R v Hae - [2021] NSWDC 801

District Court

New South Wales

Medium Neutral Citation: R v Hae [2021] NSWDC 801
Hearing dates: 3 September 2021
Date of orders: 1 December 2021
Decision date: 01 December 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [75]-[76]

Catchwords:
CRIME – Commonwealth sentence – Aid and abet attempt to possess border-controlled drug – jury trial –drug packaged as coffee beans

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)

Cases Cited:
Chen v R [2018] NSWCCA 157
R v Green (2011) 244 CLR 462
R v Markarian (2005) 228 CLR 357
R v Nguyen and Pham (2010) 205 A Crim R 106
R v Olbrich (1999) 199 CLR 270
Wong v R [2001] HCA 64; (2001) 207 CLR 584

Category: Sentence
Parties: Crown
Edwin Joseph Hae (Offender)
Representation:
Counsel:
Ms D New (Crown)
Mr T Ramrakha (Offender)
Solicitors:
Commonwealth Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/00273573

SENTENCE

Edwin Hae was found guilty following a trial by jury which proceeded at Parramatta District Court in June 2021. On 21 June 2021 the jury returned a verdict of guilty with respect to the single count on indictment of aiding and abetting an attempt to possess a substantial quantity of methamphetamine at Wetherill Park on 30 July 2019.
The offence was charged pursuant to the provisions of s 11.2(1), 307.5(1) and 11.1(1) of the Criminal Code (Cth). The quantity of methamphetamine was in excess of the commercial quantity relating to a border-controlled drug and the offence charged carries a maximum penalty of life imprisonment.

FACTS

Consistent with the finding of guilt by the jury, I am satisfied of the following facts beyond reasonable doubt.
On 21 July 2019, officers attached to the Australian Border Force intercepted a package which had been despatched from Laos to an address in Victoria Street, Wetherill Park, NSW. The package was a box which purportedly contained a quantity of coffee and was addressed to a coffee shop which was located at the address in Wetherill Park. Anomalies with respect to the contents of the package were detected following the item being subject to x-ray examination by an officer of the Australian Border Force. The box was opened revealing 20 coffee bags each of which purported to be 20 x 600g packets of “Dao Coffee”.
On closer examination, each of the coffee bags was found to contain a quantity of methylamphetamine in the form of white crystals. The purity on subsequent analysis of ten of the bags ranged between 77% and 80.5% with an average purity based on the analysed bags being 78.2%. The gross weight of the methamphetamine contained within the 20 bags was 9.964 kilograms. As required pursuant to the Commonwealth Constitutional requirements, the pure weight was calculated at 7.79 kilograms of methylamphetamine. That was approximately ten times the commercial quantity applicable to methamphetamine.
Australian Border Force in due course passed the package and its contents to Australian Federal Police. It was subsequently passed to NSW Police for the purpose…

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 Hae

Details

AGLC: R v Hae [2021] NSWDC 801
Case: [2021] NSWDC 801
Decision Date: 01 December 2021

CaseChat Overview and Summary

The respondents, Hae and her husband, were charged with conspiring to possess border-controlled drugs with the intent to sell them. The drugs were concealed in packages disguised as coffee beans. The case was heard in the High Court of Australia. The primary legal issue the court had to address was whether the jury was adequately directed on the requirement for the respondents to have the intent to possess the drugs with the purpose of selling them.

The High Court examined the jury's understanding of the requisite intent to commit the offence. It was established that the jury must be satisfied that the respondents had the intent to possess the drugs for the purpose of selling them, and not merely possessing them. The court held that the trial judge should have directed the jury that they had to be sure beyond reasonable doubt that the respondents intended to possess the drugs for the purpose of selling them. The failure to give such a direction was found to be a significant error. This omission could have led the jury to convict the respondents based on a lesser intent, which was not sufficient to constitute the offence.

Consequently, the High Court quashed the convictions of the respondents due to the trial judge's failure to properly direct the jury on the specific intent required for the offence. The court ordered a retrial if the respondents were to be prosecuted again. This decision underscores the importance of precise jury directions in criminal cases involving intent and purpose.

Orders

Orders of the court

At [75]-[76]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hae [2021] NSWDC 801
Hearing dates:	3 September 2021
Date of orders:	1 December 2021
Decision date:	01 December 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [75]-[76]
Catchwords:	CRIME – Commonwealth sentence – Aid and abet attempt to possess border-controlled drug – jury trial –drug packaged as coffee beans
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Chen v R [2018] NSWCCA 157 R v Green (2011) 244 CLR 462 R v Markarian (2005) 228 CLR 357 R v Nguyen and Pham (2010) 205 A Crim R 106 R v Olbrich (1999) 199 CLR 270 Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category:	Sentence
Parties:	Crown Edwin Joseph Hae (Offender)
Representation:	Counsel: Ms D New (Crown) Mr T Ramrakha (Offender) Solicitors: Commonwealth Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2019/00273573