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Court of Criminal Appeal 10 March 2011

Oliveri v R

[2011] NSWCCA 38

Drugs
CRIMINAL APPEAL AGAINST CONVICTION EDWARDS DIRECTION NOT REQUIRED APPEAL AGAINST SENTENCE SENTENCE OF CO

Citation: Oliveri v R [2011] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 10 March 2011
Judge(s): McClellan CJ at CL (principal judgment), Buddin J and Schmidt J (agreeing)

Background

The appellant was convicted after a jury trial of knowingly taking part in the supply of a commercial quantity of pseudoephedrine, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of life imprisonment. He stood trial alongside three co-accused in connection with a controlled delivery operation at Sydney International Airport. The police had intercepted imported boxes containing approximately 43.9 kilograms of pseudoephedrine, substituted an inert powder, and monitored the subsequent movement of those boxes through a chain of individuals.

The appellant's role arose at the end of that chain. Police observed him arrive at a Greenacre property shortly after a co-accused (Duc Phan) had brought a box there, reverse his utility into the driveway, and stand next to the vehicle while the box was loaded into the tray. The appellant was stopped and arrested shortly after driving away. He denied knowingly taking possession of the box.

At trial, the Crown relied on a combination of circumstantial evidence, including the appellant's movements, the manner in which he parked, police observations of him lifting the tonneau cover, and significant passages from an ERISP interview in which his answers were internally inconsistent and included apparent acknowledgements of some awareness of the contents. The appellant was sentenced to a minimum term of six years with an additional term of two years. He appealed against both conviction and sentence.

  • Whether the trial judge was required to give a Shepherd direction, warning the jury that it must be satisfied of each intermediate fact in the chain of circumstantial evidence beyond reasonable doubt before using it to draw an inference of guilt
  • Whether the trial judge's failure to issue a warning under s 165 of the Evidence Act (concerning the reliability of the ERISP evidence) rendered the verdict unreasonable
  • Whether an Edwards direction was required, warning the jury about the dangers of relying on lies told by the accused as evidence of guilt
  • Whether the sentence imposed was disproportionate to the appellant's criminality
  • Whether the sentence imposed on a co-offender (Duc Phan) indicated that a lesser sentence should have been imposed on the appellant

Decision

Conviction appeal: Shepherd direction

McClellan CJ at CL found that a Shepherd direction was not required on the facts of this case. The Shepherd direction is needed where the prosecution relies on intermediate facts that must each be established before a final inference of guilt can be drawn. His Honour concluded that the Crown's case here was not structured in that way: the evidence, taken as a whole, permitted the jury to draw a direct inference of knowledge and participation without needing to treat each piece of circumstantial evidence as a necessary building block.

Conviction appeal: s 165 Evidence Act warning

The appellant argued that the trial judge should have warned the jury under s 165 of the Evidence Act about the reliability of the ERISP interview. McClellan CJ at CL accepted that no such warning was given but found that this omission did not render the verdict unreasonable. The ERISP was a significant plank of the Crown case, and the jury was entitled to assess it in the context of all the evidence.

Conviction appeal: Edwards direction

An Edwards direction cautions the jury that lies told by an accused, if established, can only be used as circumstantial evidence of guilt where the jury is satisfied there is no innocent explanation for the lies. His Honour found that no such direction was required in the circumstances of this case. The appeal against conviction was accordingly dismissed.

Sentence appeal

The Court granted leave to appeal against sentence but dismissed the appeal. McClellan CJ at CL was satisfied that the sentencing judge had properly assessed the appellant's role, characterising him as an intermediary in the receiving and transportation of the drugs. The co-offender Duc Phan had received a similar sentence, and his Honour found this was consistent with the sentencing judge's findings that their objective criminality was not significantly different. Sentencing statistics and the decision in Pham v R did not support a conclusion that the sentence was excessive. The Court concluded that even if some error had been established, no lesser sentence was warranted in law.

Orders Made

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

Key Takeaways

  • A Shepherd direction is not required in every circumstantial evidence case; it is only necessary where the Crown's case depends on the jury being satisfied of specific intermediate facts as discrete steps toward the inference of guilt.
  • Where a trial judge fails to give a s 165 Evidence Act warning about the reliability of particular evidence, that omission does not automatically render a verdict unreasonable; the Court of Criminal Appeal will assess the overall impact of the omission on the fairness of the trial.
  • An Edwards direction concerning the use of an accused's lies is not automatically required whenever a jury may conclude the accused was untruthful; its necessity depends on the specific structure of the Crown case.
  • Sentence parity between co-offenders does not require identical results in all cases; the sentencing court's characterisation of each offender's actual role and objective criminality governs the comparison, and minor differences in personal circumstances will not necessarily disturb similar sentences.
  • In dismissing the sentence appeal, the Court confirmed that sentencing statistics provide a useful indicative range but must be applied with regard to the particular circumstances of the individual offender, and that a serious drug supply offence committed without a plea of guilty may properly attract a substantial non-parole period even where it falls below the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act, s 165

Cases:
- Shepherd v The Queen (1990) 170 CLR 573
- Edwards v R (1993) 178 CLR 193
- Dhanhoa v The Queen (2003) 217 CLR 1
- R v Olbrich (1999) 199 CLR 270
- Zoneff v The Queen (2000) 220 CLR 234
- Webb v The Queen (1994) 181 CLR 41
- Pham v R (2009) NSWCCA 25; 193 A Crim R 190
- R v Bartle (2003) NSWCCA 329; 181 FLR 1
- R v Birks (1990) 19 NSWLR 677
- R v Johnstone (2004) NSWCCA 58
- Wood v The Queen (2001) NSWCCA 228