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Court of Criminal Appeal 6 March 2001

R v Andrea Rocco

[2001] NSWCCA 124

Drugs
CRIMINAL LAW IMPORTATION OF PROHIBITED SUBSTANCE APPEAL AGAINST CONVICTION DIRECTION TO JURY CIRCUMSTANTIAL CASE APPEAL AGAINST SEVERITY OF SENTENCE

Citation: R v Andrea Rocco [2001] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 6 March 2001
Judges: Meagher JA, Hulme J, Smart AJ

Background

The appellant was convicted by jury in the District Court of being knowingly concerned in the importation of a commercial quantity of MDMA (ecstasy) into Australia, an offence under the Customs Act 1901. The seizure involved over 70,000 tablets with a gross weight of approximately 17.2 kilograms, concealed inside water pumps imported from France. The appellant had collected the shipment and transported it to a storage unit in Hornsby before police intercepted him.

At trial, the appellant gave evidence that he believed the pumps contained smuggled diamonds, not ecstasy. He claimed a friend who was ill with AIDS had arranged for him to assist a co-accused, Mordechai Cohen, in exchange for $8,000. The jury rejected this account and found him guilty. He was sentenced by Shillington DCJ to 13 years imprisonment with a non-parole period of nine years.

The appellant appealed both against the conviction and against the severity of his sentence, arguing that his co-accused Cohen received a materially lighter sentence.

  • Whether the trial judge's direction to the jury, in response to a question about the absence of evidence from named potential witnesses, was legally adequate.
  • Whether the trial judge sufficiently directed the jury that the appellant's "diamond smuggling" explanation ought to have raised a reasonable doubt.
  • Whether the disparity between the appellant's sentence (13 years, nine-year non-parole) and the co-accused Cohen's sentence (10 years, six-year non-parole) warranted appellate intervention on parity grounds.

Decision

Jury Direction on Uncalled Witnesses

The jury sent a note asking why no evidence had been called from the co-accused or other named individuals to corroborate the appellant's version of events. The trial judge declined to answer the question directly and instead directed the jury not to speculate about why those persons had not given evidence, and to decide the case on the evidence before them. The Court of Criminal Appeal held these directions were correct. The appellant was under no obligation to call supporting witnesses or to prove his innocence, and the judge had already directed the jury on the Crown's onus of proof and the standard of beyond reasonable doubt on at least eight separate occasions.

Directions on Reasonable Doubt

The appellant contended the trial judge did not adequately put to the jury that the "diamond" story was capable of raising a reasonable doubt. The Court rejected this ground. Meagher JA observed that the Crown's circumstantial case was strong and the appellant's alternative explanation was "very curious and not inherently credible." The jury was entitled to reject it, and once they had done so, no misdirection arose. Hulme J added that the extent of the appellant's activities in connection with goods that were in fact ecstasy fairly justified an inference of knowledge, and the rejected explanation did not deprive the jury of the right to draw that inference.

Parity of Sentence

Cohen had pleaded guilty and received 10 years with a six-year non-parole period. The appellant was convicted after a contested trial and received a heavier sentence. Meagher JA found the difference was substantially explained by Cohen's guilty plea, with any remaining disparity attributable to the two sentencing judges' assessments of relative culpability. The Court found Shillington DCJ had given careful and patient attention to the parity question, and there was no error warranting intervention.

Orders Made

  • Application dismissed as to conviction.
  • Application dismissed as to sentence.

Key Takeaways

  • A defendant bears no obligation to call witnesses to corroborate their account at trial, and the jury must be directed not to draw any adverse inference from the absence of such witnesses.
  • Where a trial judge has given repeated and accurate directions on the burden and standard of proof, a later direction to the jury to decide the case on the evidence already given, rather than speculate about absent witnesses, is sufficient and correct.
  • Sufficient evidence existed in the Crown's circumstantial case to sustain the conviction; a rejected alternative explanation does not itself create a reasonable doubt that the jury was bound to entertain.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that a co-accused's guilty plea can account for a substantial part of any sentencing disparity, and differing judicial assessments of relative culpability account for the balance.
  • Under the parity principle, appellate intervention is not warranted unless the disparity is of sufficient significance; modest differences in sentence between co-offenders, explicable by plea and culpability assessments, do not meet that threshold.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Proceeds of Crime Act 1987 (Cth)

Cases:
- Chamberlain v R (1984) 153 CLR 521 at 606-7 (Brennan J)