Kemal v The The Queen - [2022] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kemal v R [2022] NSWCCA 83
Hearing dates: 1 April 2022
Date of orders: 27 April 2022
Decision date: 27 April 2022
Before: Simpson AJA at [1]
Adamson J [12]
Bellew J at [13]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Where the applicant pleaded guilty to importing a border controlled drug concealed in the lining of a suitcase – Where the Crown specifically disavowed a case based on the applicant having actual knowledge of the drugs – Crown case put on the basis of recklessness – Where the effect of the applicant’s evidence was that he had turned his mind to the possibility that he was importing drugs – Where the relevant legislation defined recklessness in terms of the existence of a substantial risk rather than a possibility – Where the sentencing judge made reference to the applicant’s evidence when assessing his criminality and his level of recklessness – Whether that approach reflected the application of an incorrect test – Necessity to read the reasons for sentence as a whole – No error established – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

Cases Cited:
Ke v R [2021] NSWCCA 117
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA

Category: Principal judgment
Parties: Konuk Kemal – Applicant
Regina – Respondent
Representation:
Counsel:
S Pararajasingham and E Beljic – Applicant
G Mahony – Respondent
Solicitors:
Jamieson Criminal Law – Applicant
Commonwealth Direction of Public Prosecutions – Respondent

File Number(s): 2018/305516
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 November 2022

Before:

Her Honour Judge Tupman

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Bellew J, in which the relevant facts and circumstances are comprehensively set out. I agree with the orders proposed by his Honour, and generally with his Honour’s reasons. Some points are worth emphasising.
By s 3.1(1) of the Criminal Code (Cth) (“the Code”) an offence against a law of the Commonwealth consists of physical elements and fault elements. By s 4.1(1) a physical element may be conduct, a result of conduct, or a circumstance in which conduct, or a result of conduct occurs. By s 5.1(1) a fault element may be intention, knowledge, recklessness or negligence.
The charge to which the applicant pleaded guilty was of an offence against s 307.1(1) of the Code. Section 307.1(1) is in the following terms:

Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1)   A person commits an offence if:
(a)   the person imports or exports a substance; and
(b)   the substance is a border controlled drug or border controlled plant; and
(c)   the quantity imported or exported is a commercial quantity.

The physical elements of that offence were the applicant’s conduct in…

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 Kemal v The The Queen

Details

AGLC: Kemal v The The Queen [2022] NSWCCA 83
Case: [2022] NSWCCA 83
Decision Date: 27 April 2022

CaseChat Overview and Summary

The case of Kemal v The Queen involves a defendant who pleaded guilty to importing a border-controlled drug, concealed in the lining of a suitcase. The Crown did not pursue a case based on the defendant having actual knowledge of the drugs. Instead, the case was presented on the basis of recklessness. The defendant's evidence suggested that he had considered the possibility that he was importing drugs. However, the legislation in question defines recklessness in terms of a substantial risk, rather than just a possibility. The sentencing judge referred to the defendant's evidence when assessing his criminality and level of recklessness. The defendant argued that this approach reflected an incorrect test. The court was tasked with determining whether the sentencing judge applied the correct legal test in assessing the defendant's recklessness.

The central legal issue before the court was whether the sentencing judge correctly applied the test for recklessness as defined in the relevant legislation. The defendant contended that the judge erred by considering the possibility that he had turned his mind to the importation of drugs, rather than focusing on whether there was a substantial risk that he was unaware of the drugs. The court had to examine whether the sentencing judge's approach amounted to an error in applying the legal test for recklessness. The outcome of this issue was crucial in determining the appropriate sentence for the defendant. The court also needed to assess whether the sentencing judge's overall reasons for sentence, when read as a whole, demonstrated an application of the correct legal principles.

In resolving the legal issue, the court noted that recklessness under the legislation required a substantial risk, not merely a possibility. The court examined the sentencing judge's reasons for sentence in their entirety and found that they reflected an application of the correct legal test. The sentencing judge had considered the defendant's evidence but ultimately focused on the substantial risk aspect of recklessness. The court concluded that the defendant's argument regarding the application of an incorrect test was not substantiated by the sentencing judge's reasons when read as a whole. Therefore, the court found no error in the sentencing judge's approach. Consequently, the appeal was dismissed, and leave to appeal was granted.

Orders