Rosenfeld v R

Court of Criminal Appeal (NSW)|2009-09-04|Before: James J, Buddin J, Clellan CJ

Appeal Outcome: Special leave dismissed by the High Court - 4 September 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 47; Buddin J at 48

CATCHWORDS: CRIMINAL LAW - appeal against conviction - particular grounds of appeal - misdirection or non-direction - whether jury misdirected as to fault element of physical element of offence - whether jury confused by directions of trial judge

COUNSEL: H Dhanji (Appellant) W J Abraham QC (Crown)

SOLICITORS: Hugo Schleiger (Appellant) Commonwealth Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/15234

McCLELLAN CJ at CL JAMES J BUDDIN J

FRIDAY, 27 MARCH 2009 ROSENFELD, Benjamin v R Judgment 1 McCLELLAN CJ at CL: The appellant was arraigned on an indictment containing two counts as follows: "That he between about 23 February 2007 and about 22 April 2007 at Sydney in the State of New South Wales did import a substance, the substance being a border controlled drug namely 3,4 methylenedioxmethylamphetamine (MDMA) and the quantity imported being a commercial quantity." 2 In the alternative it was pleaded that: "He between about 23 February 2007 and about 22 April 2007 at Sydney in the state of New South Wales, did attempt to possess a substance, being a substance that is reasonably suspected of having been unlawfully imported, the substance being a border controlled drug namely 3,4 methylenedioxymethylamphetamine (MDMA) and the quantity attempted to be possessed being a commercial quantity." 3 The appellant pleaded not guilty. The jury returned a guilty verdict in relation to the first count. The appellant was sentenced to imprisonment for 21 years with a non-parole period of 13 years. 4 There is one ground of appeal being that the trial judge erred in failing to correctly direct the jury in relation to the mental element of the offence. 5 The charge in respect of which the appellant was convicted is provided by s 307.1 of the Criminal Code (Cth). That section is as follows: "(1) A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity. (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c)." 6 As I relate below the complexities of the manner of drafting of the offence occasioned difficulty when the trial judge gave directions to the jury. However, in resolving the challenge now made to his Honour's directions it is necessary to appreciate that the issues at the trial were confined. In essence there was only one issue, being whether the appellant knew that the hot water systems he was importing had MDMA secreted inside some of them. The appellant's counsel accepted that it was the issue of the appellant's alleged knowledge which the jury was required to resolve. 7 The Crown case was that the appellant imported into Australia over 90 kilograms of MDMA inside a number of solar hot water tanks. On 11 February 2007 the appellant was in Israel where he collected, amongst other items six hot water storage tanks. The invoice for the tanks was issued to Sunways Solar (Aust) Pty Ltd located at 995 Waterfall Way, Bellingen in New South Wales. Sunways Solar (Aust) Pty Limited was a business operated by the appellant in partnership with Mr Eric Fuller. 8 After collecting the goods they were loaded into a truck which had been rented by the appellant and taken to his unit in Netanya where they were left overnight. The following day he took the water tanks to the port of Haifa in Israel where they were loaded into a shipping container. The container was sealed and placed on a ship for shipping to Sydney. 9 The consignee of the container was recorded on the Bill of Lading as Sunways Solar (Aust) Pty Ltd. The container was originally loaded aboard the "William Mitchell" and was subsequently transferred to the "Wana Bhum" and transported to Sydney. It arrived at Port Botany on about 29 March 2007. 10 On 30 March 2007 the appellant sent an email using the address "Sunways heating [sunways@walla.com]" to John Iskander of Evolve International using the address john.iskander@evolveinternational.com.au attaching the arrival note for the container. The purpose of this email was to arrange for Mr Iskander to act as the freight forwarding agent in having the container cleared through Customs. In the email he advised Mr Iskander that he would be in Sydney by 15 April 2007 and that "I must get this container aut [sic] from the port asap just to save on storage costs." The email was signed "Ben." 11 On the same day the appellant corresponded with Mr Iskander in relation to the documentation required to have the container cleared. 