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Court of Criminal Appeal 7 December 2001

Regina v R P Anderson

[2001] NSWCCA 488

Also reported as 127 A Crim R 116
Drugs
CRIMINAL LAW

Citation: Regina v R P Anderson [2001] NSWCCA 488
Court: NSW Court of Criminal Appeal
Date: 7 December 2001
Judge(s): Sheller JA, Dowd J, Kirby J

Background

The appellant was convicted in the District Court of being knowingly concerned in the importation of cocaine in a commercial quantity, contrary to the Customs Act 1901 (Cth). The conviction arose from the discovery of approximately 7.5 kilograms of cocaine concealed in garbage receptacles aboard an international flight that arrived in Sydney on Christmas Day 1996. The appellant's DNA and fingerprints were found on adhesive tape attached to the drug packages.

The appellant gave evidence at trial, denying any prior knowledge of the drugs. He described reaching under a fellow passenger's seat during the darkened flight, accidentally touching a package containing loose tape, and then taking the bag to a travelling companion who assured him the matter would be handled.

The trial judge, Sides DCJ, directed the jury on the standard of proof and ultimately the jury rejected the appellant's account and convicted him. The appellant then appealed to the Court of Criminal Appeal on two grounds.

  • Whether the trial judge's directions on the onus and standard of proof were erroneous or inadequate, particularly the description of "beyond reasonable doubt" as "ordinary English words" whose meaning is "obvious"
  • Whether the jury's verdict was unreasonable having regard to the evidence, given the alternative explanation the appellant offered for the presence of his fingerprints and hair on the drug packaging

Decision

On the first ground, the Court considered whether it was misleading for the trial judge to describe "beyond reasonable doubt" as ordinary English words carrying an obvious meaning. The appellant pointed to Canadian and United States authority suggesting the phrase requires definition and explanation for juries. The Court declined to follow that approach, finding the trial judge's directions were conventional, unobjectionable, and did not misstate or dilute the standard. The brief additional words about which complaint was made did not introduce error.

On the second ground, the Court examined whether the jury was entitled to reject the appellant's explanation for the physical evidence. The appellant acknowledged during his evidence that he became aware of the drugs during the flight, which the Court noted tended to support an inference that the purpose of the trip was drug importation. The Court found it implausible that companions engaged in drug importation would repeatedly invite the appellant on the trip merely to provide him with a holiday.

Critically, the physical evidence undermined the appellant's account of accidental contact. He claimed the tape inside the bag was loose, but the forensic evidence established that the tape had been adhering to the package and had to be removed by freezing it at minus 80 degrees Celsius. The Court concluded the jury was entitled to reject accidental contact as a reasonable possibility, and having done so, was entitled to infer the appellant's involvement and to convict. The appeal was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that describing "beyond reasonable doubt" as "ordinary English words" with an obvious meaning does not, in itself, constitute a misdirection, and declined to adopt the Canadian and United States approach of requiring the phrase to be defined or explained to juries.
  • Where a trial judge's directions on the standard of proof are otherwise conventional and accurate, minor additional observations about the phrase will not constitute error unless they dilute or misstate the standard.
  • A conviction will not be set aside as unreasonable where the jury was entitled to reject the accused's alternative explanation for incriminating physical evidence, particularly where that explanation was contradicted by forensic evidence.
  • In dismissing the second ground, the Court applied the principle that its role is confined to determining whether the jury was entitled to reject the accused's version. It is only where the jury was not so entitled that the court may interfere with the verdict.
  • Where a case turns entirely on the accused's credit and the jury rejects the accused's account, as the Court noted by reference to the observations of Barwick CJ in Grant v R, that finding will ordinarily stand without interference.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)

Cases:
- R v Lifchus (1997) 118 CCC (3d) 6 (Canada)
- R v Starr (2000) 147 CCC (3d) 15 (Canada)
- Victor v Nebraska 127 L Ed 2d 583 (1994) (US Supreme Court)
- Brown v The King (1913) 17 CLR 570
- Dawson v The Queen (1961) 106 CLR 1
- Green v The Queen (1971) 126 CLR 28
- R v W(D) [1991] 1 SCR 742 (Canada)
- Knight v The Queen (1992) 175 CLR 495
- Grant v R (1976) 11 ALR 503