Legal Research
Cases
Nelson (a pseudonym) v DPP (Cth)

Nelson (a pseudonym) v DPP (Cth)

Case [2014] VSCA 217 11 September 2014

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2014 0131

SEAN NELSON (A PSEUDONYM)[1]	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2014
DATE OF JUDGMENT:	11 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 217
JUDGMENT APPEALED FROM:	DPP v [Nelson] (Unreported, County Court of Victoria, Judge Wilmoth, 24 June 2014)

---

CRIMINAL LAW – Offences – Attempt – Interlocutory appeal – Application for permanent stay – Attempt to import a border controlled drug – Applicant ingested and imported pellets containing antihistamine – Antihistamine not a border controlled drug – Crown case that applicant believed he was importing a border controlled drug – No evidence as to which drug applicant believed it was – Proof of offence of attempt – Criminal intent – More than preparatory conduct – Whether open to jury to convict of attempting to import – Whether necessary for prosecution to identify particular drug – Stay application refused – Britten v Alpogut [1987] VR 929 applied – Criminal Code Act 1995 (Cth) ss 11.1, 307.3.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gibson	Victoria Legal Aid
For the Director	Mr O P Holdenson QC with Mr D P Holding	Commonwealth Director of Public Prosecutions

MAXWELL P
REDLICH JA
PRIEST JA:

Summary

On 18 September 2012, the applicant arrived in Melbourne on a flight from Hong Kong with 271 wax-coated pellets containing diphenhydramine, an antihistamine, secreted within his alimentary canal. He now faces a single charge on an indictment filed in the County Court of attempting to import a border controlled drug.[2]
[2]Criminal Code Act 1995 (Cth) s 11.1(1) and s 307.3 (the ‘Code’).

Diphenhydramine is not a border controlled drug. The applicant did not, accordingly, commit the substantive importation offence. The charge alleges that he attempted to do so.

In the law of attempt, where the conduct is more than preparatory, the emphasis lies on the criminal intent of the actor.[3] The Crown case is that the applicant intended to import a border controlled drug. That is said to be the only inference reasonably open given his conduct of ingesting the pellets and bringing them into Australia.
[3]Britten v Alpogut [1987] VR 929, 932 (‘Britten’).

The applicant contends that the charge is ‘foredoomed to fail’ because the Crown cannot identify a particular border controlled drug as the subject of his attempted importation. On that basis, he has sought a permanent stay.

The judge at first instance refused the stay application. Leave is now sought to appeal from that decision. For reasons which follow, we would grant leave to appeal but dismiss the appeal.

Permanent stay

A permanent stay of a charge on an indictment may be granted if the charge is foredoomed to fail…

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 Nelson (a pseudonym) v DPP (Cth)

Details

AGLC: Nelson (a pseudonym) v DPP (Cth) [2014] VSCA 217
Case: [2014] VSCA 217
Decision Date: 11 September 2014

CaseChat Overview and Summary

In the case of Nelson (a pseudonym) v DPP (Cth), the applicant, who had attempted to import a border controlled drug, sought a permanent stay of proceedings on the basis that the prosecution had failed to prove an essential element of the offence. The applicant had ingested and imported pellets containing an antihistamine, which was not a border controlled drug. The prosecution argued that the applicant believed he was importing a border controlled drug, although there was no evidence to suggest which drug he believed it to be. The applicant contended that for a conviction of the offence of attempt, there must be more than preparatory conduct and the prosecution must prove the requisite criminal intent. The High Court was required to determine whether it was open to a jury to convict the applicant of attempting to import a drug when there was no evidence of which specific drug the applicant believed he was importing.

The court considered whether it was necessary for the prosecution to identify the particular drug that the applicant believed he was importing. The court noted that in Britten v Alpogut, the High Court held that it was sufficient for the prosecution to prove that the accused believed they were importing a border controlled drug, without the need to specify which drug. The court held that the prosecution only needed to prove that the applicant believed he was importing a border controlled drug, and that it was not necessary to prove which specific drug. The court found that the prosecution had proved all the elements of the offence of attempt, and that it was open to the jury to convict the applicant of attempting to import a border controlled drug.

The court refused the application for a permanent stay of proceedings, holding that it was open to the jury to convict the applicant of the offence of attempt. The court found that the prosecution had proved all the elements of the offence, including the requisite criminal intent, and that it was not necessary for the prosecution to identify the particular drug that the applicant believed he was importing. The court held that the failure to identify the specific drug did not render the prosecution case incapable of proving the offence of attempt. The court emphasised that the prosecution only needed to prove that the applicant believed he was importing a border controlled drug, without the need to specify which drug. The High Court's decision in Britten v Alpogut was applied, and the court found that the prosecution had discharged its burden of proving the offence of attempt.

The court did not make any orders, as the application for a permanent stay of proceedings was refused. The case was remitted to the trial court for further proceedings. The applicant's conviction was upheld, and he was sentenced to a term of imprisonment.

Orders