R v Garcia

Case [2016] QCA 174

SUPREME COURT OF QUEENSLAND

CITATION:

R v Garcia [2016] QCA 174

PARTIES:

R
v
GARCIA, Jose Lozano
(appellant)

FILE NO/S:

CA No 2 of 2016
SC No 73 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 25 November 2015

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2016

JUDGES:

Margaret McMurdo P and Philippides JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal should be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of importing a marketable quantity of a border controlled drug – where the appellant disembarked an international flight in Cairns and anomalies were detected in his luggage – where the border controlled drug was cocaine, sewn into the lining of the appellant’s travel bags – where the appellant gave evidence that he did not know he was carrying cocaine and believed he was instead carrying money – where the jury sent a note asking for clarification in relation to the term ‘substance’ – where in giving a redirection the trial judge stated that ‘money is a substance’ – whether the redirection to the jury as to the meaning of the term ‘substance’ under s 307.2(1) of the Criminal Code (Cth) occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of importing a marketable quantity of a border controlled drug – where the appellant disembarked an international flight in Cairns and anomalies were detected in his luggage – where the border controlled drug was cocaine, sewn into the lining of the appellant’s travel bags – where the appellant gave evidence that he did not know he was carrying cocaine and believed he was instead carrying money – where at the trial the trial judge declined the appellant’s application that the jury be directed in accordance with s 9.1 of the Criminal Code (Cth) – where the jury found beyond reasonable doubt that the appellant was reckless – whether not directing the jury as to mistake or ignorance of fact as the terms used in s 9.1 of the Criminal Code (Cth) occasioned a miscarriage of justice

Criminal Code 1995 (Cth), s 5.4, s 9.1, s 307.2

Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56, considered
Australian Securities Commission v Marlborough Gold Mines Ltd (1992) 177 CLR 485; [1993] HCA 15, applied
Bahar v The Queen (2011) 45 WAR 100; [2011] WASCA 249, considered
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, followed
Hann v Director of Public Prosecutions (Cth) (2004) 88 SASR 99; [2004] SASC 86,…

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Details
AGLC
R v Garcia [2016] QCA 174
Case
[2016] QCA 174
Decision Date

CaseChat Overview and Summary

In R v Garcia, the appellant was convicted of importing a marketable quantity of a border controlled drug, namely cocaine, into Australia. The drug was found concealed within the lining of his travel bags upon his arrival in Cairns. The appellant claimed that he was unaware that his luggage contained cocaine, believing instead that it contained money. The jury ultimately found the appellant guilty, and he now appeals against his conviction, arguing that the trial judge failed to properly direct the jury on the meaning of "substance" under the Criminal Code and did not instruct them on the defence of mistake of fact as provided for in section 9.1 of the Criminal Code.

The central issues before the court were whether the trial judge's redirection to the jury regarding the term "substance" under section 307.2(1) of the Criminal Code amounted to a miscarriage of justice and whether the failure to direct the jury on the defence of mistake of fact under section 9.1 of the Criminal Code constituted a miscarriage of justice. The appellant contended that the term "substance" should have been narrowly construed to exclude money and that the jury should have been directed on the defence of mistake of fact to allow them to consider whether the appellant's belief that he was carrying money could negate recklessness.

The court found that the redirection provided to the jury by the trial judge did not occasion a miscarriage of justice. The judge's statement that "money is a substance" was not erroneous as it was consistent with the ordinary meaning of the term "substance" and did not unfairly prejudice the appellant. Furthermore, the court held that the trial judge was not obliged to direct the jury on the defence of mistake of fact under section 9.1 of the Criminal Code as the evidence did not support the appellant's claim that he honestly and genuinely believed he was carrying money. The court concluded that the appellant's evidence lacked credibility and that the jury was properly left to determine the issue of recklessness based on the evidence presented.

The appeal was dismissed, and the conviction was upheld. The court found no miscarriage of justice in the trial proceedings and upheld the appellant's conviction for importing a marketable quantity of a border controlled drug.

Orders

Orders of the court

The appeal should be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant appeals against that conviction on the grounds[6] that the learned trial judge failed to direct the jury under s 9.1 of the Code and further that the learned trial judge misdirected the jury as to the meaning of the term “substance” under s 307.2(1) of the Code.[6]Amended Notice of Appeal filed 11 May 2016; leave granted 31 May 2016.The evidence and the issues at trial On 6 April 2015 the appellant, a resident of Spain, flew from Madrid to Miami in the United States.[7] Some dates later on 10 April 2015 he boarded a United Airlines flight from Miami to Cairns flying via Houston, Honolulu and Guam before arriving late in the evening on 11 April 2015. He was booked to return to Miami departing Cairns on 26 April 2015.[7]Admissions Ex 3 AB 177. When he disembarked he had three pieces of carry-on luggage, a trolley bag, a black satchel bag and a black backpack and was then approached by a border protection officer who asked the appellant some questions. Following that the appellant’s carry-on luggage was searched, anomalies were detected in the lining of the satchel bag and a piece of paper with Spanish writing was located in the bag which appeared to provide some instructions.[8] The appellant produced his passport which had been issued on 27 March 2015 and a United Airlines itinerary was found within his carry-on luggage which also appeared to contain instructions.[8]This was confirmed when the paper was later interpreted, Ms Cox AB 30; exhibit 8. Upon further examination the trolley bag was found to contain three packages of cocaine wrapped in foam and sewn into the lining of the bag with a total weight of 1,178.4 g being 67 per cent pure cocaine. The black satchel bag contained three packages of cocaine wrapped in foam and sewn into the lining of the bag with a total powder weight of 314.6 g being 80.5 per cent pure cocaine. The backpack contained six packages of cocaine wrapped in foam and sewn into the lining of the bag with a total weight of 841.9 g being 80.4 per cent pure cocaine. At trial the prosecution case was largely unchallenged, the issue at trial being whether the appellant knew that cocaine was in his carry-on luggage or was reckless as to that circumstance. He gave evidence in his defence and said that he did not know there was cocaine in his luggage.[9] He believed that what he was carrying was money.[10] He said that he had been approached by someone he knew in Granada, Spain named Jaime whom he had known for four years, but had met “only two or three times”.[11] Jaimie offered him money to courier money from Miami to Australia[12] and that he accepted the offer because he was “in a little bit of a low”.[13] He said that he trusted Jamie and that he was told that it would be easy money and that he would only be transferring money. He gave evidence that he was to be paid $9,000 to take the money to Australia and a further €9,000 when he returned to Madrid.[14] He booked and paid for his own flights.[9]AB 62, 69, 72, 88.[10]AB 69, 77.[11]AB 66 1 31.[12]AB 61, 66, 75.[13]AB 66.[14]AB 67, 83.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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