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Court of Criminal Appeal 11 November 2008

Halmi v R

[2008] NSWCCA 259

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION APPELLANT DROVE CO OFFENDER TO AREA WHERE SUPPLY TO OCCUR HEROIN SUPPLIED TO THIRD PARTY FINGERPRINTS OF APPELLANT AND CO

Citation: Halmi v R [2008] NSWCCA 259
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2008
Judge(s): Campbell JA, Grove J, Johnson J

Background

The appellant was convicted by a jury in the Sydney District Court of supplying a large commercial quantity of heroin contrary to the Drug Misuse and Trafficking Act 1986 (NSW). The Crown alleged that on 8 May 2000, the appellant and a co-offender named Stojkov jointly supplied five blocks of heroin, weighing approximately 1.789 kilograms, to two other men at Bass Hill in Western Sydney.

The Crown's case was that the appellant drove Stojkov to the Bass Hill area on the evening in question, and that Stojkov then delivered the heroin to the recipients at a nearby motel. The heroin was found wrapped in plastic bearing the fingerprints of both Stojkov and the appellant. The Crown relied on this as part of a circumstantial case that both men were engaged in a joint criminal enterprise to supply the drug.

This was the appellant's second trial. His conviction at the first trial had been quashed by the Court of Criminal Appeal on a ground unrelated to the present appeal. At the second trial, the jury again returned a guilty verdict, and the appellant was sentenced to imprisonment with a non-parole period of two years and six months, with the sentencing judge taking into account significant periods already spent in custody.

  • Whether the jury's verdict was unreasonable or could not be supported by the evidence, under s 6(1) of the Criminal Appeal Act 1912.
  • Whether the trial judge erred by failing to direct the jury that it must find, as an indispensable intermediate fact proven beyond reasonable doubt, that the heroin had been transported to Bass Hill in the vehicle driven by the appellant.

Decision

Ground 1: Unreasonable verdict

The Court found the verdict was reasonable and supported by the evidence. The circumstantial case against the appellant included: his undisputed role in driving Stojkov to Bass Hill on the evening of the supply; the timing and sequence of movements captured by police surveillance; the intercepted phone calls between Stojkov and the recipients; and, critically, the presence of the appellant's fingerprints on the plastic wrapping enclosing the heroin. Johnson J (with Campbell JA and Grove J agreeing) concluded there was no basis for the Court to conclude that no reasonable jury, properly instructed, could have been satisfied beyond reasonable doubt of the appellant's guilt.

Ground 2: Failure to direct on intermediate fact

The appellant argued the trial judge should have directed the jury that it must be satisfied beyond reasonable doubt of a specific intermediate fact: that the heroin was transported to Bass Hill in the appellant's vehicle. The Court rejected this ground. The trial judge had clearly directed the jury that the Crown bore the onus of proving beyond reasonable doubt that Stojkov brought the heroin to the recipients. In context, that direction adequately covered the issue.

The Court also noted that experienced trial counsel had not sought any further direction on this point at the conclusion of the summing-up. Leave to argue this ground was required under the relevant rule, and the Court found the appellant had not demonstrated an arguable case of error or a miscarriage of justice. Leave was refused and the ground rejected.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A conviction based on circumstantial evidence will be upheld on appeal where a reasonable jury, properly instructed, could be satisfied beyond reasonable doubt of guilt, even where no single piece of evidence is conclusive on its own.
  • Fingerprint evidence on drug packaging, combined with surveillance evidence of an accused's movements and role in transporting a co-offender, can together form a sufficient evidential basis for a joint criminal enterprise conviction.
  • Where trial counsel does not seek a further direction after the summing-up, this is a relevant factor in assessing whether the trial judge's directions on a disputed factual issue were adequate.
  • In dismissing the second ground, the Court of Criminal Appeal confirmed that leave to raise a ground not raised at trial will be refused where no arguable case of error or miscarriage of justice is demonstrated, consistent with the principles in Papakosmas v The Queen (1999) 196 CLR 297 and R v Wilson (2005) 62 NSWLR 346.
  • No error was established in the trial judge's failure to direct on a specific intermediate fact where the overall summing-up clearly conveyed to the jury the need to find that fact proven beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1986 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- R v Halmi (2005) 62 NSWLR 263
- R v Kaldor (2004) 150 A Crim R 271
- R v Chahine [2006] NSWCCA 179
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Cable (1947) 47 SR 183
- The Queen v Hillier (2007) 228 CLR 618
- Shepherd v The Queen (1990) 170 CLR 573
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Wilson (2005) 62 NSWLR 346