12 On 31 March 2007 officers of the Customs Service x-rayed the container. It was identified as requiring further examination. Accordingly the seal, which was confirmed as being intact, was broken and the contents of the container examined. When the top of a water storage tank was removed the officers found a number of cylindrical shaped canisters wrapped in brown adhesive tape. The canisters were found to contain MDMA. In all 172 canisters were removed from three water tanks. 13 On 2 April 2007 Mr Iskander's company Evolve International Pty Ltd requested the Customs broker to clear the container from the wharf and store it at premises at Condell Park. The container was delayed in its release and Mr Iskander advised the appellant that he had been notified that the container had been held for x-ray and would be delayed in its clearance. After removing the containers containing MDMA Customs Officers substituted a similar number of packages consisting of tennis ball canisters filled with an inert powder. They were inserted into the tanks in the same manner as the original canisters. A listening and tracking device was installed in the tank. The container was subsequently collected and taken to the Condell Park premises where it was unpacked. 14 On 16 April 2007 the appellant arrived in Sydney from Bangkok. He telephoned Mr Iskander and arranged to meet him that afternoon. During the afternoon the appellant met Mr Iskander at his premises. They discussed the whereabouts of the goods and the appellant advised that he was in the process of looking for self-storage for the containers. Subsequently he advised Mr Iskander that the containers should be delivered to Storage King at Artarmon. 15 During the morning of 17 April 2007 the appellant was observed entering a Bunnings Warehouse in Artarmon where he purchased a screw driver and a spanner at a total cost of $1.50. Later that day he entered an agreement for the self-storage facility at Storage King. He was then told in a telephone call with Mr Iskander that the container was "on the way." Within a short time a truck arrived and the appellant, assisted by the truck driver and an employee of Storage King unloaded four pallets. The appellant then commenced to unscrew the top of the water tanks, so the Crown alleged, for the purpose of accessing the canisters hidden inside. In his evidence the appellant accepted that noises recorded by the listening device which had been installed were consistent with him unscrewing certain of the hot water tanks and accessing the packages hidden inside the canisters. 16 A short time later the appellant left the storage premises and within minutes used a public telephone. The appellant gave evidence that the phone call was made to a person in Israel in order to arrange contact with a person by the name of Barlev Arik Cagan. The appellant arranged with Mr Cagan to meet the next morning in a park next to the Lane Cove Plaza. 17 On 18 April the appellant met with Mr Cagan at the prearranged location. They went to the boot of the appellant's vehicle where the appellant was observed to hand Mr Cagan a white plastic bag which he agreed in evidence contained one of the packages he had taken from a hot water tank the previous day. Mr Cagan then left the area taking the white plastic bag with him. 18 He was later observed to return to the Lane Cove Council car park where he handed the appellant the white plastic bag and its cylindrical shaped contents. Mr Cagan and the appellant were observed to engage in conversation before they parted. 19 On 19 April 2007 the appellant was observed to walk from unit 23 of the Comfort Inn North Shore carrying two large black plastic suitcases and a white plastic bag. He placed the suitcases on the ground near a vehicle and then placed the white plastic bag in the passenger side of that vehicle. He put the suitcases in the boot. 20 A short time thereafter he was observed entering Bunnings Warehouse in Artarmon where he purchased spanners at a total cost of $1.00. Shortly thereafter he went to the Storage King premises and entered a storage unit. He placed the white plastic bag containing the cylindrical shaped canister in a cardboard box which was lying on the floor of the storage unit. He then secured and left the unit. 21 Later that day he travelled to Waterfall Way at Bellingen. 22 The appellant gave evidence at his trial. He denied that he had intentionally imported MDMA and denied any knowledge of the contents of the water tank. He said that he had opened the tank because the packaging appeared to have been tampered with. His case was that unbeknown to him somebody else had put 90 kgs of MDMA into the tanks that he was importing.

