R v Nolan
[2012] NSWCCA 126
•18 June 2012
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Nolan [2012] NSWCCA 126 Hearing dates: 29 February 2012 Decision date: 18 June 2012 Before: McClellan CJ at CL at [1]
Rothman J at [39]
Davies J at [114]Decision: Appeal dismissed
Catchwords: CRIMINAL LAW - appeal - appeal against acquittal - definition of importation - point at which the process of importation has ended - appeal dismissed. Legislation Cited: Acts Interpretation Act 1901
Customs Act 1901
Criminal Code (Cth)
Crimes (Appeal and Review) Act 2001
Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005Cases Cited: Alramadan v DPP [2007] NSWCCA 322
Britten v Albogut (1987) 23 A Crim R 254
Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Doney v R [1990] HCA 51; (1990) 171 CLR 207
Fabre v Arenales (1992) 27 NSWLR 437
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429
Giorgianni v R (1985) 156 CLR 473 at 480
Jones v Dunkel (1959) 101 CLR 298
K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Krishna v DPP [2007] NSWCCA 318
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163
Osland v R [1998] HCA 75, (1998) 197 CLR 316
Project Blue Sky v ABA [1998] HCA 28, (1998) 194 CLR 355
R v Betts & Ridley (1930) 22 Cr App Rep 148
R v Bull (1974) 131 CLR 203
R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Dorrey & Gage [1970] 3 NSWLR 351
R v JMR (1991) 57 A Crim R 39
R v Lam (1990) 46 A Crim R 402
R v Leff (1996) 132 FLR 102; (1996) 86 A Crim R 212
R v Mai (1992) 26 NSWLR 371
R v Onuorah [2009] NSWCCA 238; (2009) 76 NSWLR 1
R v PL [2009] NSWCCA 256
R v R (1989) 18 NSWLR 74
R v Sukkar [2005] NSWCCA 54
R v Toe (2010) 106 SASR 203; (2010]) 199 A Crim R 347
Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Wilson v Chambers (1926) 38 CLR 131Category: Principal judgment Parties: Cth Crown (Appellant)
Shane Lawrence Nolan (Respondent)Representation: Counsel:
S McNaughton SC (Cth Crown/appellant)
K H Averre (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown/appellant)
Brenda Duchen (Respondent)
File Number(s): 2010/112326 Decision under appeal
- Date of Decision:
- 2011-08-29 00:00:00
- Before:
- Charteris DCJ
- File Number(s):
- 2010/112326
Judgment
McCLELLAN CJ at CL: Shane Nolan, the respondent, was charged with an offence which was pleaded as follows:
"On about 5 May 2010 at Sydney, in the State of New South Wales, did without requisite approval being obtained, intentionally import goods, being tier 1 goods comprising pseudoephedrine, being reckless as to the fact that the goods were tier 1 goods, and being goods the importation of which is prohibited under the Customs Act 1901 (Cth), in that he did aid, abet, counsel or procure the commission of that offence by Brent Luke Simpson."
The relevant offence is found in s 233BAA of the Customs Act 1901. Mr Nolan pleaded not guilty. At the conclusion of the Crown case the trial judge directed the jury to acquit the respondent. The Director of Public Prosecutions of the Commonwealth challenges that decision.
The appeal to this Court is made pursuant to s 107 of the Crimes (Appeal and Review) Act 2001. That section allows the Director of Public Prosecutions to appeal to this Court against any acquittal at the direction of the trial judge. Sub-section 2 confines the appeal to "any ground that involves a question of law alone."
The grounds of appeal were pleaded in the following terms:
1.In determining that the importation had ended upon the full substitution of the pseudoephedrine, his Honour did not properly apply the definition of importation in Calderwood v The Queen (2007) 172 A Crim R 208;
2.In determining the point at which the importation of pseudoephedrine ended, his Honour did not properly distinguish between offences relating to importation under the Criminal Code (Cth) and offences under the Customs Act 1901.
The facts were not in dispute. The Crown case was that the respondent, along with Greta Peters, assisted or encouraged the principal offender, Brent Simpson. Simpson had arranged for some marble items, which included three stools, to be sent from Thailand to Australia. The importation was by a ship travelling from Bangkok to Singapore, Brisbane and eventually Sydney. The shipment had arrived in Australia on 24 April 2010 and was intercepted in Sydney by the Australian Customs Service. The three stools were found to contain, after drilling a hole into the interior of each, a quantity of pure pseudoephedrine being slightly below 2 kgs of the drug. The police made a complete substitution of self-raising flour for the drug and the consignment was then allowed to clear customs.
Simpson used a shipping agent. Through that agent he arranged for the parcel containing the 3 stools to be collected and delivered to Ms Peters' home in Elderslie, a suburb of Western Sydney. Various communications were intercepted from 3 May 2010, shortly before the consignment was due for delivery. These communications included SMS messages and telephone calls. They indicated that Simpson had arranged for the respondent to conduct what the prosecution described as "counter surveillance" near Ms Peters' property on 4 May 2010, when the delivery of the stools was expected. The respondent attended the premises on the morning of 4 May 20102. The parcel was delivered that morning. Arrangements were made by Simpson to fly to Sydney from Queensland the following day. He arranged with the respondent to be picked up from Sydney airport in a car which the respondent drove.
Before his arrival in Sydney, Simpson sent an SMS message to the respondent in the following terms:
"In air now. Box opened. All sweet. Get yr mates ready." (sic)
The respondent collected Simpson from the airport and drove him to Ms Peters' house. The three stools were loaded into the boot of the car, apparently by Simpson and not by the respondent. The vehicle remained at the property for a matter of 2 minutes and then drove away. The respondent was driving and Simpson was in the passenger seat. The vehicle was stopped almost immediately and the respondent and Simpson were arrested.
As recorded by the trial judge, the prosecution case was that Simpson intentionally imported pseudoephedrine and arranged for it to be taken to Ms Peters' house. He was not aware that before arriving at her house the drug had been substituted with flour. The prosecution asserted that the respondent assisted and encouraged the endeavours of Simpson to take delivery of the consignment at Ms Peters' house. The prosecution submitted that he did this by agreeing to conduct counter-surveillance on the morning of 4 May, and on 5 May collected Simpson from the airport and drove him to the Elderslie property where the stools were collected.
