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Court of Criminal Appeal 23 August 2012

Castagna v R

[2012] NSWCCA 181

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION DEEMED SUPPLY WHETHER UNREASONABLE VERDICT

Citation: Castagna v R [2012] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 23 August 2012
Judge(s): McClellan CJ at CL, Latham J, Harrison J

Background

The appellant was convicted by jury of three offences: supplying not less than a large commercial quantity of methylamphetamine (Count 1), supplying a prohibited drug found at his home (Count 2), and possessing $129,650 as proceeds of crime (Count 3). He appealed against his convictions on Counts 1 and 2 only, and did not challenge his sentence.

The Crown case rested heavily on the evidence of a Qantas flight attendant, Mr Dow, who gave evidence that the appellant had instructed him to transport methylamphetamine from Sydney to Perth and to return money from Perth to Sydney on his flights. On 11 April 2006, Dow was arrested at Perth carrying 1.9 kg of methylamphetamine in a blue bag. The appellant was arrested the following day, when police found additional methylamphetamine and a large quantity of cash at his home.

The defence mounted a sustained attack on Dow's credibility, pointing to admitted lies Dow had told police and numerous inconsistencies in his account. The central question on appeal was whether the convictions could stand given those inconsistencies and the weight of the independent evidence.

  • Whether the verdicts on Counts 1 and 2 were unreasonable or could not be supported by the evidence
  • Whether the trial judge erred in refusing to sever Count 2 from Count 1
  • Whether the trial judge erred in refusing to direct a verdict of not guilty on Count 2
  • Whether the trial judge erred in directing the jury that the methylamphetamine found in the appellant's wardrobe was capable of corroborating Dow's evidence

Decision

The Court dismissed all grounds of appeal. On the unreasonable verdict ground, the Court applied the test from M v R and MFA v R, asking whether a jury acting on the whole of the evidence and applying the correct directions could reasonably have been satisfied beyond reasonable doubt of guilt. The Court found substantial independent evidence corroborating Dow's account, including surveillance observations placing the appellant at Dow's home, telecommunications records, the presence of falsely subscribed mobile phones, and the discovery of methylamphetamine and $129,650 in cash at the appellant's premises.

On the credibility challenges to Dow, the Court acknowledged that his admitted lies to police and the inconsistencies in his evidence were significant and had been fully exposed during cross-examination. However, the jury had the advantage of seeing and hearing Dow under sustained cross-examination, and was entitled to accept his evidence on the critical issues while being alive to its deficiencies. The Court found that any doubt arising from the credibility attack was capable of being resolved by the objective independent evidence confirming the appellant's involvement.

On the Count 2 grounds, the Court rejected the argument that the trial judge erred in refusing to sever that count or to direct a verdict. The methylamphetamine discovered in the wardrobe at the appellant's home, combined with the large cash sum and the use of falsely subscribed phones, was found to constitute powerful and independent evidence of supply, entirely separate from Dow's testimony. The trial judge's direction that the wardrobe evidence was capable of corroborating Dow was also upheld.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury is entitled to accept the evidence of a witness whose credibility has been substantially attacked, provided there is independent objective evidence capable of resolving any resulting doubt.
  • Corroborating evidence need not directly prove the charged offence; surveillance records, telephone records, and physical items recovered at an accused's premises can together form a powerful independent basis supporting a conviction.
  • Where a trial judge refuses to sever counts or direct a verdict, an appellate court will not intervene unless the decision was in error; here the presence of drugs, cash, and falsely subscribed phones at the appellant's home provided a sufficient evidential basis for Count 2 independent of the principal witness.
  • Inconsistencies between a witness's trial evidence and prior statements to police go to weight, not necessarily admissibility or sufficiency; jurors may accept evidence on critical issues while remaining alert to discrepancies on peripheral details.
  • Sufficient independent evidence existed in this case to support both supply convictions, notwithstanding the acknowledged frailties in Dow's account and the extensive cross-examination he faced.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- SKA v R [2011] HCA 13; (2011) 243 CLR 400
- R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8
- R v BD (1997) 94 A Crim R 131
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Serratore [1999] NSWCCA 377
- R v Hamzy (1994) 74 A Crim R 341