Onuorah v R [2009] NSWCCA 238 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
14 July 2009
JUDGMENT DATE:
18 September 2009
JUDGMENT OF:
Hodgson JA at 1; McClellan CJatCL at 53; Howie J at 54; Hoeben J at 55; Fullerton J at 56
DECISION:
(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted and appeal against sentence dismissed.
CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – Charge of attempt – Whether sufficient that accused intended that every element of offence occur, and does acts sufficiently proximate to intended commission of crime – Charge of attempting to possess a border-controlled drug which had been unlawfully imported – Whether conviction available where drug intended to be imported seized and retained in Venezuela.
J S STRATTON SC/ J FLIECE (appellant) Ms W ABRAHAM QC (respondent)
SOLICITORS:
Legal Aid Commission (appellant) Commonwealth Director of Public Prosecutions (respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 2007/11/0803
LOWER COURTJUDICIAL OFFICER:
Freeman DCJ
LOWER COURT DATE OF DECISION:
20 June 2008
CCA 2007/13631 DC 2007/11/0803
HODGSON JA McCLELLAN CJ at CL HOWIE J HOEBEN J FULLERTON J
18 SEPTEMBER 2009
ONUORAH, Ikenna Calistus v R
HEADNOTE
FACTS In April 2006 the appellant leased a mail delivery box at a newsagency, taken in a false name with other false particulars. There was communication between the appellant and a person in Venezuela. In late August of 2006 a woman in Venezuela lodged with DHL a parcel for delivery to Mrs D Jackson at the mail delivery box. This parcel contained a jewellery box which had secreted in its sides and bottom several packages of powder.
Employees of DHL in Venezuela became…
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.
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AGLC
R v Onuorah [2009] NSWCCA 238
Case
[2009] NSWCCA 238
Decision Date
CaseChat Overview and Summary
The appellant, Onuorah, was convicted of attempting to possess a border-controlled drug that had been unlawfully imported. Onuorah appealed against his conviction, arguing that there was insufficient evidence to prove that he intended every element of the offence to occur and that he had taken acts sufficiently proximate to the intended commission of the crime. The appeal was heard by the court, which had to determine the legal standards for a conviction of an attempt to possess a border-controlled drug that had been unlawfully imported. The court considered whether it was necessary for the drug to be physically present in Australia for a conviction to be upheld, or if it was sufficient that the drug was intended to be imported and was seized and retained in Venezuela.
The court held that for a conviction of an attempt to possess a border-controlled drug, it is sufficient if the accused intended that every element of the offence occur, and the acts done by the accused are sufficiently proximate to the intended commission of the crime. The court emphasised that the physical presence of the drug in Australia is not a prerequisite for a conviction. The court found that Onuorah had intended to possess the drug and had taken acts sufficiently proximate to the intended commission of the crime, even though the drug was seized and retained in Venezuela. The court held that the conviction was valid, and the appeal was dismissed.
The court's decision clarifies the legal standards for a conviction of an attempt to possess a border-controlled drug that had been unlawfully imported. The court held that the physical presence of the drug in Australia is not necessary for a conviction, and that the accused's intention and acts sufficiently proximate to the intended commission of the crime are sufficient for a conviction. This decision provides guidance to prosecutors and defendants in cases involving attempts to possess border-controlled drugs that have been unlawfully imported. The conviction of Onuorah was upheld, and no further orders were made.