The trial judge recorded the Crown's acceptance that there was no evidence capable of establishing that the respondent did anything which would constitute aiding, abetting, counselling or procuring any conduct by Simpson in relation to the consignment prior to the afternoon of 3 May 2010. His Honour said:
"In other words it is common ground that the accused did not play any role as in aiding and abetting until after the drugs had been seized by the authorities, replaced with flour, never to be released thereafter."
The trial judge also said that:
"it is common ground that there is evidence capable of establishing that the accused, on the Crown case, from the afternoon of 3 May 2010 at the earliest, but mainly upon 4 and 5 May, aided, abetted counselled or procured the continuation of Simpson's efforts to obtain possession of the stools which Simpson believed to contain the illicit drugs." (emphasis in original)
The trial judge recorded the Crown's concession that this was not a case where evidence of an accused's later actions supported an inference that he had had some earlier involvement in arranging for the goods to be imported. As his Honour put the matter: "the Crown case is simply that the accused became involved from the afternoon of 3 May and that the venture or process of importing by Simpson, on the Crown's case, was still on foot and remained so until his arrest."
Section 233BAA(4) is in the following terms:
"A person is guilty of an offence against this subsection if:
(a)the person intentionally imported goods; and
(b)the goods were tier 1 goods and the person was reckless as to that fact; and
(c)their importation:
(i)was prohibited under this Act absolutely; or
(ii)was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained."
Complicity and common purpose are set out in s 11.2 of the Commonwealth Criminal Code. Section 11.2 provides:
"(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)For the person to be guilty:
(a)the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
(3)For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed."
Before the trial judge there was a discussion about the reach of the word "imported" in s 233BAA(4)(a). That discussion required the Court to consider two decisions of this Court. The first decision was Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208, a decision in relation to the Customs Act, and the later decision of R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272, which was concerned with provisions of the Commonwealth Criminal Code relating to the illegal importation of goods. The trial judge accepted that the applicable law in the present case was to be found in Calderwood but ultimately that was not the issue upon which his decision turned. I shall return to that discussion later.
His Honour's decision ultimately turned on the fact that by the time the respondent was involved in the criminal enterprise the drug had been substituted with flour. His Honour was persuaded that, accordingly, having regard to the fact that the applicant only became involved in the enterprise when the furniture had arrived at Ms Peters' premises, he could not be convicted of aiding and abetting a completed offence. His Honour accepted that if he could be convicted of any offence it could only be an attempt to commit the relevant offence. His Honour said:
"In my view the jury cannot, at law, convict the accused of the charge upon which he has been arraigned. It is an undisputed fact on the evidence that police took possession of the drugs referred to in the charge on the morning of 3 May 2010 'at the latest.' The accused's involvement in allegedly aiding, abetting or counselling or procuring the commission 'of that offence by Brent Luke Simpson' did not commence until the afternoon of 3 May 'at the earliest.' It is my view that the accused could not have, at that time, aided and abetted the co-offender Brent Luke Simpson in the offence of 'intentionally import goods, being tier one goods comprising pseudoephedrine', as it was an impossibility.
I have already recorded that I accept the law as concerns meaning of the word 'import' or its derivatives is as decided by the Court of Criminal Appeal to which I have referred but, in my view, the accused cannot be convicted of the charge as worded against him. It is arguable - if the jury were to accept all of the evidence led and which I observe does not appear to be disputed at all - that the accused would be liable to be charged with attempting an offence, including attempting to obtain possession of the goods." (emphasis in original)
For these reasons his Honour directed the jury to return a verdict of not guilty.
In Calderwood this Court considered s 233B(1)(b) of the Customs Act 1901. That section makes it an offence to "import" into Australia any relevant "prohibited imports." The Crown case was that the appellant (and another) were involved in the importation of the relevant drugs. The act that constituted the offence was said to be to "import" (the verb) and the enterprise was said to be the "importation" (the noun) of the relevant drugs.
The issue that this Court was required to consider in Calderwood was whether the trial judge was correct in directing the jury that "importing is a process of importing. It does not just stop the minute something lands in Australia because the person who is doing the importing is seeking to get his hands on it after the goods have landed in Australia ..."
I concluded (and this conclusion was agreed in by Hulme and Hislop JJ) that the direction was correctly given. In so doing I relied upon the decisions of this Court in R v Lam (1990) 46 A Crim R; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1996) 86 A Crim R 212 and R v Sukkar [2005] NSWCCA 54.
Campbell was concerned with an offence against s 307.11 of the Criminal Code. That section makes it an offence for a person to import certain substances. Spigelman CJ, with the agreement of Weinberg AJA and Simpson J, held that in the context of a criminal code dealing with a wide range of drug offences, the word "imports" in s 307.11 of the Code had been given a precise rather than an expansive meaning. His Honour determined that the word "import" is distinct from the word "importation" used in the legislative predecessor to the Code being the relevant provisions of the Customs Act. Spigelman CJ examined the cases that I relied upon in Calderwood but concluded that the flexibility in the concept of importing previously identified by the Court derived primarily from the words found in the aiding and abetting provision in s 233B(1)(d) of the Customs Act. That section, which related to narcotic goods provided:
"Special provision with respect to narcotic goods:
(1)Any person who:
...
(d)aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies ...
...
shall be guilty of an offence."
The Chief Justice found further support for confining the meaning of "imports" in s 307.11 from the decisions of the High Court in Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429 and R v Bull (1974) 131 CLR 203. In Forbes Barwick CJ distinguished between the word "import" and the word "importation" in s 229(j) of the Customs Act, which was concerned with the forfeiture of goods used in "the unlawful importation ... of any goods." Although his Honour was not concerned with defining the reach of the word "import", his Honour distinguished it from the word "importation" which (at 432) his Honour said "extends on both sides of the actual act of importing goods into the country. The importation does not cease at the moment of an import."
