Appeal - Criminal law and procedure - Appeal against conviction - Importing not less than commercial quantity of cocaine - Bulge under appellant's trousers - Nothing found on search - Package subsequently found in interview room - Whether proved that appellant was in possession - Whether appellant imported the prohibited drug - DNA evidence that appellant "not excluded" as source of trace DNA - Additional expert evidence on appeal - Whether "new" or "fresh" evidence

Appeal - Criminal law and procedure - False denials that appellant carrying drugs - Direction that jury may take false denials into account as circumstantial evidence - Whether misdirection - Whether Edwards or Zoneff direction required

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr L M Levy
Respondent: Mr H G Dembo

Solicitors:

Appellant: Laurie Levy & Associates
Respondent: Commonwealth Director of Public Prosecutions

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

Beamish v The Queen [2005] WASCA 62
Broadhurst v The Queen [1964] AC 441
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Kuruma v R [1955] 1 All ER 236
Lawless v The Queen [1979] HCA 26; (1979) 142 CLR 659
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Nestorov v The Queen [2002] WASCA 356; (2002) 137 A Crim R 310
R v Christie [1914] AC 545
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zheng v The Queen (1995) 83 A Crim R 572
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

ROBERTS-SMITH JA: This is an appeal against conviction on grounds of fresh or new evidence and claimed misdirections about the evidentiary use of false denials or lies.
The appellant is an Australian citizen. He left Australia through Perth Airport on 14 August 2003. He went to Bali. He returned to Australia on 19 August 2003, arriving at Perth International Airport about 11.30 pm. Having collected his baggage from the carousel in the arrival hall, he presented to the Customs baggage examination area. He…

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 Howson v The Queen

Details

AGLC: Howson v The Queen [2007] WASCA 83
Case: [2007] WASCA 83
Decision Date: 23 APRIL 2007

CaseChat Overview and Summary

In the case of Howson v The Queen, the appellant was convicted of importing a commercial quantity of cocaine into Australia. The conviction was challenged on appeal, with issues centred around the evidence of possession and importation of the drug, the admissibility of additional expert evidence on appeal, and the directions given to the jury regarding false denials. The High Court of Australia was tasked with determining these legal issues.

The court first considered whether the evidence was sufficient to prove the appellant's possession and importation of the prohibited drug. The prosecution argued that the bulge under the appellant's trousers and the subsequent discovery of the package in the interview room provided adequate proof. The court found that the evidence, while circumstantial, was sufficient to satisfy the beyond reasonable doubt standard. Regarding the additional expert evidence, the court held that it was not new or fresh evidence but rather an elaboration on the existing evidence, and thus admissible. The court also examined the jury directions concerning false denials, concluding that the trial judge's direction was appropriate and did not misdirect the jury.

The High Court of Australia upheld the appeal, affirming the conviction. The court found that the evidence was sufficient to prove the appellant's possession and importation of the cocaine, and that the additional expert evidence did not constitute new evidence. Furthermore, the court held that the trial judge's direction to the jury regarding false denials was appropriate and did not result in a misdirection. As a result, the appeal was dismissed, and the appellant's conviction was upheld.

Orders