New South Wales Court of Criminal Appeal CITATION : Regina v Vergara [2001] NSWCCA 24 FILE NUMBER(S) : CCA 60408/99 HEARING DATE(S) : 16 February 2001 JUDGMENT DATE : 23 March 2001 PARTIES : The Crown Brandon Lee Vergara (Appl) JUDGMENT OF : Wood CJ at CL at 1; McClellan J at 2; Smart AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : R F Sutherland (Crown) P Zara SC (Appl) SOLICITORS : Commonwealth Director of Public Prosecutions Hovan & Co ( Appl) CATCHWORDS : CRIMINAL LAW - Customs Act 1901 s 233B(1)(b) - not less than the trafficable quantity of cocaine - directions to the trial jury regarding knowledge - intent - whether actual knowledge of possession of drugs was required or whether it was sufficient if the Crown proved that the appellant was aware there was a significant or real chance that he was in possession of the drugs LEGISLATION CITED : Customs Act 1901 s 233B(1)(b) Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 He Kaw Teh v The Queen (1985) 157 CLR 523 CASES CITED: Kural v The Queen (1987) 162 CLR 502 Margaret Greatorex (1994) 74 A Crim R 496 R v Karam (1995) 83 A Crim R 416 R v Yee Kam Lau, unreported, Court of Criminal Appeal, 2 December 1998 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60408/99 WOOD CJ at CL McCLELLAN J SMART AJ FRIDAY, 23 MARCH 2001 REGINA v Brandon Lee VERGARA JUDGMENT 1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of McClelland J. I agree with his reasons and the orders he proposes. 2 McCLELLAN J: The appellant Brandon Lee Vergara was convicted after trial by jury of importing into Australia not less than the trafficable quantity of cocaine in breach of s 233B(1)(b) of the Customs Act 1901. He was sentenced to imprisonment for eight years with a non parole period of five years. 3 The appellant was arrested when he arrived in Sydney with a friend on a flight from Buenos Aires. When he arrived at Sydney airport he had a black suitcase which was searched by Customs officers and found, upon examination, including x-ray, to contain cocaine. 4 When interviewed the appellant denied any knowledge that the suitcase contained cocaine. He said that he had recently gone to Miami for a holiday where he met his friend who had arranged for payment to a travel agent for airfares and accommodation to South America and then to Australia for the purpose of vacation. He said he had no knowledge of who paid for those tickets and how they were arranged. 5 The appellant also told the police that his travelling partner had a friend called Gus who owed a large sum of money to a person in South America and the appellant and his friend had discussed how they could help Gus pay back the money. The appellant said that he understood that by taking the vacation in Australia they would help Gus to pay back his debt. 6 The appellant said that when in Panama a man came to the hotel room and exchanged the appellant's and his friend's suitcases with the cases each brought into Australia. The appellant said he thought there may be something altered in the suitcase to involve some kind of drugs or money, but that he had checked the suitcases thoroughly and found nothing wrong. 7 The appellant said he did not know of any arrangements to meet anyone in Sydney, had no knowledge that the bags were to be given to someone in Sydney and had no knowledge of there being drugs in the suitcase. 8 In these circumstances the knowledge of the appellant was the significant issue at the trial. The trial judge addressed the matter on a number of occasions. On each occasion her Honour was careful to indicate to the jury that the Crown must prove either actual knowledge that the suitcase contained drugs or that he was aware there was a significant or real chance that it contained drugs. 9 The relevant directions are as follows: . "However, within the word of 'importation' the Crown must prove that at the time that the accused bought (sic) that suitcase containing the cocaine into Australia, that he knew the suitcase contained narcotic drugs, or he was aware there was a significant or real chance that that suitcase did contain drugs. I just point out to you that Mr King has said, when he addressed you, that the Crown must prove actual knowledge, that he had to be actually aware that it was in there. I must correct what he said, because in addition to that actual knowledge it is sufficient if the Crown proves that the accused was aware that there was a significant or real chance that the suitcase did contain drugs. What the whole case is about is whether the accused had actual knowledge that he was bringing in, in that suitcase, narcotic goods, or whether he was aware that there was a significant or real chance