The correctness of Campbell was not argued before this Court. If the issue was to arise it may be necessary to consider whether Barwick CJ should be understood to have confined the reach of the offence of "importing" contrary to the Act, giving it a lesser reach than the enterprise being the "importation" in which the central act is that of importing. However, Campbell will not arise for reconsideration because the legislature has since that decision amended the Act to overcome the difficulty to which the decision gave rise.
The decisions in Calderwood and Campbell were considered by the Full Court of South Australia in R v Toe (2010) 106 SASR 203; (2010]) 199 A Crim R 347 at [42]. The majority were critical of the decision in Calderwood, saying that they preferred the analysis in Campbell. Toe was another case concerned with the construction of the Criminal Code and not the Customs Act. In Campbell Spigelman CJ was careful to identify this difference, saying at:
"The reasoning in Calderwood uses the terminology of 'importing' as equivalent to 'importation', as explained in this line of authority: see, for example, at 212 [12]. The case was, however, concerned with s 233B(1)(b) of the Customs Act (Cth) and not s 307.11 of the Code.
The word 'importing' is not used in s 307.11."
When construing a statute it is always necessary to look at the context in which a particular word or expression appears: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Section 233B(1)(d) provided, until it was repealed, the "aiding and abetting" offence in respect of the importation of prohibited imports that were narcotic drugs. The primary offence was provided by s 233B(1)(b), which made it an offence to "import" any "prohibited import." Section 233B(1)(d) was confined to prohibited imports which are narcotic drugs. However, it is plain to my mind that the importation (the noun) referred to in s 233B(1)(d) was the broad activity which involved the act of importing contemplated in s 233B(1)(b). The distinction identified by Barwick CJ in Forbes is not available in relation to the relevant provisions of s 233B(1)(b) and s 233B(1)(d).
The issue which required resolution in Calderwood was the relevance of evidence of later activity to support the prosecution case that Calderwood was guilty of a breach of s 233B(1)(b). Section 233B of the Customs Act has since been repealed. The relevant accessorial liability provisions are now contained in the Code, and the offence provision is found in s 233BAA(4) of the Customs Act. However, in the scheme of the legislation as it previously was it would make no sense to provide an "aiding and abetting" offence which covered a broader range of conduct than the primary offence. In the context of s 233B(1) the distinction between importing (the verb) and the importation (the noun) is to my mind entirely illusory. I did not deal with the issue in Calderwood. It was not raised, for the obvious reason that neither party believed it to be an issue.
In the present case the respondent was charged with an offence contrary to s 233BAA(4) of the Customs Act. That section provides that it is an offence to have "intentionally imported goods", provided that their "importation" was relevantly prohibited under the Act. To my mind the meaning of the word "imported" in the section is plain. The section does not contemplate that there can be separate behaviour being an "importation" which is an offence beyond the prohibited "importing" of goods. The noun "importation" in sub-section (c) refers to the event to which the verb "imported" refers. For this reason the authorities which I followed in Calderwood and the approach that I took in that case is in my view applicable to the proper construction of s 233BAA(4).
The accessorial liability provision in s 11.2 of the Code now refers to "a person who aids, abets, counsels or procures the commission of an offence", whereas s 233B(1)(d) of the Customs Act referred to any person who "aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies."
I do not agree with the suggestion by Bleby J in Toe (at 218) that importation in the context of s 233B(1) of the Customs Act referred to a broad process of importation only because of the phrase "knowingly concerned in the importation" in s 233B(1)(d), as well as the surrounding words in that section. As Gleeson CJ pointed out in Leff at 214:
"[t]he concepts of importation, and of being concerned in an importation, are both sufficiently flexible [to capture conduct beyond the specific act of importing]."
The replacement of s 233B(1)(d) of the Customs Act with s 11.2 of the Code (which, being a generic provision, does not refer to importation at all) does not have the effect that importing for the purposes of s 233BAA(4) now refers narrowly to the act of importing. There is no indication that Parliament intended to make such a fundamental change to the offence. Rather, Parliament's intention was merely to bring the Customs Act into harmony with the accessorial liability provisions in the Code. In any event, a change to an accessorial liability provision cannot enlarge or reduce the scope of the offence to which it applies.
To the contrary, the offence provision itself refers to a person who "intentionally imported" goods as well as to the "importation" of the goods in sub-section (c). The use of the verb "import" and the noun "importation" within the same offence provision suggests that there is no material difference between the word "imported" and the broader process of importation discussed in Calderwood.
The more significant issue in the present case is whether the respondent could be convicted of aiding and abetting an offence contrary to s 233BAA(4)(a), when, by the time he became involved in the activity said to be the importation, the drugs had been confiscated and substituted with flour.
There are previous decisions in circumstances where an offender has intended to import a prohibited substance but unbeknown to him the substance which was imported was not prohibited. In Britten v Albogut (1987) 23 A Crim R 254, where the offender sought to import cannabis but in fact, when the suitcase used for the purpose was examined, the substance was found to be procaine (which was not prohibited), the Full Court of the Supreme Court of Victoria held that the offender could only be guilty of an attempt to commit the offence, the offender believing that the substance he was importing was the prohibited drug.
In this State the issue was considered in R v Mai (1992) 26 NSWLR 371. This Court applied the approach of the Victorian Full Court, concluding that in circumstances where it was physically impossible for an accused to commit a particular crime, an attempt to commit that crime has nevertheless been established if the conclusion is available:
1.That the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime), and
2.That, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.
Mai was followed by this Court in R v Onuorah [2009] NSWCCA 238; (2009) 76 NSWLR 1.
To my mind the conclusion of the trial judge in the present case was correct. Although the acts of Simpson, including his retrieval of the furniture items, were acts in furtherance of the primary offence, by the time the respondent became involved it was impossible for the respondent to do any act which could "aid, abet, counsel or procure" the commission of that offence. Although I would conclude that the respondent intended by his actions to assist Simpson to take possession of the drugs, this was made impossible by their substitution with flour (Simpson, of course, was implicated in the primary offence because of his role as the importer before the drugs were substituted with flour). It may be, as the trial judge identified, that the respondent could have been successfully charged with an attempt to commit an offence, probably the offence of attempting to possess. But his actions could not constitute the offence of aiding and abetting the importation of the drugs.
