R v Muradian [2002] NSWCCA 371

New South Wales Court of Criminal Appeal

CITATION : R v Muradian [2002] NSWCCA 371 FILE NUMBER(S) : CCA 60881/01 HEARING DATE(S) : 27 August 2002 JUDGMENT DATE : 27 August 2002

Regina PARTIES : v Armine Nishan Estefo Muradian JUDGMENT OF : Handley JA at 1; Simpson J at 30; Bell J at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 01/11/0815 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Appellant - P R Zahra SC Respondent - R Bromwich SOLICITORS : Appellant - Director, Legal Aid Commission Respondent - Commonwealth Director DPP CATCHWORDS : No question of principle Crimes Act 1914 (Cth) LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Customs Act 1901 (Cth) CASES CITED: Bahri Kural v The Queen (1987) 162 CLR 502 Pereira v DPP (1988) 63 ALJR 1 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence refused.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60881/01 DC 01/11/0815 HANDLEY JA SIMPSON J BELL J

Tuesday 27 August 2002 REGINA v ARMINE NISHAN ESTEFO MURADIAN

Judgment 1 HANDLEY JA: The appellant stood trial on an indictment charging that on 26 May 2001 at Sydney she did import into Australia prohibited goods to which s 233B of the Customs Act applied, namely a quantity of ecstasy tablets comprising 452.9 grams of the pure product, which was not less than a trafficable quantity. 2 She was convicted and the learned trial Judge sentenced her to a head sentence of 5 years and 3 months after allowing the discounts provided for in s 16G of the Commonwealth Crimes Act. He fixed a non-parole period of 3½ years and ordered that she be eligible for parole from 25 November 2003. 3 She has appealed challenging her conviction and sentence. The sole ground of appeal is that the learned trial Judge erred in law in directing the jury as to the mental elements of possession required on a charge of importing a prohibited import. 4 The case was a circumstantial one. The appellant made no direct admissions of her knowledge of the contents of the suitcase she attempted to bring into this country. 5 The learned trial Judge correctly directed the jury at p 9 of his summing-up that they had to be satisfied beyond reasonable doubt about the importation and that this had two components to it, the physical fact of the importation and the knowledge by the person said to have been responsible. 6 There was no issue about the physical fact of the importation. The real issue, as the trial Judge told the jury, was whether the accused knew that she was importing a prohibited import. He continued: "To do that she must be shown by the Crown beyond reasonable doubt to have had actual knowledge that she did import a trafficable quantity of the Ecstasy or that she knew or was aware there was a real and significant likelihood that what she imported was a prohibited import." 7 The Judge then told the jury that the Crown had a circumstantial case and had submitted to the jury that when this was evaluated they would be satisfied that the clear inference was that the accused did know that she was importing a prohibited import. 8 Up to this point the summing-up was impeccable. However, when his Honour came to sum-up the Crown case to the jury he did so by referring to the circumstances that the Crown Prosecutor had urged upon the jury as persuasive of the guilt of the accused. He went through those circumstances one by one and then said: "… and that those circumstances according to the Crown are indicative of somebody who has knowledge or may have reason to believe a significant real chance that there may be something in connection with that bag that is not quite right and that would raise the suspicion of perhaps bringing in narcotic goods to the country". 9 He continued to remind the jury of the circumstantial evidence and said: " … and the circumstances would, again the Crown argues, be indicative of her expecting to be paid here for having imported the narcotic goods". 10 The trial Judge then referred to the defence case at some length and concluded his summing-up. There was then a minor redirection in terms of the quantity of the pure drug in the material imported but nothing turns on that. 11 In the absence of the jury, defence counsel sought a redirection on the element of knowledge. The Judge decided to re-direct and three minutes after they had retired the jury were brought back and he then said: "… I should add when you are dealing with the question of the knowledge, you are dealing with the knowledge of the accused and not some hypothetical person in the position of the accused, but what the accused's knowledge was in the circumstances. Do you understand that, and as I said it must be the only rational inference, the circumstance is asked of you by the Crown to be accepted and must be the only rational circumstance, other than that there would have to be a doubt". 12 Mr Zahra SC, who appeared in this Court for the appellant, but who did not appear below, submitted that in the second passage that I earlier referred to in which the Judge used the words "indicative", "may have reason to believe", "a significant real chance", "there may be something that is not quite right", and "the suspicion of perhaps" impermissibly downgraded the directions on the knowledge the accused must possess for a finding of guilt. 13 The principles established by the majority of the High Court in Bahri Kural v The Queen (1987) 162 CLR 502 were further explained in Pereira v DPP (1988) 63 ALJR 1. It is important in my judgment to note that the element of knowledge is not an essential ingredient of the offence for which the appellant was convicted. 