Part I: Criminal Law Case - Importing Methamphetamines

07 June 2016

 

In one of our latest criminal law matters our client was presently charged by an indictment dated on the 16 of September 2015. On 5 February 2014 our client and a number of other persons were arrested and charged with offences contrary to the Criminal Code 1995 (NSW) with the following three counts; between the 23th of November and the 26th of December 2013, importing a border controlled drug, methamphetamine; between 27 January 2014 and around the 5th of February 2014 for importing commercial quantity of a b border controlled drug, methamphetamine; between about the 5th of February 2014 and 11 of February, attempting to possess a commercial quantity of a boarder controlled drug, methamphetamine. Some of the drugs were imported into Australia from China, which arrived in February 2014, they arrived in kayaks. This consignment was intercepted by authorities prior to its delivery and was examined. 19 of the 27 kayaks were found to contain heat sealed plastic bags concealed inside their hulls, there was a total of 183 bags, and they contained a white crystallised substance.

However, our client was refused bail at the time of her arrest and has been in custody ever since. Committal proceedings were heard over four single days between September 2014 and March 2015. The matter came before the District Court for the first time on 10 April 2015 when a trial date of 19 October 2015 was set. At that time the Court was informed that the estimate of the trial was three weeks.

The three co-accused, were in the process of removing the bags containing the substituted substance from the kayaks at the time of their arrest. Our client and one of the other co-accused have been in custody ever since their arrest. Committal proceedings were contested by all of the co-accused and a former co accused. All of the defendants have been cross examined in their trial at court.

The matter was first mentioned at the district court, at which time it was set down for trial which was to be commenced by the 19th of October 2015 with a three week trial as an estimate. A decision was made by the CDPP to enter into formal notice of abandonment in regards to the former co-accused, who had agreed to give evidence for the crown in the prosecution of our client.

On the 16th of September 2015 a fresh indictment was presented in the District court, which contained new charges against our client and a new charge against one of the other co-accused which was in concern of the importation of the first consignment.

On the 18th of September 2015 his Honour Judge Townsden indicated that the District court was unable to accommodate a six week trial commencing on the 19th of October 2015. Following the hearing of argument his Honour vacated the trial date and set the matter down for mention on the 25th of September. The crowns reasons to vacate the trial were;

1. the Crown case would now take five weeks to complete;
2. interpreters were required for one or more of the accused;
3. the legal representatives for the applicant's co-accused had indicated that they would put the Crown to strict proof on all matters;
4. there were evidentiary issues to be resolved by way of a voir dire;
5. the Crown expected to call approximately 50 witnesses, a number of whom were either interstate or overseas;
6. the new indictment charged additional offences; and
7. a significant amount of further material had been served and disclosed since the committal proceedings.

Due to the vacated trial an affidavit was made in support of that motion which was sworn by the solicitor with the carriage of that matter, stated that the estimated length of the trial. However our law firm objected to the vacation of the trial, due to our client remaining in gaol for an extended amount of time which was completely unnecessary. Our frim elected to go to the court of criminal appeal, we spoke to the chief justice about our worrying concerns of the effect of vacating the trial. The chief justice decided to consider our concerns for our client, and put a date for the trial to go ahead within a week. As stated in the judgement of the trial by the judges as they learnt from a previous case of Jago that there is no right to a speedy trial. But this case does not reflect well on the criminal justice system in this state that a person arrested and refused bail in February 2014 and then is not brought to trial until almost two years later. As any reasonable person would see that this is unacceptable and should not be acceptable in our criminal justice system.

The counsel for the applicant opposed the crown’s application before the primary judge. He pointed out, with some force, that the applicant had been in custody for a period of 19 months and that the vacation of the trial date would be likely to result to result in her spending more than two years in custody awaiting trial. The counsel for the applicant accepted that the decision of the primary judge involved the exercise of a discretion attracting the application of the principles. Despite the number of submissions which were put to the parties, it is evident from the reasons given by the primary judge that he exercised his discretion to vacate the trial date on one basis, namely, that the trial would now be likely to exceed its original estimate. It was also seen in the judge’s view that there was no capacity for the court to deal with a six week, as opposed to a three week trial. There were various reasons for which the court took into consideration that the vacation was dismissed and the trial was put forward straight away, within a week the trial was set to go ahead.

Saba El-Hanania lawyers is very experienced in all areas of law. No matter what the court throws at our client we will be sure to ensure that justice is served, and our client is always getting the best outcome. If you know of anyone who is experiencing any similar issues, or if you have any questions, please do not hesitate contact our principal solicitor on 0433 600 800.