Skelton v The Queen
[2003] WASCA 76
•8 APRIL 2003
SKELTON -v- THE QUEEN [2003] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 76 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:141/2002 | 4 FEBRUARY 2003 | |
| Coram: | MALCOLM CJ TEMPLEMAN J MILLER J | 8/04/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NATHAN JOHN SKELTON THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Possession of prohibited import Guilty plea Whether plea vitiated by prosecution not proving drugs were reasonably suspected of having been imported into Australia |
Legislation: | Customs Act 1901 (Cth), s 233B(1)(ca), 50, 51 Justices Act 1902 (WA), s 100 |
Case References: | Milicevic v Campbell (1975) 6 ALR 1 Barany v The Queen (2000) 114 A Crim R 426 Bellissimo (1996) 84 A Crim R 465 Cameron [2002] 76 ALJR 382 Darwell (1997) 94 A Crim R 35 DPP v El Karhani (1990) 97 ALR 373 Gallaher v The Queen (1991) 23 NSWLR 220 Grimwood v The Queen [2002] WASCA 135 Heryadi (1998) 19 WAR 383 Liberti v R (1991) 55 A Crim R 120 Lim v Bateman (2001) 165 FLR 268 Pearce & Carter v Director of Public Prosecutions (No 2) (1992) 59 A Crim R 182 R v Boxtel (1994) 2 VR 98 R v Caruso (1988) 49 SASR 465 R v Leff (1996) 86 A Crim R 212 R v Olbrich (1999) CLR 270 Wong v The Queen (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SKELTON -v- THE QUEEN [2003] WASCA 76 CORAM : MALCOLM CJ
- TEMPLEMAN J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Possession of prohibited import - Guilty plea - Whether plea vitiated by prosecution not proving drugs were reasonably suspected of having been imported into Australia
Legislation:
Customs Act 1901 (Cth), s 233B(1)(ca), 50, 51
Justices Act 1902 (WA), s 100
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Mr D W L Renton
Solicitors:
Applicant : Beau Hanbury
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Milicevic v Campbell (1975) 6 ALR 1
Case(s) also cited:
Barany v The Queen (2000) 114 A Crim R 426
Bellissimo (1996) 84 A Crim R 465
Cameron [2002] 76 ALJR 382
Darwell (1997) 94 A Crim R 35
DPP v El Karhani (1990) 97 ALR 373
Gallaher v The Queen (1991) 23 NSWLR 220
Grimwood v The Queen [2002] WASCA 135
Heryadi (1998) 19 WAR 383
Liberti v R (1991) 55 A Crim R 120
Lim v Bateman (2001) 165 FLR 268
Pearce & Carter v Director of Public Prosecutions (No 2) (1992) 59 A Crim R 182
R v Boxtel (1994) 2 VR 98
R v Caruso (1988) 49 SASR 465
R v Leff (1996) 86 A Crim R 212
R v Olbrich (1999) CLR 270
Wong v The Queen (2001) 207 CLR 584
(Page 3)
1 MALCOLM CJ: In my opinion, this application for an extension of time within which to appeal against conviction should be dismissed for the reasons to be published by Templeman J. I am in entire agreement with those reasons and there is nothing I could usefully add.
2 TEMPLEMAN J: The applicant, Nathan John Skelton, seeks an extension of time in which to appeal against conviction, following his plea of guilty on 16 January 2002, to a charge of possessing drugs. It is the essence of the applicant's case that he pleaded guilty when he should not have done, because, (it is said) the Crown failed to present evidence necessary to prove essential elements in the offence with which the applicant was charged.
3 The indictment presented against the applicant was in the following terms:
"On the 18th day July 2001 at Perth in the State of Western Australia NATHAN JOHN SKELTON without reasonable excuse had in his possession a prohibited import to which section 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetimine also known as Ecstasy, being not less than the trafficable quantity applicable to that narcotic substance, which was reasonably suspected of having been imported into Australia in contravention of the said Act, contrary to paragraph 233B(1)(ca) of the Act." [my emphasis]
4 It is sufficient to note that the charge reflects the wording of s 233B(1)(ca) of the Customs Act 1901 (Cth).
5 The applicant was arraigned before a District Court judge and pleaded guilty to the charge. The prosecutor then read to the learned Judge the statement of facts included in the prosecution brief. The statement had been prepared pursuant to s 100 of the Justices Act 1902. This section imposes on the prosecution an obligation to serve on an accused person materials including "a statement of the material facts relevant to the charge".
