Evans v The Queen
[2003] WASCA 194
•26 AUGUST 2003
EVANS -v- THE QUEEN [2003] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 194 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:144/2002 | 17 JULY 2003 | |
| Coram: | MURRAY ACJ ANDERSON J STEYTLER J | 26/08/03 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID JAMES EVANS THE QUEEN |
Catchwords: | Criminal law and procedure Importation of narcotic goods Direction as to knowledge involved in importation Comments upon evidence Sentencing Importation of substantial quantity of ecstasy Sentence of imprisonment for 14 years with a non-parole period of 7-1/2 years Whether sufficient allowance for cooperation with police Effect of sentence upon applicant's family |
Legislation: | Nil |
Case References: | Davis v The Queen (1990) 5 WAR 269 He Kaw Teh v The Queen (1985) 157 CLR 523 Kural v The Queen (1987) 162 CLR 502 R v Atholwood (2000) 110 A Crim R 417 R v Olbrich (1999) 199 CLR 270 RPS v The Queen (2000) 199 CLR 620 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Grimwood v The Queen [2002] WASCA 135 Heryadi v The Queen (1998) 19 WAR 383 Malvaso v The Queen (1989) 168 CLR 227 Nguyen v The Queen (2001) 160 FLR 284 R v Barany 114 A Crim R 426 R v Bellissimo (1996) 84 A Crim R 465 R v Braham (1994) 73 A Crim R 353 R v Darwell (1997) 94 A Crim R 35 R v El Karhani (1990) 51 A Crim R 123 R v Suarez-Mejia (2002) 131 A Crim R 564 Saad v The Queen (1987) 70 ALR 667 Smith v R, unreported; CCA SCt of WA; Library No 940285; 2 May 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EVANS -v- THE QUEEN [2003] WASCA 194 CORAM : MURRAY ACJ
- ANDERSON J
STEYTLER J
- CCA 154 of 2002
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Importation of narcotic goods - Direction as to knowledge involved in importation - Comments upon evidence
Sentencing - Importation of substantial quantity of ecstasy - Sentence of imprisonment for 14 years with a non-parole period of 7-1/2 years - Whether sufficient allowance for cooperation with police - Effect of sentence upon applicant's family
Legislation:
Nil
(Page 2)
Result:
Applications for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr B Hanbury
Respondent : Mr D W L Renton
Solicitors:
Applicant : Beau Hanbury
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Davis v The Queen (1990) 5 WAR 269
He Kaw Teh v The Queen (1985) 157 CLR 523
Kural v The Queen (1987) 162 CLR 502
R v Atholwood (2000) 110 A Crim R 417
R v Olbrich (1999) 199 CLR 270
RPS v The Queen (2000) 199 CLR 620
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Grimwood v The Queen [2002] WASCA 135
Heryadi v The Queen (1998) 19 WAR 383
Malvaso v The Queen (1989) 168 CLR 227
Nguyen v The Queen (2001) 160 FLR 284
R v Barany 114 A Crim R 426
R v Bellissimo (1996) 84 A Crim R 465
R v Braham (1994) 73 A Crim R 353
R v Darwell (1997) 94 A Crim R 35
(Page 3)
R v El Karhani (1990) 51 A Crim R 123
R v Suarez-Mejia (2002) 131 A Crim R 564
Saad v The Queen (1987) 70 ALR 667
Smith v R, unreported; CCA SCt of WA; Library No 940285; 2 May 1994
(Page 4)
1 MURRAY ACJ: The applicant was charged that on 29 November 2000 at Perth he imported into Australia narcotic goods, the drug known as ecstasy, contrary to the Customs Act1901 (Cth), s 233B(1)(b). The quantity of drug involved was over 3000 grams with a pure weight of 686.3 grams. The commercial quantity prescribed by the Customs Act, s 4 and Schedule IV is 500 grams. Under those circumstances, by s 235(2)(c)(i) of the Act, the applicant was liable upon conviction to a fine of $750,000 or imprisonment for life, or both. The applicant was convicted after trial. On 6 August 2002, the applicant was sentenced to 14 years imprisonment, commencing on 29 November 2000, the date upon which the applicant was found to have committed the offence and upon which he was taken into custody. A non-parole period of 7½ years was fixed. The applicant now seeks leave to appeal against his conviction and sentence.
The evidence at trial summarised
2 The evidence was that the applicant arrived in Perth by air from the United Kingdom via Singapore. At the International Airport he was required to pass through Customs. He was processed initially by a Customs officer, a Ms Curtis. She examined his passport and incoming passenger card which the applicant confirmed that he understood. He told her that the purpose of his visit was for a holiday and that he was here to do a trainee helicopter pilots course. Ms Curtis thought the applicant was nervous and evasive. He seemed unable to provide details of the course or details of matters concerning his stay in Australia. He said he had nothing to declare.
