R v Bera [2001] NSWCCA 205

Reported Decision : (2001) 119 A Crim R 552

New South Wales Court of Criminal Appeal

CITATION : R v Bera [2001] NSWCCA 205 FILE NUMBER(S) : CCA 60307/00 HEARING DATE(S) : 4 May 2001 JUDGMENT DATE : 24 May 2001

PARTIES : Regina v Frank Bera JUDGMENT OF : Stein JA at 1; Foster AJA at 55; McClellan J at 56

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 98/12/0092 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : P Bodor QC (Appellant) M Grogan (Crown) SOLICITORS : Gregory J Goold (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - supply of not less than the large commercial quantity of methylamphetamine - s 25 Drug Misuse and Trafficking Act 1985 - joint possession for supply - requirement of knowledge - inference of knowledge as to quantity from circumstances - D Criminal Procedure Act 1986 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Criminal Appeal Act 1912 Fleming v The Queen (1998) 197 CLR 250 CASES CITED: R v Winner (1995) 79 A Crim R 528 M v The Queen (1994) 181 CLR 487 R v Schubert [2000] NSWSC 1127 (Unreported, 5 December 2000, Greg James J) DECISION : Leave to appeal granted; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60307/00

STEIN JA FOSTER AJA McCLELLAN J

Thursday, 24 May 2001

Regina v Frank BERA JUDGMENT 1 STEIN JA: Introduction 2 This appeal is confined to a single ground of appeal, that of an unreasonable verdict. However, counsel for the appellant, in his submissions, developed a sub-set of the ground contending that the learned trial judge failed to comply with the requirements of s 17 of the Criminal Procedure Act 1986 in that he failed to include in his judgment the principles of law applied and the findings of fact relied on. 3 As Fleming v The Queen (1998) 197 CLR 250 makes plain, such an omission is to make a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912. 4 The appellant, Frank Bera, was indicted before Woods DCJ on two counts under s 25(2) of the Drug Misuse and Trafficking Act 1985 (the Act). He pleaded guilty to knowingly taking part in the supply of not less than the commercial quantity of methylamphetamine between 20 May 1997 and 20 September 1997. That is, a quantity in excess of 250g but less than 1kg. 5 He was also charged with the supply on 19 September 1997 of not less than the large commercial quantity of methylamphetamine. That is, over 1kg. He pleaded not guilty to this charge and the trial proceeded before his Honour without a jury. 6 On 3 March 2000 his Honour found the appellant guilty. On 2 May 2000 his Honour imposed a fixed term of imprisonment of 3 years from 27 November 1999 with respect to the first count, to which the appellant had pleaded guilty. With respect to the second count, his Honour imposed a total sentence of 7 years imprisonment, comprising a minimum term of 4 years to date from 27 November 1999. 7 The brief facts are that as part of a police investigation into drug operations, electronic surveillance of the home of David Parker at 22 Vaisey Close, Kariong, was carried out. This included a listening device and telephone intercept. A number of tapes, recorded between 27 May 1997 and 19 September 1997, were admitted into evidence. They revealed a relationship between the appellant and Parker concerned with the supply of drugs. A listening device tape recorded on the telephone of Les Kalache revealed a relationship for the supply of drugs between Parker, Kalache and the appellant. 8 On the 14 September 1997, five days before the arrest of the appellant and Parker, a listening device recorded the appellant and Parker discussing amounts of amphetamine and preparing it into packages. I will return to the transcript of this tape later.