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Court of Criminal Appeal 25 May 2009

DAVIDSON v R

[2009] NSWCCA 150

Also reported as (2009) 75 NSWLR 150 (2009) 195 A Crim R 406
Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES APPEAL AGAINST CONVICTION WHETHER VERDICT UNREASONABLE WHETHER VERDICT SUPPORTED BY EVIDENCE

Citation: Davidson v R [2009] NSWCCA 150
Court: New South Wales Court of Criminal Appeal
Date: 25 May 2009
Judge(s): Spigelman CJ, James J, Simpson J

Background

The appellant was convicted in the District Court of importing, and attempting to import, a commercial quantity of gamma-butyrolactone (GBL), a border controlled drug under the Criminal Code Act 1995 (Cth). The offending occurred on four separate occasions within a relatively short period. The total quantity involved exceeded 30 kilograms actually imported, with a further attempted importation of approximately 19 kilograms. A commercial quantity of GBL is defined as 1 kilogram.

Evidence discovered in the appellant's bedroom, including GBL found there, was admitted at trial. The appellant challenged both his conviction and the sentence imposed by Nield DCJ in the District Court.

The appellant had no prior convictions and was a relatively young man. Following conviction, he appealed to the Court of Criminal Appeal on grounds that the verdict was unreasonable, that the trial judge erred in failing to direct the jury on crucial intermediate facts, and that the admission of the bedroom evidence was improper. He also contended that the sentence was manifestly excessive.

  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the trial judge was required to direct the jury that certain crucial or indispensable intermediate facts must each be proved beyond reasonable doubt before a verdict of guilty could be returned
  • Whether the trial judge erred in permitting the Crown to lead evidence of GBL found in the appellant's bedroom, and whether the danger of unfair prejudice outweighed the probative value under section 137 of the Evidence Act 1995
  • Whether the sentence imposed was manifestly excessive

Decision

Verdict unreasonableness and the intermediate facts direction

The Court dismissed the argument that the verdict was unreasonable. On the intermediate facts question, the appellant relied on R v Merritt [1999] NSWCCA 29, which had held that where particular facts are indispensable links in the chain of reasoning towards guilt, the jury should usually be directed to find those facts beyond reasonable doubt before convicting. The Court of Criminal Appeal distinguished Merritt on its facts, emphasising that Merritt arose in circumstances of unusually sparse evidence, involving only two critical circumstances, each of which was strictly necessary to connect the accused to the offence.

Spigelman CJ observed that the requirement in Merritt for such a direction was closely tied to that scarcity of evidence. Where, as here, numerous separate facts of varying probative force existed, requiring the jury to single out and apply the beyond reasonable doubt standard to individual intermediate facts could itself cause confusion. The Chief Justice noted a further element of redundancy in the Merritt reasoning: if a jury genuinely regards a particular fact as indispensable to guilt, it is highly unlikely the jury would convict unless already satisfied of that fact beyond reasonable doubt, making a specific direction unnecessary. The Court also noted that Merritt's statement that such a direction is "usually" required may need reassessment in light of subsequent authority.

Bedroom evidence and section 137

The Court rejected the submission that the admission of GBL found in the appellant's bedroom was an error. The evidence had sufficient probative value and the trial judge had not erred in finding that the danger of unfair prejudice did not outweigh that value under section 137 of the Evidence Act.

Sentence

The Court granted leave to appeal against sentence but dismissed the appeal. Comparing the offending to cases such as R v Califano [2002] SASC 320 (conditional discharge for a single importation for personal use) and R v Corbett [2008] NSWCCA 42 (community service order for approximately 4 kilograms), the Court found the appellant's conduct far more serious. Four separate importations, with a combined quantity many times exceeding the commercial threshold, placed the offending in a significantly different category. No specific error in the sentencing judge's approach was identified.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but the appeal against sentence dismissed

Key Takeaways

  • The "crucial or indispensable intermediate facts" direction from R v Merritt is confined to cases involving a very small number of evidentiary circumstances, each strictly necessary to connect the accused to the offence. The Court of Criminal Appeal confirmed that Merritt does not mandate such a direction wherever intermediate facts exist in a circumstantial case.
  • Where a case rests on numerous facts of varying probative force, directing the jury to apply the beyond reasonable doubt standard individually to intermediate facts risks confusion rather than clarity, and may not be required or appropriate.
  • Spigelman CJ signalled that the broad statement in Merritt that such a direction is "usually" required may require reassessment in light of subsequent authority, including guidance from the High Court in Shepherd v The Queen (1991) 170 CLR 573.
  • In dismissing the sentence appeal, the Court of Criminal Appeal reinforced that the scale and repetition of importation offending are critical sentencing factors. Four separate importations totalling more than 30 kilograms of GBL, well above the 1 kilogram commercial quantity threshold, placed the conduct in a materially different category from earlier reported cases involving isolated or small-quantity importations.
  • No error was established in the admission of evidence found at the appellant's premises under section 137 of the Evidence Act 1995, where the probative value was not outweighed by the danger of unfair prejudice.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW), s 137

Cases
- R v Merritt [1999] NSWCCA 29
- R v Merlino [2004] NSWCCA 104
- Shepherd v The Queen [1990] HCA 56; (1991) 170 CLR 573
- Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394
- Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151
- Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
- Knight v The Queen (1992) 175 CLR 495
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
- Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
- R v Califano [2002] SASC 320
- R v Corbett [2008] NSWCCA 42