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Court of Criminal Appeal 1 April 2005

Regina v Graham

[2005] NSWCCA 127

Drugs
CRIMINAL LAW AND PROCEDURE TRIAL ACCUSED GIVES AND CALLS NO EVIDENCE NO APPLICATION FOR DIRECTION OTHERWISE NO MISCARRIAGE RULE 4 APPLICABLE

Citation: Regina v Graham [2005] NSWCCA 127
Court: New South Wales Court of Criminal Appeal
Date: 1 April 2005
Judge(s): Grove J, Howie J, Hall J

Background

The appellant was convicted after a District Court trial of knowingly taking part in the supply of heroin. The Crown's case centred on her act of taking a package to a courier service at Mascot and consigning it for delivery to Wagga Wagga. When the package was scanned and inspected, it was found to contain 5.32 grams of heroin concealed within a video cassette case.

The appellant did not give evidence at trial. Instead, her counsel relied on a lengthy video-recorded police interview in which she consistently denied knowing the package contained drugs. She told police she had been asked by her partner's associate to courier what she believed was a birthday gift containing a pornographic video.

The sole contested issue at trial was whether the appellant knew the package contained a prohibited drug. The jury found her guilty, and she appealed against conviction on two grounds. The application for leave to appeal against sentence was abandoned before the hearing.

  • Whether the trial judge erred by failing to direct the jury that the appellant's election not to give evidence could not be used against her (drawing on the principles in Azzopardi v The Queen)
  • Whether the verdict was unreasonable or unsupported by the evidence

Decision

On the first ground, the Court of Criminal Appeal acknowledged the passage from Azzopardi v The Queen (2001) 205 CLR 50, which states it will "almost always be desirable" for a judge to warn the jury that an accused's silence in court cannot be used as evidence against them or to fill gaps in the prosecution case. The trial judge had not returned to this matter during the summing up, and trial counsel later acknowledged this was an oversight rather than a tactical choice.

Despite this, the Court found no miscarriage of justice had occurred. The trial judge had given firm and correct directions on the Crown's onus of proof. Critically, the judge had earlier told the jury, in favourable terms, that the video interview was evidence to be evaluated in the same way as any other evidence, without qualification for its hearsay nature or lack of cross-examination. That direction was more favourable to the appellant than her strict legal entitlement. Rule 4 of the Criminal Appeal Act 1912 (which allows a court to dismiss an appeal despite a technical error where no substantial miscarriage of justice has occurred) was held to apply.

Howie J added a notable observation on the so-called OGD direction, agreeing with Hunt AJA's view in R v Wilson that such a direction is not normally required. Howie J went further, expressing the view that it should not normally be given at all, because it risks inviting the jury to speculate about why the accused chose not to testify, an enquiry that is ordinarily irrelevant.

On the second ground, the Court found the verdict was not unreasonable. The circumstantial evidence included the appellant's thumb print on the video tape inside the package, inconsistencies in her account of her movements, the urgency with which she acted, the provision of a false address and false mobile number to the courier, and the fact that she spent virtually all her available cash on the consignment. The Court held it was open to the jury to reject her innocent explanation, and that the trial judge's description of the case as "a strong circumstantial case" was correct.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, while it will "almost always be desirable" for a trial judge to direct a jury that an accused's silence in court cannot be used against them, failure to give such a direction will not automatically result in a miscarriage of justice where other protective directions are firmly in place.
  • A direction given to the jury that the content of a video-recorded police interview is evidence available in the same way as any other evidence, without qualification for hearsay, is more favourable to an accused than strict legal entitlement requires.
  • Howie J expressed the view that an OGD-style direction (warning the jury not to speculate on reasons for silence) should not normally be given, as it may prompt the jury to consider matters that are entirely irrelevant in most cases.
  • In assessing whether a verdict is unreasonable on a circumstantial case, inconsistencies in the accused's own account, unexplained urgency, and physical evidence linking the accused to the contents of a package can together support a guilty verdict, even where the accused denied knowledge throughout.
  • Rule 4 of the Criminal Appeal Act 1912 operates to preserve a conviction where a technical error at trial has not produced a substantial miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), Rule 4
- Evidence Act 1995 (NSW), s 38

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- R v Abusafiah (1991) 24 NSWLR 531
- R v Bozzola [2001] NSWCCA 8
- R v Giri [2001] NSWCCA 197
- R v Knight (unreported, CCA, 18 December 1990)
- R v Morris (2004) 147 A Crim R 99
- R v OGD (1997) 45 NSWLR 744
- R v Prasad (1979) 2 A Crim R 45
- R v Richards (2002) 128 A Crim R 204
- R v SMR [2002] NSWCCA 258
- R v Tripodina (1988) 35 A Crim R 183
- R v Wilson [2005] NSWCCA 20