In my judgment, the appeal should be dismissed.
ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of McClellan CJ at CL and the orders that are proposed. I agree with the orders he proposes, but for different reasons.
As stated the facts were not in dispute and it is unnecessary to reiterate them or much of the analysis. For the following reasons, it is relevant that Mr Simpson took delivery of items, which he understood contained pseudoephedrine and which, when their journey began, did contain the banned import. Authorities intercepted the banned substance, and substituted flour for it.
The charge against Mr Nolan, as explained by the Chief Judge at Common Law, was an offence under the Criminal Code (Cth), being aiding and abetting an offence. If a person aided and abetted the commission of an offence (hereinafter "the principal offence"), the person is taken to have committed the principal offence.
In this case the principal offence is a breach of s 233BAA of the Customs Act 1901 (Cth). The relevant provisions of both the Criminal Code and the Customs Act are set out in the reasons for judgment of McClellan CJ at CL.
Principles applicable to aiding and abetting
A person, who aids and abets the commission of an offence, at common law and under the Criminal Code is guilty of the offence of aiding and abetting. Often the person aiding and abetting is referred to as a "principal in the second degree", as distinct from the "principal in the first degree", being the person, or persons, who has actually committed the principal offence, including persons who have committed the offence as part of a joint criminal enterprise: see generally Osland v R [1998] HCA 75, (1998) 197 CLR 316; Giorgianni v R (1985) 156 CLR 473 at 480, 493.
In order to aid and abet the offence, a person must be present at the commission of the principal offence, i.e. within sight and sound of the commission of the offence: R v Betts & Ridley (1930) 22 Cr App Rep 148. Presence can also be constructive, meaning when a person stands by and is ready and able to render assistance if and when requested: R v Dorrey & Gage [1970] 3 NSWLR 351 at 353. Presence, either actual or constructive, is an essential, but not sufficient condition for the existence of aiding and abetting. In other words, mere presence, without more, will not give rise to the offence of aiding and abetting.
In order for a person, to be guilty of the offence of aiding and abetting, the person must have encouraged or assisted with the commission of the principal offence: Osland, supra. In that sense the liability of a person who has aided and abetted, is derivative. The conviction of an accused for aiding and abetting requires, in the proceedings on that charge, proof, beyond reasonable doubt, of the commission of the principal offence.
Where, as here, the encouragement and assistance is alleged to have been given by way of assistance to a particular person, then it is necessary that the guilt of that person be proved in order for aiding and abetting to be proved: Osland, supra. This does not mean that the conviction of the principal offender is a necessary condition for the conviction of the offender in the second degree, but the guilt of the principal offender must be proved in the aiding and abetting trial, in order for the guilt of the offender in the second degree to be established.
A person who assists or encourages the commission of an offence, but is not either actually or constructively present at its commission, may be guilty of another offence, for example, accessory before the fact. Other than its existence for theoretical purposes and an understanding of the charges against Mr Nolan, the principles applicable to accessory before the fact offences are irrelevant for present purposes.
Similarly, an offence arising from being an accessory after the fact may occur when an accessory assists the principal in the first degree to avoid detection, apprehension or conviction after the offence has been committed. Both accessory before the fact and accessory after the fact, like aiding and abetting, are derivative offences, i.e. they depend on the commission of the principal offence. Mr Nolan was not charged with accessory charges (either before or after the fact).
The circumstances of this offence
As already stated by McClellan CJ at CL, the pseudoephedrine landed in Brisbane and travelled to Sydney, at which point customs officers intercepted it.
After interception, the shipping agent delivered it to Western Sydney, where Mr Simpson was to take delivery. Mr Nolan assisted Mr Simpson in this task by collecting him from the airport, taking him to the Western Sydney address and conducting "counter surveillance" to protect the item until it was collected by Mr Simpson.
Whether there is a case against Mr Nolan for aiding and abetting Mr Simpson, depends upon whether Mr Simpson was still engaged in the principal offence at the time that the assistance was rendered. It also depends on Mr Nolan's state of knowledge of the principal offence.
Was Mr Simpson still involved in the principal offence?
The terms of s 233BAA(4) of the Customs Act is recited at [13] in the reasons for judgment of McClellan CJ at CL. There is no doubt, on the evidence in this case, that Mr Simpson "intentionally imported goods" of the relevant kind, namely pseudoephedrine (hereinafter "the substance").
The trial judge took the view that Mr Nolan could not have been guilty of aiding and abetting, because the substance had been intercepted, was no longer being handled by the principal offender (Mr Simpson), or on his behalf, and therefore the principal offence was complete at the time of interception and replacement.
As McClellan CJ at CL makes clear, the correctness of that finding depends upon the point in time that Mr Simpson was no longer committing the principal offence. There is no doubt that, because the substance did land in Australia and Mr Simpson had imported it, Mr Simpson had committed an offence pursuant to s 233BAA(4).
Further, Mr Simpson would have committed that offence even if he had been arrested in Brisbane and had never taken delivery of the substance in Sydney.
The issue is whether after the interception of the substance, and its substitution for flour, Mr Simpson was still involved in committing the offence. A person who does no more than meet a courier at an airport and take delivery of a substance (after being involved in arranging for the courier to bring the substance) has committed an act, which, together with other acts, imported the goods into Australia.
Where, as here, a shipping agent is used, the conduct giving rise to the offence is continuing until the importer takes delivery of the substance. Mr Simpson was to have taken delivery of the substance in Western Sydney with the assistance of Mr Nolan.
The provisions describing the offence with which Mr Nolan was charged are different from those examined in either Campbell v R (2008) 73 NSWLR 272 or Calderwood v R [2007] NSWCCA 180; (2007) 172 A Crim R 208. First, as in Calderwood, but not Campbell, the Customs Act established the principal offence. Secondly, s 233B of the Customs Act uses both "imported" and "importation", albeit in a slightly different context. Thirdly, the terms of the principal offence, even under the Customs Act are different to the provisions that were relevant in Campbell and Calderwood.