3 He collected his luggage, which he took to the baggage examination area. Another Customs officer, a Mr McCormick, examined the baggage, observed by an officer named Waugh. Their evidence was that the applicant appeared to be sweating unduly, that his hands were shaking. When questioned by McCormick as to his incoming passenger card and the purpose of his stay in Australia, again he appeared to be evasive. He answered the standard questions about whether he had packed his luggage and whether he was aware of the contents in the affirmative. In his luggage the Customs officer located a camera case which contained several bags of confectionary. The bags appeared, without opening them, to contain something other than their stated contents. The Customs officer x-rayed the bags. The x-ray showed that they contained tablets.
4 The officer asked the applicant what they were and he said that he did not know. The bags were opened. It was confirmed that they
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- contained tablets which were later found to be ecstasy of the weight and purity to which I have referred. Mr McCormick found that the applicant was carrying a piece of paper which read:
"Evolution Fitness Club, Canning Highway, Victoria Park at 10 am, locker room, marine haircut, Mick, ginger hair".
6 A number of officers arrived and, upon the applicant saying that he was prepared to co-operate with the police, a brief taped interview was held. The applicant said he had been sent the camera bag containing the confectionary from someone in Thailand. He said that his instructions were to go to the gymnasium identified on the sheet of paper on the following day and, as the paper indicated, to give the camera case and its contents to a man identified only as Mick, with ginger hair and a marine haircut, which I take to be a reference to having his hair cut short. The applicant would not tell police the name of the person who had sent him the camera case and its contents from Thailand. He said so far as he was aware it contained confectionary and videos. There were in fact three videos located separately in the applicant's luggage, one of which had Asian subtitles and another recorded UK television programs of apparently recent origin.
7 The applicant was in possession of a further piece of paper on which were notes of his aircraft flight itinerary and the name, address and telephone number of the hotel known as the Great Eastern Motor Lodge. The applicant said that was where he had been told to stay and where he had been told he would be contacted. The applicant agreed to assist the police with what may be described as a controlled delivery. The police arranged for the packets to be emptied and repacked so that they appeared as they were originally. The applicant was taken to the hotel.
8 He did in fact receive a telephone call there from a person who identified himself as Mark and asked if everything was "okay". However, no other contact was made and attempts over the next 2 days to have the applicant deliver the substituted packages to the intended recipient at the Evolution Fitness Centre did not bear fruit. I have mentioned the weight of the ecstasy. There were over 10,000 tablets and an AFP officer gave evidence that the bags of sweets appeared to have originated in the United Kingdom. They had been heat sealed after they were packed with the ecstasy tablets.
(Page 6)
Appeal against conviction – grounds of application
9 The application for leave to appeal against conviction was argued on three grounds, expressed as follows:
"The learned trial Judge made an error of law in directing the jury as follows:
1.1 In his directions that it was for the prosecution to prove that the applicant knew that what he imported was likely to be narcotic goods (see at page 122, 123, 132 of the transcript).
1.2 In his directions to the jury as to how they might find against the applicant as follows:
1.2.1 At page 126 of the transcript, "you might think this…You might think there's helicopter training courses…in the UK, much closer to where he lived"
1.2.2 At page 127, "Then you consider his conduct"…"they might be edgy and nervous…"…"so just being hesitant and nervous"…"Then you look at his behaviour at the Customs table"
1.2.3 At page 129, "Then you look at the paper in his possession…and give consideration to that…"…"Then you look at the luggage"
1.2.4 At page 134,"…but again you have to weigh that up. Some people, you might think, who are caught red-handed might then be prepared to assist Police to try and lessen the penalty that they were going to get. That often happens. I can tell you that. People are caught red-handed and sometimes they assist then because they know if they co-operate they might be dealt with more leniently…"…"He was only in transit through Singapore as I understand it, so his luggage would have been in the hold of the aircraft and transferred to the hold of another aircraft…and in
(Page 7)
- any event I think these days you have to go through…directly to Perth."
- 1.2.5 At page 135, "I suppose he could have…if they get caught they know all about it in those countries."
- 1.3 In his redirections to the jury in directing them that defence Counsel put emphasis on issues whereas the learned Judge ought to have directed the jury without direction that it was the defence Counsel putting emphasis on matters."
