Regina v Kovacs - [2000] NSWCCA 74

Reported Decision: 111 A Crim R 374

New South Wales

Court of Criminal Appeal

CITATION: Regina v Kovacs [2000] NSWCCA 74 revised - 1/05/2000

FILE NUMBER(S): CCA 60738/98; 60817/98

HEARING DATE(S): 13 August 1999

JUDGMENT DATE:
31 March 2000

PARTIES :

REGINA - Respondent/Appellant
Lajos KOVACS - Appellant/Respondent

JUDGMENT OF: Beazley JA at 1; Simpson J at 2; McInerney AJ at 56

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0354

LOWER COURT JUDICIAL
OFFICER : Herron DCJ

COUNSEL : Ms E L Fullerton SC - Appellant/Respondent
J V Agius SC - Crown Respondent/Appellant

SOLICITORS: Peter Ash & Associates - Appellant/Respondent
Commonwealth Director of Public Prosecutions - Respondent/Appellant

LEGISLATION CITED: Customs Act 1904 (Cth)
Proceeds of Crime Act 1987
Evidence Act 1995

CASES CITED:
R v Ireland (1970) 126 CLR 321
Bunning v Cross(1978) 141 CLR 54 pp 64-65
R v Ridgeway (1995) 184 CLR 19, p 32
R v Swaffield; Pavic v R (1998) 192 CLR 159, p176
R v Lansdell, unreported NSW CCA 22 May 1995
Weissensteiner v R (1993) 178 CLR 217
R v OGD (1997) 45 NSWLR 744
RPS v R [2000] HCA 3, unreported, 3 february 2000
Bataillard v The King [(1907) 4 CLR 1282 at 1291]
R v Wong and Leung [1999] NSW CCA 420

DECISION: (i) Appeal against conviction dismissed; (ii) Crown appeal allowed, sentence imposed quashed; (iii) Appellant sentenced to imprisonment for fifteen years with a non parole period of ten years.

IN THE COURT OF
CRIMINAL APPEAL

60738/98

60817/98

BEAZLEY JA
SIMPSON J
McINERNEY AJ

Friday 31 March 2000

REGINA v Lajoz KOVACS

Judgment
1    BEAZLEY JA: I agree with Simpson J

SIMPSON J :

2    On 2 October 1998, following a jury trial in the District Court, the appellant was convicted on a charge that, in circumstances of aggravation, on 8 December 1997, without reasonable excuse he attempted to obtain possession of not less than the commercial quantity of a prohibited import (heroin), a charge brought under s 233B of the Customs Act 1904 (Cth). The aggravating circumstance was that he had previously (in 1993) been convicted on a charge of importing not less than the traffickable quantity of the same drug. The maximum sentence applicable to the offence is life imprisonment. Judge Herron sentenced the appellant to imprisonment for thirteen years commencing on 8 February 1998 and specified a non parole period of nine years.
3    The appellant appeals against the conviction. The Crown appeals against the sentence, asserting that it is manifestly inadequate.
4    The Crown case can be stated as follows. On Friday 5 December 1997 a Pakistani national, Naeem Raza Hashmi, arrived at Sydney Airport from Pakistan. Strapped to his body were several packages of heroin. The total gross weight of heroin was 2.5 kilograms. The total pure weight was 1.881 kilograms. The heroin was quickly discovered by Customs agents and Hashmi agreed to co-operate with Australian Federal Police in the pursuit of those to whom he was to…

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 Regina v Kovacs

Details

AGLC: Regina v Kovacs [2000] NSWCCA 74
Case: [2000] NSWCCA 74
Decision Date: 31 March 2000

CaseChat Overview and Summary

The Court of Criminal Appeal in New South Wales dismissed Lajos Kovacs' appeal against conviction for attempting to obtain possession of a commercial quantity of heroin, a charge brought under section 233B of the Customs Act 1904 (Cth). The appellant argued that the trial judge erred in admitting evidence of his status as a serving prisoner, and in not fully and adequately directing the jury regarding this evidence. The Court found that the evidence was not tendency evidence, and that the trial judge's direction to the jury was appropriate. The Crown's appeal against the sentence was allowed, and the appellant was resentenced to imprisonment for fifteen years with a non parole period of ten years. The Court found the original sentence of thirteen years with a non parole period of nine years to be manifestly inadequate, given the appellant's previous conviction for a similar offence and the fact that the current offence was committed while he was on conditional release.

Orders