R v GUINAN [2001] NSWCCA 55

Reported Decision : 121 A Crim R 196

New South Wales Court of Criminal Appeal

CITATION : R v GUINAN [2001] NSWCCA 55 FILE NUMBER(S) : CCA 60295/00 HEARING DATE(S) : 6 March 2001 JUDGMENT DATE : 6 March 2001

PARTIES : Regina GUINAN, Sean Gerrard JUDGMENT OF : Meagher JA at 49; Hulme J at 1; Smart AJ at 50

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0302 99/11/0706 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : Crown: CP O'Donnell Appellant: PR Boulten SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Appellant: Peter Ash & Associates

DECISION : Appeal dismissed

- 16 - IN THE COURT OF CRIMINAL APPEAL No: 60295/00 MEAGHER JA HULME J SMART AJ

Tuesday, 6 March 2001 REGINA -v- Sean Gerard GUINAN

JUDGMENT 1 HULME J : On 12 April 2000 the appellant pleaded guilty to a charge to the effect that on or about 11 December 1998 he was a party to two or more non-reportable cash transactions and, having regard to the manner and form in which they were conducted, it would be reasonable to conclude that he conducted the transactions in that manner and form for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in the transactions was transferred in a manner and form that would not give rise to a significant cash transaction. 2 On the same day he pleaded not guilty to charges that between about 5 November 1998 and, in one case 5, and in the other case 12 January 1999, he was knowingly concerned in the importation into Australia of prohibited imports, to which s 233B of the Customs Act 1901 applied; namely, narcotic goods consisting of not less than the trafficable quantity of 3, 4 methylenedioxymethamphetamine, in other words, ecstasy. Due to some problem with the jury, that trial aborted and another involving the same charges and pleas commenced on 13 April 2000. 3 On 20 April 2000 the jury brought in a verdict of guilty on both counts and on 19 May 2000 Judge Gibson sentenced the appellant as follows: "1. In respect of the charge of conducting cash transactions to avoid reporting, the appellant was sentenced to a fixed term of 12 months imprisonment from 20 August 1999. 2. In respect of the first count of importation, a fixed term of imprisonment for four years, commencing on 20 August 1999; and 3. In respect of the second count of importation, imprisonment for nine years, including a non-parole period of six years, both terms also commencing on 20 August 1999." 4 It is to be inferred that the commencing date of 20 August 1999 was fixed to reflect some pre-trial custody which the appellant had suffered. 5 In his appeal against conviction the appellant relies on three grounds:- "1. The trial miscarried as a result of the Crown Prosecutor submitting to the jury that they might find it strange that the appellant did not call evidence from his brother, David Guinan. 2. His Honour erred when he instructed the jury that the defence contended that the only reasonable explanation consistent with innocence was that someone sent the drugs to the accused's post box by mistake. 3. His Honour erred by inappropriately cross-examining the appellant such as to question the appellant's veracity."