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23
Court of Criminal Appeal 3 December 2003

R v Bartle & Ors

[2003] NSWCCA 329

Drugs
CRIMINAL LAW JOINT TRIAL WHETHER JOINT TRIAL MISCARRIED WHETHER MISCARRIAGE RESULTED WHETHER MISCARRIAGE RESULTED WHETHER EVIDENCE WRONGLY ADMITTED

Citation: R v Bartle & Ors [2003] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 3 December 2003
Judge(s): Mason P, Barr J, Smart AJ

Background

Following a seven-month District Court trial, seven appellants were convicted of being knowingly concerned in the importation of a commercial quantity of cocaine into Australia. The enterprise involved purchasing and equipping a vessel in New Zealand, sailing it to a Pacific Ocean rendezvous, and collecting 383 kilograms of pure cocaine sourced from Central American suppliers. The drugs were brought to Patonga, New South Wales, where they were seized on 1 February 2000 in what was then the largest cocaine seizure in Australian history.

The trial judge sentenced two of the appellants to life imprisonment, finding their roles were of the utmost seriousness. The remaining appellants received head sentences of 24 years. An eighth participant, Bateman, was found to have masterminded the Australian end of the enterprise and did not stand trial alongside the others.

All seven appellants appealed against their convictions and sentences. The Crown also cross-appealed against the sentences imposed on several of them.

  • Whether the joint trial miscarried, including as a result of an outburst by one accused (Roberti) in which he told the jury that all accused had criminal records and had been in gaol
  • Whether the trial judge's directions to the jury were adequate to neutralise the prejudice from that outburst
  • Whether one accused (Diez) had intentionally raised good character evidence, and whether that entitled the Crown to respond with bad character evidence
  • Whether the Crown's closing address improperly diverted the jury from its obligation to assess each accused separately
  • Whether the trial judge's refusal to provide the jury with a transcript of counsel's closing addresses caused a miscarriage
  • Whether admissions by certain accused were unlawfully obtained, and whether the trial judge's discretion to admit them miscarried
  • Whether the jury was prejudiced by evidence that a co-offender had pleaded guilty and agreed to assist the Crown
  • Whether the trial judge adequately put the defence cases to the jury
  • Whether certain sentences were so disparate from those imposed on co-offenders as to produce a justifiable sense of grievance

Decision

Bartle's appeal was dismissed. The majority held that the trial judge's directions were sufficient to remove the risk of an unfair trial arising from the Roberti outburst and the other grounds raised. Smart AJ dissented on the outburst ground but would have applied the proviso (meaning he would have upheld the conviction despite the error), so the outcome was the same.

Diez's appeal against conviction was also dismissed, though the court found in his favour on the character evidence ground. The trial judge had incorrectly concluded that Diez intentionally raised good character when he said he had never been involved in importations or drug sales. That error allowed the Crown to adduce bad character evidence that should not have been admitted. However, given the strength of the Crown case overall, the court applied the proviso and dismissed the conviction appeal. The sentence appeal and Crown appeal against his sentence were also dismissed.

Fox, McCaffrey, and Thompson succeeded in their conviction appeals. The Court of Criminal Appeal upheld each of their appeals, quashed their convictions, and ordered new trials. The precise grounds on which each succeeded are detailed across the lengthy joint and separate judgments, covering matters including the adequacy of directions, the Roberti outburst, admission of evidence, and the trial judge's treatment of the defence cases.

Fry and Roberti's conviction appeals were dismissed. On sentencing, the majority and minority of the court reached different conclusions on whether the sentences of Diez, Fry, Bartle, and Roberti should be varied. Smart AJ, in a minority view, would have granted leave and allowed the sentence appeals for some of these appellants, applying a different analysis of parity and the co-offender Bateman's circumstances. The Crown appeals against sentence were dismissed by all members of the court.

Orders Made

  • Bartle: Appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed; Crown appeal dismissed
  • Diez: Appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed; Crown appeal dismissed
  • Fox: Appeal against conviction upheld, conviction quashed, new trial ordered
  • Fry: Appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed; Crown appeal dismissed
  • McCaffrey: Appeal against conviction upheld, conviction quashed, new trial ordered
  • Roberti: Appeal against conviction dismissed; leave to appeal against sentence granted, appeal dismissed; Crown appeal dismissed
  • Thompson: Appeal against conviction upheld, conviction quashed, new trial ordered

Key Takeaways

  • An in-court outburst by one joint accused revealing that all accused had prior criminal records did not automatically cause the trial to miscarry; adequate judicial directions could, in the majority's view, neutralise the resulting prejudice, though the court was not unanimous on this point.
  • A trial judge's finding that an accused intentionally raised good character must be grounded in a genuine assessment of the accused's intent; where a statement is equivocal rather than a deliberate character claim, it does not open the door to Crown evidence of bad character under the relevant provisions of the Evidence Act 1995.
  • In dismissing several conviction appeals while quashing others arising from the same trial, the court illustrated that errors in a joint trial can affect co-accused differently depending on the evidence against each individual and the specific directions given.
  • Where bad character evidence is wrongly admitted, the proviso remains available if the remaining evidence against the accused is sufficiently strong to conclude no substantial miscarriage of justice occurred.
  • Sentencing parity in a joint enterprise case requires comparison with the sentences of co-offenders, including those sentenced by different judges on different facts; a co-offender receiving a discounted sentence after agreeing to give evidence for the Crown, but not ultimately being called, was a relevant consideration in the parity analysis.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)
- Evidence Act 1995 (NSW), ss 13, 55, 56, 76, 78, 79, 85, 90, 97, 98, 102, 104, 110, 112, 119, 128, 131, 135, 137, 138, 192
- Criminal Appeal Act 1912 (NSW), ss 6, 50A
- Crimes Act 1914 (Cth), Pt 1C (ss 23A–23W), ss 16, 16A, 16G, 21E, 23C, 23D, 23E, 23Q
- Crimes Act 1900 (NSW), s 352
- Jury Act 1977 (NSW), s 55C

Key Cases:
- Crofts v The Queen (1996) 186 CLR 427
- Edwards v The Queen (1993) 178 CLR 193
- Festa v The Queen [2001] HCA 72
- Harriman v The Queen (1989) 167 CLR 590
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Gallagher (1991) 23 NSWLR 220
- R v Glasby [2000] NSWCCA 83
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wilde v The Queen (1988) 164 CLR 365
- Zoneff v The Queen (2000) 200 CLR 234