6 The statement read to his Honour by the Crown prosecutor contained the following material facts:
• On or about 9 June 2001, Geoffrey Wayne Tooth flew from Perth to Bali, Indonesia.
·
(Page 4)
- • On or about 18 June 2001, Andrew Guy flew from Perth to Bali.
• On about the same date, the applicant flew from Brisbane to Bali.
• Whilst in Bali, Messrs Tooth and Guy organised the purchase of an amount of ecstasy that would later be imported into Australia.
• On or about 20 June 2001 Mr Guy arrived at Perth International Airport from Bali.
• Following Mr Guy's return, a number of telecommunication services he owned and operated were lawfully monitored and intercepted by members of the Australian Federal Police.
• "… those interceptions revealed that after Guy had departed Bali, Tooth continued on with arrangements pertaining to the attainment of the ecstasy, that the ecstasy purchased in Bali would be collected by Tooth and Guy and that a person named 'Skelow' would be involved."
• On about 12 July 2001, the applicant returned to Brisbane from Bali.
• On or about 14 July 2001, Mr Tooth arrived at Perth from Bali.
• On or about 15 July 2001, Mr Tooth flew out of Perth for Sydney, where he met the applicant, who had flown to Sydney from Brisbane on the same day.
• The applicant and Mr Tooth booked a room at an hotel in Potts Point, New South Wales. "It was during this time that the [applicant] and Tooth took possession of the afore mentioned ecstasy."
• On 17 July 2001 the applicant and Mr Tooth flew from Sydney to Perth. "At this time, the [applicant] was in possession of the ecstasy which had been concealed within a soft fluffy toy."
(Page 5)
7 The statement of facts continue to recount the circumstances in which the applicant was apprehended at Perth Airport and was found to have in his possession a stuffed toy duck which contained ecstasy tablets.
8 Following the statement of material facts to the Court, there was a discussion between the learned Judge and counsel about certain aspects of the sentencing process. At the conclusion of those submissions, the learned Judge adjourned the matter to 22 January 2002.
9 When the Court resumed, the learned Judge referred to the fact that on the previous occasion, the prosecutor had "outlined the facts relating to this matter". The applicant's counsel then said "That's correct". Although counsel did not formally accept the truth of the statements relied upon by the prosecution, there can be no doubt that the sentencing process proceeded on the basis that the applicant accepted those statements as true.
10 The applicant now contends that he should never have pleaded guilty because the prosecution adduced no evidence to establish either that the ecstasy found in his possession at Perth Airport had in fact been imported into Australia or that the drugs were reasonably suspected of having been imported into Australia. That is to summarise the applicant's proposed grounds of appeal which are as follows:
"1. The applicant pleaded guilty to an offence under the Customs Act 1901 (Cmwth) ("the Act") and whereas no evidence was presented in support of that charge, and the appellant could not plead guilty to, or have been found guilty of the offence with which he was charged, there has been an error of law.
PARTICULARS
- 1.1 There was no evidence that the appellant was in possession of prohibited imports within the meaning of that term as defined by s.233B(2) of the Act having regard to the admitted allegation that;
(a) the appellant was given the prohibited drug in Sydney in the state of New South Wales ("Sydney") for the purpose of transporting it to Perth in the state of Western Australia ("Perth") (") (Pp 50 of
(Page 6)
- sentencing transcript 22/1/02 and Pp 58 of sentencing transcript 30/1/02);
- (b) the appellant travelled from Sydney to Perth in possession of the prohibited drug (Pp 58);
- 1.2 There was no evidence that the appellant was aware that the prohibited drugs in his possession had been imported into Australia in contravention of the Act or at all having regard to the admitted allegations that;
(a) he, the appellant was handed the prohibited drugs by another person who had not participated in the purchase of the prohibited drugs;
(b) the prohibited drugs were obtained in Sydney by someone other than the appellant (Pp 58 of the sentencing transcript 30/1/02);
1.3 There was no evidence that the appellant aided, abetted, counselled or procured or was in any way knowingly concerned in importing or bringing into Australia the prohibited drugs in his possession to which the Act applied having regard to the admitted allegation that;
(a) the appellant took possession of the prohibited drugs in Sydney."
