R v Toe

Case [2010] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TOE

[2010] SASC 39

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice White)

26 February 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - GENERAL PRINCIPLES

Appeal against conviction for two counts of importing a marketable quantity of a border controlled drug – police intercepted packages arriving from overseas, removed drugs, reconstructed the packages and left failed delivery advices at premises to which packages were addressed – prosecution alleged that appellant arranged for the packages to be collected by a courier and delivered to him.

Whether trial Judge erred in directing the jury on the physical element of “importing” – consideration of the meaning of the word “imports” in Commonwealth Criminal Code s 307.2 - Whether appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred – whether convictions should be entered on alternative charges of attempted possession requiring different mental elements.

Held (per Bleby and White JJ): Appeal allowed –  jury not properly directed on what amounts to importing  - conviction not sustainable by invoking the proviso – retrial ordered - inappropriate to enter convictions on alternative charges.

Held (per Gray J dissenting): Appeal dismissed - Judge did not err in directing the jury on elements of "import" - alternatively, conviction sustainable on application of proviso - alternatively, convictions on attempt to possess charges substituted.

Criminal Law Consolidation Act 1935 (SA) s 353, s 354; Criminal Code (Cth) s 3.2, s 4.1, s 5.1, s 5.2, s 5.3, s 5.4, s 5.6, s 11.1, s 11.2, s 300.2, s 307.2, s 307.9; Customs Act 1901 (Cth) s 233B; Acts Interpretation Act 1901 (Cth) s 15AB; Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4F, referred to.
R v Campbell (2008) 73 NSWLR 272, applied.
R v Green (1975) 3 All ER 1011, distinguished.
Calderwood v The Queen (2007) 172 A Crim R 208; R v Sukkar [2005] NSWCCA 54; R v Bull (1974) 131 CLR 203; Chief Executive Officer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149; Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; Bell v The Queen (1983) 8 CCC (3d) 97; R v Hancox [1989] 3 NZLR 60, discussed.
R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1996) 86 A Crim R 212; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485

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AGLC
R v Toe [2010] SASC 39
Case
[2010] SASC 39
Decision Date

CaseChat Overview and Summary

The appellant, Joseph Toe, appeals against his convictions on two counts of importing a marketable quantity of a border controlled drug. The appeal concerns the trial judge’s direction to the jury regarding the physical element of "importing" under section 307.2 of the Criminal Code Act 1995 (Cth). The key issue was whether the trial judge erred in his directions to the jury regarding the physical element of "importing". Specifically, it was questioned whether the word "imports" in section 307.2 required the jury to find that the substance had been brought into Australia from outside the country. The court considered whether the trial judge correctly interpreted the term "imports" and whether any error led to a miscarriage of justice.

The court found that the trial judge did indeed err in his direction to the jury regarding the physical element of "importing". The judge had incorrectly interpreted "imports" as requiring the substance to be brought into Australia from outside the country, which was not the correct legal standard. The court held that the error was a significant misdirection that affected the jury's understanding of the charge, leading to a potential miscarriage of justice. The court concluded that the convictions should be set aside and a retrial ordered. The court further considered whether alternative convictions on charges of attempted possession could stand, but ultimately found that a retrial was necessary to correct the error in the jury's direction.

The appeal was allowed, the convictions were set aside, and a retrial was ordered. The court did not entertain the alternative charges of attempted possession as the misdirection necessitated a retrial on the original charges. The court held that the error in the jury direction was substantial and required the convictions to be quashed to ensure a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

