Swansson v The Queen - [2011] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Swansson v R [2011] NSWCCA 29
Hearing dates: 13 August 2010
Decision date: 16 February 2011
Before: McClellan CJ at CL at 1
RS Hulme J at 2
Davies J at 77
Decision:
Appeal against conviction dismissed.

Catchwords: Aid, abet counsel or procure the commission of an offence - attempted importation of not less than the commercial quantity applicable to ecstasy - appellant's knowledge - Crown case circumstantial - whether the verdict is unreasonable - whether Crown's closing address prejudicial -whether adequate correction - whether jury should have been discharged.
Legislation Cited: Customs Act 1901 (Cth), s 233B(1)(b)
Criminal Code Act 1995 (Cth), s 11.1(1)
Cases Cited: R v R (1997) 99 A Crim R 327
Anderson (1991) 53 A Crim R 421
R v Hall (1960) 77 WN (NSW) 605
Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208
Crofts v The Queen (1996) 186 CLR 427
R v El-Hayek (2004) NSWCCA 25
Swansson v R (2008) NSWCCA 56
Swansson v R (2007) NSWCCA 67
Category: Principal judgment
Parties: David Anthony Swansson
Regina
Representation: Counsel:
Mr W Roser SC (Crown)
Mr J Stratton SC with Mr P Hogan (Appellant)
Solicitors:
Solicitor Commonwealth DPP (Crown)
The Law Practice (Appellant)

File Number(s): 2004/14999
Decision under appeal

Date of Decision:

2009-05-13 00:00:00

Before:

Zahra DCJ

File Number(s):

2004/11/1410

Judgment

McCLELLAN CJ at CL: I agree with RS Hulme J.

RS HULME J : On 13 May 2009 the above named Appellant was convicted of an offence which, in summary, was that between about 28 September and 17 December 2003 he did aid, abet, counsel or procure the commission of an offence by Anthony King and Mohamad Mr Alchikh against s11.1(1) of the Criminal Code Act 1995 and s233B(1)(b) of the Customs Act 1901 namely that Messrs King and Mr Alchikh attempted to import into Australia prohibited imports namely not less than the commercial quantity applicable to 3,4-methylenedioxymethamphetamine.

On 20 July 2009 Zahra DCJ sentenced the Appellant to imprisonment for 9 years including a non-parole period of 5 years and 5 months.

The Appellant had previously been convicted on that charge but his conviction was set aside by this Court - see Swansson v R [2007] NSWCCA 67; Swansson v R [2008] NSWCCA 56.

The grounds of appeal are:-

1. There is a substantial risk that the trial proceedings miscarried by reason of the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury. These submissions had no factual basis and were contrary to the evidence.

2. There is a substantial risk that the trial miscarried by reason of the unfair attempt by the Crown Prosecutor in his closing address to persuade the jury to draw inferences of fact, and accept argumentative suggestions that were not properly open on the evidence that were contrary to the evidence.

3. The learned trial judge erred in failing to discharge 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 v The Queen

Details

AGLC: Swansson v The Queen [2011] NSWCCA 29
Case: [2011] NSWCCA 29
Decision Date: 16 February 2011

CaseChat Overview and Summary

The appellant in this case, Swansson, was convicted of aiding, abetting, counselling or procuring the attempted importation of not less than the commercial quantity applicable to ecstasy. The appeal against conviction was heard by the High Court of Australia. The primary legal issue before the Court was whether the verdict of the jury was unreasonable, given the circumstantial nature of the Crown's case. Additionally, the Court considered whether the Crown's closing address was prejudicial and whether any prejudice was adequately corrected. Finally, the Court examined whether the trial judge should have discharged the jury in light of these circumstances.

The Court held that the jury's verdict was not unreasonable, despite the circumstantial evidence. The Court found that the jury was properly directed on the elements of the offence and the required standard of proof. The Court further determined that the Crown's closing address did not constitute a serious miscarriage of justice, and any potential prejudice was adequately addressed through the trial judge's instructions to the jury. The Court concluded that the trial judge did not err in failing to discharge the jury, as the evidence, when viewed as a whole, was sufficient to support the jury's verdict.

The Court's decision affirmed the conviction of the appellant. The Court found that the jury had properly considered the evidence and applied the legal principles in reaching their verdict. The circumstantial nature of the evidence did not render the verdict unreasonable, as the jury was adequately directed on the elements of the offence and the required standard of proof. The Court also found that any potential prejudice from the Crown's closing address was adequately addressed through the trial judge's instructions to the jury. The trial judge did not err in failing to discharge the jury, as the evidence, when viewed as a whole, was sufficient to support the jury's verdict.

Orders