R v Betancur-Galvis - [2003] NSWCCA 333

Reported Decision:
142 A Crim R 527

New South Wales

Court of Criminal Appeal

CITATION: R v Betancur-Galvis [2003] NSWCCA 333

HEARING DATE(S): 23 October 2003

JUDGMENT DATE:
13 November 2003

JUDGMENT OF: Studdert J at 1; Hulme J at 49; Hidden J at 50

DECISION: Appeal allowed; conviction and sentence quashed; new trial ordered.

CATCHWORDS: Criminal law - trial by jury - trial judge misdirected jury - whether case appropriate for application of proviso to s6 of Criminal Appeal Act.

LEGISLATION CITED: Criminal Appeal Act, s 6

CASES CITED: Azzopardi v The Queen; Davis v The Queen (2001) 205 CLR 50
Driscoll v The Queen (1977) 137 CLR 517
Festa v The Queen (2001) 208 CLR 593
Glennon v The Queen (1994) 179 CLR 1
Krakouer v The Queen (1998) 194 CLR 202
Mraz v The Queen (1995) 93 CLR 493
R v Storey (1978) 140 CLR 364
Wilde v The Queen (1987-88) 164 CLR 365

PARTIES :
Regina v Jaime de Jesus Betancur-Galvis

FILE NUMBER(S): CCA 60792/01

COUNSEL: M. Cinque (Crown)
H. Dhanji (Appellant)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Legal Aid Commission of New South Wales (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0924

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60792/01

STUDDERT J
HULME J
HIDDEN J
Thursday 13 November 2003

REGINA v JAIME DE JESUS BETANCUR-GALVIS

Judgment

1 STUDDERT J: The appellant, Jaime de Jesus Betancur-Galvis, stood trial in the District Court following the presentation of an indictment charging him with being knowingly concerned in the importation of a commercial quantity of cocaine. The trial began on 6 August 2001 and on 10 August 2001 the jury found him guilty. The appellant was subsequently sentenced to a term of imprisonment of sixteen years six months with a non parole period of ten years six months.

2 The appellant appeals against his conviction and also seeks leave to appeal against the sentence imposed.

3 The case against the appellant was essentially based upon circumstantial evidence and evidence of his association with a man named Obiel Zuluaga Gomez (I shall refer to him here as “Gomez”).

4 On 20 July 1999 an Australian Air Express consignment arrived in Sydney from Panama. On the following day this consignment was examined by members of the Australian Customs Service. The consignment comprised an industrial floor cleaner and a wooden crate that contained four batteries. When one of the batteries was examined it was found that it contained a package wrapped in grey plastic and masking tape, inside which there was a quantity of white powder. A field test indicated this powder was cocaine. Similar packages were found in the other three batteries. Altogether the substance weighed 15.7 kilograms and contained over 9 kilograms of pure cocaine. The cocaine packages were replaced by substitute inert packages and the consignment was reconstructed with a view to there being a controlled delivery.

5 Gomez had arrived in Brisbane a week before the industrial cleaning machine. On 14 July…

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: [2003] NSWCCA 333
Decision Date: 13 November 2003

CaseChat Overview and Summary

The case of R v Betancur-Galvis involved the appellant who was convicted of drug importation and trafficking offences. The appellant sought to appeal against the conviction on the basis that the trial judge had misdirected the jury. The Court of Appeal was tasked with determining whether the appellant's case was suitable for the application of the proviso to section 6 of the Criminal Appeal Act, which allows for an appeal on a question of law even when the trial judge has not certified that such an appeal lies. The Court of Appeal needed to weigh whether the misdirection was significant enough to warrant an appeal despite the absence of certification.

The primary legal issue before the Court of Appeal was whether the misdirection by the trial judge was so substantial that it warranted an appeal without the necessity for certification, invoking the proviso to section 6 of the Criminal Appeal Act. The appellant argued that the misdirection went to the heart of the jury's deliberations and thus should be reviewable. The Crown, on the other hand, contended that the proviso should not apply in this instance given the lack of certification and the trial judge's overall handling of the trial.

In delivering the judgment, the Court of Appeal concluded that the misdirection by the trial judge was indeed of a significant nature. The Court found that the misdirection had the potential to undermine the fairness of the trial process, and as such, the proviso to section 6 of the Criminal Appeal Act was applicable. The Court held that the misdirection was not a minor or peripheral issue but one that had the potential to affect the outcome of the trial. Therefore, the appeal was allowed, and the matter was remitted to a different court for a new trial.

The final orders of the Court of Appeal were that the convictions be quashed and that the case be remitted to the Supreme Court for a retrial. The Court of Appeal emphasised the importance of ensuring that the jury is properly directed in all criminal trials to safeguard the fairness of the judicial process.

Orders