Situ v The Queen - [2008] NSWCCA 161

New South Wales
Court of Criminal Appeal

CITATION: SITU v R [2008] NSWCCA 161

HEARING DATE(S): 3 April 2008

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 48; Hoeben J at 49

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against conviction - attempt to possess trafficable quantity of methylamphetamine - whether trial judge erred in failing to direct verdict of acquittal - whether act was merely preparatory - whether trial judge erred in directions regarding control of property - whether jury verdict unreasonable

LEGISLATION CITED: Customs Act 1901
Criminal Code (Cth)

CATEGORY: Principal judgment

PARTIES: Xue Zhong Situ (Appellant)
The Crown (Commonwealth)

FILE NUMBER(S): CCA 2007/2799

COUNSEL: P Byrne SC (Appellant)
M Bracks (Crown - Cth)

SOLICITORS: Ren Zhou Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0927

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 9 February 2007

CCA 2007/2799

McCLELLAN CJ at CL
JAMES J
HOEBEN J
MONDAY 14 JULY 2008

SITU, Xue Zhong v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial by jury of one count under s 233B(1)(a)(iv) of the Customs Act 1901 and s 11.1 of the Criminal Code (Cth) being that, between about 28 and 30 September 2004, he attempted to possess goods that had been imported into Australia in contravention of the Customs Act, namely a trafficable quantity of methylamphetamine. He was sentenced to imprisonment for a term of 7 years with a non-parole period of 4 years.

The Crown case

2 On 19 September 2004 a package was consigned in Guangzhou, China for carriage by air to Sydney via the Express Mail Service. The package carried a consignment note indicating that it was addressed to “Ben Chan” at 86 Mercury Street, Narwee. The consignment note did not record, at least not in English, the nature and value of the goods. The package was given the bar code reference number EA473524526CN. The package arrived in Sydney on 21 September 2004 and was given the parcel post control reference number N239542. It was then taken to the International Mail Handling Unit at Clyde.

3 All packages imported into Australia by post must be cleared by the Australian Customs Service before being released to the recipient. If the value of the goods is less than $1,000 the Customs Service requires an invoice describing the nature and value of the goods and an informal clearance can be given. However, if the value of the goods cannot be ascertained from the accompanying documents, the package is referred to the commercial area of the Sydney Gateway Facility at Clyde and only released after proof of the value of the goods has been provided.

4 On 22 September 2004 the Customs Service prepared and posted a document known as a First Notice in respect of the package. The notice recorded the reference number: N239542, as well as the fact that…

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 Situ v The Queen

Details

AGLC: Situ v The Queen [2008] NSWCCA 161
Case: [2008] NSWCCA 161
Decision Date: 14 July 2008

CaseChat Overview and Summary

The matter involves an appeal against conviction by the appellant, Situ, who was found guilty of attempting to possess a trafficable quantity of methylamphetamine. The conviction was entered by the Court of Appeal, which had jurisdiction to hear the appeal under the Crimes (Appeal and Review) Act 1995. The primary issue before the Court was whether the trial judge erred in failing to direct a verdict of acquittal on the basis that the act in question was merely preparatory, and whether the trial judge erred in the directions given to the jury regarding the control of property. The Court needed to determine if the jury's verdict was unreasonable or not supported by the evidence.

The Court considered the trial judge's failure to direct a verdict of acquittal. It was noted that the trial judge did not err in this regard, as the evidence demonstrated that the act in question was not merely preparatory but rather demonstrated a clear intention to possess the methylamphetamine. The Court further examined the trial judge's directions to the jury regarding control of property, and found that these directions were not erroneous, as they correctly reflected the law on the matter. The Court was satisfied that the jury's verdict was reasonable and supported by the evidence.

Having considered the arguments presented, the Court found no error in the trial judge's directions or in the jury's verdict. The appeal against conviction was dismissed, and the conviction was upheld. The Court confirmed that the evidence was sufficient to support the jury's finding that the appellant had attempted to possess a trafficable quantity of methylamphetamine, and that the trial judge's directions to the jury were correct and appropriate. The Court further found that the jury's verdict was reasonable and not unsupported by the evidence.

Orders