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Court of Criminal Appeal 7 May 2010

Carlton v R

[2010] NSWCCA 81

Also reported as 199 A Crim R 591
DrugsPublic order & justice offences
CRIMINAL LAW APPEAL EVIDENCE WHETHER PROVISO SHOULD BE APPLIED

Citation: Carlton v R [2010] NSWCCA 81
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The appellant was convicted in the District Court of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985. Police stopped him for speeding on the Sturt Highway outside Wagga Wagga at around 10.40pm. During the stop, officers found approximately 15 times the traffickable quantity of methamphetamine in the glove box of the vehicle he was driving.

The police vehicle was fitted with in-car video (ICV) equipment, including portable microphones worn by officers. After being arrested, the appellant made statements to a police officer that were captured on the ICV audio track. He identified the white powder as "speed" and stated there were "two ounces" of it.

At trial, the only contested issue was whether the appellant knew the drugs were in the vehicle. He denied knowledge, but the jury convicted him. On appeal, he challenged the admissibility of the ICV audio recording of the conversation that occurred after his arrest.

  • Whether the audio recording of the conversation between the appellant and police after his arrest was unlawfully obtained, having regard to s 108E(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which prohibits ICV recording of conversations after arrest
  • Whether, even if the admission was improperly obtained and should have been excluded, the proviso applied, because the evidence against the appellant was otherwise so overwhelming that no substantial miscarriage of justice occurred

Decision

The Court accepted that s 108E(1) of LEPRA prohibited the recording of conversations between police and a person after that person had been arrested. The audio recording of the post-arrest conversation was therefore unlawfully obtained. Although the point had not been raised at trial (counsel was unaware of the provision), the Court proceeded on the basis that the evidence should not have been admitted.

The Court then considered whether, despite this error, the conviction should stand. Under the approach in Weiss v The Queen (2005) 224 CLR 300, an appellate court must be satisfied beyond reasonable doubt that the error did not contribute to the verdict before it can decline to order a new trial.

Howie J concluded that the prosecution case was overwhelming even without the admissions. The drugs were found in the glove box of the vehicle the appellant was driving; he was seen reaching toward that side of the car as police approached; he was visibly nervous; the vehicle's owner denied any knowledge of the drugs; the appellant was a recreational user of the drug; the drugs had a street value exceeding $26,000; and the appellant's explanation for the journey was implausible in several respects. The court was satisfied beyond reasonable doubt that the admissions did not contribute to the verdict.

The appellant had also offered an exculpatory explanation for the admissions, claiming his familiarity with the drug explained his recognition of it. The Court found that explanation had no material effect on its conclusion. The appeal was dismissed.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • Section 108E(1) of LEPRA prohibits the ICV recording of conversations between police and a person who has already been arrested, and audio evidence obtained in breach of that provision is unlawfully obtained.
  • A failure to raise an admissibility objection at trial does not necessarily prevent an appellate court from considering it, though the circumstances will affect how the issue is approached on appeal.
  • Under the Weiss v The Queen standard, an appellate court may dismiss an appeal despite a trial error if it is satisfied beyond reasonable doubt that the error did not contribute to the verdict.
  • In dismissing the appeal, the Court of Criminal Appeal identified multiple independent strands of circumstantial evidence sufficient to support the conviction without any reliance on the post-arrest admissions.
  • Where a post-arrest ICV recording captures admissions, the admissibility of that recording turns on whether the s 108E(1) prohibition applies and, if so, whether the proviso can cure any resulting error given the remaining evidence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 108D(1), 108E(1)
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), s 138 (discussed but not formally argued at trial)

Cases:
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300