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Court of Criminal Appeal 17 November 2006

Fattal v Regina

[2006] NSWCCA 359

Drugs

Citation: Fattal v Regina [2006] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 17 November 2006
Judge(s): McClellan CJ at CL, Sully J, Hislop J

Background

The appellant was convicted in the District Court of supplying a large commercial quantity of MDMA (ecstasy) at Rockdale on 10 August 2002. The Crown's case was that he participated in a joint criminal enterprise to supply approximately 9,000 ecstasy tablets to a Queensland-based buyer acting as courier and agent for Queensland principals. The transaction involved intercepted telephone calls, physical police surveillance, and a co-offender who later pleaded guilty and gave evidence against the appellant.

The appellant did not give evidence at trial. His defence was that he had no part in the supply of the bulk tablets to the courier, and that his only criminal involvement was a separate, later transaction with a co-accused concerning 156 tablets he obtained at the hotel after the main supply had occurred.

The appellant was convicted and sentenced to a substantial term of imprisonment. He appealed against conviction only, raising three grounds.

  • Whether the trial judge misdirected the jury on the scope of the joint criminal enterprise, by extending it beyond the actual supply to the courier and into the appellant's subsequent conduct (including travelling to Queensland to collect payment)
  • Whether intercepted telephone conversations between others, not involving the appellant, were admissible against him, and whether they were properly used to prove his participation in the joint criminal enterprise
  • Whether the verdict was unreasonable, in that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on all the evidence

Decision

Ground 1: Misdirection on joint criminal enterprise. The appellant argued that the trial judge impermissibly broadened the Crown's case by including post-supply conduct in her directions, potentially allowing the jury to convict on a different basis than the one the Crown advanced. The Court of Criminal Appeal rejected this argument. The supply charged was consistently presented as a supply to the courier acting as agent for Queensland principals, not a supply that ended at the moment physical possession changed hands. Evidence of what the appellant did afterwards was relevant to prove his knowledge and participation in the original transaction.

Ground 2: Admissibility of intercepted conversations. The conversations were between other participants and did not directly involve the appellant. The Court affirmed the established principles from Tripodi v The Queen and Ahern v The Queen: statements made by co-conspirators in furtherance of a common enterprise are admissible against other participants. The intercepted calls could not on their own prove the appellant's participation, but that gap was properly filled by undisputed evidence of his prior associations, his presence at the drug handover, and his subsequent conduct, all of which were consistent with the participation alleged. No error was established.

Ground 3: Unreasonable verdict. Applying the test from M v The Queen, the Court asked whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. The Court found a clear picture of what was arranged between the Sydney sellers and Queensland buyers, and concluded that the appellant's presence at the handover and his subsequent conduct alongside the courier were not reasonably explicable as coincidences unconnected to the supply charged. The Crown case, assessed overall, was described as a convincing one.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence of a defendant's post-supply conduct can be relevant and admissible to prove his knowledge of, and participation in, the original supply transaction.
  • A joint criminal enterprise charge framed as a supply to a courier acting for principal buyers is not limited to the precise moment of physical handover; the scope of the enterprise is defined by the arrangement as a whole.
  • Under the principles in Tripodi and Ahern, intercepted conversations between co-participants are admissible to prove a joint criminal enterprise even where the accused is not a party to those conversations, provided the conversations are made in furtherance of the enterprise.
  • Sufficient evidence of prior associations, physical presence, and subsequent conduct can collectively fill any gap left by the absence of direct evidence of the accused's agreement to participate.
  • The applicable test for an unreasonable verdict remains whether it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence, as confirmed in M v The Queen and MFA v The Queen.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- Tripodi v The Queen (1961) 104 CLR 1
- Ahern v The Queen (1988) 165 CLR 87
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606