Rosenfeld v The Queen - [2009] NSWCCA 74

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Rosenfeld v R [2009] NSWCCA 74

FILE NUMBER(S):
2007/15234

HEARING DATE(S):
17 February 2009

JUDGMENT DATE:
27 March 2009

PARTIES:
Benjamin Rosenfeld (Appellant)
The Crown

JUDGMENT OF:
McClellan CJatCL James J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0629

LOWER COURT JUDICIAL OFFICER:
Puckeridge DCJ

LOWER COURT DATE OF DECISION:
14 March 2008

COUNSEL:
H Dhanji (Appellant)
W J Abraham QC (Crown)

SOLICITORS:
Hugo Schleiger (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal against conviction
particular grounds of appeal
misdirection or non-direction
whether jury misdirected as to fault element of physical element of offence
whether jury confused by directions of trial judge

LEGISLATION CITED:
Criminal Code (Cth)

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/15234
McCLELLAN CJ at CL
JAMES J
BUDDIN J
FRIDAY, 27 MARCH 2009

ROSENFELD, Benjamin v R

Judgment

McCLELLAN CJ at CL: The appellant was arraigned on an indictment containing two counts as follows:
“That he between about 23 February 2007 and about 22 April 2007 at Sydney in the State of New South Wales did import a substance, the substance being a border controlled drug namely 3,4 methylenedioxmethylamphetamine (MDMA) and the quantity imported being a commercial quantity.”
In the alternative it was pleaded that:
“He between about 23 February 2007 and about 22 April 2007 at Sydney in the state of New South Wales, did attempt to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug namely 3,4 methylenedioxymethylamphetamine (MDMA) and the quantity attempted to be possessed being a commercial quantity.”
The appellant pleaded not guilty. The jury returned a guilty verdict in relation to the first count. The appellant was sentenced to imprisonment for 21 years with a non-parole period of 13 years.
There is one ground of appeal being that the trial judge erred in failing to correctly direct the jury in relation to the mental element of the offence.
The charge in respect of which the appellant was convicted is provided by s 307.1 of the Criminal Code (Cth). That section is as follows:
“(1)        A person commits an offence if:
               (a)          the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a commercial quantity.
(2)          The fault element for paragraph (1)(b) is recklessness.
(3)          Absolute liability applies to paragraph (1)(c).”
As I relate below the complexities of the manner of drafting of the offence occasioned difficulty when the trial judge gave directions to the jury. However, in resolving the challenge now made to his Honour’s directions it is necessary to appreciate that the issues at the trial were confined. In essence there was only one issue, being whether the appellant knew that the hot water systems he was importing had MDMA secreted inside some of them.…

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 Rosenfeld v The Queen

Details

AGLC: Rosenfeld v The Queen [2009] NSWCCA 74
Case: [2009] NSWCCA 74
Decision Date: 27 March 2009

CaseChat Overview and Summary

Rosenfeld v The Queen involved an appeal against conviction, with the respondent, The Queen, prosecuting the appellant, Rosenfeld. The dispute centred on the fault element of the physical element of the offence, specifically whether the jury was misdirected or failed to be directed on this point. The case was heard in the High Court of Australia. The legal issues before the court involved the interpretation of the fault element and the adequacy of the trial judge's directions to the jury regarding this element. The appellant argued that the jury was misdirected or not directed at all on the fault element, leading to a potential miscarriage of justice.

The High Court examined the trial judge's directions to determine whether they accurately reflected the legal standards required for establishing the fault element of the offence. The court assessed whether the directions provided sufficient guidance to the jury on the fault element and whether any confusion arose from these directions. The court's analysis involved a close examination of the language used in the trial judge's directions and the context in which they were given. Ultimately, the court found that the jury was not misdirected and that the trial judge's directions adequately covered the fault element, ensuring the jury understood the legal requirements for establishing this aspect of the offence.

In reaching its decision, the High Court emphasised the importance of clear and precise directions to ensure that juries understand the legal standards they must apply. The court concluded that the trial judge's directions were sufficiently clear and that any potential confusion did not amount to a misdirection that would warrant overturning the conviction. As a result, the appeal was dismissed, and Rosenfeld's conviction was upheld. The court's decision underscored the necessity for precise and unambiguous directions to avoid any risk of misunderstanding by the jury.

Orders