Some fundamental issues should be reiterated. A statute should be read as a whole and the terms of the statute construed in context to achieve harmonious goals consistent with the purpose of the legislation: Project Blue Sky v ABA [1998] HCA 28, (1998) 194 CLR 355; K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309.
In R v Bull (1974) 131 CLR 203, Barwick CJ discussed the application of the Customs Act to the situation where, when the accused perceived they were being discovered, the accused, who had arrived inside Australian territorial waters but had not landed in port, dumped the prohibited goods (cannabis) at sea. The Chief Justice stated:
"The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia? However, in general, importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated" (at 212).
It is noteworthy that in Bull, Barwick CJ noted that landing the prohibited goods was, in accordance with the natural meaning of "importation" or "imports", a necessary aspect. His Honour did not suggest that "landing" the goods was the point at which the importation of the goods ceased. His Honour had recourse to the then statutory scheme embodied in the Customs Act.
With great respect to Spigelman CJ in Campbell (at [67]) (with whom Weinberg AJA and Simpson J agreed), Barwick CJ was not deciding when the act of "importation" commences; he was determining a circumstance that was necessary before conduct could amount to "importation". The importation, if it were to occur, would have "commenced" well before landing the goods.
In Campbell, this Court construed the provisions of the Criminal Code and specifically distinguished (at [100]) the judgment of this Court in Calderwood on the basis that in Calderwood, the Court was construing the Customs Act at a time when the context of the words was different.
Likewise, the context of the provision imposing the principal offence relevant to these proceedings is the Customs Act. That context has changed slightly since the analysis of the High Court in R v Bull, which alterations should be noted, at least where most relevant.
Imported goods are, subject to certain exceptions, governed by provisions which allow the owner of goods to declare whether the goods are either for warehousing or for home consumption before landing, and, if the owner were not to do so, these provisions require the owner to do so after landing. The provisions extend the concern of an official operating under the Customs Act to activities of the owner until and immediately after delivery to the owner.
In Calderwood, the Court construed, as has been stated, the provisions of the Customs Act, in particular, s 233B(1)(b) thereof (hereinafter "the Calderwood Provision").
The Calderwood Provision imposed liability, inter alia, on "a person who imports" narcotics. The provision was amended later in 2004 and ultimately repealed and replaced by a separate regime for narcotics introduced by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005.
As can be seen from the recital of the provisions applicable to the principal offence in the current matter, liability arises "if [a] person intentionally imported goods", and "their importation was prohibited... absolutely; or... [without] approval... [being] obtained... at the time of the importation". The other aspects and conditions on the application of s 233BAA(4) of the Customs Act are currently irrelevant.
Interpreting s 233BAA(4)
Subject to a particular context, words are generally interpreted consistently in a statute. In Williamson Pty Ltd v Barrowcliff [1915] VLR 450, Hodges J said:
"I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section."
As is clear from the above citation the principle of consistency in meaning has even more force where similar words are used in the same provision.
Generally and subject to context, where a word has a particular meaning, other grammatical forms of that word have a corresponding meaning: s 18A of the Acts Interpretation Act 1901 (Cth). In Campbell, the Court distinguished the word "imports", where used as a verb, from the term "importation"; the latter, it was said, being a process. In s 233BAA(4), the past tense of the verb, namely the word "imported' is used in the same provision as the word "importation".
The task undertaken by the Court is directed to ascertaining the "natural" meaning of the expression where used in the provision.
In R v Lam (1990) 46 A Crim R 402, Gleeson CJ (with whom Kirby P and Newman J agreed) dealt with a charge of being knowingly concerned in the importation of a quantity of heroin. The Chief Justice cited the judgment of Barwick CJ and Windeyer J in Forbes v Traders Finance Corporation Ltd (1971) 126 CLR 429 to the effect that "importation extends on both sides of the actual act of importing... the importation does not cease at the moment of an import". Gleeson CJ said, "The term 'importation' is one that must involve at least some measure of flexibility".
In R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, the Court (Kirby P, Sharpe J and Lusher AJ) dealt with a submission that "importation" ceased when the goods were landed. The Court said:
"There are two answers to this argument: one legal and the other factual. The legal answer is that it simply is not sustained either by the language and purpose of the Act or by authority which has collected around its meaning. The relevant provisions of the Customs Act were enacted to give effect to the Single Convention on Narcotic Drugs, 1961. Its clear purpose is to strike at the illicit traffic in narcotic drugs and their penetration of the Australian society. Because Australia is an island, that penetration will normally occur through importation of such drugs. Therefore, a section addressed simply to the act of landing would not only fail to exhaust in a proper and understandable way the relevant Federal head of power. It would also fail to achieve the plain objective of preventing importation by attacking those within Australia who become concerned in the arranging the act of importation and in moving the goods, once imported, into the community where they do their mischief.
Legal authority, both of the High Court of Australia and of this Court supports that construction of the word "importation". In Forbes v Traders Finance Limited (1970) 126 CLR 429 at 432, Barwick CJ said: "'[I]mportation' extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case." That question of degree has been clarified by a succession of cases in which meaning has been given to the term. Thus in The Queen v Bull and Ors (1974) 131 CLR 203, it was held that goods on a ship still at sea, but within the three miles of the coast of the Northern Territory, had not been "imported" into Australia within the meaning of the Act until they had been landed and brought within the limits of the port with the intention of landing them. A conviction for importing prohibited goods was therefore held to be bad. The present appellant latched onto that judgment to assert that importation meant landing. But that is not the holding of Bull. That decision was addressed to a fact situation very different from that presently before the Court. There, the goods had not actually entered the country. In the instant case, the goods had undoubtedly done so. Accordingly, the holding in Bull was not determinative of the question before this Court.
