Citation: [2003] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 31 July 2003
Judge(s): Spigelman CJ, Hulme J, Buddin J
Background
Two appellants were convicted in the District Court of being knowingly concerned in the importation of cocaine into Australia (not less than a traffickable quantity) contrary to s 233B of the Customs Act. The offending occurred between approximately 19 November and 23 December 1999. The Crown case centred on a cocaine parcel posted from Frankfurt, Germany, which was delivered to a third party at premises in Rose Bay, Sydney, where both appellants were present shortly before police raided the address.
The Crown relied on a web of circumstantial evidence connecting the appellants to the importation. This included the booking and payment of travel arrangements for the courier who had posted the parcel from Frankfurt, international money transfers made from Adelaide on the day after the parcel was posted, intercepted telephone conversations, and a fax sent by one appellant to the other referencing hotels in Frankfurt and instructions about a ticket.
Judge Hock in the District Court sentenced each appellant to 12 years' imprisonment with a non-parole period of 8 years. Both appellants appealed against conviction and sought leave to appeal against sentence.
Legal Issues
- Whether the jury's verdict was unreasonable (abandoned before hearing)
- Whether intercepted telephone call evidence (Exhibit J) was correctly admitted, or whether it amounted to inadmissible propensity evidence
- Whether evidence of international money transfers should have been admitted or withdrawn from jury consideration
- Whether the trial judge's directions to the jury on a not guilty verdict, on the elements of the offence, and on the use of evidence against each accused were correct
- Whether the trial judge adequately put the defence case to the jury
- Whether the trial miscarried due to inadequate representation by counsel
- Whether the 12-year sentences were manifestly excessive
Decision
Ground 2 (Exhibit J telephone call): The court considered whether the intercepted call between one appellant and an unidentified person named "Alex" was properly admitted. The conversation used oblique language, including a reference to "white cappuccino" understood in context to refer to cocaine. The court (Spigelman CJ agreeing with Buddin J on this ground) found there was a sufficient nexus between the content of the call and the charged offending to elevate the evidence beyond mere propensity evidence, and its admission was upheld.
Grounds 3 and 3A (money transfer evidence): The court found no error in admitting or retaining for the jury's consideration the evidence of two international money transfers totalling approximately $47,000 sent from Adelaide to individuals in Frankfurt the day after the cocaine parcel was posted. The transfers were made using funds connected to the appellants and were sufficiently connected to the alleged enterprise.
Grounds 4 to 8 (jury directions): The court rejected the various challenges to the trial judge's directions, including the direction that as a practical reality the verdicts for both accused were likely to be the same. No reversible error was identified in how the judge directed the jury on the elements of the offence, the use of evidence, or the presentation of the defence case.
Ground 9 (inadequate counsel): The court acknowledged that some errors were made by counsel during the trial. However, it indicated that opinion evidence as to the competence of counsel would be unlikely to be admissible in any event. The ground did not succeed.
Ground 10 (manifest excess in sentence): The court granted leave to appeal against sentence but dismissed the appeal. Comparing the sentences to that imposed on the courier (Mr Szelenczy, who pleaded guilty and had significant subjective mitigating factors), the court reasoned that, absent those factors, a sentence of around 12 years for Mr Szelenczy would have been appropriate. The appellants, who did not plead guilty, were in a less favourable position. The court was satisfied the 12-year head sentences were not manifestly excessive given the seriousness and scope of the enterprise.
Orders Made
In each case:
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A sufficient nexus between intercepted communications and the charged offending can render such evidence admissible as more than mere propensity evidence, even where the language used is guarded or coded.
- Circumstantial evidence of financial transactions and travel arrangements, when sufficiently connected to an alleged importation, may properly be placed before a jury and left for their consideration.
- In dismissing the sentence appeals, the Court of Criminal Appeal confirmed that a 12-year head sentence for a contested trial involving a serious cocaine importation enterprise was within the appropriate range, particularly when compared to sentences imposed on co-offenders who had the benefit of a guilty plea and other mitigating factors.
- Where counsel errors are alleged to have caused a miscarriage of trial, the court indicated that opinion evidence directed at establishing counsel's incompetence would be unlikely to be admissible.
- Under the sentencing framework informed by Wong and Leung, the weight of narcotics carries statutory significance, and the sentencing guidelines established by the Court of Criminal Appeal in R v Wong and Leung (1999) remained useful as a reference point notwithstanding the subsequent High Court decision.
Legislation and Cases Referenced
Legislation:
- Customs Act (Cth), s 233B
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Wong and Leung v The Queen (2001) 207 CLR 584 (High Court)
- R v Wong and Leung (1999) 48 NSWLR 340 (NSW Court of Criminal Appeal)
- R v Taru [2002] NSWCCA 391