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7
Court of Criminal Appeal 26 July 2006

Keller v R

[2006] NSWCCA 204

Drugs
CRIMINAL LAW CRIMINAL LAW EXPERT EVIDENCE SUFFICIENCY OF SUMMING UP.

Citation: Keller v R [2006] NSWCCA 204
Court: New South Wales Court of Criminal Appeal
Date: 26 July 2006
Judge(s): Studdert J, Hall J, Latham J

Background

The appellant was convicted in the District Court of supplying a commercial quantity of cocaine, following a trial based largely on intercepted telephone conversations. The prosecution alleged he had arranged, from Melbourne, the purchase of a kilogram of cocaine delivered to Sydney, where his co-accused collected the drug and was arrested at Central Railway Station. A block of cocaine weighing over 500 grams was found in the co-accused's backpack.

The intercepted conversations were heavily coded, using terms such as "the whole big thing," "rocket fuel," "hen's teeth," and "untickled." The Crown relied on expert opinion evidence from a Federal Police officer, Federal Agent Smith, to interpret these terms as references to cocaine and drug supply transactions.

The appellant challenged both the admissibility of that expert opinion evidence and the adequacy of the trial judge's directions to the jury about how to approach it.

  • Whether the expert opinion evidence of Federal Agent Smith concerning the meaning of coded language in the intercepted conversations was properly admitted
  • Whether the trial judge's directions to the jury were sufficient to guide them on how to evaluate that expert opinion evidence
  • Whether a third ground concerning fresh evidence (not fully argued) independently warranted a new trial

Decision

The Court found that the admissibility of Federal Agent Smith's opinion evidence was attended by serious difficulty. The key concern, drawing on principles established in HG v The Queen and Makita (Australia) Pty Limited v Sprowles, was whether the officer had adequately exposed the basis and reasoning underlying his opinions, rather than simply asserting conclusions. Expert opinion evidence must do more than state a result; it must reveal the reasoning process so that the tribunal of fact can assess its validity.

Even accepting that the evidence had some basis in the officer's experience, the Court found the trial judge failed to give the jury adequate directions on how to evaluate it. Once opinion evidence of this kind was left before the jury, the judge was required to instruct the jury to scrutinise the basis upon which the expert's conclusions rested. The judge did not provide that cautionary direction, and reminding the jury generally that it could accept or reject evidence was insufficient.

The Crown urged the Court to apply the proviso under section 6 of the Criminal Appeal Act, arguing the prosecution case remained strong even without the expert evidence. The Court declined to apply the proviso, holding that the opinion evidence of Federal Agent Smith was of such central importance to the Crown case that the errors could not be dismissed as causing no substantial miscarriage of justice. A new trial was ordered.

The third ground of appeal, relating to fresh evidence, was not fully argued due to time constraints. Since a new trial was already warranted on grounds one and two, and the appellant conceded this ground would only ever lead to a new trial rather than an acquittal, the Court did not proceed to hear it.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Expert opinion evidence about the meaning of coded language in drug supply prosecutions must expose the reasoning process and factual basis underlying the opinion, not merely assert a conclusion; the principles in HG v The Queen and Makita v Sprowles apply in this context.
  • Where a trial judge admits expert opinion evidence of this character, a direction reminding the jury of its general right to accept or reject evidence is insufficient. The jury must be specifically instructed to examine the basis upon which the expert reached the opinion.
  • The Court of Criminal Appeal declined to apply the proviso under section 6 of the Criminal Appeal Act where the impugned evidence was central to the prosecution case, even though other evidence against the appellant was described as formidable.
  • A new trial, rather than an acquittal, is the appropriate remedy where errors in the admission or directions concerning expert evidence are established and the proviso does not apply.
  • Failure to give adequate cautionary directions about expert opinion evidence constitutes an independent ground for appeal, separate from any question of whether the evidence should have been admitted at all.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW)
- Criminal Appeal Act (NSW), s 6

Cases
- HG v The Queen (1999) 197 CLR 414
- Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
- R v David & Gugea (unreported, NSWCCA, 10 October 1995)
- R v Huynh (unreported, NSWCCA, 13 May 1996)
- Weiss v The Queen (2005) 80 ALJR 444