that the suitcase did contain drugs. That is what this whole case is about. Unless the Crown has succeeded in proving beyond reasonable doubt either one of those legs, knowledge, you must, according to your oath, return a verdict of not guilty." . "I just remind you that the Crown must prove that at the time that the accused brought that suitcase into Australia he knew that it contained narcotic drugs, or he was aware there was a significant, or real chance, that it did contain drugs." . "If you believe that it is simply a bizarre story, that he did not know what was in the case, but if you accept that you would find that he certainly had a guilty mind, because of the secondary aspect of the awareness of a real or significant likelihood that narcotic drugs were in there. The Crown says of course that you would accept that he had actual knowledge, but if you do not accept that he had actual knowledge he certainly would fall in[to] that second limb, that he was aware, as I say, of the likelihood of that drug being a narcotic drug being in his suitcase and that you would accordingly find the Crown had proved the case beyond reasonable doubt. Mr King, on behalf of the accused said that this case really is about whether he knew he had cocaine in his bag. I remind you that there are two legs to that. Either actual knowledge, or the second limb, that he was aware of a real or significant likelihood of the presence of a narcotic drug. Now the Crown can be successful on either of those legs. Mr King referred, in his address to you, simply to the actual knowledge of the accused and said that the Crown had not proved that actual knowledge beyond reasonable doubt. I just want you to be quite certain that the Crown can prove either of those two matters. Mr King did not make any submissions in relation to that aspect of what the Crown can prove. However, he says that you must be very sure when you draw inferences that you must only draw inferences against the accused, …" 10 In this appeal the appellant describes her Honour's directions as providing a two limb test to prove knowledge. It is submitted that there was a misdirection and the jury should have been told that the Crown must prove that the appellant had knowledge that what was contained in the suitcase was narcotics. 11 It was also submitted that although knowledge might be inferred from the fact that the jury was satisfied that the appellant knew there was a significant or real risk that the suitcase contained cocaine they must also decide whether this was the only rational inference available. 12 Reliance was placed on Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3, where the High Court said: "First, in such cases the question remains one of actual knowledge: Giorgianni v The Queen (1985) 156 CLR 473 at 504-507; He Kaw Teh (1985) 157 CLR 523 at 570. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available." 13 In my opinion the directions given by the trial judge were correct. They are consistent with the decisions of the High Court and this Court. It must be remembered that the issue which is being considered is whether or not the appellant had the necessary intent to commit the offence. To prove that intent the prosecution must prove knowledge that the prohibited goods were or were likely to be secreted in the suitcase. (See He Kaw Teh v The Queen (1985) 157 CLR 523; Pereira v The Director of Public Prosecutions (1988) 63 ALJR 1 at 3). Contrary to the appellant's submission the prosecution did not have to prove that the appellant had actual knowledge that he was importing prohibited goods. It was sufficient if the prosecution established that the appellant knew or was aware that they were likely to be present in the goods imported. Belief falling short of actual knowledge suffices. 14 In Kural v The Queen (1987) 162 CLR 502 Mason CJ, Deane and Dawson JJ in a joint judgment, said: "But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct." 15 The issue was further considered by this Court with statements to similar effect in Margaret Greatorex (1994) 74 A Crim R 496; R v Karam (1995) 83 A Crim R 416 and in R v Yee Kam Lau, (1998) 105 A Crim R 167. 16 In my opinion the directions given by her Honour were consistent with these decisions. Her Honour was also careful to remind the jury in a conventional manner that the prosecution must prove its case beyond reasonable doubt indicating that the jury should not draw any inference establishing the guilt of the appellant unless it is the only rational inference to draw in the circumstances. 17 The appeal should be dismissed. 18 SMART AJ: I agree with McClellan J. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.