R v Senthilvadevel

[2018] NSWDC 33

District Court

New South Wales

Medium Neutral Citation:	R v Senthilvadevel [2018] NSWDC 33
Hearing dates:	12 – 15, 19 February 2018
Date of orders:	19 February 2018
Decision date:	19 February 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Application for verdict by direction refused.
Catchwords:	CRIME – Procedure – Application for verdict by direction
Legislation Cited:	Crimes Act 1900 Criminal Code Act 1995 (Cth)
Cases Cited:	Davey v Lee [1967] 2 All ER 423 DPP v Stonehouse [1978] AC 55 Inegbedion v R [2013] NSWCCA 291 Onuorah v R [2009] NSWCCA 238 R v Campbell (1991) 93 Cr App R 350 R v Eagleton [1855] ER 35 R v Jones (1990) 91 Cr App R 351 Situ v R [2008] NSWCCA 161 Steer v R [2014] NSWCCA 338
Category:	Procedural and other rulings
Parties:	Regina (Crown) Thuvarakan Senthilvadevel (Accused)
Representation:	Counsel: Ms P McEniery (Crown) Mr GD Wendler (Accused)   Solicitors: Solicitors for the CDPP (Crown) JN Legal (Accused)
File Number(s):	2014/343188
Publication restriction:	Nil

Judgment

1. HIS HONOUR: On 12 February 2018, the Crown presented an indictment against the accused in the following terms:

"Between about 15 July 2014 and 21 August 2014 at Sydney in the State of New South Wales, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity attempted to be possessed being a marketable quantity."

The accused pleaded “not guilty” on 12 February 2018 and again pleaded “not guilty” when the same indictment was presented in the presence of a jury panel on 13 February 2018 when the current trial began.

2. This morning the Crown closed its case. The accused, by his counsel, has made an application for a verdict by direction on the grounds that the only activity which might be described as the "actus reus" was merely preparatory to the commission of the offence and, therefore, was not of sufficient proximity to the offence to constitute an attempt. In that regard one must have regard to s 11.1(2) of the Criminal Code Act 1995 (Cth) which provides this:

"For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact."

As has been submitted by Mr Wendler, for the accused, the question which I am currently determining is not merely one of fact, but one of mixed law and fact.

3. The evidence discloses that a Korean speaker named Chang Min, who has not been brought to justice for his activities, recruited Michael Sangsu Kim to obtain to names and addresses and telephone numbers of persons who were prepared to receive parcels posted from overseas, which parcels were intended by Chang Min to contain border controlled drugs, but where there was to be no formal disclosure to those supplying their names, address and telephone numbers to Michael Kim, that they were to…