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Court of Criminal Appeal 24 February 2004

R v Gutierrez

[2004] NSWCCA 22

DrugsFraud & dishonesty
EXAMINATION WARNING ON MENTAL ILLNESS USE OF WORD 'ACCOMPLICE' IN WARNING FRESH EVIDENCE CROWN APPEAL AGAINST SENTENCE 3 SERIOUS OFFENCES

Citation: R v Gutierrez [2004] NSWCCA 22
Court: New South Wales Court of Criminal Appeal
Date: 24 February 2004
Judge(s): Meagher JA, Kirby J, Shaw J

Background

The appellant was convicted in the District Court on two counts following a jury trial: being knowingly concerned in the importation of cocaine into Australia, and money laundering. He subsequently pleaded guilty to a separate count of conspiring to import cocaine. All three offences related to events in August and September 1999, involving approximately 3.5 kilograms of cocaine imported in a wine cask. The trial judge was Nicholson DCJ.

The Crown's case rested substantially on the evidence of a co-offender, Brent Atkinson, who had cooperated with police and received a sentencing discount in exchange for giving evidence against the appellant. Atkinson described a series of events in which the appellant was said to have played a senior, profit-sharing role in the importation and subsequent processing of the cocaine.

Two separate appeals came before the Court of Criminal Appeal. The appellant challenged both his conviction and the severity of his sentence. The Crown separately appealed, arguing that the sentences imposed at first instance were manifestly inadequate.

  • Whether identification evidence introduced during re-examination was admissible
  • Whether the trial judge gave an adequate warning under s 165 of the Evidence Act 1995 (NSW) regarding a witness with a mental illness
  • Whether the trial judge's use of the word "accomplice" in a warning to the jury was appropriate
  • Whether fresh evidence filed after the hearing should be received and given weight
  • Whether the sentences imposed on the appellant were manifestly inadequate, as contended by the Crown

Decision

The Court unanimously dismissed the appellant's appeal against conviction, finding no error in the conduct of the trial. The Court rejected the challenges to the admissibility of the identification evidence introduced in re-examination, and found no material deficiency in the warnings given to the jury. The use of the word "accomplice" in the trial judge's warning did not constitute a ground for overturning the conviction.

On the fresh evidence application, the Court noted that an affidavit was filed by the appellant after the hearing concluded. Having considered the material, the Court found it of no substantial assistance and did not need to resolve questions of admissibility or utility, given the conclusions already reached on the other grounds.

On the sentence appeal, Kirby J dissented from the majority. Shaw J, with whom Meagher JA agreed, concluded that the sentences were not outside the permissible range having regard to all the circumstances. Even allowing for the possibility of error in that assessment, Shaw J considered there was no sufficiently compelling reason to exercise the discretion available to the Court in Crown appeals to intervene. Kirby J formed a different view but was in the minority on this point.

The Crown appeal against sentence was dismissed by majority.

Orders Made

  • Appellant's appeal against conviction dismissed
  • Leave granted on the appellant's application to appeal against severity of sentence, but that appeal dismissed
  • Crown appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that identification evidence introduced in re-examination, warnings about witness mental illness, and the use of the term "accomplice" in jury directions did not, on the facts here, constitute grounds for overturning a conviction.
  • A majority of the Court declined to interfere with the sentences imposed at first instance, finding they fell within the permissible range for three serious federal drug and money laundering offences involving a senior, profit-sharing offender.
  • In dismissing the Crown appeal, Shaw J (with Meagher JA agreeing) emphasised that the discretion to intervene in Crown sentence appeals requires more than a possible error; there must be a sufficiently compelling reason, such as a clearly identifiable point of principle or a significant public interest consideration.
  • Fresh evidence filed after the hearing concluded was considered by the Court but afforded no substantial weight, particularly where it generated a factual controversy with the Crown that the Court did not need to resolve.
  • Kirby J's separate reasons signal that reasonable minds can differ on whether sentences for offences of this kind were adequate, even where the majority declines to intervene.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW), s 165
- Proceeds of Crime Act 1987 (Cth), s 81

Cases:
- Festa v The Queen (2001) 208 CLR 593
- Gray v The Queen [2001] HCA 65
- Harriman v The Queen (1989) 167 CLR 590
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Pang v R (1999) 105 A Crim R 474
- R v Atkinson [2001] NSWCCA 342
- R v Baartman [2000] NSWCCA 298
- R v Ita [2003] NSWCCA 174
- R v Lars (1994) 73 A Crim R 91
- R v Quach [2002] NSWCCA 519
- R v Radloff (1996) 88 A Crim R 26
- R v Snell [1999] NSWCCA 26
- R v Stewart (2001) 52 NSWLR 301
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Yasin Capar [2002] NSWCCA 517
- Regina v Davis (1997) 4 Crim LN [731]