Regina v Muri Junior Balogun - [2004] NSWCCA 72

CITATION: Regina v Muri Junior Balogun [2004] NSWCCA 72

HEARING DATE(S): 9 February 2004

JUDGMENT DATE:
26 March 2004

JUDGMENT OF: Sully J at 1; James J at 31; Hulme J at 32

DECISION: Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed

LEGISLATION CITED: Customs Act 1901 (C'th)
Evidence Act 1995 (NSW)
Crimes Act 1914 (C'th)

CASES CITED: Domican v The Queen (1992) 173 CLR 555
Festa v The Queen (2001) 208 CLR 593
Reg v Coe [2002] NSWCCA 385

PARTIES :
Regina
Muri Junior Balogun

FILE NUMBER(S): CCA 60395/03

COUNSEL: M. Cinque - Crown
M. Bozic SC - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Legal Aid Commission of NSW - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0496

LOWER COURT
JUDICIAL OFFICER : Holt ADCJ

60395/03

SULLY J
JAMES J
HULME J
26 March 2004

REGINA v MURI JUNIOR BALOGUN

Judgment

1 SULLY J: The appellant, Mr. Balogun, stood trial in the District Court in November 2002 before his Honour Acting Judge Holt QC and a jury. The appellant was charged with having attempted, without reasonable excuse, to have in his possession a prohibited import, namely, a quantity of 3,4-Methylenedioxymethylamphetamine, (“MDMA”), being not less than the commercial quantity, which had been imported into Australia in contravention of the Customs Act 1901 (C’th). Such an offence contravenes section 233B(1)(c) of the Customs Act; and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for life.

2 The appellant was found guilty as charged; and he was subsequently sentenced to imprisonment for 8 years with a non-parole period of 5 years. He appeals against his conviction and applies for leave to appeal against his sentence.

The Appeal against Conviction

3 One ground only was argued, namely:

“His Honour erred in his directions in relation to identification evidence in that it failed to sufficiently inform the jury of the particular circumstances of the Appellant’s case requiring a need for caution before accepting the identification evidence.”

4 The identification evidence in question was given by a Federal Agent named Ferlazzo.

5 For a convenient over-view of the relevant facts, it is convenient to quote as follows from Judge Holt’s remarks on sentence:

“On 15 February 2002 an EMS Parcel Force world-wide package air ways bill, EE9357561381GB was dispatched from the United Kingdom. The consignor was shown as “Hamleys 188-196 Regent Street, London UK, WIB5B B”. The package was said to contain children’s toys. The package was consigned to Mrs. Lisa Stokes, 64 Dennison Street, Bondi Junction, New South Wales, Australia, 2022.

On 20 February 2002 members of the Australian Customs Service (ACS) at the Qantas mail handling unit examined the package. The package was a brown cardboard box, about 40 centimetres by 34 centimetres by 31 centimetres. Inside the cardboard box were three small cardboard boxes purportedly containing the children’s toys, each of which was wrapped in “Hamleys” red wrapping paper. Each of these boxes was found 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 Muri Junior Balogun

Details

AGLC: Regina v Muri Junior Balogun [2004] NSWCCA 72
Case: [2004] NSWCCA 72
Decision Date: 26 March 2004

CaseChat Overview and Summary

In the case of Regina v Muri Junior Balogun, the appellant was convicted in the District Court of attempting to possess a commercial quantity of a prohibited drug, MDMA, in contravention of the Customs Act 1901. The conviction was based on circumstantial evidence, including surveillance footage and telephone records linking the appellant to the drug-laden parcel. The appellant appealed against his conviction, arguing that the trial judge erred in his directions to the jury regarding the identification evidence provided by a Federal Agent. Specifically, the appellant contended that the judge should have highlighted additional circumstances that might have necessitated greater caution in accepting the identification evidence. The Court of Criminal Appeal, however, found that the trial judge's directions were adequate and that any potential defect in those directions did not result in a miscarriage of justice. The Court also granted leave to appeal against the sentence but ultimately dismissed the appeal against sentence, finding that the original sentence was within the permissible range.

The Court dismissed the appeal against conviction, holding that the trial judge's instructions to the jury on the identification evidence were sufficient and that the appellant failed to demonstrate any substantial miscarriage of justice. Furthermore, the Court found the circumstantial evidence against the appellant to be very strong, making the identification evidence, while important, not crucial to the outcome. The Court granted leave to appeal against the sentence but dismissed the appeal, concluding that the original sentence was appropriate given the seriousness of the offence and the appellant's role as an internal courier.

Orders