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Court of Criminal Appeal 22 June 2011

Chen v R

[2011] NSWCCA 145

Drugs
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON DRUG OFFENCES DRUG MISUSE AND TRAFFICKING ACT 1985 FORM 1 POSSESSION OFFENCES CRIMINAL LAW

Citation: Chen v R [2011] NSWCCA 145
Court: Court of Criminal Appeal, NSW
Date: 22 June 2011
Judge(s): Simpson J; Davies J; Grove AJ

Background

The appellant was convicted by a jury in April 2008 on three counts under the Drug Misuse and Trafficking Act 1985 (DMT Act): one count of supplying a traffickable quantity of MDMA (ecstasy) and two counts of supplying not less than a large commercial quantity of MDMA. The prosecution's case rested substantially on recordings of 39 intercepted telephone conversations, many conducted in Mandarin or Shanghainese and translated by an accredited interpreter. A detective experienced in drug investigations also gave expert evidence about the coded language commonly used in the drug trade.

The Crown alleged the appellant acted in a joint criminal enterprise with his stepson. The three counts were established through different legal mechanisms under the DMT Act: joint possession of 400 tablets deemed to be possession for supply; an agreed supply of 830 grams inferred from telephone conversations; and an attempt to obtain 2,000 tablets constituting supply by operation of the Act's extended definitions.

Following conviction, the appellant was sentenced to an aggregate term of 14 years' imprisonment, with a non-parole period of 10 years and 6 months. He appealed both conviction and sentence.

  • Whether the intercepted telephone conversations were capable of an innocent construction, particularly given translation disputes over specific words and phrases
  • Whether the detective's opinion evidence about drug dealing "argot" (coded language) was properly admitted under s 79 of the Evidence Act 1995
  • Whether evidence from persons criminally concerned in the transactions amounted to tendency evidence, and whether appropriate jury directions were given
  • Whether telephone intercept recordings post-dating the alleged offences, in which the appellant did not participate, were properly admitted
  • Whether the sentencing judge erred in assessing objective seriousness, including by reference to sentences imposed on the co-offender stepson

Decision

Conviction appeal: The Court dismissed all grounds of appeal against conviction. The translated transcripts, the detective's expert opinion on drug argot, and the circumstantial evidence as a whole were each properly before the jury. The Court found that the conversations, even allowing for alternative translations of particular words, were not reasonably capable of an innocent construction and that the jury's verdicts were open on the evidence.

Expert opinion evidence: The detective's evidence about the coded language used in the drug trade was properly admitted under s 79 of the Evidence Act 1995. His specialised knowledge, derived from experience in drug investigations, provided a sufficient foundation for his opinions, which were framed in terms of what the recorded language was "consistent with." The Court confirmed this approach was consistent with established authority on expert opinion derived from practical experience.

Tendency evidence and post-offence recordings: The Court upheld the trial judge's characterisation of evidence from criminally involved witnesses as relevant for a purpose other than tendency, and found the directions given to the jury were appropriate under s 95 of the Evidence Act 1995. The post-offence telephone recordings (in which the appellant did not participate) were properly admitted as relevant to the existence of the joint criminal enterprise.

Sentence appeal: Leave to appeal against sentence was granted, but the appeal was dismissed. The Court found no error in the sentencing judge's assessment of objective seriousness. The parity argument based on the stepson's lesser sentence was rejected, given the significant differences between the two offenders, including the stepson's youth, his position of subordination, and the appellant's dominant role in the enterprise.

Orders Made

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

Key Takeaways

  • A police officer's experiential knowledge of the coded language used in the drug trade can constitute "specialised knowledge" for the purposes of s 79 of the Evidence Act 1995, provided opinions are properly connected to that knowledge base.
  • Where defence counsel makes a forensic decision not to cross-examine extensively on translation, and independent translators are not called, no miscarriage of justice necessarily follows, particularly where the overall evidence supports the jury's verdict.
  • Post-offence telephone recordings in which an accused did not participate may be admitted where they are relevant to establishing the existence and nature of a joint criminal enterprise.
  • In dismissing the parity argument, the Court of Criminal Appeal confirmed that significantly different personal circumstances between co-offenders, including age, degree of subordination, and relative culpability, can justify substantially different sentences without any error of principle.
  • No error was established in the sentencing judge's approach to objective gravity; the non-parole periods imposed (8 years 6 months and 7 years 6 months respectively) were assessed against the statutory standard non-parole period of 15 years and found to reflect the judge's findings appropriately.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 7, 25(1), 25(2), 29, 32, 33(3)(a), Sch 1
- Evidence Act 1995 (NSW), ss 79, 95
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW)

Cases
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
- Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Lowe [1984] HCA 46; 154 CLR 606
- Hristovksi v R [2010] NSWCCA 129
- DAB v R; NJB v R [2010] NSWCCA 275
- Aouad and El-Zeyat v R [2011] NSWCCA 61
- Li v The Queen [2003] NSWCCA 290; 139 A Crim R 281
- R v Birks (1990) 19 NSWLR 677
- Nguyen v R [2007] NSWCCA 249; 173 A Crim R 557