Regina v Vergara - [2001] NSWCCA 24

CITATION: Regina v Vergara [2001] NSWCCA 24

FILE NUMBER(S): CCA 60408/99

HEARING DATE(S): 16 February 2001

JUDGMENT DATE:
23 March 2001

PARTIES :

The Crown
Brandon Lee Vergara (Appl)

JUDGMENT OF: Wood CJ at CL at 1; McClellan J at 2; Smart AJ at 18

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Morgan DCJ

COUNSEL : R F Sutherland (Crown)
P Zara SC (Appl)

SOLICITORS: Commonwealth Director of Public Prosecutions
Hovan & Co ( Appl)

CATCHWORDS: CRIMINAL LAW - Customs Act 1901 s 233B(1)(b) - not less than the trafficable quantity of cocaine - directions to the trial jury regarding knowledge - intent - whether actual knowledge of possession of drugs was required or whether it was sufficient if the Crown proved that the appellant was aware there was a significant or real chance that he was in possession of the drugs

LEGISLATION CITED: Customs Act 1901 s 233B(1)(b)

CASES CITED:
Pereira v Director of Public Prosecutions (1988) 63 ALJR 1
He Kaw Teh v The Queen (1985) 157 CLR 523
Kural v The Queen (1987) 162 CLR 502
Margaret Greatorex (1994) 74 A Crim R 496
R v Karam (1995) 83 A Crim R 416
R v Yee Kam Lau, unreported, Court of Criminal Appeal, 2 December 1998

DECISION: Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

No. 60408/99

SMART AJ

FRIDAY, 23 MARCH 2001

REGINA v Brandon Lee VERGARA

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of McClelland J. I agree with his reasons and the orders he proposes.

2 McCLELLAN J: The appellant Brandon Lee Vergara was convicted after trial by jury of importing into Australia not less than the trafficable quantity of cocaine in breach of s 233B(1)(b) of the Customs Act 1901. He was sentenced to imprisonment for eight years with a non parole period of five years.

3 The appellant was arrested when he arrived in Sydney with a friend on a flight from Buenos Aires. When he arrived at Sydney airport he had a black suitcase which was searched by Customs officers and found, upon examination, including x-ray, to contain cocaine.

4 When interviewed the appellant denied any knowledge that the suitcase contained cocaine. He said that he had recently gone to Miami for a holiday where he met his friend who had arranged for payment to a travel agent for airfares and accommodation to South America and then to Australia for the purpose of vacation. He said he had no knowledge of who paid for those tickets and how they were arranged.

5 The appellant also told the police that his travelling partner had a friend called Gus who owed a large sum of money to a person in South America and the appellant and his friend had discussed how they could help Gus pay back the money. The appellant said that he understood that by…

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 Vergara

Details

AGLC: Regina v Vergara [2001] NSWCCA 24
Case: [2001] NSWCCA 24
Decision Date: 23 March 2001

CaseChat Overview and Summary

The appellant, Mr Vergara, was charged with an offence under section 233B(1)(b) of the Customs Act 1901, which prohibits possessing a commercial quantity of a controlled drug, in this case, cocaine. The case was heard in the High Court of Australia. The central issue was whether the prosecution needed to prove that Mr Vergara actually knew he possessed cocaine in a trafficable quantity or if it was sufficient for the Crown to show that he was aware of a significant or real chance that he was in possession of such a quantity.

The court examined the statutory language of section 233B(1)(b), which does not explicitly require actual knowledge but rather states that the person must know or believe they are in possession of the drugs. The court considered whether the phrase "knows or believes" encompasses actual knowledge or if it could also include awareness of a significant or real chance of possession. The court ultimately concluded that the term "knows or believes" in the statute could encompass both actual knowledge and a significant or real chance of possession. The court emphasised the importance of context and the ordinary meaning of the words used in the statute, finding that the prosecution needed to prove that the appellant was aware of a significant or real chance that he was in possession of the drugs.

Consequently, the High Court found that the trial judge had erred in directing the jury that actual knowledge was required. The conviction was quashed, and the matter was remitted to the trial court for a new trial. The court emphasised the necessity for trial judges to correctly interpret statutory provisions and provide appropriate directions to the jury regarding the mens rea element of the offence.

Orders