12 In my view, it is a complete answer to the applicant's contention to say that because he pleaded guilty, there was no need for the prosecution to present evidence in support of the charge. The prosecution was not required to produce any material to the applicant in addition to that required by s 100 of the Justices Act. That material does not include the evidence upon which the prosecution would rely if the matter went to trial. Having been given the statement of material facts, the applicant
(Page 7)
- knew precisely the case which was put against him. The applicant had the benefit of legal advice and he elected to plead guilty.
13 Had the applicant entered a plea of not guilty, the prosecution would have proceeded against him at a trial. It would then have been necessary to adduce the evidence which proved all the elements of the charge.
14 I turn to the particulars set out in par 1.1 of the proposed grounds of appeal. It is there said that there was no evidence that the applicant was in possession of prohibited imports. In other words, it is contended that the prosecution failed to prove that the drugs found in the applicant's possession had in fact been imported into Australia.
15 However, it is clear from the decision of the High Court in Milicevic v Campbell (1975) 6 ALR 1, that proof of actual importation is not required. As Gibbs J said, at p 7:
"To prove an offence against (s 233B(1)(ca) of the Customs Act) it is necessary to show that the accused had in his possession 'prohibited imports'. However, those words do not connote that the goods to which they refer have in fact been imported. They are given by s 51 the special meaning of goods whose importation is prohibited under s 50. They are goods which have been 'put in a class tabooed', as Griffith CJ said in Hill v Donohoe 13 CLR at 226 and it is made unlawful to import goods of that class … but the goods answer the description of 'prohibited imports' whether they have been imported or not." [my emphasis]
16 By s 50 of the Customs Act, the Governor-General may, by regulation, prohibit the importation of goods into Australia. By s 51, goods, the importation of which is prohibited under s 50 are "prohibited imports".
17 It follows that because ecstasy is a substance, the importation of which has been prohibited by regulation, it is a prohibited import for the purposes of s 233B of the Customs Act 1901. Thus, in the present case, the prosecution was required only to prove that the applicant had ecstasy in his possession, a fact which is not in dispute.
18 I turn to par 1.2 of the particulars of the proposed grounds of appeal. Although that particular refers to a lack of evidence that the applicant was aware that the prohibited drugs in his possession had been imported into Australia, a somewhat different argument was advanced on his behalf on
(Page 8)
- the hearing of the application. The argument was that there was no evidence that the quantity of drugs in the applicant's possession "was reasonably suspected of having been imported into Australia".
19 Furthermore, it was submitted, the evidence was to the contrary: namely a statement made by the applicant in which he said that when he met Mr Tooth in Sydney, Mr Tooth produced bundles of $100 and $50 notes which, he said, was for the purpose of buying ecstasy. The applicant said he saw Mr Tooth take the money from the safe in the hotel room in which they were staying. According to the applicant, Mr Tooth told him he was going to buy the ecstasy from someone in Sydney. Thus, as far as the applicant was concerned, the ecstasy he carried from Sydney to Perth, had originated in Australia.
20 It is an element of the offence created by s 233B(1)(ca) of the Customs Act, "that the prohibited imports, are reasonably suspected of having been imported into Australia." However, the test of reasonable suspicion must, by definition of the word "reasonable", be objective. In Milicevic v Campbell (supra) Gibbs J, at p 7, observed that:
"The fact that under s 233B(1)(ca) it is not necessary for the prosecution to prove that the accused knew or himself suspected that the goods were unlawfully imported is therefore no objection to its validity."
- The issue there, was the validity of a provision which brought about the forfeiture of goods unlawfully imported, even though the goods had passed into the hands of an innocent purchaser. It was held that the subjective view of the accused person is irrelevant to the question whether the goods might reasonably be suspected of having been imported into Australia.
