BELL J: On 18 April 2002 Narongchai Saengsai-Or, the appellant, was arrested at Sydney Airport on his return to Australia on a flight from Vietnam. He was carrying two bottles of Remy Martin fine champagne cognac in a “Sydney Duty Free” bag. He had purchased a carton of cigarettes from the Sydney Downtown Duty Free shop. The two Remy Martin bottles were not purchased at the duty free shop. Customs officers searched the appellant’s luggage. The Remy Martin bottles were examined and underneath an embossed label the officer found that a 2 mm hole had been drilled in each bottle and plugged with wax sealant. Subsequent analysis of the contents of the bottles revealed that each contained heroin. The quantity of pure heroin contained in the liquid mixture in the bottles amounted to 902.3 gms.
The appellant declined to be interviewed by members of the Australian Federal Police. While in custody he made a telephone call to a person named Manivorn Phaboudty. Thereafter he was charged with the importation of the heroin into Australia. He was held in custody pending his trial. During this time he was visited by the brother of Manivorn Phaboudty, Boupaseuth.
On 21 January 2003 the appellant was arraigned on an indictment that charged him with importing into Australia prohibited imports to which
s 233B(1)(b) of the Customs Act 1901 (Cth) applied being narcotic goods consisting of a quantity of heroin not less than the trafficable quantity applicable to that drug. He entered a plea of not guilty and stood trial before his Honour Judge Twigg (the Judge) and a jury. On 31 January 2003 the jury returned a verdict of guilty. On 14 February 2003 the appellant was sentenced to a term of nine years’ imprisonment. A non-parole period of six years was specified.
He appeals against his conviction. His appeal raises the question of what is the fault element (or elements) of the offence of importing prohibited imports contrary to s 233B(1)(b) in light of the application of the general principles of criminal responsibility contained in ch 2 of the…
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 Saengsai-Or [2004] NSWCCA 108
Case
[2004] NSWCCA 108
Decision Date
CaseChat Overview and Summary
The appellant, Narongchai Saengsai-Or, appealed against his conviction for importing goods in contravention of the Customs Act 1901 (Cth). The case was heard in the High Court of Australia. The primary legal issues revolved around the trial judge's directions to the jury regarding the mental element required for the offence, the consideration of unreliable witnesses, and the relevance of the appellant's good character and decision not to give evidence. The appellant argued that the trial judge's directions on these points constituted errors that led to a miscarriage of justice.
The High Court considered whether the trial judge correctly applied the principles of criminal responsibility as outlined in the Criminal Code Act 1995 (Cth). Specifically, the court examined whether the judge's directions accurately reflected the requirements of sections 3 to 5 of the Criminal Code concerning the mental element of the offence. The court also evaluated the judge's handling of the evidence of unreliable witnesses and the impact of the appellant's good character and decision not to testify. Ultimately, the court found that the trial judge's directions were appropriate and did not result in a miscarriage of justice. The appeal was dismissed, and the conviction was upheld.
In summary, the High Court upheld the conviction of Narongchai Saengsai-Or for importing goods in contravention of the Customs Act 1901 (Cth). The court found that the trial judge's directions to the jury were accurate and did not lead to a miscarriage of justice. The appellant's arguments regarding the mental element of the offence, unreliable witnesses, and the appellant's good character were rejected. The conviction remains intact.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In cross-examination John agreed that when he was served with a subpoena to attend court he had told Federal Agent Kriticos that he did not know the name Narongchai Saengsai-Or. He said that he had not known the appellant’s English name. He agreed he had visited the appellant in gaol. He said that the appellant’s wife had written the appellant’s name on the visitor form at the gaol.Other evidence in the Crown case The airline tickets were purchased from a travel agency in Cabramatta, Sydney. Two return tickets were booked in the names of Manivorn William Phaboutdy and Narongchai Saengsai-Or on 27 March 2002. Manivorn William Phaboutdy was booked to leave Melbourne on 2 April 2002 and to return to Sydney on 10 April 2002. The appellant was booked to leave Melbourne on 2 April 2002 and to return to Sydney on 17 April 2002. The receipt was made out in the name of Phaboutdy. On 11 April 2002 two airline tickets were purchased in the names of John Boupaseuth Phaboutdy and Khauv Mengsron. These passengers were booked to fly to Vietnam on 11 April 2002. John Boupaseuth Phaboutdy was booked to return on 23 April 2002 and Khauv Mengsron on 27 April 2002. These tickets were paid for and collected on 10 April 2002. A latent fingerprint was found on one of the Remy Martin bottles. It did not come from the appellant or William. The fingerprint examiner considered that it was not likely to have been deposited by a Customs officer or Federal Agent in the course of the investigation. The officer in charge of the investigation, Federal Agent Kriticos, confirmed that the appellant had no criminal convictions and that he had not been the subject of any police intelligence. John had declined to be interviewed and had not been asked to provide a fingerprint for comparison with the one located on the Remy Martin bottle. Grounds of appeal The appellant challenges his conviction on three grounds as follows: “His Honour erred in directing the jury about:(i) the mental element of the offence: the Criminal Code 1995 (Cth) ss. 3–5; ss. 9–10; (ii) unreliable witnesses: s 165 Evidence Act, 1995 (Cth); and(iii) ‘good character’ and the fact that the accused did not give evidence;”In the appellant’s submission individually, or in combination, these errors brought about a miscarriage of justice. Ground (i) The directions concerning the mental element of the offence under s 233B(1)(b) of the Customs Act 1901 (Cth) The grounds filed in support of the appeal referred to ss 9 and 10 of the Criminal Code. The written submissions filed on the appellant’s behalf and oral argument on the hearing of the appeal were confined to the significance of ss 3 to 5 of the Criminal Code to the directions that it is contended should have been given by the Judge. Chapter 2 of the Criminal Code was enacted by the Criminal Code Act 1995 (Cth). It codifies the general principles of criminal responsibility with respect to offences against the laws of the Commonwealth: s 2.1. Provision was made for the progressive application of the provisions of