R v Pastor Pastor

Case [2024] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pastor Pastor [2024] QCA 194

PARTIES:

R
v
PASTOR PASTOR, Daniel Ricardo
(appellant)

FILE NO/S:

CA No 213 of 2023
SC No 810 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 11 October 2023 (Freeburn J)

DELIVERED ON:

18 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2024; further submissions received 19 July 2024 and 4 October 2024 (appellant) and 23 July 2024 and 4 October 2024 (respondent)

JUDGES:

Dalton JA and Bradley and Crowley JJ

ORDERS:

1. The appeal is allowed.

2. The verdicts of guilty on count 1 and count 2 are set aside.

3. A verdict of acquittal is entered on count 1.

4. A retrial is ordered on count 2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury of aiding in the importation of a border-controlled drug in a commercial quantity – where the drugs were concealed in car parts and delivered to a self-storage unit leased by the appellant – where the Crown case was that the appellant had intended to aid in the commission of the importation offence – where the appellant contended he thought he was aiding in moving stolen car parts from Melbourne – whether the evidence permitted an inference to be drawn that the appellant knew the drugs were imported – whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted by a jury of attempting to possess a commercial quantity of a border-controlled drug – where the appellant testified that he did not know any drug was contained in the car parts and that he did not know the car parts were imported – where it was open on the evidence for the jury to find that the appellant did know that the car parts contained drugs but did not know the drugs were imported – where trial counsel for the appellant disclaimed reliance on the defence at s 307.5(4) of the Criminal Code Act 1995 (Cth) – whether the trial judge should have left the defence under s 307.5(4) to the jury

Criminal Code Act 1995 (Cth), s 11.1, s 11.2, s 307.1, s 307.5

Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14, considered
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, considered
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20,…

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CaseChat Overview and Summary

The case of R v Pastor Pastor involved the appellant who was convicted by a jury of aiding in the importation of a border-controlled drug in a commercial quantity and of attempting to possess a commercial quantity of a border-controlled drug. The drugs were concealed in car parts and delivered to a self-storage unit leased by the appellant. The appellant claimed that he believed he was aiding in moving stolen car parts from Melbourne and was unaware that the car parts contained drugs. The Crown argued that the appellant had intended to aid in the commission of the importation offence. The appellant appealed against his conviction, contending that the verdict was unreasonable and that the trial judge misdirected the jury on the defence under s 307.5(4) of the Criminal Code Act 1995 (Cth).

The central legal issues in the appeal were whether the evidence permitted an inference that the appellant knew the drugs were imported and whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdict was unreasonable. Additionally, the court had to consider whether the trial judge should have left the defence under s 307.5(4) to the jury, as trial counsel for the appellant had disclaimed reliance on that defence. The court examined the evidence presented, including the appellant’s testimony, and assessed whether it supported the jury’s verdict.

The court found that the evidence did not establish beyond reasonable doubt that the appellant knew the car parts contained drugs or that they had been imported. The appellant maintained that he thought the car parts were stolen and being transported for sale, without knowing they contained drugs. The court held that the evidence could reasonably support a finding that the appellant did not know the car parts contained drugs. Given the uncertainty about the appellant’s knowledge, the court concluded that the jury must have had a reasonable doubt about his guilt. Consequently, the verdict was deemed unreasonable. Additionally, the court determined that the trial judge should have left the defence under s 307.5(4) to the jury, as it was open on the evidence for the jury to find that the appellant did know the car parts contained drugs but did not know the drugs were imported.

The orders of the court were to allow the appeal, set aside the verdicts of guilty on count 1 and count 2, enter a verdict of acquittal on count 1, and order a retrial on count 2.

Orders

Orders of the court

1. The appeal is allowed.

2. The verdicts of guilty on count 1 and count 2 are set aside.

3. A verdict of acquittal is entered on count 1.

4. A retrial is ordered on count 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant gave evidence-in-chief that he was Colombian. He finished high school in 2006 and worked in insurance. He decided to come to Australia to learn English and acquired a student visa. He arrived in Australia in June 2016. While studying, he worked as a Deliveroo driver. The appellant had a friend named DS. When he was tired and wanted to take a break he would lend DS his Deliveroo account and DS would do some Deliveroo work. As well as English, the appellant began studying project management and then mechanics in 2018. He studied mechanics for about a year-and-a-half and then stopped. He leased a storage shed in 2020 because he had plans to buy gym equipment cheaply in the aftermath of Covid; he had long-term plans of opening a gym. In 2016 he met a man called Shaun Rodriguez who worked in a newsagency at West End.[8] He saw him frequently as he worked with Deliveroo in South Brisbane and West End. He told his friend Shaun that he had leased a storage place for his gym equipment. Shaun had a friend who needed a place to store car parts. This friend was in the business of car parts and worked in mechanics. The appellant said this would be no problem, and Shaun told him that he would pay him $2,000 to store five car parts that were coming. He needed the storage for four days maximum. He would pay part of the money in advance and the rest later. The appellant’s counsel asked him, “And what did you think about the amount of money that was being paid to you with respect to these parts?” The appellant said, “As he told me that his friend moved many car parts, I thought that his friend was buying and selling very expensive parts, and that’s why I thought that was the payment that was being offered”. The appellant’s evidence was that he had been told the car parts were coming from Melbourne to Brisbane; he was not told that they had been imported into Australia.[8]The evidence did not independently establish this man’s name or identity. Shaun gave the appellant a phone, he thought in January or February of 2021. Shaun told him the phone was “for work purposes”. The appellant saw there was a group called “work” in the phone and he did not ask Shaun anything else. Shaun said that people would contact him on the phone and give him information about car parts. This communication would take place through a chat, a secure chat, because the car parts were expensive. Two people did contact him on the phone. He worked out that Snoop was the name used by Shaun because Shaun sent him a message telling him this. The appellant’s counsel asked him whether Shaun ever said anything to him about his (the appellant’s) use of his own phone. The appellant said, “He only mentioned that I should leave it in the car when I spoke to him. I didn’t think that that was strange, but then I thought that that was strange how he said it to me, but I didn’t think any further what that was about.” The appellant’s counsel asked the appellant whether he at any stage became suspicious about the delivery of the car parts. The appellant said, “Not at the beginning, but later I asked Shaun because – I don’t know, I started to develop doubts, for example, why was it that his friend who had so much business related to cars was not using his own storage for these parts, why did he want to use my own storage”. He asked three times and, after the third time, Shaun told him, “that he hoped that would be the last time I asked him, and he told me that I should just do the job as I was being told to do it via the cryptophone”. However the appellant insisted that he wanted to know why. “[Shaun] just told me that if I didn’t do the job as I was being told, he told me we know that you live with Camilla, and we will go after her and then we will go after your friends and after that we will go after your family in Colombia”. This made the appellant think that “I did not want to play with my friend’s life, and I knew that there was a risk. In spite of the distance from my family, I didn’t know what kind of reach they had in Colombia. I know that it would be easy to find my family, so that’s the risk I did not want to run.” The appellant said that after these threats he thought that the car parts had been stolen in Melbourne and were being brought to Brisbane to be sold. However, he never thought that they contained drugs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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