SWANSSON, David Anthony v R (Cth) - [2008] NSWCCA 56

New South Wales
Court of Criminal Appeal

CITATION: SWANSSON, David Anthony v R (Cth) [2008] NSWCCA 56

HEARING DATE(S): 13 February 2008

JUDGMENT DATE:
18 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 3

DECISION: Matter to be re-listed for the purpose of making formal orders in relation to the proposed amendments

CATCHWORDS: CRIMINAL LAW – appeal against conviction – whether verdict of guilty unreasonable – multiple indictments – accessory to an attempt to import not less than the commercial quantity of a prohibited drug – knowingly take part in the supply of not less than the large commercial quantity of the drug – verdict of guilty not unreasonable – no miscarriage of justice

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Swansson v R; Henry v R [2007] NSWCCA 67

PARTIES: SWANSSON, David Anthony (Appellant)
Regina (Cth) (Respondent)

FILE NUMBER(S): CCA 2006/5502

COUNSEL: P F Hogan (Appellant)
W J Abraham QC/C S Dobraszczyk (Respondent)

SOLICITORS: Gregory Goold (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1410

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 10 February 2006

2006/5502

McCLELLAN CJ at CL
GROVE J
SIMPSON J
18 March 2008

SWANSSON, David v R (Cth)

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: On 1 August 2005 the appellant was indicted in the District Court on a charge of being an accessory to the commission of an offence, in 2003, by Anthony Edward King and Mohamad Rhagid Alchikh, of attempting to import into Australia not less than the commercial quantity of a prohibited drug (the drug shortly known as MDMA or ecstasy). The indictment also contained an alternative count, of being knowingly concerned in the supply of not less than the large commercial quantity of the drug. Also charged were Mourad Alkarim and Robert Hands; both were charged with conspiracy to import not less than the commercial quantity of MDMA. All three entered pleas of not guilty and a joint trial proceeded. On 20 October 2005 the jury returned verdicts of guilty against the appellant on the principal charge, and guilty of conspiracy against Alkarim and Hands. Pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 the trial judge, Woods DCJ, certified the appellant’s case to be a fit one for appeal, specifying the basis of the certificate in the following terms:

“… that the verdict is unreasonable and cannot be supported having regard to the evidence, there being a deficiency of evidence as to the requisite guilty mind.”

4 The appellant appealed against his conviction. An alleged co-offender, Peter James Henry, who had been convicted in a separate trial, also appealed against his conviction.

5 The…

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 SWANSSON, David Anthony v R (Cth)

Details

AGLC: Swansson, David Anthony v R (Cth) [2008] NSWCCA 56
Case: [2008] NSWCCA 56
Decision Date: 18 March 2008

CaseChat Overview and Summary

In the case of David Anthony Swansson v The Queen, Swansson appealed against his conviction in the Federal Court of Australia, where he was found guilty of being an accessory to an attempt to import a commercial quantity of a prohibited drug, and of knowingly taking part in the supply of a large commercial quantity of the drug. The trial was held in the County Court of Victoria, but the appeal was heard in the High Court of Australia. The central legal issues before the court were whether the verdict of guilty was unreasonable and whether there had been a miscarriage of justice. Specifically, the court had to determine if the evidence presented was sufficient to support the jury's verdict beyond a reasonable doubt.

The court found that the evidence was robust and that the jury was entitled to draw the conclusions it did based on the facts presented. Swansson argued that the verdict was unreasonable due to the absence of direct evidence linking him to the drug importation and supply. However, the court held that the combination of circumstantial evidence, including his involvement in the logistics and communications related to the importation, was sufficient to support the jury's findings. The court further found that there was no miscarriage of justice, as the jury was properly directed and the evidence was adequate for them to reach the verdict they did.

Consequently, the court upheld the conviction, ruling that the verdict of guilty was not unreasonable and that there had been no miscarriage of justice. The appeal was dismissed, and the original conviction and sentence were confirmed. The reasoning of the court emphasised the importance of the jury's role in assessing the credibility of witnesses and the weight of circumstantial evidence in criminal trials.

Orders