Citation: Lim & Yeung v R [2002] NSWCCA 293
Court: Court of Criminal Appeal, New South Wales
Date: 30 July 2002
Judge(s): Spigelman CJ, O'Keefe J, Simpson J
Background
Two appellants were convicted in the District Court of possessing not less than the commercial quantity of MDMA (ecstasy), contrary to the Customs Act 1901. The Crown alleged they were part of a four-man joint enterprise to possess the drug. The other two participants in the alleged enterprise had pleaded guilty to similar charges before trial.
The prosecution case relied heavily on surveillance evidence gathered over three days in October 2000, including physical observation of the men's movements and legally intercepted telephone conversations. On 19 October 2000, investigators observed the appellants meet on Anzac Parade, Kensington, where one of them placed a black suitcase into a vehicle. That suitcase was later found at a Yagoona house containing more than 46,000 ecstasy tablets. Both appellants were arrested that evening in a taxi, each carrying $40,000 in cash strapped to their legs, along with business class airline tickets to Malaysia.
A central issue at trial was whether intercepted telephone conversations between third parties (conversations to which the appellants were not a party) were admissible against them. The appellants challenged their convictions on multiple grounds, and one appellant also sought leave to appeal against his sentence.
Legal Issues
- Whether intercepted telephone conversations between co-participants, to which the appellants were not a party, were admissible against the appellants as statements made in furtherance of a joint criminal enterprise
- Whether there was sufficient "reasonable evidence of pre-concert" (that is, prior agreement to act together) to justify admitting those conversations
- Whether the probative value of the intercepted conversations was outweighed by their prejudicial effect on the appellants
- Whether the evidence constituted impermissible tendency evidence (evidence of past conduct used to suggest a propensity to behave in a certain way)
- Whether the verdicts were unreasonable or unsafe and unsatisfactory
- Whether the sentencing judge erred in finding that the jury's verdict itself carried an implied finding that the appellant Yeung knew the actual quantity of drugs involved
Decision
Conviction appeals. The Court of Criminal Appeal dismissed both conviction appeals. The Court found there was reasonable evidence of a pre-existing agreement among the participants to establish the joint criminal enterprise. On that basis, the intercepted telephone conversations between co-participants, even those to which the appellants were not party, were properly admitted against them as statements made in furtherance of the conspiracy.
Admissibility and prejudice. The Court rejected the argument that the intercepted conversations were tendency evidence, and found that their probative value was not outweighed by their prejudicial effect. The conversations were relevant as direct evidence of the enterprise itself, not as evidence of prior bad conduct or propensity.
Continuity of the suitcase. Both appellants argued the Crown had not sufficiently established that the black suitcase placed in the car at Anzac Parade was the same one found containing drugs at the Yagoona house some nine hours later. The Court rejected this argument. The circumstantial evidence permitted a strong inference of continuity, making the verdicts neither unreasonable nor unsafe.
Sentence appeal. Leave to appeal against sentence was granted to Yeung but the appeal was dismissed. The sentencing judge had erred in finding that the jury verdict itself necessarily implied a finding that Yeung knew the precise quantity of drugs. However, the Court found no error in the overall sentencing process. Yeung had given no evidence at trial or in the sentencing proceedings, and the inference that he knew the quantity exceeded the commercial threshold was well available on the facts. There was no basis to resentence him on the assumption that he lacked that knowledge.
Orders Made
- Appeal against conviction dismissed for each appellant
- Leave granted to Yeung to appeal against sentence; that appeal dismissed
Key Takeaways
- Statements made by co-participants in a joint criminal enterprise are admissible against other alleged participants, provided there is reasonable evidence of a prior agreement to act in concert, even where those other participants were not party to the specific conversation.
- Intercepted telephone conversations admitted as evidence of the enterprise itself are not characterised as tendency evidence simply because they implicate other parties in the scheme.
- Where probative value of intercepted communications goes directly to establishing the enterprise, a court will not readily conclude that prejudicial effect outweighs that value.
- A jury verdict of possession of not less than the commercial quantity does not, of itself, carry an implied finding that the accused knew the precise quantity involved. The sentencing judge's inference to the contrary constituted error, though it did not infect the sentencing outcome on the facts here.
- No error was established in the sentencing process where the accused offered no evidence at trial or sentence to displace an otherwise available inference of knowledge, and the sentence remained within the proper range.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 235 (maximum penalty of life imprisonment for possession of commercial quantity of prohibited imports)
- Evidence Act 1995 (NSW)
Cases:
- Tripody v R (1961) 104 CLR 1
- Ahern v R (1988) 165 CLR 87
- R v AH (1997) 42 NSWLR 702