I will return to the provisions of the Code relevant to counts 2 and 4 when I come to consider those alternative charges.The facts The undisputed evidence was that, on 12 and 13 May 2007, two TNT airfreight packages arrived at Sydney Airport addressed to Anthony Dan at a certain address in Birkenhead, South Australia. They were held in the bond section of TNT’s premises at Sydney Airport. All the evidence pointed to the fact that Anthony Dan was a fictitious name. On 12 May 2007 a customs officer examined the package that arrived on that day. It had come from India. It was a canvas print on a wooden frame. The frame was drill tested, which revealed the presence of opiates. Australian Federal Police were informed and took possession of the package. On 13 May the other package, which had come from Brazil, was x-rayed. It was a photograph album. It trace tested positive for cocaine and was also handed to Australian Federal Police. Both packages were taken to Adelaide and examined by AFP officers. The photograph album from Brazil was examined on 22 May and was found to contain 201.8 grams of cocaine, approximately 60% pure, with a street value of between $100,000 and $160,000. The cocaine was totally removed from the photograph album which was then repacked by police. On 23 May the painting from India was examined and was found to contain 101.3 grams of heroin, approximately 60% pure, with a street value of approximately $200,000. The heroin was totally removed from the frame which was then repaired and repacked by police. In the meantime a third article, namely a briefcase, addressed to the same address had been sent on 18 May 2007 from Sao Paulo, Brazil and arrived in Sydney on 25 May and in Adelaide on 28 May. The briefcase was found to contain no drugs. Controlled deliveries of the first two packages were attempted by police at the Birkenhead address on 22 and 23 May, presumably of the photograph album on 22 May and the framed picture on 23 May. They were unsuccessful. By arrangement with TNT, police then took TNT failed delivery advices relating to the packages and the briefcase and left them at the premises at the Birkenhead address on 28 May. In the meantime, they had obtained a warrant for the interception of telephone calls on a mobile telephone in the name of a Mr Nwaiwu, a person of interest. On 30 May the police obtained a warrant for the interception of telephone calls on a mobile telephone in a false name but alleged to be that of the appellant. There was evidence from which the jury could conclude, and, from their verdict on counts 1 and 3, from which they must have concluded, that on 31 May 2007 the appellant arranged for a courier service, APD Taxi Trucks, to retrieve the packages from TNT. He met the courier driver near a block of flats on Marion Road at Brooklyn Park and provided him with the failed delivery advices previously left by the police at the Birkenhead address. On his instructions the courier collected all three articles from the TNT premises at Adelaide airport. The request for collection obviously caused police to be alerted and physical and telephone surveillance was immediately undertaken. The courier driver delivered the articles to the appellant at Marion Road. The appellant identified himself to the courier driver as Mr Dan for the purpose of taking delivery of the articles from the driver. There were evasive movements of the appellant and of the alleged accomplice around the flats on Marion Road in an apparent attempt to avoid detection of the appellant’s exit from the location with the goods. However, the appellant was traced to his home at Gilles Plains. The parcels were opened there and the wrappings were dumped in a local industrial bin at a nearby shopping complex.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J
I would reject the submission.Conclusion It follows that in my opinion the appeal should be allowed, the convictions should be set aside and that there should be a retrial.GRAY J: This is an appeal against conviction. Introduction The defendant and appellant, Joseph Toe, was charged on Information as follows:Count 1Statement of OffenceImport a marketable quantity of a border controlled drug, contrary to s307.2(1) of the Criminal Code (Cth) Act 1995Particulars of OffenceBetween 12 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely heroin, and the quantity being imported being a marketable quantity.Count 2Statement of OffenceAttempt to possess a marketable quantity of border controlled drug, contrary to s11.1 and s307.9(1) of the Criminal Code (Cth) Act 1995Particulars of OffenceOn or about 31 May 2007, at Brooklyn park in the said State, Joseph Toe attempted to possess a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity being a marketable quantity.Count 3Statement of OffenceImport a marketable quantity of a border controlled drug, contrary to s307.2(1) of the Criminal Code (Cth) Act 1995Particulars of OffenceBetween 13 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely cocaine, and the quantity being imported being a marketable quantity.Count 4Statement of OffenceAttempt to possess a marketable quantity of border controlled drug, contrary to s11.1 and s307.9(1) of the Criminal Code (Cth) Act 1995Particulars of OffenceOn or about 31 May 2007, at Brooklyn park in the said State, Joseph Toe attempted to possess a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity being a marketable quantity. Section 307.2 of the Criminal Code Act 1995 (Cth) provides:(1) A person commits an offence if:(a) the person imports or exports a substance; and(b) the substance is a border controlled drug or border controlled plant; and(c) the quantity imported or exported is a marketable quantity.Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.(2) The fault element for paragraph (1)(b) is recklessness.(3) Absolute liability applies to paragraph (1)(c).(4)Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products. On 12 May 2009, the defendant was found guilty by jury verdict in the District Court of counts one and three, the counts of import a marketable quantity of a border controlled drug. As a consequence the jury did not return verdicts on the two alternative counts.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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