court examined the trial judge's direction in detail, focusing on whether it correctly aligned with established legal principles. It assessed whether the trial judge's explanation of the fault element was clear and accurate, and whether it provided the jury with a proper understanding of the necessary standard of care. The court found that the direction was in accordance with the law and did not constitute an error. It concluded that the trial judge's direction was not misleading and appropriately conveyed the legal requirements to the jury. Consequently, the court dismissed the appeal against the conviction.

The court also considered the application for leave to appeal against the sentence. The appellant claimed that the sentence was manifestly excessive, but the court found no basis for such a claim. It found that the sentence was within the appropriate range and did not amount to a manifest excess. Therefore, the application for leave to appeal against the sentence was also dismissed.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed and the appeals against the conviction and the sentence were dismissed. The appellant's conviction and sentence were upheld as determined by the trial court.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Appeals dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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