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Court of Criminal Appeal 24 December 2013

R v Orchard

[2013] NSWCCA 342

Drugs
CRIMINAL LAW CONVICTION APPEAL FROM JUDGE ALONE TRIAL MARKULESKI DIRECTION WHETHER REASONS INADEQUATE CRITICAL COMMENTS MADE ABOUT COUNSEL

Citation: Orchard v R [2013] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 24 December 2013
Judges: Rothman J; Fullerton J; Beech-Jones J

Background

The appellant was convicted after a 99-day judge-alone trial in the District Court on one count of supplying not less than a commercial quantity of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The commercial quantity threshold was 250 grams. The trial judge found the appellant guilty but was not satisfied beyond reasonable doubt that the amount exceeded the large commercial quantity threshold of one kilogram, which would have exposed the appellant to a maximum of life imprisonment.

The Crown case centred on six alleged drug transactions between early 2008 and 9 May 2008, involving the appellant financing a co-offender (referred to as "AA") to acquire methylamphetamine for retail distribution in the Newcastle area. AA was a key Crown witness and had been directly involved in the criminal activity. Police surveillance, physical evidence seized at multiple premises, and large sums of cash formed the backbone of the prosecution.

The appellant was sentenced on 12 August 2011 to fifteen years and six months imprisonment, with a non-parole period of ten years and five months, commencing from 8 May 2008. He appealed both conviction and sentence on multiple grounds.

The court was asked to resolve the following questions:

  • Whether the trial judge erred in finding independent evidence that corroborated the evidence of AA, a witness criminally involved in the transactions
  • Whether the trial judge erred in failing to instruct himself that corroboration of AA's evidence was required before it could be acted upon
  • Whether the trial judge was required to give himself a Markuleski direction, to the effect that reasonable doubt about AA's evidence in one transaction might affect his ability to accept it in others
  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the trial judge's reasons were inadequate to expose the basis for the finding of guilt
  • Whether excessive judicial intervention during cross-examination, including critical comments directed at defence counsel (who ultimately withdrew from the proceedings), rendered the trial unfair
  • Whether the sentencing judge erred in applying the standard non-parole period framework under R v Way
  • Whether insufficient weight was given to the appellant's mental health and other health issues
  • Whether the sentence was manifestly excessive

Decision

Conviction grounds: The Court of Criminal Appeal dismissed all conviction grounds, though it refused leave on grounds 3 and 5A (the Markuleski direction and unfair trial ground). The court granted leave to raise ground 4 (unreasonable verdict) but rejected it on its merits. The trial judge's treatment of AA's evidence, including his corroboration analysis, was found to disclose no legal error.

The ground alleging unfair trial based on the trial judge's conduct attracted particular attention. The circumstances included critical observations made about defence counsel and counsel's ultimate withdrawal from the proceedings. The Court of Criminal Appeal declined to grant leave to argue this ground, indicating it was not persuaded that the conduct of the trial had miscarried in the manner alleged.

The adequacy of the trial judge's reasons was also challenged. The Court found the reasoning, though produced in a very long trial, adequately exposed the basis on which the appellant was found guilty and rejected the argument that any deficiency amounted to appellable error.

Sentence grounds: The sentencing appeal raised the application of the standard non-parole period framework from R v Way, which was subsequently displaced by the High Court's decision in Muldrock v The Queen (2011). The Court acknowledged that the analytical framework had changed, but found that even applying the correct approach, the sentence was not manifestly excessive. The trial judge's findings characterised the offending as a very serious example of commercial drug supply, involving sustained activity, control over associates, and use of family members. The Court concluded that no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912, and dismissed the sentence appeal.

Orders Made

  • Leave to raise ground 4 of the conviction appeal granted
  • Leave to raise grounds 3 and 5A of the conviction appeal refused
  • The appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • The appeal against sentence dismissed

Key Takeaways

  • A Markuleski direction (directing a fact-finder that doubt about a witness's evidence on one transaction may affect acceptance of their evidence on others) was not automatically required in this case; leave to raise that ground was refused.
  • Where a key Crown witness was criminally involved in the transactions the subject of charges, the trial judge's corroboration analysis was subject to scrutiny, but no legal error was established on the facts here.
  • Judicial intervention during cross-examination and critical comments directed at defence counsel, even where counsel ultimately withdrew, did not automatically establish an unfair trial; the Court of Criminal Appeal required a demonstrated miscarriage before such a ground could succeed.
  • In dismissing the sentence appeal, the Court confirmed that the displacement of R v Way by Muldrock does not automatically produce a lesser sentence; where the sentencing findings otherwise justify the term imposed, the sentence may be upheld even if the analytical framework used at first instance was superseded.
  • A sentence of fifteen years and six months for sustained commercial methylamphetamine supply was held not manifestly excessive in circumstances where the court found no compelling subjective factors and identified full application of both general and specific deterrence as appropriate.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 33(3)
- Evidence Act 1995 (NSW)

Cases:
- Arun v R [2010] NSWCCA 214
- Browne v Dunn (1893) 6 R 67
- Cesan v R [2008] HCA 52; 236 CLR 358
- DF v R [2012] NSWCCA 171
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Fleming v R [1998] HCA 68; 197 CLR 250
- Giourtalis v R [2013] NSWCCA 216
- Hajje v R [2006] NSWCCA 23
- Kanaan v R [2006] NSWCCA 109
- Keir v R [2007] NSWCCA 149
- Kho v R [2012] NSWCCA 71
- Lee v Regina; Lee v Regina [2013] NSWCCA 68
- Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
- Llewellyn v R [2011] NSWCCA 66
- Lysle v R [2012] NSWCCA 20
- M v R [1994] HCA 63; 181 CLR 487
- Markuleski [2001] NSWCCA 290
- Morris v R [1987] HCA 50; 163 CLR 454
- Muldrock v The Queen [2011] HCA 39
- MWJ v R [2005] HCA 74; 80 ALJR 329
- Nudd v R [2006] HCA 9; 80 ALJR 614
- Perez v R [2008] NSWCCA 46
- R v Way (2004) 60 NSWLR 168