R v Ulman-Naruniec No. DCCRM-99-339 - [2002] SADC 118

R -v- DANA ULMAN-NARUNIEC
[2002] SADC 118

HIS HONOUR JUDGE ROBERTSON
CRIMINAL

REASONS FOR RULING IN THE MATTER OF ULMAN-NARUNIEC

Nature of the Prosecution

The accused is charged with being knowingly concerned in the importation into Australia of a prohibited import contrary to Section 233B(1)(d) of the Customs Act 1901. Particulars of the offence are that between 31 March 1998 and 5 November 1998 at Adelaide she was knowingly concerned in the importation into Australia of a prohibited import, being 1.3471 kilograms of 3,4 methylenedioxymethamphetamine, being not less than a commercial quantity.
Briefly, it is the Crown case that the accused engaged in a joint criminal enterprise with her estranged husband Sam Naruniec to import into Australia approximately 22,000 tablets containing the drug commonly known as ecstasy. It is alleged by the Crown that the tablets entered Australia by post in late October 1998, secreted in the speaker boxes of a stereo system. The parcel containing the stereo system and the tablets, was addressed to “Sam Naruniec, 4 Abberton Street, Flagstaff Hill”. That address is the residence of the accused. It is alleged that the stereo system and tablets were sent by Sam Naruniec from Europe.
The prosecution alleges that it discovered the presence of the tablets upon the entry of the parcel into Australia and on 29 October 1998 removed the tablets from the two speakers. It is alleged that the Federal Police substituted most of the tablets with tablets which did not contain a prohibited drug and the parcel was resealed. The parcel was then delivered to the Flagstaff Hill Post Office. It is not in dispute that on 3 November 1998 the accused collected the parcel, containing the stereo system from the Flagstaff Hill Post Office. The accused attended the Post Office following the receipt by her of a card from the Post Office requesting she collect the parcel. It is alleged that on 4 November the accused removed the tablets from the speakers and placed them in bags. It is further alleged that the accused removed the tablets from the stereo as a result of instructions she had received from Sam Naruniec. Shortly after the removal of the tablets the Federal Police attended the accused’s premises and seized the tablets and the stereo system.
In a Record of Interview with the Federal Police the accused said she did not know that the parcel contained narcotics. She said it was her belief that the parcel contained Viagra based on information given to her by Sam Naruniec.
I was informed early in the voir dire hearing that the issue in the Trial is the accused’s state of knowledge. The accused denies that she was engaged in a joint enterprise to import narcotics. She asserts that her state of knowledge in November 1998 was that the parcel contained Viagra tablets and not narcotics.

History of the Proceedings

The accused was charged with the offence on 11 November 1998, after being interviewed by the Federal Police. An Information…

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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Details

Case: [2002] SADC 118
Decision Date: 24 September 2002

CaseChat Overview and Summary

In the matter of Dana Ulman-Naruniec, His Honour Judge Robertson of the District Court of South Australia considered the admissibility of evidence relating to money transfer applications made by an individual other than the accused, Ms Dziki. The accused sought to exclude the money transfer evidence on various grounds, including lack of a nexus, the relevance of Ms Dziki's involvement, and the prejudicial effect of the evidence. The court rejected the accused's grounds for exclusion, finding that the money transfer evidence was relevant to the accused's state of knowledge and that its probative value outweighed any prejudicial effect. The court also found that the failure to disclose the Dziki evidence did not render the trial unfair or constitute an abuse of process, and therefore, the application for a stay of proceedings was refused.

The court ruled that the money transfer evidence was admissible as it was relevant to the issue of the accused's knowledge. The court found that the circumstantial evidence presented by the prosecution, including the money transfer evidence, was sufficient to prove the accused's involvement in the joint criminal enterprise. The court also found that the Dziki evidence, while relevant, did not render the money transfer evidence inadmissible. The court concluded that the accused had not demonstrated that the non-disclosure of the Dziki material would result in an unfair trial or an abuse of process.

The court held that the application for a stay of proceedings was not warranted as the accused had not shown that the continuation of the prosecution was inconsistent with the purposes of the criminal justice system. The court found that the failure to disclose the Dziki material did not prevent the accused from obtaining a fair trial, and that the accused had not demonstrated that the non-disclosure was deliberate or oppressive. The court also noted that the accused had not shown that the Dziki evidence would lead to a different outcome in the trial, and that the prosecution could still present its case based on the other evidence available.

Orders