The appeal 23 The charge in respect of which the appellant was convicted is comprised of three physical elements. The first element relates to the importation of a substance for which the fault element is intention (s 5.6(1) and s 5.2 of the Code). The second element is that the substance is a border controlled drug for which the fault element is recklessness (s 307.1(2) and s 5.4 of the Code). Finally, the third element is that the quantity is a commercial quantity. For this element there is absolute liability. 24 The issue raised by the appellant was whether the jury were adequately directed in relation to the fault element for the first physical element. 25 As I have previously indicated it is important to appreciate the nature of the issues at the trial. The appellant gave evidence that he intended to import the water tanks but denied any knowledge of the drugs located within them. Accordingly, the only issue at the trial was whether he intended to import the drugs. This was the basis upon which the case was presented to the jury. The addresses of counsel focused on this issue. It was also emphasised by the trial judge that if the jury was satisfied that the appellant intended to import the drugs in the tanks it followed inevitably that they would be satisfied of the other elements of the offence. 26 Early in his summing up the trial judge directed the jury in the following terms: "Those essential elements, if you look at the indictment, firstly refer to dates. They are essential elements. Secondly, to importing or did import a substance. Importing is an essential element of the offence. Secondly, the substance being a border controlled drug, and that has to be found as fact, that it is a substance being a border controlled drug MDMA or as commonly referred to, ecstasy. And the quantity being imported being a commercial quantity. All those essential elements have to be found by you to have been proved by the Crown beyond a reasonable doubt." 27 In these remarks his Honour was referring to the physical elements of the offence. With respect to the first element his Honour had this to say: "In considering the journey between Israel and Port Botany, the essential elements of the charge, both the primary and the alternative, but certainly in relation to primary charge first, you have to determine firstly whether or not the accused intended or meant to bring into Australia the border controlled drug MDMA or as commonly known as ecstasy. As I have previously stated, the evidence of the accused is that he did not intend to do anything other than bring into Australia these sample hot water solar system tanks, and he had no knowledge of any prohibited substance." 28 The trial judge directed the jury on the meaning of intention and during the course of his summing up repeated on a number of occasions that the Crown had to prove intention. 29 With respect to the second element the trial judge said: "There is another essential element in the charge in considering the criminal liability of the accused as to the bringing into Australia of this substance which was in the hot water tank. The Crown must prove beyond a reasonable doubt not only intention, which is an essential element, but that the accused was reckless in bringing the substance into Australia. So there is the first the essential element did he intend to bring into Australia? Do the circumstances allow only for that explanation? And as I again stated to you and is also relevant in relation to this second question of recklessness." 30 Later his Honour said: "The second element is whether he was reckless. The Commonwealth legislation has brought in an Act which is called The Commonwealth Criminal Code Act. It defines what is meant by recklessness and it defines that a person is reckless if he or she is aware of a substantial risk that prohibited substance will come into Australia; and having regard to the circumstances known to him or her is unjustifiable to take that risk. That is what the Act says. Members of the jury, to put it hopefully for your assistance in terms which you can readily understand the Crown has to prove beyond a reasonable doubt that that accused was aware of a substantial risk that prohibited substance will be bought into Australia, and not withstanding that awareness, took that risk. It is for you to determine whether or not firstly he was aware of the substantial risk, and whether or not, if he was, he was unjustified to take the risk." 31 And later his Honour said: "The Crown has put to you that when you look at the circumstances, the only logical explanation is that the accused intended, or meant the prohibited substance to come into Australia, and was aware of a real risk of [the] substance that there was a prohibited substance in the tank. It is for you to consider then whether he was unjustified in taking that risk. If you considered that he was aware, did intend and was aware, then that may not trouble you, but that is nevertheless a matter which you would also have to find. The real issue as counsel have stated in their addresses to you comes down to those matters. That is intention and knowledge. If you found that either he did not intend, or if he did, was not aware of the real risk of substance that the border controlled drugs or prohibited substance would come into Australia, then the Crown would not have proved that charge, the primary charge against the accused." 32 At the conclusion of the summing up trial counsel sought a redirection. The redirection which was sought was to address the possibility that the jury may have been confused as to what the appellant must have intended to import, either a water tank or the substance inside. 33 The following exchange occurred between defence counsel and his Honour in the presence of the jury: "McClintock: Your Honour again without - I just spoke to my friend. Your Honour in respect to that first element the importation, I would ask your Honour to direct that it's the importation of a substance, just to avoid the confusion of the importation of hot water systems if I can put it that way. It has to be the importation of a substance that is intended. His Honour: Yes, well I thought that was clear. McClintock: It may have been. His Honour: It is the importation of a substance that has to be intended. But the recklessness that is involved is an awareness of the substantial risk that the substance is a prohibited substance. Is that right Mr Crown? Crown Prosecutor: Yes your Honour and your Honour was intending to do likewise for the alternative charge." 34 No further direction was sought. It is plain that his Honour emphasised to the jury that it was the importation of a substance that has to be intended by the person who commits the offence. The further direction made plain that recklessness related to whether that substance was a prohibited substance. 35 The appellant submitted that the directions which the trial judge gave to the jury were confusing and ultimately incorrect. It was submitted that all that was required on the facts of the case was that the jury be instructed that the Crown must prove that:

