R v Ulman (No 2) No. DCCRM-99-339 - [2003] SADC 52

R v ULMAN (No. 2)

[2003] SADC 52
Judge Robertson
Criminal
Nature of the Application
1The 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 a 3,4-methylenedioxymethamphetamine, being not less than a commercial quantity.

The accused has made an application for a permanent stay of the prosecution on the grounds that the continuation of the prosecution is an abuse of process.
Brief Summation of the Crown Case

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 of 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 the tablets were sent by Sam Naruniec from Europe.
The Prosecution alleges that The Australian Federal Police (“AFP”) discovered the presence of the tablets upon the entry of the parcel into Australia and that on 29 October 1998 the AFP removed the tablets from the two speakers. It is alleged that the AFP substituted most of the tablets with tablets which did not contain a prohibited drug and replaced the parcel in the speaker box. It is not in dispute that on 3 November 1998 the Accused collected a parcel, containing the stereo system and tablets from the Flagstaff Hill Post Office. The Accused attended at the Post Office following receipt of a written memorandum 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 AFP attended the Accused’s premises and seized the tablets and the stereo system.
The Accused was interviewed by the AFP, in the presence of her legal adviser, on 11 November 1998. In that interview, the Accused said she did not know that the parcel contained illegal narcotics. She said that Sam Naruniec had told her that the parcel contained Viagra tablets and as a result that was her belief.
The Accused denies that she was engaged in a joint enterprise to import illegal narcotics. She asserts that her state of knowledge in November 1998 was that the parcel contained Viagra tablets.
Previous Two Trials
The Accused was charged with the offence on 11…

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: [2003] SADC 52
Decision Date: 3 April 2003

CaseChat Overview and Summary

Ulman is charged with knowingly being involved in the importation of a commercial quantity of the drug 3,4-methylenedioxymethamphetamine, commonly known as ecstasy. The drug was imported into Australia in a parcel containing a stereo system. The case involves a retrial following an appeal against a conviction which was quashed by the Court of Criminal Appeal. The accused has made an application for a permanent stay of the prosecution on the ground that the continuation of the prosecution is an abuse of process. The accused relies on a number of factors in support of her application including the failure of the Australian Federal Police (AFP) and the Director of Public Prosecutions (DPP) to disclose certain information to the accused prior to the earlier trials, the loss or destruction of relevant evidence, the failure of the AFP and the DPP to properly investigate and to assist the defence in obtaining relevant evidence, and the failure of the DPP to transcribe and translate a number of intercepted telephone conversations. The accused also seeks a stay pending agreement to pay costs. The court considered the legal principles relevant to an application for a stay of proceedings and the relevant factors in the circumstances of the case. The court rejected the application for a permanent stay of proceedings but granted a stay pending agreement to pay costs.

Orders