Neither Commonwealth power nor the language of the Customs Act will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorized as knowing concern in their "importation". Likewise, innocent transport of goods after their arrival, although amounting to concern in their importation in one sense, will not have the character of criminality to which the section is addressed. None of this is relevant to the facts of the present case. Nor is the narrow and technical construction of "importation" urged by the appellant compatible with a series of holdings of this and other courts about the scope and duration of the "importation" with which knowing concern must be shown. For example in R v Shin Nan Yong (1975) 7 ALR 271, this Court made it plain that it was not necessary, to secure a conviction under s233B(1)(d) that the "concern" should be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if the "concern" is manifested in the venture which centred upon the importation."
In R v Sukkar [2005] NSWCCA 54, the Court again considered the extent of "importation" as part of a charge of being "knowingly concerned". This charge, by use of the term "knowingly concerned", broadens the conduct with which the offence is concerned: see Campbell, per Weinberg AJA.
The Court in Sukkar (Wood CJ at CL with whom Hidden J and, relevantly, Smart AJ agreed) said:
"[118] Of some importance in relation to the asserted absence of any evidence of the Appellant's knowing involvement in the importation, was the defence submission that the columns had been unloaded, and all of the tablets removed before the Appellant arrived at the premises on the morning of 2 December. That was associated with his submission that the time of removal of the tablets, either on 24 November or on 2 December, marked the end of the process of importation.
[119] Absent any evidence showing positively that the Appellant had a financial interest in the importation, and absent any direct evidence of activity connected with the venture on his part before 24 November, I would accept the Appellant's submission that the jury ought to have had a reasonable doubt of his knowing concern in the importation prior to that date. While the evidence would give rise to a strong suspicion of his earlier involvement, that would not suffice to support a conviction on that basis.
[120] The prosecution case however does not depend upon the Appellant having been knowingly concerned in the importation before 24 November, or of having a financial interest in it. Its case was that the process of importation continued thereafter and that the conduct, on that day and subsequently, of the Appellant amounted to a knowing concern on his part.
[121] On my assessment that submission is correct having regard to the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on."
His Honour, Smart AJ, summarised the principles that had emerged from the authorities as including:
"[157] I agree with the Chief Judge that the evidence was not sufficient to establish beyond reasonable doubt that prior to 24 November 2001 the appellant was knowingly concerned in the importation of narcotic goods consisting of not less than a commercial quantity of ecstasy tablets. The critical question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was knowingly concerned in an importation from 24 November 2001 to 5 December 2001 or part of that period. These principles emerge from the authorities.
(a)"Importation" extends on both sides of the actual act of importing into the country The term "importation" involves some measure of flexibility. See per Barwick CJ in Forbes v Traders Finance Ltd, 126 CLR 429 at 432 and Gleeson CJ in R v Lam (1990) 46 A Crim R 402.
(b)The important question is not so much the precise meaning and application of the word "importation" as the meaning and application of the phrase "knowingly concerned in the importation". See per Gleeson CJ in R v Lam.
(c)The word "concerned" is one of general import and it is impossible to state with precision what it comprehends. Regard must be had to the facts and circumstances of the particular case. The concept of being concerned in the importation is one of some flexibility. The word "involved" is often given as a synonym for "concerned". See per Gleeson CJ in Lam.
(d)Importation means more than "landing". The prohibition against being knowingly concerned (or involved) in the importation of narcotic goods covers those within Australia who become concerned in arranging the importation and in moving the goods, once imported, into the community. See R v Courtney-Smith (No 2) (1990) 48 A Crim R 49.
(e)A time will be reached when involvement with narcotic goods in their passage through the Australian community cannot properly be categorised as knowing concern in their "importation". See R v Courtney-Smith (No 2).
(f)Innocent collection, transport or handling of goods after their arrival or providing a place for their permanent or temporary storage, although amounting to concern in their importation in one sense, will not be criminal. See R v Courtney-Smith.
(g)The concern does not have to be made manifest in a physical sense while the importation is taking place. It is sufficient if the "concern" is manifested in the venture which centred upon the importation.
(h)If imported narcotic goods are still in a container and held in a hired factory or storage facility before distribution to the intended markets they are still in the state of importation. See R v Lam.
(i)Importation is a venture or process not a physical act which occurs or ceases at the moment of import. Intervention by the authorities, for example, seizing the goods, does not prevent that process or venture from continuing and a person might subsequently become concerned in the importation. See R v Leff (1996) 86 A Crim R 212 per James J and per Gleeson CJ.
(j)Concern in an importation can commence at a time when it has apparently broken down and where efforts are being made to bring it to fruition. See per Gleeson CJ in Leff.
(k)Where narcotic goods are imported into Australia in the voids of pieces of machinery or equipment the act of importation embraces the removal of those narcotic goods from such pieces of machinery and equipment and attempts to do so."
In Sukkar, the Court relied, inter alia, on the judgment of the Court in R v Leff (1996) 132 FLR 102; (1996) 86 A Crim R 212. In the course of agreeing with James J, Gleeson CJ (Allen J agreeing with both Gleeson CJ and James J) said (at 2):
"Raz was merely a courier. The venture of importation to which he lent himself involved the consignment of cocaine from principals in the United States to Kissner in Sydney. Raz, with the cocaine strapped to his body, was to be met by Kissner at Sydney airport and taken to a place where he would hand the cocaine over to Kissner. From the point of view of the importer, Kissner, the importation would end when he received the cocaine from Raz.
Because of the interception by the authorities, before Raz cleared customs, he did not make contact with Kissner at the airport.
Later on 21 July, when, on her story, the appellant became involved, Raz telephoned her to say he had not been met at the airport. (Why Raz would have telephoned her, and spoken to her in the manner recorded by the surveillance, if she had not previously been involved is hard to imagine).
At that stage the venture of importation was incomplete. It had been interrupted by the authorities. Raz had not been able to make contact with Kissner, and the authorities had taken the cocaine, which he was to deliver to Kissner, from him.
The principal argument for the appellant comes down to the proposition that at that stage it was impossible for her to become knowingly concerned in the importation; the importation was over. I am unable to accept that argument. The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition."
