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Court of Criminal Appeal 18 September 2009

Bingul v Regina

[2009] NSWCCA 239

Drugs
EVIDENCE ADMISSIBILITY AND RELEVANCY TENDENCY EVIDENCE EVIDENCE ADMISSIBILITY AND RELEVANCY TENDENCY EVIDENCE

Citation: Bingul v Regina [2009] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 18 September 2009
Judges: Allsop P; Price J; Harrison J

Background

The appellant was tried in the District Court at Parramatta on 11 counts, 10 of which concerned drug supply offences alleged to have occurred between March and May 2006. The jury convicted him on five counts of supplying a prohibited drug and one count of supplying a commercial quantity of a prohibited drug, where that commercial quantity was reached by aggregating two separate acts of supply.

The Crown had given notice under s 101 of the Evidence Act 1995 (NSW) to lead taped conversations as tendency evidence. These recordings related to dates other than those on which the charged offences occurred. Defence counsel raised a global objection based on prejudice, and the trial judge admitted the evidence. The trial judge also gave directions to the jury about the permissible use of that tendency evidence, and defence counsel raised no objection to the form of those directions.

The appellant was sentenced to an overall head sentence of nine years with a non-parole period of five and a half years. He appealed against both conviction and sentence, with sentence requiring leave.

  • Whether the trial miscarried because the tendency evidence was improperly admitted, having regard to the trial judge's handling of the defence objection
  • Whether the trial judge was required to examine each piece of tendency evidence separately when defence counsel had objected on a global basis
  • Whether the jury directions on tendency evidence, and on bad character more generally, were adequate
  • Whether the sentencing judge erred in her treatment of s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to offences committed after the offence under sentencing
  • Whether the sentencing judge failed to account for the fact that the commercial quantity was reached by accumulating two separate acts of supply
  • Whether the overall sentence was manifestly excessive

Decision

Tendency evidence: admission. The Court held that no error arose from the trial judge's approach to the tendency evidence. Defence counsel had framed the objection on a global basis directed at particular identified conversations, and the trial judge responded to the objection in the way it was argued. The Court confirmed that ss 97 and 101 of the Evidence Act 1995 (NSW) did not impose a requirement on the trial judge to examine each conversation individually when counsel had not presented the objection in that manner. Because the more specific prejudice pressed on appeal was never articulated before the trial judge, no appealable error was established.

Tendency evidence: jury directions. The Court found the directions given were adequate. The trial judge directed the jury both before the evidence was seen and again at the conclusion of the trial. The clarity of the directions was apparent from the language used and from the absence of objection at trial, which occurred in the context of substantive discussion between the judge and counsel in the jury's absence. The jury was plainly instructed not to reason that the appellant was guilty of the charges simply because he had committed other offences.

Sentencing: s 21A(3)(e) and subsequent offences. The Court held that offences committed after the date of the offence under sentencing cannot be used to impose a heavier sentence, but they may be taken into account in deciding whether an offender deserves leniency. The sentencing judge's remarks reflected this approach. Although she did not cite s 21A(3)(e) directly, her reasoning was directed at denying leniency based on later conduct, which is the permissible use of that provision.

Sentencing: commercial quantity by accumulation and manifest excess. The Court found no error in the way the sentencing judge handled the two separate acts of supply that together formed the commercial quantity offence. Her Honour was clearly aware of those circumstances. The Court also rejected the manifest excess ground. The maximum penalty was 20 years with a standard non-parole period of 10 years, and the sentencing judge had assessed the objective seriousness as below the mid-range. The appellant was described as being at the centre of significant drug supply activity, distinguishing the comparable cases relied upon, where offenders were younger or acting as couriers.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under ss 97 and 101 of the Evidence Act 1995 (NSW), a trial judge is not required to examine each piece of tendency evidence individually when defence counsel frames the objection on a global basis rather than piece by piece.
  • A global objection to tendency evidence carries a corresponding limitation on appeal: prejudice arguments not articulated before the trial judge cannot found an appellate ground of error.
  • Adequate tendency evidence directions require the jury to be told clearly how that evidence cannot be used, including that it cannot be used to conclude the accused is guilty of the charged offences simply because he committed other offences.
  • Under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), later offences cannot increase the sentence for an earlier offence, but they remain relevant to whether leniency is warranted, and a sentencing judge need not cite the provision expressly provided the reasoning reflects its correct application.
  • In sentencing for a commercial quantity offence reached by aggregating separate acts of supply, the Court of Criminal Appeal confirmed that those individual circumstances may be taken into account, though no error was found on the facts of this case.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)
- Criminal Appeal Act 1912 (NSW)

Cases
- B v The Queen [1992] HCA 68; 175 CLR 599
- BRS v The Queen [1977] HCA 47; 191 CLR 275
- Bull v The Queen [2000] HCA 24; 201 CLR 443
- Donnini v The Queen [1972] HCA 71; 128 CLR 114
- Hutton v R [2008] NSWCCA 99
- R v AMT [2005] NSWCCA 151
- R v Boney (unreported, 22 July 1991, NSW Court of Criminal Appeal)
- R v Chin [2003] NSWCCA 267
- R v Hamzy (1994) 74 A Crim R 341
- R v Hutchins (1958) 75 WN (NSW) 75
- R v Kennedy (unreported, 29 May 1990, NSW Court of Criminal Appeal)
- R v MAK and MSK [2006] NSWCA 381; 167 A Crim R 159
- R v RN [2005] NSWCCA 413