The question of knowledge
10 The first ground of appeal refers to the direction of law given by the trial Judge in the following terms:
"The important question is knowledge. It's not necessary that the Crown should prove that the accused knew precisely what kind of narcotic substance was being imported, but it is necessary that the Crown prove that the accused had knowledge that what was being imported was or was likely to be narcotics; that is, they don't have to prove he knew exactly that it was ecstasy, but they have to prove that he knew that what was being imported was or was likely to be narcotic goods and he must be shown to have had that knowledge at the time of the importation, not later when the packages were opened, but at the time of the importation, the time he brought the goods in, in the luggage in the hold.
Actual knowledge, like any other fact, can be proved by inference. It's a state of mind. You can't produce it but you can infer what a person's knowledge was at a particular time. You can look at all the circumstances surrounding the importation, the conduct of the accused person at the airport and, in considering whether you are satisfied beyond reasonable doubt he knew that the goods were or were likely to be narcotics, what he said when spoken to about the matter."
11 As I have mentioned, the indictment charged the applicant with importing a prohibited import in the form of narcotic goods, being ecstasy. It is clear from the terms of the statute itself, as well as from the
(Page 8)
- general law, that the offence so defined is one which involves a mental element. The importation of narcotic goods must be an intentional act, an act which is performed by the accused, knowing what is being done and that the nature of the act is the importation of narcotic goods. It is sufficient for present purposes to refer to the law as generally stated by the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523. In short, one cannot be guilty of the importation of narcotic goods unless there is knowledge that what one is doing constitutes an importation of narcotic goods; unless one intends that that is what should happen. It is clear that the relevant time when the requisite knowledge must be established is the time of the importation.
12 Specifically in relation to the offence of importation the law was stated in those terms by the High Court in Kural v The Queen (1987) 162 CLR 502, in the judgment of the majority at 504-505.
"Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge,
(Page 9)
- that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases."
13 The direction of the trial Judge was, in my view, substantially in those terms, correct as a matter of law and sufficient to guide the jury as to the fact-finding process in respect of this element of the offence. I note that the law so stated accords with that applicable in relation to proof of the fact of possession under the Misuse of Drugs Act 1981 (WA): Davis v The Queen (1990) 5 WAR 269, as applied in R v Atholwood (2000) 110 A Crim R 417.
Comments on the facts
14 Ground 1.2 gives various examples of comments on factual matters made by the trial Judge in respect of which the complaint appears to be that his Honour's observations went beyond legitimate comment and were calculated to interfere with the process of fact-finding which was the special task of the jury. The first example given is typical of those that
(Page 10)
- follow. After discussing the evidence of Ms Curtis, the Customs officer, his Honour said:
"As to these matters you might think this: if the accused was coming to do a helicopter pilot's training course it might be surprising he put "other" as the reason for his visit, but it's up to you. Have a look at the incoming passenger's card. It didn't say tick a box for helicopter course, obviously. It might, too, seem a long way to come from England to Australia for 1 week to do a helicopter pilot's training course. You might think there's helicopter training pilot's courses available in the UK, much closer to where he lived.
You might think it's unusual that the accused was unable to say where the course was and who the friend was who had arranged it for him. Likewise, you might think it's odd that he didn't know who was picking him up at the airport. How was he going to recognise the person who was collecting him, but on the other hand there may be innocent explanations for these matters. Sometimes people do do unusual things. It's possible someone had arranged for a helicopter course for him without him knowing the details until he got here."
"…it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."
16 In my view, in none of the comments identified in this ground did his Honour transgress the limits of proper comment, although, as will be
(Page 11)
- seen, his Honour later corrected or added to his observations about the applicant's passage through Singapore. On occasions he commented in forthright terms, but it has to be said that when his Honour did so the adverse comment was well merited by the weakness of the account upon which reliance was placed, as can be seen from the example given above. His Honour did also remind the jury of that other version and left open to the jury its acceptance.
17 Ground 1.3 is a related ground. As I understand it, the ground relates to a redirection given by the trial Judge correcting comments that he made originally during his charge to the jury on what may have been the significance of the applicant taking a flight through Singapore. The defence were putting the proposition that it would be unlikely that the applicant would knowingly convey drugs through that airport. The trial Judge made the comment that the applicant was merely a transit passenger whose luggage would remain in the hold of the aircraft. Counsel pointed out that there was some evidence to suggest that the bag in which the drugs were packed was a "carry-on" bag, implying that it would have been in the applicant's possession during the flight and during the stopover in Singapore. That was the matter upon which defence counsel "put emphasis", as the trial Judge said to the jury.
18 By redirection at the request of defence counsel the trial Judge corrected his comment. His Honour told the jury that the evidence was deficient to make it clear precisely what happened in Singapore and so consideration of that matter would not assist the jury. I can see no error of law in the terms asserted by the ground. There was certainly no obligation, in making the correction, to express counsel's proposition as if it was the view of the trial Judge. In my opinion, leave to appeal against conviction should be refused.