In the same case James J said:
"It is true that in the present case Raz was arrested at the airport and the cocaine being carried by him was seized by the Federal Police. However, I do not consider that the intervention by the authorities prevented the process or venture of importation from continuing so that a person might subsequently become concerned in the importation. In R v Chow (1987) 11 NSWLR 561 this Court held that the appellant had been rightly convicted of being in possession of prohibited imports being heroin, in a case where before the appellant had a meeting with the courier who had brought the heroin into Australia in a suitcase, police had entered the motel room where the courier was staying, taken possession of most of the heroin and substituted plaster of Paris blocks in the suitcase.
In the present case, there was evidence that after some of the telephone conversations with the appellant had taken place, Kissner was still taking steps with a view to obtaining delivery of the cocaine."
Again the offence considered in the judgment in Leff was being "knowingly concerned" in the importation, rather than "importing". It is therefore necessary to re-examine the judgment in Calderwood.
In Calderwood the appellant was unrepresented. The charge considered by the Court was, as has been stated, a charge under s 233B of the Customs Act, which provision has since been repealed. The offence was committed, relevantly, "if... the person... imports"[sic] narcotics.
The word "imports" in what was then s 233B of the Customs Act was used as a verb, not as a noun; nor did the legislature utilise a participle or gerundive in this provision. The word must be understood within the context of the Customs Act, where it seems to imply a process, rather than a single act: starting with the goods' journey from outside Australia and concluding with the goods' landing in Australia (or even clearance at customs).
In Campbell, the reasons for judgment in Calderwood were, as has been said, distinguished on the basis that the charge in Campbell arose under the Criminal Code, not the Customs Act. The offence under the Criminal Code was in wording, as distinct from context, relevantly identical to that in Calderwood in that it prescribed that a person committed an offence "if the person imports [sic]... a substance".
In Campbell, the Court was not dealing with a charge of being "knowingly concerned". The Court took the view that the substance had been imported and the physical conduct giving rise to the offence was completed before the container was unpacked. As the Crown case in Campbell permitted a conviction based on the formation of an intention after the physical conduct had ended, and, as it was necessary for both physical and mental elements to exist at the one time, the conviction could not stand. A new trial was ordered.
The Court in Campbell, distinguished Calderwood, Sukkar, Bull, and Wilson v Chambers (1926) 38 CLR 131, amongst other cases, on the basis that the issue they dealt with was the extent of "importation" rather than "imports" or, as in the cases of Calderwood and Bull, on the basis that, even though the word "imports" was used, it was in the context of the Customs Act, the statutory scheme of which required the term to be given the same flexibility as the term "importation": see particularly Campbell at [52] - [60].
The Court of Criminal Appeal in South Australia considered the above issues in Toe v R (2010) 106 SASR 203; [2010] SASC 39, which judgment was issued on 26 February 2010. In the Toe proceeding, the impugned conduct of the accused occurred in May 2007 and the trial concluded with guilty verdicts in May 2009. The SA Court (Bleby and White JJ with Gray J dissenting) preferred the analysis in Campbell and disapproved of the approach in Calderwood.
The offences subject to charge in Toe were identical to those in Campbell and arose under the Code. At [46] of Toe, Bleby J noted that it was significant that the Court in Calderwood relied on a line of authority in which no judgment dealt with an offence involving "import into Australia", but rather dealt with being "knowingly concerned in importation". That comment, with great respect to Bleby J, ignores the judgment of the High Court in Bull, relied on by the Court in Calderwood and distinguished by this Court in Campbell.
In Bull, the High Court decided that, in circumstances where the drugs were "dumped" at sea to prevent detection, there had been no person who had imported the drugs because importing required landing on the unsubmerged land mass of Australia. On one view, to which I do not subscribe, the discussion on the meaning of "imports" in Bull is obiter dicta, at least in part. Nevertheless, it is considered in detail by the High Court and, at least in the context of an offence under the Customs Act, it is, and should be, binding on this Court: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89.
I note that, following the publication of the judgment in Campbell, and just prior to the publication of the judgment in Toe, the Criminal Code was amended, effective 20 February 2010, to include, in the definition of "import", "deal[ing] with the substance in connection with its importation". Whatever were the limits applicable to the use of the word "imports", as distinct from "importation", at the time of the alleged offences in Campbell and Toe, those limitations did not apply as at April 2010, when the alleged conduct in this charge was said to occur, even if the principal offence were an offence under s 307.11 of the Code.
As a consequence of the foregoing analysis, binding authority is to the effect that the term "imports", where used in the Customs Act, includes conduct beyond the landing of the goods and, in the words of Wood CJ at CL in Sukkar, supra at [121], "includes recovery of the goods after landing and anything ... done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is suppliers, shippers, customs agents, freight forwarders, and so on".
It would seem, following the amendment to definitions of "import" in the Code, that an offence involving "importing", even under the Code, would have the same degree of flexibility. It is unnecessary to decide that issue in these proceedings.
It is sufficient to find that the natural meaning of "imported" in the Customs Act includes the owner or importer taking delivery of the goods. Whether it would include another person, not otherwise involved in the importation, taking delivery will depend upon a range of factors. The term is a flexible one, but not infinitely variable.
As a consequence of my view of the law and of the proper construction of "imported" in s 233BAA of the Customs Act, Mr Simpson was, subject to the issue of the substitution of flour for the substance, still engaging in the conduct that was part of the process by which the substance was "imported" and thus he was engaged in committing the offence.
Once that proposition is accepted, the substitution of flour for the substance has no effect on the criminality of the conduct in which Mr Simpson was engaged when he took delivery of the furniture in which the substance was originally secreted. It is sufficient to refer to the passage from the judgment of Gleeson CJ, recited above, in Leff, in which the Court was dealing with precisely those circumstances.
"The concept of importation" is "sufficiently flexible to cover a case such as the present". While the Court, in this case, is not dealing with "knowing concern" which, according to Gleeson CJ, may commence after the importation has apparently broken down, the Court, in examining the principal offence, is dealing with a principal offender who, in fact, imported the substance into Australia and was still acting to effect (i.e. take delivery of) that importation.
