Kupec v R - [2018] NZCA 377

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA586/2017
[2018] NZCA 377

BETWEEN	JIRI KUPEC Appellant
AND	THE QUEEN Respondent

Hearing:	14 June 2018
Court:	Brown, Clifford and Williams JJ
Counsel:	P L Borich QC and J N Olsen for Appellant K S Grau and M L Wong for Respondent
Judgment:	19 September 2018 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

On 3 August 2017 a jury in the District Court at Manukau found Jiri Kupec guilty of one charge of importing into New Zealand a class A controlled drug, namely methamphetamine.[1] He was convicted and sentenced to 17 years’ imprisonment with a minimum period of imprisonment of eight and a half years.[2] Mr Kupec now appeals his conviction and sentence.

Background

The importation

[1]Misuse of Drugs Act 1975, s 6(1)(a). See also s 6(2)(a).

[2]R v Kupec [2017] NZDC 22632.

Mr Kupec and his mother, who were Czech citizens, travelled from the Czech Republic to New Zealand via Thailand. Whilst in a hotel in Thailand third persons visited their hotel room and as pre-arranged replaced the suitcases brought to Thailand by the appellant with other suitcases. The swapped suitcases each contained approximately 10 kilograms of methamphetamine built into compartments within those suitcases. The appellant and his mother left Thailand, transiting through Sydney, and arrived at Auckland International Airport on 12 May 2016. Upon arrival a search by New Zealand Customs officers revealed almost 10 kilograms of methamphetamine hidden within a false lining in both Mr Kupec’s and his mother’s suitcases.
In an interview which was recorded on DVD Mr Kupec told investigators that an unknown person in Bangkok had given him $5,000 and the two suitcases, exchanging them for the very similar looking but much lighter suitcases he had purchased in the Czech Republic. Mr Kupec said he had met a Polish man called Richard in a bar in Prague who had offered him a holiday with a chance to make some money at the same time. Richard had instructed him to buy two suitcases with a particular appearance and to take another person on the trip with him. Mr Kupec was also in contact with Richard via cell phone using what the Crown said was a code to confirm his arrival.
Mr Kupec denied any knowledge that there were drugs in the suitcases. He said he believed he was illegally smuggling currency to the United States where he and his mother planned to travel after an eight day stay in Auckland at an Otahuhu motel.

The trial

The trial was scheduled to commence on 31 July 2017. On 19 June 2017 the Supreme Court’s decision in Cameron v R[3] was released which held that the mens rea component of the offences in that case encompassed recklessness.[4]
[3]Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161

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] NZCA 377
Case: [2018] NZCA 377
Decision Date: 19 September 2018 at 12.30 pm

CaseChat Overview and Summary

In Kupec v R, the Court of Appeal considered an appeal against both conviction and sentence following the appellant’s conviction for importing a class A controlled drug, namely methamphetamine. The Court found that the appeal against conviction and sentence should be dismissed. The appellant argued that the Supreme Court’s decision in Cameron v R should not apply to his case. The Court found that the Supreme Court had expressly overruled the principles in Martin and Soles and that the trial Judge was correct to apply Cameron. The appellant also argued that the trial Judge should have directed the jury that if the appellant proved an innocent state of mind, an acquittal should follow. The Court found that the trial Judge’s ruling was correct and that the question trail was not deficient. The appellant further argued that the trial Judge’s direction on the appellant’s DVD statement was inadequate. The Court found that the direction was entirely orthodox and that the jury was not left with the impression that they did not have the same freedom of choice in relation to the appellant’s statement as they had with reference to the Crown witnesses. Finally, the appellant argued that the sentence of 17 years’ imprisonment was manifestly excessive. The Court found that the Judge was entitled to draw the inference of knowledge on the part of the appellant and that the sentence was not manifestly excessive.

Orders