Rosenfeld v R [2009] NSWCCA 74

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

New South Wales Court of Criminal Appeal

CITATION: Rosenfeld v R [2009] NSWCCA 74

HEARING DATE(S): 17 February 2009

JUDGMENT DATE: 27 March 2009

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

DECISION: Appeal dismissed

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

LEGISLATION CITED: Criminal Code (Cth)

CATEGORY: Principal judgment

PARTIES: Benjamin Rosenfeld (Appellant) The Crown

FILE NUMBER(S): CCA 2007/15234

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

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0629

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 14 March 2008

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.