The appeal against sentence – the ground of application
19 The application for leave to appeal against sentence proceeded on the following ground:
"The learned sentencing judge imposed a manifestly excessive sentence upon the applicant and thereby erred having regard to the following matters:
1.1 The learned sentencing Judge did not give sufficient consideration to the applicant's co-operation with the police inter alia in the attempt to locate other offenders;
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- 1.2 The learned sentencing Judge did not give any or any sufficient consideration to the applicant's personal circumstances in not considering the effect of a significant term of imprisonment upon the applicant's family."
The applicant's co-operation
20 It was contended that the applicant's punishment was mitigated by his efforts to co-operate with the police to locate those who were to receive the drugs. In respect of this matter, in his sentencing remarks the trial Judge said:
"On your behalf it is contended you co-operated with the authorities and it is true that you did co-operate to the extent of going to the Evolution Fitness Club for the purpose of delivering what was then a controlled substance. However, no success was met with by your efforts. I can only assume that those at this end knew that you were coming and got wind of the fact that you had been apprehended.
I find your measure of co-operation to have been slight. You said that the person who had given you the goods was a John from Thailand which on any view of it was an inadequate description. You must have known more about that than you let on. Agent Scantlebury has confirmed that no information of any value was given by you. The value and benefit of co-operation and the participation in going to the fitness club as you did is a factor of relevance in the sentencing process."
21 The Judge's view was clearly expressed. There was a degree of co-operation which his Honour thought to be a factor of relevance in the sentencing process, but overall his Honour described the measure of co-operation offered as "slight". This was undoubtedly right. No full and frank disclosure had been made of the source of the drug, whether it was acquired by the applicant from Thailand or whether, as the packaging suggested, it came with him from the UK, nor was there any identification of those with whom the applicant had been dealing in WA who were to receive the drug. If there had been full disclosure of the circumstances in which the applicant's instructions had been received the information may have been of some utility. As it was, the applicant really told the police nothing of value and so the limit of his co-operation was his participation in the attempts to achieve a controlled delivery.
(Page 13)
22 In R v Barany (2000) 114 A Crim R 426, Parker J, with whom Kennedy ACJ and Wallwork J agreed, discussed the authorities in relation to this question before holding, at 432 [23] that:
"…regard may properly be had for sentencing purposes, inter alia, to the value and benefit to the investigating authorities of information and assistance provided by an accused in cases such as this, but that is only one of a number of relevant considerations. Even where the information and assistance in fact proves to be of no assistance, the provision of that assistance, at least if fully and frankly provided, and also the degree of risk arising to the accused because of the assistance provided, will also be relevant considerations."
23 Measured against such considerations, in my opinion it cannot be said that the sentencing Judge gave insufficient consideration to the applicant's co-operation with the authorities.
Hardship to the applicant's family
24 It is abundantly clear that in a proper case the question of hardship for an offender's family may in mercy have a mitigatory impact upon the sentencing of an offender. That is so under the general law, and, relative to this case, the Crimes Act 1914 (Cth), s 16A(2)(p) provides that the sentencing court must take into account, "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants."
25 In this case, the matter principally advanced was the applicant's relationship to his 8-year-old daughter. The applicant was separated from his wife. His daughter lived with her mother, but there was an access agreement which meant that the applicant cared for his daughter on weekends. The sentencing Judge was conscious of the self-inflicted harm caused to the applicant by his conviction. As his Honour put it, "The fact that you have a daughter whom you are not going to see for a long time is a factor that has to be taken into account." There is nothing to suggest that his Honour overlooked any matter of relevance in this regard. No weight was added to the submission by the applicant's reference to his incapacity to maintain contact with his elderly parents.
26 The short point is, of course, that tragic as the outcome has been from the applicant's point of view, the trial Judge correctly appreciated that this was a very substantial quantity of a very deleterious drug which
(Page 14)
- was imported into WA for the obvious purpose of distribution here. The seriousness of the offence overwhelmed his Honour's capacity to mitigate punishment by having regard to the applicant's personal circumstances. His Honour recognised this to be the case. The primary consideration was punishment and deterrence, both particular and general. His Honour understood that to be so. The applicant might be described as a courier, but it was he who effected the importation: cfR v Olbrich (1999) 199 CLR 270.
27 In all the circumstances, this was a moderate sentence, well within the appropriate range of sentencing discretion. This Court may not interfere with it. In my opinion, leave to appeal against the sentence should be refused.
28 ANDERSON J: I agree with the judgment of Murray ACJ and there is nothing I wish to add.
29 STEYTLER J: I have had the advantage of reading the reasons for judgment of Murray ACJ. I agree with them and there is nothing I wish to add.
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