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Court of Criminal Appeal 2 April 2007

RISTEVSKI v R

[2007] NSWCCA 87

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION SUPPLY PROHIBITED DRUG COCAINE FLEE TO ESCAPE ARREST RUNNING AWAY FROM POLICE WITH DRUGS

Citation: RISTEVSKI v R [2007] NSWCCA 87
Court: Court of Criminal Appeal, New South Wales
Date: 2 April 2007
Judge(s): McClellan CJ at CL, Bell J, Howie J

Background

The appellant was convicted in the District Court of supplying a commercial quantity of cocaine (500.3 grams) on 8 January 2004, contrary to the Drug Misuse and Trafficking Act 1985. He was sentenced to a non-parole period of six years and six months, with a further term of three years.

The prosecution alleged that the appellant travelled from Wollongong to Sydney with an associate to purchase cocaine from a supplier known as Zen, and that a co-accused named Nikolovski acted as a broker in the transaction. The appellant denied being a purchaser and maintained he was merely a courier for Nikolovski, acting on Nikolovski's instructions.

When police pulled over the appellant's vehicle and indicated they would conduct a search, the appellant and his passenger fled on foot. As he ran, the appellant threw a bag containing cocaine under a nearby vehicle. At trial, the appellant explained his flight by saying he feared being wrongly accused of possessing drugs that, in his account, belonged to Nikolovski.

  • Whether the trial judge erred by failing to give adequate jury directions on the evidence of flight as evidence of consciousness of guilt.
  • Whether the flight in the circumstances required the jury to be directed that flight may stem from reasons other than consciousness of guilt of the specific offence charged.

Decision

The Court of Criminal Appeal, in a judgment delivered by McClellan CJ at CL (with Bell J and Howie J agreeing), dismissed the appeal. The Court found that the trial judge had not erred in her directions to the jury on the issue of flight.

The Court confirmed that where the Crown relies on flight as evidence of consciousness of guilt, jury directions broadly analogous to those required for lies told by an accused are appropriate. In particular, the jury should be told: that a person may behave in a way suggesting guilt for reasons other than actual guilt (for example, fear of being wrongly accused); and that any consciousness of guilt must relate specifically to the offence charged, not some other offence or discreditable conduct.

In this case, however, the appellant himself had given the jury a specific alternative explanation for his flight: he feared being wrongly accused. Defence counsel had reminded the jury of this explanation in closing address, and the trial judge had also referred to it in summing up. Because this alternative explanation was squarely before the jury, the Court found there was no requirement for the trial judge to give additional directions reminding the jury that flight can have innocent explanations. The issue had been properly placed before the jury.

The Court also noted that no application had been made at trial to review or supplement the directions, and that the Criminal Appeal Rules applied in consequence. The absence of any such application suggested that trial counsel had no reason at the time to consider the directions inadequate.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence not pressed and not considered.

Key Takeaways

  • Where the Crown relies on evidence of flight to establish consciousness of guilt, jury directions are generally required: the jury must be told that flight may have innocent explanations (such as fear of wrongful accusation), and that any consciousness inferred must relate to the specific offence charged, not some other offence or discreditable conduct.
  • A conviction for supply of a prohibited drug is not undermined simply because the accused characterised his own role as a courier rather than a purchaser, where the Crown's case is supported by surveillance evidence, intercepted calls, and the accused's own flight with the drugs.
  • Where an alternative explanation for flight is already squarely before the jury through the accused's own evidence and counsel's address, the trial judge is not additionally required to direct the jury on possible innocent reasons for flight.
  • No error was established in the trial judge's summing up where the core issue regarding flight had been properly identified for the jury through the evidence, closing addresses, and the directions actually given.
  • In dismissing the appeal, the Court of Criminal Appeal drew on the reasoning in Edwards v The Queen (1993) 178 CLR 193, noting that flight (like lies) used as evidence of consciousness of guilt does not need to be proved beyond reasonable doubt unless it is the only evidence against the accused or an indispensable link in the Crown's chain of proof.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Cases
- Edwards v The Queen (1993) 178 CLR 193 (High Court)
- R v Cook [2004] NSWCCA 52