Citation: R v Guinan [2001] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 6 March 2001
Judge(s): Meagher JA; Hulme J; Smart AJ
Background
The appellant pleaded guilty to conducting structured cash transactions designed to avoid mandatory reporting requirements (sometimes called "smurfing"). He was also found guilty by a jury of two counts of being knowingly concerned in the importation of MDMA (ecstasy) into Australia, contrary to s 233B of the Customs Act 1901.
The Crown's case centred on the appellant renting a private mail box in Crows Nest under a false name, receiving two intercepted parcels containing approximately 2,500 MDMA tablets each, and having previously sent around $54,000 to his brother in the United Kingdom through a series of sub-$10,000 bank transfers. The appellant was arrested on the day he collected the first parcel, which was found under his car seat along with small sealable plastic bags he had just purchased.
The District Court sentenced the appellant to nine years imprisonment (with a six-year non-parole period) for the second importation count, four years for the first importation count, and twelve months for the cash transactions offence, all commencing from 20 August 1999 to reflect pre-trial custody.
Legal Issues
- Whether the Crown Prosecutor's comment to the jury that it "might find it strange" that the appellant's brother David did not give evidence constituted a miscarriage of trial.
- Whether the trial judge erred in his summing-up by characterising the defence case too narrowly, specifically by telling the jury the only innocent explanation was that someone sent the drugs to the appellant's post box by mistake.
- Whether the trial judge erred by questioning the appellant in a manner that undermined his credibility.
- Whether the nine-year sentence for the second importation count was manifestly excessive.
Decision
Ground 1: Crown comment on absent witness
The Court accepted that the Crown Prosecutor's remark about the absence of the appellant's brother David was inappropriate, a concession the Crown made before the Court of Criminal Appeal. David Guinan was likely an accomplice based on the Crown's own case, and there were obvious legitimate reasons for not calling him, including the risk of criminal exposure and the procedural complications of immunities and warnings under the Evidence Act. No adverse inference could fairly be drawn from his absence.
However, the Court found the comment had been effectively neutralised. The Crown Prosecutor had promptly acknowledged that the appellant bore no onus of proof, and the trial judge repeatedly directed the jury on the Crown's burden throughout the summing-up. The Court characterised the remark as inconsequential in context.
Ground 2: Summing-up on the defence case
The Court found no reversible error in the trial judge's description of the defence position. Although the precise wording was queried, the summing-up, read as a whole, fairly put the appellant's case to the jury.
Ground 3: Judicial questioning of the appellant
The Court rejected this ground, finding the trial judge's questions did not constitute inappropriate cross-examination or impermissible undermining of the appellant's credit.
Sentence application
The Court acknowledged the nine-year sentence was at the high end and higher than many comparable cases. However, the quantity of drugs involved represented over 80% of the maximum trafficable quantity, the appellant's involvement was not minor, and the sentence remained below 60% of the statutory maximum of approximately 16.5 years. The Court expressed concern that sentencing courts may not have given sufficient weight to the statutory maximum in this category of offences, noting that none of 26 cases in the Judicial Commission's published statistics had come close to a worst-case scenario. Despite that concern, the Court was not persuaded the sentence fell outside the legitimate exercise of the sentencing judge's discretion.
Orders Made
- Appeal against conviction dismissed.
- Application for leave to appeal against sentence refused.
Key Takeaways
- A Crown Prosecutor's comment inviting the jury to draw an adverse inference from the absence of a witness (in the style of Jones v Dunkel) can be rendered inconsequential where the Crown immediately acknowledges the accused bears no onus and the trial judge gives clear, repeated directions on the burden of proof.
- Where a potential witness is likely an accomplice and calling them would trigger certificate and warning procedures under the Evidence Act, there are legitimate reasons for not calling that witness, and no adverse inference can fairly be drawn from the failure to do so.
- In dismissing the sentence challenge, the Court of Criminal Appeal signalled concern that sentences for importing trafficable quantities of ecstasy may generally be running too low relative to the statutory maximum, even while upholding the sentence in this particular case.
- A nine-year sentence for importation of a trafficable quantity of MDMA, where the quantity exceeded 80% of the trafficable threshold and involvement was not minor, was held to fall within the proper exercise of sentencing discretion despite the appellant having no prior criminal record.
- Appellate courts will consider a summing-up as a whole rather than scrutinising individual passages in isolation when assessing whether the trial judge adequately put the defence case to the jury.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233B (importation of prohibited imports, including narcotic goods)
- Evidence Act 1995 (NSW), s 128 (witness certificates) and s 165 (unreliable evidence warnings)
- Criminal Appeal Rules, Rule 4
Cases
- RPS v R (2000) 199 CLR 620
- Jones v Dunkel (1959) 101 CLR 298
- R v Buckland (1977) 2 NSWLR 452
- R v Newland (1997) 98 ACrimR 455
- OGD (1997) 45 NSWLR 745
- R v Taufua [1999] NSWCCA 205
- R v Scott [2000] NSWCCA 187
- R v Burrill (11 December 1998, unreported)
- R v Slaternik [1999] NSWCCA 2