Kulbir Singh Brar v The Queen - [2016] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0195

KULBIR SINGH BRAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, HANSEN and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2016
DATE OF JUDGMENT:	22 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 281
JUDGMENT APPEALED FROM:	DPP (Cth) v Brar (Unreported, County Court of Victoria, Judge Murphy, 10 September 2015 (Conviction), 18 September 2015 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Attempt to import commercial quantity of border controlled precursor – Conduct after consignment arrived in Australia and was transported to applicant’s warehouse – Whether conduct constituted ‘dealing in connection with … importation’ of substance – R v Tranter (2013) 116 SASR 452; El-Haddad v The Queen (2015) 88 NSWLR 93, discussed.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in directing jury as to fault element for importing substance – Afford v The Queen (2016) 308 FLR 1, distinguished – Application for leave to appeal granted, appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Whether judge erred in taking into account quantum of border controlled precursor – Whether sentence manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Tony Danos Lawyers
For the Respondent	Mr L K Crowley	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

REDLICH JA
HANSEN JA
McLEISH JA:

On 10 September 2015 following a 9-day trial the applicant was found guilty on one charge of attempting to import a commercial quantity of a border controlled precursor contrary to ss 11.1(1) and 307.11 of the Criminal Code (Cth). He was sentenced on 18 September 2015 to 11 years’ imprisonment with a non-parole period of 8 years.

The applicant seeks leave to appeal against conviction and sentence. For the reasons that follow, we would grant leave but dismiss the appeal against conviction, and refuse leave to appeal against sentence.

The primary question raised in the appeal against conviction is whether all of the conduct of the applicant relied upon by the Crown falls within the extended definition of ‘import’ in s 300.2 of the Code as ‘dealing’ with the substance ‘in connection with its importation’ and whether the requirements for proving an attempt bear upon whether such conduct constitutes ‘dealing’. A second issue raised is whether the majority reasoning of this Court in Afford v The Queen[1] precludes the Crown from relying upon inferential reasoning of the kind explained by the High Court in Kural v The Queen[2] in proving the fault element of intention to import under s 307.11(1)(a) of the Code.
[1](2016) 308 FLR 1 (‘Afford’).
[2](1987) 162 CLR 502, 504–5 (‘Kural’).

Circumstances of the offending

On 29 June 2013 a cargo ship arrived at the wharves in Melbourne containing two shipping containers, one containing 22 metric tonnes of basmati rice, and the other containing 18 tonnes. The consignee for the shipment was M…

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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Details

Case: [2016] VSCA 281
Decision Date: 22 November 2016

CaseChat Overview and Summary

Kulbir Singh Brar appealed against his conviction and sentence for attempting to import a commercial quantity of a border controlled precursor. The appeal was heard by the High Court of Australia. The central issue before the court was whether the applicant’s conduct after the consignment arrived in Australia and was transported to his warehouse constituted ‘dealing in connection with … importation’ of the precursor, as per the statutes in question. Additionally, the court examined whether the judge had erred in directing the jury regarding the fault element for importing the substance.

In addressing the first issue, the court considered the relevant case law, particularly R v Tranter and El-Haddad v The Queen, to determine the scope of the phrase ‘dealing in connection with … importation.’ The court concluded that the applicant’s actions were indeed part of the importation process. Regarding the second issue, the court found that the trial judge’s direction to the jury was consistent with the precedent set by Afford v The Queen, and thus, no error had been made. Consequently, the application for leave to appeal was granted, but the appeal itself was dismissed. The court also considered the sentence imposed and found that the trial judge did not err in taking into account the quantity of the precursor. The sentence was deemed not manifestly excessive, leading to the refusal of the application for leave to appeal.

The court's decision upheld the conviction and sentence of the applicant, ensuring that the principles of criminal law were applied correctly in this case.

Orders