The appellant intended to import the powdered substance contained in the canisters (as opposed to an intention to import the hot water systems themselves);

If he intended to import the substance, was he at least reckless as to whether it was a border controlled drug. This would be established if the Crown proved either that the appellant:

(a) knew it was a border controlled drug; or (b) was aware of a substantial risk that the substance was a border controlled drug and having regard to the circumstances known to him it was unjustifiable to take that risk. 36 The appellant emphasised that there was in reality no issue as to (2) above. The case was fought on the basis that the appellant did not know of the existence of the powder. Accordingly, the reference to and focus upon the issue of recklessness was suggested to have diverted the jury so that they may have understood that recklessness was relevant to whether or not the appellant intended to import the powdered substance and was not confined to the question of whether it was a border controlled substance. 37 The appellant referred to the following directions given during the middle portion of the summing up: "I repeat what I stated on Friday that whilst circumstantial evidence may be as convincing as direct evidence [w]hen the Crown relies on circumstantial evidence it must be the only inference that can be drawn. And they must prove, that is the Crown must prove beyond reasonable doubt, that the accused intended to bring into Australia the substance. They do not have to prove that he knew the substance was ecstasy. They have to prove however that he knew or was aware or it was likely that there was a prohibited substance in the tank and that he, the accused, intended to bring that prohibited substance into Australia. So that is the first matter that the Crown must prove. That is an essential element that he must prove." 38 Later the jury was directed: "The Crown has to prove the case but the real matter, the ultimate question, is whether or not the accused did intend or was aware of the substantial risk, and has the Crown proved those matters beyond reasonable doubt. That is the ultimate question and the ultimate question for your determination." 39 The appellant emphasised that this direction introduced the concept of substantial risk in relation to the question of whether or not the appellant was importing a border controlled drug. It was submitted that this direction was reinforced by the following direction: "Just because I have referred to evidence does not mean that there is [not] other evidence which may be equally of importance in relation to those ultimate questions of whether … he intended or meant to bring into Australia a substance which he knew or believed was likely to be a prohibited substance, or whether or not the Crown has proved beyond reasonable doubt he was reckless and that he was aware of a real risk of substance that there was a prohibited substance in the tanks and being so aware, was he justified in bringing it in." 40 I accept that to a limited degree the direction in [39] above may have been confusing. Recklessness was left at large and not confined to knowledge of the nature of the substance in the canister. However, these directions were preceded by the directions to which I have earlier referred and followed by the later exchange with counsel and the ultimate direction to the jury. Accordingly, I am satisfied that the jury were appropriately directed in this matter. 41 The appellant's counsel put a submission during oral argument which had not been developed in the written submissions. The undisputed evidence was that three of the packages, each containing a water tank appeared to have been disturbed and repackaged using different tape. The Crown case was that this had been done by the appellant, or with his knowledge, so that he could insert the packages containing MDMA. The appellant said that he only became aware of the different packaging when he opened the container in Sydney. His defence was that some person unknown had opened the packages and placed the MDMA within them. Accordingly it was submitted that if the appellant was disbelieved and the jury concluded that he was aware that the packages had been disturbed before being loaded in Israel they may have understood that recklessness related to his knowledge of the inclusion of MDMA within the packages. 42 The appellant gave evidence that he was not aware until Sydney of the repackaging. This was consistent with his defence that he was entirely unaware of the presence of MDMA within the packages. Accordingly, recklessness was not a relevant issue. Although the judge spoke in relation to recklessness in the manner I have indicated I do not believe this would have caused the confusion which the appellant suggests. 43 The appellant's submissions emphasised the confined nature of the issues in this trial. That was plain. In circumstances where only limited matters are in dispute it is appropriate, and trial judges should be assisted by counsel, to confine the issues which the jury must resolve to those which are in issue. In the present case the jury could have been, and in my judgment, should have been told that the Crown put its case on the basis that the appellant knew that MDMA was contained within the water tanks he was importing. An examination of other matters, not relevant to the issues requiring resolution, but requiring an explanation of the complexities of the relevant legislation was unnecessary.

The proviso 44 In my judgment this was an overwhelming Crown case. Even if I was persuaded that the judge erred in his directions I am of the opinion that the appeal should be dismissed. This was not a case, as sometimes occurs, where the offender was a courier who had been asked by another person to bring goods into Australia. The appellant gave evidence that he was responsible for the loading of the packages containing the hot water tanks into a container in Israel and their importation into Australia. He gave evidence that he observed the packages being loaded and the containers sealed. The evidence was that the seal was intact when the container was opened by the authorities in Australia. 45 Once the container had arrived in Australia the appellant made arrangements as soon as he could to access the water tanks. Having purchased appropriate tools he accessed the packages and opened a tank to examine its contents. He removed a canister and made contact with Mr Cagan. He did not go to the authorities and complain that there was foreign matter within his hot water systems. None of his actions were consistent with him innocently happening upon drugs inserted by others. All of his actions in Australia were consistent with him being aware that the packages which he had imported contained the MDMA. The evidence which supported his conviction was overwhelming.

Order 46 In my opinion the appeal should be dismissed. 47 JAMES J: I agree with McClellan CJ at CL. 48 BUDDIN J: I agree with McClellan CJ at CL. **********

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