21 In the present case, the Court has not seen the evidence from which the statement of material facts was compiled. It was submitted on behalf of the applicant that on any view, the evidence would not have been admissible against him. It was not suggested that he was party to any of the intercepted telephone conversations: and he is implicated only on the basis that the reference to "Skelow" was a reference to him.
22 Two points may be made in answer to that submission. The first is that the applicant did not challenge the truth and accuracy of the facts contained in the statement of material facts before he pleaded guilty – and he does not do so now.
(Page 9)
23 The second point is that, had he done so, and pleaded not guilty, it would have been open to the prosecution to adduce the evidence foreshadowed by the statement of material facts, not for the purpose of proving that the drugs in the applicant's possession had been imported from Bali (which, I repeat, it was not necessary to prove) but to prove that there was, viewed objectively, a reasonable suspicion that they had been imported into Australia. It would then have been for the jury to decide whether the evidence justified such a suspicion.
24 In my view, the material facts relied upon by the prosecution did give rise to a reasonable suspicion for the purpose of s 233B(1)(ca). It emerged from the statement of material facts (which I have summarised above) that Messrs Tooth and Guy organised the purchase of ecstasy while they were in Bali. The telephone interceptions revealed that the ecstasy purchased in Bali would be collected by them and that a person named "Skelow" would be involved. This is clearly a reference to the applicant. Mr Tooth travelled back to Sydney; and it is he who collected the ecstasy which the applicant then carried to Perth.
25 In my view, there is a reasonable suspicion that the ecstasy found in the applicant's possession was that which Mr Tooth had arranged to acquire in Bali and which had then been imported into Australia.
26 I see no inherent inconsistency between that suspicion and the applicant's statement that Mr Tooth bought the ecstasy while in Sydney. In my view, that statement is consistent with Mr Tooth arranging to have the ecstasy brought into Australia by some other person or persons from whom it would be purchased on arrival.
27 I accept that the materials relied upon by the prosecution as giving rise to a reasonable suspicion that the drugs found in the applicant's possession had been imported into Australia, did not constitute evidence of actual importation admissible against the applicant. However, I repeat that the applicant's knowledge is irrelevant. The question is whether there was a reasonable suspicion that the drugs in his possession had been imported.
28 It may be noted that by s 233B(1), on the prosecution for an offence against s 233B(1)(ca):
"It is a defence if the person proves that the goods were not imported into Australia."
(Page 10)
29 Clearly, if the applicant was able to prove (on the balance of probabilities) that the drugs found in his possession at Perth Airport had not been imported into Australia, he could not have been guilty of the offence with which he was charged. That being so, it would be appropriate to quash his conviction, even though it resulted from his own plea. However, the applicant has not sought to prove that the drugs were not imported. He contends only that they were purchased in Sydney. That is a matter about which he claims no direct knowledge: and in any event, for the reasons I have set out above, if that be the fact, it is not inconsistent with the importation of the drugs from Bali.
30 During the hearing of the application, the Court received into evidence a statement by a senior profiling chemist at the Australian Forensic Drug Laboratory. This laboratory is a section of the Australian Government Analytical Laboratories in Sydney. The chemist's evidence was that analysis had been carried out of certain drugs which, I assume, would be proved to be the drugs found in the applicant's possession. The chemist said:
"Basic and neutral impurities found in all samples point out that those samples were produced using the synthetic process not commonly used in Australia. In my opinion those samples were produced overseas and imported to Australia."
31 The Court was informed by counsel for the Crown that if the applicant had not pleaded guilty, the chemist's evidence would have been adduced at trial to prove that the drugs were reasonably suspected of having been imported into Australia.
32 In my view, this evidence is irrelevant for present purposes. For the reasons set out above, I consider that the material facts relied on by the prosecution do disclose a reasonable suspicion that the drugs had been imported into Australia.
33 It is not necessary to refer to ground 1.3, which was not pursued.
34 In my view, the application should be dismissed.
35 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Templeman J with which I agree. I have nothing to add and I, too, would dismiss the application.
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