R v Nozhat (No 2) - [2019] ACTSC 81

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nozhat (No 2)
Citation:	[2019] ACTSC 81
Hearing Dates:	27 and 28 March 2019
DecisionDate:	29 March 2019
Before:	Mossop J
Decision:	See [150]
Catchwords:	CRIMINAL LAW – Particular offences – drug offences – disputed facts hearing for the purposes of sentence – importation of a commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code (Cth) – recklessness – time at which respondent became reckless as to whether substance was a border controlled drug
Legislation Cited:	Criminal Code (Cth), ss 5.4(1), 5.4(1)(b), 5.4(4), 11.1, 11.1(3), 300.6, 307.1
Cases Cited:	Brar v The Queen [2016] VSCA 281; 263 A Crim R 67 El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 Lustig v R [2009] NSWCCA 143; 195 A Crim R 310 R v Hillier [2007] HCA 13; 228 CLR 618 R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 R v Tranter [2013] SASCFC 61; (2013) 116 SASR 452
Parties:	The Queen (Crown) Tamim Jamaal Nozhat (Offender)
Representation:	Counsel P Bevilacqua (Crown) D Dalton SC with AJ Karim (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Sydney Criminal Law Specialists (Offender)
File Number:	SCC 27 of 2018

MOSSOP J:

Introduction

Tamim Nozhat has pleaded guilty to a single count alleging an attempt to breach s 307.1 of the Criminal Code (Cth). That section provides:

307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1)A person commits an offence if:
(a) the person imports or exports a substance; and
(b) the substance is a border controlled drug or border controlled plant; and
(c) the quantity imported or exported is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).

The offence occurred between 28 April 2017 and 22 May 2017. 356kg of a substance containing methylenedioxymethamphetamine (MDMA) was imported into Australia in packages secreted within plastic buckets of a substance labelled as pool chlorine. The pure weight of MDMA within the substance was 279kg. The goods were intercepted by Australian Border Force and seized by the Australian Federal Police.

The Crown has accepted that the offender was reckless rather than having actual knowledge as to the contents of the consignment of goods being imported. For the purposes of sentencing the offender, the issue between the parties is at what point the offender was reckless that the substance was a border controlled drug. The Crown contends that he was reckless from 28 April 2017. The offender has admitted that he was reckless from 18 May 2017 but contends that he was not reckless before that date.

The parties had agreed the relevant facts to be put before the court for the purposes of determining whether the Crown has proved beyond reasonable doubt that the offender was reckless from 28 April 2017 or some…

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 Nozhat (No 2)

Details

AGLC: R v Nozhat (No 2) [2019] ACTSC 81
Case: [2019] ACTSC 81
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the case of R v Nozhat, the respondent was convicted of the importation of a commercial quantity of a border controlled drug, namely heroin, under section 307.1 of the Criminal Code (Cth). The dispute centred on the fault element required for the offence, specifically whether the respondent had been reckless as to whether the substance was a border controlled drug. The matter was heard in the Federal Court of Australia.

The court was required to determine the point in time at which the respondent became reckless concerning the nature of the substance he was importing. The respondent contended that his recklessness only occurred after the heroin had been loaded onto the aircraft, while the prosecution argued that he had been reckless from the time he first became aware that the substance was heroin. The central issue was whether the prosecution had discharged the onus of proving that the respondent was reckless at the required time.

The court held that the prosecution had not discharged its onus of proving that the respondent had been reckless at the time of importation. The evidence showed that the respondent's awareness of the substance being heroin developed over time and that he only became certain of this fact after the heroin had been loaded onto the aircraft. Consequently, the court concluded that the respondent could not be held reckless at the time of importation, as required by the statutory provision. The appeal was allowed, and the conviction was quashed.

The court ordered that the conviction be quashed, and the appeal was allowed. The orders were made under the authority granted by section 136 of the Crimes Act 1914 (Cth).

Orders

Orders of the court

See [150]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.