Kupec v R - [2018] NZSC 113

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 92/2018
[2018] NZSC 113

BETWEEN	JIRI KUPEC Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	P L Borich QC for Applicant K S Grau for Respondent
Judgment:	22 November 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was found guilty by a jury in the District Court of importing a Class A controlled drug (methamphetamine) into New Zealand. The methamphetamine was located by customs officers in suitcases which he and his mother had with them when they arrived in New Zealand from Thailand. His defence at trial was that he had understood that the suitcases contained currency which was to be smuggled into the United States (which is where the applicant and his mother intended to go after leaving New Zealand). His appeal against conviction and sentence was dismissed by the Court of Appeal[1] and he now seeks leave to appeal to this Court against his conviction.
[1]Kupec v R [2018] NZCA 377 (Brown, Clifford and Williams JJ).
Counsel for the applicant raises three grounds which are said to justify the grant of leave.
The first complaint is directed at the summing-up of the trial Judge, Judge McGuire.
In his question trail for the jury, the Judge posed the following questions:
[3]       Are you sure that at the time he brought the suitcases into New Zealand, the defendant knew that the suitcases contained an illegal drug?
If Yes, find him Guilty
If No, go to [4]
[4]       Are you sure that at the time he brought the suitcases into New Zealand, the defendant believed that it was a real possibility that the suitcases contained an illegal drug?
If Yes, go to [5]
If No, find him Not Guilty
[5]       Are you sure that knowing there was a real possibility that the suitcases contained an illegal drug, he unreasonably disregarded that risk?
If Yes, find him Guilty
If No, find him Not Guilty

These questions reflect the judgment of this Court in Cameron v R.[2]

[2]Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73] and [97].

Counsel for the applicant suggests that the Court should review the approach taken in Cameron so that the issues for the jury in a case such as this would come down to whether:
(a)the defendant was aware of the relevant risk; and
(b)in the circumstances known to the defendant it was unreasonable for the defendant to take that risk.

This approach would suggest changes to questions [4] and [5] of the question trail with question [4] framed in terms of awareness rather than belief that it was a real possibility and question [5] making it clear that reasonableness is to be judged on the risk the defendant saw. In advancing his submission on this point, counsel for the applicant relied on the speech of Lord Bingham in R v G

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 Kupec v R

Details

AGLC: Kupec v R [2018] NZSC 113
Case: [2018] NZSC 113
Decision Date: 22 November 2018

CaseChat Overview and Summary

The applicant in this case, Jiri Kupec, appealed against his conviction for importing a Class A controlled drug (methamphetamine) into New Zealand. The conviction was upheld by the Court of Appeal, and Kupec now seeks leave to appeal to the Supreme Court of New Zealand. The central issues in this case revolve around the interpretation and application of legal principles in drug importation cases, particularly concerning the subjective awareness of risk and the admissibility of out-of-court statements.

The Supreme Court examined three main grounds for the appeal. Firstly, the Court considered whether the trial Judge's summing-up to the jury correctly reflected the legal principles established in previous cases, particularly Cameron v R. The applicant argued that the questions posed to the jury should focus on the defendant's awareness of the risk rather than his belief in its possibility. However, the Supreme Court found no substantial difference between the proposed approach and the one adopted in Cameron. Secondly, the Court addressed whether the applicant's counsel was unfairly prevented from arguing that an honest belief in the innocence of the applicant should lead to acquittal. The Court concluded that any potential error did not result in a miscarriage of justice. Thirdly, the Court reviewed the trial Judge's handling of the applicant's out-of-court statement and found no grounds for appeal, as the issue did not present a matter of public or general importance.

In light of these considerations, the Supreme Court dismissed the application for leave to appeal. The Court found that the trial and appellate processes were conducted correctly, and no substantial legal issues warranted further review at the Supreme Court level. The final orders reflect this decision, maintaining the conviction and sentence as determined by the lower courts.

Orders