14 In Bahri Kural the majority said at 504-505: "Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. 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 There is nothing in Pereira v DPP which detracts from that statement of principle as it applies to a case of importation. As I have said knowledge is not an essential ingredient of that offence. 16 Although the Judge departed from the text in Kural, the High Court said that it was not necessarily intended to be read to a jury but was intended to assist trial judges. It is unfortunate that in the second passage from his summing-up that I referred to, his Honour used the words I have highlighted. Nevertheless in the end the issue which he said the Crown posed for the jury was "and that would raise the suspicion of perhaps bringing in narcotic goods to the country". 17 In my view a person who suspected that he or she was perhaps bringing narcotic goods into the country would be a person who was aware that there was a significant or real chance that his or her conduct involved an act of importation of that character. 18 In my judgment the passage of the summing-up that I last referred to was consistent with the test laid down in Kural. 19 Equally it seems to me that his Honour's concluding comment on the Crown case "that the circumstances would … be indicative of her expecting to be paid here for having imported the narcotic goods" is in the same position. If there was any doubt on the matter the final redirection told the jury that they were concerned with the accused's knowledge and that the inference of knowledge must be the only rational inference, otherwise they would have to have a doubt as to her guilt. This, if anything, was more favourable to the accused than the strict direction to which she was entitled. 20 Again it is unfortunate that his Honour did not remind the jury at that point what it was that the accused had to have knowledge of. However, the conduct of the case and the rest of the summing-up would have made it clear to the jury that the accused had to be aware that she was bringing in or there was a real chance that she was bringing in narcotic drugs. They were told in the final redirection that she had to have knowledge and that in the context was knowledge that she was bringing narcotic goods into the country, a more favourable direction as I said than she was entitled to under Kural. 21 Accordingly, in my view there has been no relevant misdirection by the learned trial Judge and if I am wrong in that respect I would in any event apply the proviso in s 6 of the Criminal Appeal Act. 22 The circumstantial case against the accused was very strong. She had come to Australia at the spur of the moment on the suggestion of a man called Peter, someone she had known for some time but she did not know his surname. Peter paid half the airfare and there is no explanation in her evidence of why Peter should have done that. The relationship was not such as to make that a normal, or perfectly ordinary, act on Peter's part or something that was not itself unusual and indeed suspicious so far as the appellant was concerned. 23 She was asked to return the suitcase to a friend in Sydney because it had sentimental value to that person. She was given a phone number which she was to call on arrival if no-one met her at the airport. She had little money on arrival and was told that Peter's friend would help her because he had some money for her. 24 The act of returning a suitcase to someone in Sydney which had sentimental value seems a strange explanation for payment of half the airfare and one could only wonder how the appellant was going to live in Sydney with the small amount of money that she had if she was not going to get further money from Peter's friend, and if she was going to get further money from Peter's friend, what she was getting that for? 25 The fact that Peter had paid half the airfare, one would have thought, was more than enough to pay her for bringing the suitcase to Australia without any question of further payment. 26 All these matters were put by the Crown to the jury. There were further matters as well. She did not tell anyone in Holland she was coming to Australia; as soon as she was aware the bag was to be searched she disowned it by saying it was not hers and she had borrowed it. One wonders what she was going to use as her luggage when she flew back to Holland without this suitcase. She would have to buy a suitcase in Australia but hardly had the money for that. Her expectation that she would receive money from someone in Australia for delivering the suitcase is highly indicative, as the Crown said, that she knew that she was bringing in some prohibited import. 27 Accordingly, in my view, the jury would inevitably have convicted the appellant on this charge had they been properly directed and there has been no substantial miscarriage of justice in this case. 28 The appellant also challenges the sentence imposed by the learned trial Judge. Mr Zahra draws attention to the fact that the s 16G discount was not the greatest that the trial Judge could have afforded the appellant and that the non-parole period was not at the top end of the available range. In my judgment these are not grounds for the intervention of this Court in relation to the sentence. It fell within the range available to the learned sentencing Judge on a sound exercise of his sentencing discretion. 29 I therefore propose the appeal against conviction be dismissed and that leave to appeal against sentence be refused. 30 SIMPSON J: I agree. 31 BELL J: I also agree. 32 HANDLEY JA: The orders of the Court are as I announced. ******