Citation: R v Jerry Royston Maloney [2004] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J
Background
The appellant was convicted in the District Court of attempting to obtain possession of a prohibited import, specifically not less than the trafficable quantity of cocaine, which had been imported into Australia. He was sentenced by Hock DCJ to eight years' imprisonment with a non-parole period of five years.
The Crown case arose from a controlled delivery operation. Two DHL satchels containing approximately 1,966 grams of cocaine powder (with 1,359.7 grams of pure cocaine) were intercepted by US Customs in Miami, forwarded to Australian Federal Police, and delivered under police surveillance to a business premises in Hornsby, NSW. The appellant arrived at those premises shortly after the delivery and was observed entering while listening devices concealed in the packages recorded sounds consistent with the packages being opened. He was arrested and found in possession of a Tel-Pacific phone card, consistent with a call made from the premises to St Vincent and the Grenadines shortly before his arrest.
A co-offender, Illingworth, who worked at the premises and received the original delivery, had separately pleaded guilty and was sentenced to six years' imprisonment with a non-parole period of three years and three months.
Legal Issues
- Whether the trial judge adequately warned the jury about the dangers of convicting on the available evidence
- Whether the trial judge sufficiently presented the defence case in the summing-up
- Whether the verdict was unreasonable or unsupported by the evidence
- Whether a change in the prosecution's case regarding fingerprint evidence, raised after the defence closed, caused a miscarriage of justice
- Whether the trial judge's directions adequately addressed the absence of fingerprint evidence linking the appellant to the drug-containing envelope
- Whether the trial judge erred in failing to direct the jury to disregard prejudicial material in the Crown Prosecutor's closing address
- Whether the sentence was manifestly excessive, particularly given the lesser sentence imposed on the co-offender Illingworth
- Whether there was sufficient evidence to identify the appellant as a principal or organiser for sentencing purposes
Decision
The Court of Criminal Appeal, with all three judges agreeing in reasons delivered by Buddin J, dismissed the appeal against conviction. On the primary ground of unreasonable verdict, the court found the circumstantial evidence against the appellant was substantial. The evidence included his arrival at closed premises on a Saturday afternoon following telephone contact with Illingworth, sounds from listening devices consistent with the packages being opened after his entry, a call made to St Vincent and the Grenadines at that time, and the discovery of a relevant phone card on his person.
On the grounds concerning the jury directions and summing-up, the court found the trial judge's directions were adequate. No application for redirections had been made by defence counsel at trial, and the court noted it would have applied the relevant rule relating to failure to object at trial had it been necessary to do so.
Regarding the fingerprint ground, the court concluded that the Crown's position on fingerprints did not materially shift after the close of the defence case in a way that caused injustice. The trial judge's direction on the absence of fingerprint evidence linking the appellant to the envelope was found to be sufficient in the circumstances.
On sentence, the court accepted that the disparity with Illingworth's sentence was explained by two factors: Illingworth received a 25 percent discount for his early plea, contrition, and strong subjective material, and the sentencing judge found the appellant had a greater involvement in the offence as the intended recipient of the cocaine. The court was satisfied the sentence of eight years fell within the permissible range of sentencing discretion.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but that appeal dismissed
Key Takeaways
- In dismissing the appeal on unreasonable verdict grounds, the Court of Criminal Appeal applied the principle that a verdict will only be set aside where the court concludes the jury, acting reasonably, could not have been satisfied of guilt beyond reasonable doubt on the whole of the evidence.
- Circumstantial evidence, including surveillance records, telephone records, listening device recordings, and items found on the appellant at arrest, was collectively sufficient to sustain a conviction for attempting to obtain possession of a prohibited import.
- Where defence counsel made no application for redirections at trial, the grounds relating to allegedly inadequate jury directions faced a higher threshold on appeal, with the court indicating it would have invoked the rule requiring objection at trial had it been necessary.
- A sentencing disparity between co-offenders does not of itself establish error, particularly where the lesser sentence is explained by an early plea of guilty, contrition, and stronger subjective circumstances on the part of the co-offender.
- A finding of greater culpability for the intended recipient of imported drugs, compared with an employee who merely received and held the consignment for a reward, was open to the sentencing judge on the evidence.
Legislation and Cases Referenced
Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
Legislation: No specific legislation was identified in the text provided, though the offence related to prohibited imports under Commonwealth law (the charge concerned a prohibited import in a quantity not less than the trafficable quantity applicable to cocaine).