The role of Nolan
Having examined the principles set forth earlier in this judgment that relate to aiding and abetting the commission of the principal offence in light of the foregoing analysis of the principal offence, the following aspects become important to note. First, at the time Mr Nolan became involved in conduct assisting Mr Simpson, the latter was still involved in the commission of the principal offence. Secondly, Mr Nolan was present while that aspect of the offence was being committed. Thirdly, Mr Nolan's conduct assisted and/or encouraged Mr Simpson in taking delivery of the drugs.
The inference is clearly available on the evidence before the Court that Mr Nolan knew his conduct would be of assistance or would encourage the commission of an offence involving drugs. Of itself, that knowledge would not be sufficient to prove guilt.
Does that knowledge extend beyond that described in the immediately preceding paragraph? What, in other words, is the evidence that Mr Nolan was aware an importation was being effected?
The only evidence of Mr Nolan's knowledge of the process being undertaken is the content of the text message set forth in the reasons of McClellan CJ at CL at [7], namely, to the effect, that Mr Simpson was
"In air now. Box opened. All sweet. Get yr mates ready." [sic].
For an offence to be committed under the Code, the fault and physical elements must be in existence at the same time: Campbell at [137], per Weinberg AJA, with whom Spigelman CJ and Simpson J agreed. In that respect the Code reflects the common law.
The Crown case did not suggest extended common purpose (that is, recklessness as to some other offence) and in order to be found guilty, Mr Nolan must have intended that his conduct assist or encourage the process of importing.
In determining, as did the trial judge in these proceedings, to direct a verdict of acquittal, a trial judge must be satisfied that there is no evidence upon which a jury, directed in accordance with law, could properly convict: Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 212. A court, in arriving at such a decision, must ignore contradictory evidence unfavourable to the Crown case and must take the Crown case at its highest, including any inferences that may arise from the evidence adduced: R v R (1989) 18 NSWLR 74 at 81, per Gleeson CJ.
It is not for the trial judge, in such an exercise, to assess the unreasonableness of any guilty verdict that may eventuate. Nor is the judge to direct merely because a reasonable hypothesis inconsistent with guilt is available: R vJMR (1991) 57 A Crim R 39. If inferences are available from the evidence adduced that are both consistent and inconsistent with guilt, it is for the jury (not the trial judge), properly instructed, to decide which inference to accept.
Where an inference consistent with guilt cannot be drawn, it is for the trial judge to direct. The drawing of an inference is a matter of common sense: Jones v Dunkel (1959) 101 CLR 298 at 300-321; Fabre v Arenales (1992) 27 NSWLR 437 at 445. In criminal law, the inference will be drawn from proved facts where "general human experience would be contradicted if the proved facts were unaccompanied by the act sought to be proved": Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173, per Knox CJ and Dixon J; cited in Fabre v Arenales, supra, at 445.
Would general human experience be contradicted if, having received the text message recited above, Mr Nolan were unaware that he was facilitating an importation of drugs, as distinct from, say, a subsequent distribution within Australia, for example, from Brisbane to Sydney or from Sydney onward. In my view, it would not.
The jury would have been asked to conjecture. No evidence was available from which the jury could have been entitled to draw the inference that Mr Nolan knew he was assisting Mr Simpson in the importing process. As a consequence, for reasons different from the trial judge and from McClellan CJ at CL, I also consider that a directed verdict was available.
Appeal consequences
I have come to the view that the trial judge had the power to direct a verdict of acquittal, but for different reasons than those relied upon by the trial judge. The jurisdiction of this Court is confined, under s 107 of the Crimes (Appeal and Review) Act 2001, to a ground of appeal "that involves a question of law alone".
The right to appeal in the case of a directed verdict is a most unusual one: R v PL [2009] NSWCCA 256 at [24]-[25]. Ordinarily, the question of whether there is evidence on which a jury could convict is a question of law: R v R, supra, Krishna v DPP [2007] NSWCCA 318 at [44]-[46]; Alramadan v DPP [2007] NSWCCA 322 at [68]-[69] and the cases cited therein.
However, if that were the kind of question of law to which the legislature was referring, every acquittal by direction could be appealed and the words "on any ground that involves a question of law alone" would be wholly otiose.
Further, if every decision that involved an assessment of fact were excluded from appeal by use of the word "alone", then no, or almost no, directed verdict could be subject to appeal. Except those acquittals directed because, as a matter of law, the charge, cannot arise (e.g. a demurrer or point that would have permitted discharge of the indictment at the outset of the trial), all acquittals by direction involve an assessment of facts proved and inferences available. Again, but on this occasion for the reason that no appeal could be taken, the provision would be otiose.
In my view, in context and bearing in mind both the purpose of the provision and the necessity to give validity and effect to the provision and meaning to all the words thereof, a "ground that involves a question of law alone", in this context, is a ground that relies on an error of law within the reasons for directing the verdict and that error, of itself, if corrected, could determine the appeal.
In this case, on my view, there was such an error when the trial judge, on the basis of undisputed facts, determined that the principal offence was concluded prior to Mr Nolan's involvement. The assessment involved an error of law in the construction and extent of the term "imported".
The terms of s 107 of the Crimes (Appeal and Review) Act specify (s 107(5)) that the Court may affirm or quash the acquittal. Nevertheless, as the Court noted in R v PL, there is a residual discretion as to the appropriate orders to be made: R v PL, supra, at [93]. In this case, an acquittal by direction was available, but for different reasons. Even if it were not, a guilty verdict would depend on a finding that the fault element co-existed with Mr Nolan's conduct. Such a verdict would be unreasonable.
As a consequence of the forgoing, I agree with the orders proposed by McClellan CJ at CL, the effect of which is that the acquittal is affirmed.
DAVIES J: I agree with McClellan CJ at CL.
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Amendments
02 May 2013 - amended references to s 233B(1)(b)
Amended paragraphs: 18, 26 and 27
Decision last updated: 02 May 2013
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