Constitutional Law (Cth)—Criminal law—Offence against law of Commonwealth—Importing narcotics—Maximum penalty dependent on quantity of narcotics imported and previous conviction for similar offence—Court required to determine penalty and existence of matters on which maximum penalty depends—Validity—Consistency with constitutional requirement of trial for indictable offence by jury—The Constitution (63 &64 Vict. c. 12), s. 80—Customs Act 1901 (Cth), ss. 233B(1)(cb), 235. Criminal Law (Cth)—Offence—Customs—Importation of narcotics—Maximum penalty dependent on quantity of narcotics imported and previous conviction—Whether one or more than one offence created—Indictment—Whether matters upon which high penalties depend should be alleged—Customs Act 1901 (Cth), ss. 233B(1)(cb), 235.
Decisions
GIBBS C.J., WILSON, DAWSON JJ.: The applicant was on 8 March 1984 convicted after a trial by jury in the District Court of New South Wales on a charge which was laid in the indictment in the following terms:
"For that he between the first day of December, 1982 and about the fifth day of April, 1983, at Sydney, in the said State, and elsewhere did conspire with Andrew Wellington Lowe, Robert Norman Drury, and Robert Sydney Halliwell to import into Australia prohibited imports to which s.233B of the Customs Act 1901 applied, to wit narcotic goods consisting of heroin."
He was sentenced by the learned trial judge to eleven years' imprisonment with hard labour to date from 4 April 1983 (the date on which he was taken into custody) and the learned trial judge prescribed a minimum period of seven years' imprisonment with hard labour to date from 4 April 1983. He gave notice of appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales against his conviction and sentence, but did not pursue the appeal against conviction. The Crown also appealed, on the ground that the sentence was inadequate. The Court of Criminal Appeal dismissed the applicant's appeal, but allowed the appeal of the Crown and substituted a sentence of eighteen years' imprisonment to commence from 4 April 1983, with a minimum term of twelve years commencing from the same date. The applicant now seeks special leave to appeal to this Court.
2. The charge was laid under s.233B(1)(cb) of the Customs Act 1901 (Cth), as amended, which provides as follows:
"Any person who -
...
(cb) conspires with another person or other
persons to import into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies;
...
shall be guilty of an offence."
The prohibited imports to which s.233B applies are narcotic goods: s.233B(2). Sub-section (3) of s.233B provides:
"A person who is guilty of an offence against
sub-section (1) of this section is punishable upon conviction as provided by section 235."
Sub-sections (2), (3) and (4) of s.235 provide as follows:
"(2) Subject to sub-sections (3) and (7), where -
(a)…
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.
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AGLC
Kingswell v The Queen [1985] HCA 72
Case
[1985] HCA 72
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Queensland in *Kingswell v The Queen*. The appellant, Kingswell, had been convicted of the offence of conspiracy to defraud the Commonwealth, contrary to s 86 of the *Crimes Act 1914* (Cth). The central dispute concerned the admissibility of certain evidence obtained by the Australian Federal Police.
The primary legal issue before the High Court was whether evidence obtained by police in contravention of statutory provisions, specifically s 30 of the *Crimes Act 1914* (Cth) which governs the production of seized documents, was admissible in criminal proceedings. The court was required to consider the effect of such contravention on the admissibility of the evidence, particularly in light of the common law exclusionary rule and the discretion of the trial judge to exclude improperly obtained evidence.
The High Court, by majority, held that the evidence was admissible. The majority reasoned that while the police had acted in contravention of s 30, this did not automatically render the evidence inadmissible. They applied the principle that evidence obtained in contravention of a statute is not necessarily excluded, and that the trial judge retains a discretion to admit or exclude such evidence, weighing the probative value against the unfairness to the accused or the impropriety of the conduct. The court distinguished between evidence obtained in breach of a statutory duty and evidence obtained in breach of a common law right, finding that the former did not automatically attract the exclusionary rule.
The appeal was dismissed, and the conviction was affirmed.