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R v Czajkowski

R v Czajkowski

Case [2002] NSWCCA 530 17 December 2002

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Reported Decision:
137 A Crim R 111

New South Wales

Court of Criminal Appeal

CITATION: R v CZAJKOWSKI; R v SHEPHERD [2002] NSWCCA 530

FILE NUMBER(S): CCA 60866/01; 60850/01

HEARING DATE(S): 17 December 2002

JUDGMENT DATE:
17 December 2002

PARTIES :

Appellants - Hans Johannes Czajkowski and James William Shepherd
Respondent - Crown

JUDGMENT OF: Sheller JA at 1; Wood CJ at CL at 38; Sully J at 39

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0661
01/11/0350

LOWER COURT JUDICIAL
OFFICER : Keleman DCJ

COUNSEL : Appellant Czajkowski - April Francis
Appellant Shepherd - S J Odgers SC
Respondent - G J Bellew

SOLICITORS: Appellants - Michael Croke & Co
Respondent - Commonwealth Director of Public Prosecutions

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Trial by jury - impartiality - bias - written communication from foreperson indicating fear of bias and prejudgment by unspecified jury members - whether jury to be discharged - whether direction overcame prejudice - whether reasonable apprehension that jury had not discharged its task impartially

LEGISLATION CITED: Customs Act 1901
Criminal Appeal Act 1912

CASES CITED:
R v Stretton; R v Story (1982) VR 251
Webb and Hay v R (1994) 181 CLR 41
Sussex Justices; ex parte McCarthy [1924] 1 KB 256
Johnson v Johnson (2000) 201 CLR 488
R v Maxwell 23 December 1998 NSWCCA 27
R v Piccin (2001) NSWCCA 35
R v van Hoang (2002) 128 A Crim R 422
Bright (2000) 114 A Crim R 466
R v Pearson (2000) 114 A Crim R 80
Williams v R (2000) 119 A Crim R 490
Crofts v R (1996) 186 CLR 427

DECISION: Appeals allowed; Convictions and sentences quashed; New trials of both appellants.

60866/01
60850/01

SHELLER JA
WOOD CJ at CL
SULLY J
Thursday, 17 December 2002

REGINA v Hans Johannes CZAJKOWSKI

REGINA v James William SHEPHERD

Judgment

1 SHELLER JA: The appellants, James William Shepherd and Hans Johannes Czajkowski, were each charged that on 18 January 2000 at Sydney they did, without reasonable excuse, attempt to obtain possession of a prohibited import to which s233B of the Customs Act 1901 applied; namely, narcotic goods consisting of a quantity of 3, 4-methylenedioxy methamphetamine ("MDMA"), commonly known as ecstasy, (being not less than the commercial quantity applicable to MDMA) reasonably suspected of having been imported into Australia in contravention of the Act. They both pleaded not guilty and were tried before Judge Keleman and a jury of twelve commencing on 7 November 2001. On 28 November 2001 the jury found each of the appellants guilty. Each appeals from his conviction.

2 Shepherd was sentenced to twenty-nine years, eight months and twenty-nine days imprisonment with a non-parole period of nineteen years, eight months and twenty-nine days commencing on 29 November 2001 and expiring on 26 August 2021. Czajkowski was sentenced to twenty-four years, nine months and twenty six-days imprisonment with a non-parole period of fifteen years, nine months and twenty-seven days commencing on 29 November 2001 and expiring…

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 R v Czajkowski

Details

AGLC: R v Czajkowski [2002] NSWCCA 530
Case: [2002] NSWCCA 530
Decision Date: 17 December 2002

CaseChat Overview and Summary

In the case of R v Czajkowski, the appellant was on trial for a criminal offence before a jury. The trial was conducted in the Supreme Court of New South Wales. The appellant challenged the conviction on the basis that the jury was not impartial and had not discharged its task impartially. The primary issue before the court was whether the trial judge should have discharged the jury after a written communication from the foreperson indicated that some unspecified members of the jury had expressed fear of bias and prejudgment. The court also needed to determine whether any direction given by the trial judge to the jury overcame any prejudice that might have arisen from the communication, and whether there was a reasonable apprehension that the jury had not discharged its task impartially.

The court held that the trial judge was required to consider whether there was a reasonable apprehension that the jury had not discharged its task impartially. In this case, the jury had been subjected to a written communication indicating that some unspecified members of the jury had expressed fear of bias and prejudgment. The court found that this was sufficient to raise a reasonable apprehension that the jury had not discharged its task impartially. The court also held that the direction given by the trial judge did not overcome any prejudice that might have arisen from the communication. The court concluded that the trial judge should have discharged the jury and ordered a new trial.

The court made orders setting aside the conviction and ordering a new trial. The court held that the trial judge should have discharged the jury when the written communication from the foreperson was brought to his attention. The court found that the direction given by the trial judge did not overcome any prejudice that might have arisen from the communication. The court concluded that there was a reasonable apprehension that the jury had not discharged its task impartially, and that the trial judge should have discharged the jury and ordered a new trial.

Orders