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Court of Criminal Appeal 8 April 2010

Cornwell v R

[2010] NSWCCA 59

Drugs
CRIMINAL LAW APPEAL TRIAL JUDGE SUMMING UP DIRECTIONS WHETHER VERDICT OF JURY IS UNREASONABLE

Citation: Cornwell v R [2010] NSWCCA 59
Court: New South Wales Court of Criminal Appeal
Date: 8 April 2010
Judge(s): McClellan CJ at CL; Simpson J; Johnson J

Background

The appellant was convicted at a second trial in the District Court of conspiring to import a commercial quantity of cocaine (120 kilograms) into Australia, contrary to the Customs Act 1901 (Cth). The Crown alleged that between January and August 2001, the appellant and his co-conspirators arranged for cocaine to be transported from South America by sailing vessel, with an Australian group, said to be organised by the appellant and a co-accused, coordinating the retrieval operation off the Australian coast.

The matter had a lengthy procedural history. The Court of Criminal Appeal had earlier allowed an appeal and ordered a new trial, but the High Court reversed that decision and remitted five grounds of appeal for the Court of Criminal Appeal's further consideration. On the remittal, the appellant also sought to raise additional grounds, including a sentence appeal.

The central issues on the remitted appeal concerned the trial judge's directions to the jury, access to warrant materials, the reasonableness of the verdict, and whether undisclosed or late-disclosed material caused a miscarriage of justice.

  • Whether the trial judge erred in characterising the appellant's prior evidence as both an admission against his interests and a possible version of the facts
  • Whether the trial judge wrongly directed the jury that recorded conversations could be used against the appellant if the jury was satisfied on the balance of probabilities that those conversations related to the conspiracy
  • Whether the trial judge adequately summed up the defence case
  • Whether the verdict was unreasonable and unsupported by the evidence
  • Whether the trial judge erred in refusing the appellant access to the information on oath sworn by Federal Agent Rebecca Welsh in support of the listening device warrant
  • Whether the trial miscarried due to non-disclosure or late disclosure of material relevant to the defence
  • Whether the trial judge erred in refusing access to undisclosed material concerning two other individuals connected to the alleged conspiracy
  • Whether leave to appeal against sentence should be granted, and if so, whether the sentencing judge overstated the appellant's role or whether the appellant had a legitimate sense of grievance when his sentence was compared to those of co-offenders

Decision

The Court dismissed all of the remitted grounds of appeal, as well as the additional grounds the appellant sought to raise. On grounds 2 and 3, concerning the trial judge's directions about prior evidence and the use of recorded conversations, the Court found no reversible error in the directions given. On ground 4, the Court was satisfied that the defence case had been adequately put to the jury.

On the unreasonable verdict ground (ground 5), the Court reconsidered the matter as directed by the High Court and concluded the verdict was supported by the evidence. The Court declined to disturb the jury's findings.

Regarding ground 6, the Court considered whether the appellant ought to have been granted access to the sworn information supporting the listening device warrant. Both McClellan CJ at CL and Simpson J reached the same conclusion by different routes: the refusal of access did not constitute error warranting a new trial. Johnson J agreed with both.

On the additional grounds (9 and 10) concerning non-disclosure and late disclosure of material, Simpson J found that any submission to the jury based on that material, in the absence of evidence from the appellant himself, would have been entirely speculative. Critically, the appellant had given evidence at the first trial and had not asserted that his apparently incriminating conversations related to a different conspiracy. The Court held there was no miscarriage of justice arising from the non-production or late production of the material in question.

Leave to appeal against sentence was granted, but the sentence appeal was dismissed. The Court found the sentencing judge had not overstated the appellant's role and that no legitimate sense of grievance was established by comparison with the sentences imposed on co-offenders.

Orders Made

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

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that prior evidence given by an accused at an earlier trial may properly be treated as both an admission against interest and a possible version of the facts, without that characterisation constituting reversible error.
  • A submission to the jury that incriminating conversations related to a different criminal enterprise will lack a sufficient forensic foundation where the accused gave evidence at a prior trial and made no such assertion during that evidence.
  • Where an accused has not claimed in their own evidence that recorded conversations referred to a different conspiracy, the absence of disclosure of material that might have supported that alternative argument does not, without more, constitute a miscarriage of justice.
  • No error was established in the trial judge's refusal to grant the appellant access to the information on oath supporting the listening device warrant, notwithstanding the significance of the intercepted evidence to the Crown case.
  • Upholding the sentence, the Court found that disparity between an appellant's sentence and those of co-offenders does not automatically generate a legitimate grievance warranting appellate intervention; the sentencing court's assessment of the appellant's role and culpability must be shown to be wrong.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth)
- Evidence Act 1995 (NSW)
- Judiciary Act 1903 (Cth)
- Surveillance Devices Act 2004 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Cornwell v R [2006] NSWCCA 116; (2006) 160 A Crim R 243
- Cornwell v R [2007] HCA 12; (2007) 231 CLR 260
- R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Elliott v The Queen; Blessington v The Queen [2007] HCA 51; (2007) 234 CLR 38
- HML v R [2008] HCA 16; 235 CLR 334
- Gipp v R [1998] HCA 21; (1998) 194 CLR 106
- Peacock v The King (1911) 13 CLR 619
- R v Keane [1994] 1 WLR 746
- R v Brown (Winston) [1998] AC 367
- Attorney General (NSW) v Chidgey [2008] NSWCCA 65; 182 A Crim R 536
- R v Haddad [2000] NSWCCA 351; (2000) 116 A Crim R 312
- R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454
- R v Saleam [1999] NSWCCA 86
- Saleam v R (1989) 16 NSWLR 14
- R v Meher [2004] NSWCCA 355
- R v Spiteri [2004] NSWCCA 321