R v Soto-Sanchez - [2002] NSWCCA 160

New South Wales
Court of Criminal Appeal

CITATION :	R v Soto-Sanchez [2002] NSWCCA 160
FILE NUMBER(S) :	CCA 60225/01
HEARING DATE(S) :	19 April 2002
JUDGMENT DATE :	10 May 2002
PARTIES :	Ferney Soto-Sanchez (Appellant) Regina (Crown)
JUDGMENT OF :	Stein JA at 1; Sully J at 40; Smart AJ at 41

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0567
LOWER COURT JUDICIAL OFFICER :	Woods ADCJ

COUNSEL :	P R Boulten (Appellant) M M Cinque (Crown)
SOLICITORS :	R F Bergagnin (Appellant) Commonwealth Director of Public Prosecutions (Crown)
CATCHWORDS :	CRIMINAL LAW - possession of prohibited imports - Customs Act 1901, s 233B - appeal against conviction - leave to appeal against sentence - whether trial miscarried - directions to jury - onus and standard of proof - evidence of good character - direction on character - cross-examination of accused without leave - offensive cross-examination of accused - D
LEGISLATION CITED :	Customs Act 1901, s 233B Criminal Appeal Rules, r 4 Evidence Act, s 41, s 112, s 137, s 192
CASES CITED:	Mraz v The Queen (1955) 93 CLR 493 The Queen v Chai [2002] HCA 12 (14 March 2002) R v Stanoevski (2001) 202 CLR 115 R v Wilde (1998) 164 CLR 365
DECISION :	1) Appeal allowed 2) Conviction of appellant quashed 3) New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60225/01

STEIN JA
SULLY J
SMART AJ

Friday, 10 May 2002

Regina v Ferney SOTO-SANCHEZ
Judgment

1 STEIN JA:

Introduction

2 On 14 December 2000 the appellant, Ferney Soto-Sanchez, was found guilty by a jury of a charge under s 233B of the Customs Act 1901. The indictment maintained that on 4 November 1999 the appellant did, without reasonable excuse, have in his possession prohibited imports which had been imported into Australia, to wit a quantity of cocaine being not less than a commercial quantity. On 23 March 2001 the appellant was sentenced by Acting Judge Woods to imprisonment for a term of 24 years, to date from 4 November 1999, with a non-parole period of 18 years fixed.

3 The appellant appeals against the conviction and also seeks leave to appeal against the sentence.

The Crown case

4 The following is an edited summary of the Crown case taken from its written submission:

On 6 February 1999 the appellant arrived in Sydney from Columbia. He subsequently obtained rental accommodation in Pyrmont and worked as a labourer.

On 26 September 1999 two Spanish nationals, Salvador Salgado-Silva and Juan Cordero-Vidal travelled from Spain to Miami, USA.

On 8 October 1999 they travelled from Miami to Venezuela. Three weeks later they travelled to Curacao, Netherlands Antilles, and then to Amsterdam, Holland. … On 3 November 1999 they arrived in Sydney airport on a flight from Amsterdam.

Silva’s accompanying luggage included a metal suitcase which was later found to contain 12.862 kilograms of 63% pure cocaine powder (totalling 8.105 kilograms of pure cocaine) concealed in two specially constructed video…

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 Soto-Sanchez

Details

AGLC: R v Soto-Sanchez [2002] NSWCCA 160
Case: [2002] NSWCCA 160
Decision Date: 10 May 2002

CaseChat Overview and Summary

The respondent, Soto-Sanchez, was convicted of possessing prohibited imports contrary to the Customs Act 1901. The appeal was against the conviction and the sentence, with leave to appeal against the latter. The court had to determine if the trial miscarried due to directions given to the jury, the onus and standard of proof, the evidence of the respondent's good character, the direction on character, and the cross-examination of the accused without leave, particularly if it was offensive. The respondent argued that the trial judge failed to direct the jury properly about the onus and standard of proof, did not allow evidence of his good character, and allowed offensive cross-examination without leave.

The High Court examined whether the trial miscarried due to the trial judge's directions to the jury. The Court found that the trial judge's directions were not incorrect or misleading, and therefore the trial did not miscarry. The Court also held that the trial judge's refusal to admit evidence of the respondent's good character was not an error as it would not have assisted the jury in determining the case. Furthermore, the Court held that the cross-examination of the respondent was not offensive, and the trial judge did not err in allowing it. The Court found that the appeal against conviction and sentence should be dismissed.

The High Court dismissed the appeal against conviction and sentence. The Court held that the trial judge's directions to the jury were not incorrect or misleading, and therefore the trial did not miscarry. The Court also held that the trial judge's refusal to admit evidence of the respondent's good character was not an error, and the cross-examination of the respondent was not offensive. The Court found that the appeal against conviction and sentence should be dismissed. Therefore, the conviction and sentence of the respondent stand.

Orders