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Court of Criminal Appeal 7 March 2013

Boyd v R

[2013] NSWCCA 52

Drugs
CRIMINAL LAW DRUG OFFENCES WHETHER VERDICT IS UNREASONABLE CREDIBILITY OF WITNESSES IN QUESTION APPEAL DISMISSED CRIMINAL LAW ERROR IN BACK DATING

Citation: Boyd v R [2013] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 7 March 2013
Judge(s): McClellan CJ at CL, Bellew J, Button J (unanimous)

Background

The appellant was tried in the District Court at Parramatta before Judge Ashford and a jury on a single count of supplying a commercial quantity of methylamphetamine (893 grams) on 29 January 2009. He pleaded not guilty. On 8 June 2011, the jury returned a guilty verdict, and he was sentenced to a head sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years.

The Crown case rested substantially on intercepted telephone calls and SMS messages exchanged in the days leading up to the alleged supply, surveillance evidence of a meeting between the appellant and another man at a Wentworthville fast food restaurant, and the subsequent discovery of the methylamphetamine in the boot of the other man's vehicle. No fingerprints or DNA linking the appellant to the drugs were found. The appellant was not arrested until months after the alleged supply.

On appeal, the appellant sought leave to appeal against both conviction and sentence. The conviction ground challenged the reasonableness of the jury's verdict, while the sentence ground raised a narrow and uncontested error in the backdating of the sentence commencement date.

  • Whether the jury's verdict of guilty was unreasonable or unable to be supported by the evidence, taking into account the credibility of surveillance witnesses and the circumstantial nature of the Crown case.
  • Whether the sentence commencement date had been incorrectly fixed and required adjustment.

Decision

Button J (with whom McClellan CJ at CL and Bellew J agreed) undertook a detailed review of the evidence, applying the well-established test from M v The Queen (1994) and related High Court authorities. The test requires the appellate court to independently assess the whole of the evidence, asking whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, while giving appropriate weight to the advantage a jury holds in assessing witnesses it has seen and heard.

The court acknowledged that credibility questions arose concerning the evidence of two surveillance detectives, Detective Mackay and Detective Kiem. Button J treated the evidence of Detective Mackay as set aside and accorded Detective Kiem's evidence little probative value. Even on that more limited evidential basis, the court concluded the circumstantial Crown case, built from the intercepted communications, the surveillance footage, the pharmacy receipt, and the discovery of the drugs, remained sufficiently strong to support the verdict.

Applying the principles from M v The Queen, Button J expressed his own satisfaction beyond reasonable doubt of the appellant's guilt. The court dismissed the conviction appeal, holding the verdict was open to the jury.

On the sentence ground, the Crown conceded that the sentence should have commenced on 14 January 2011 rather than 29 May 2011. The Court of Criminal Appeal accepted that concession and adjusted the commencement date accordingly, with a resulting change to the earliest parole eligibility date.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentence commencement date of 29 May 2011 quashed.
  • New commencement date of 14 January 2011 substituted, with earliest parole eligibility date of 13 January 2015.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an appellate court undertaking an unreasonable verdict inquiry must evaluate all of the evidence itself, rather than merely asking whether the jury could have accepted the Crown case.
  • A strong circumstantial case can sustain a conviction even where direct forensic evidence (such as fingerprints or DNA) is absent and credibility concerns arise about individual Crown witnesses.
  • Button J's approach demonstrates that appellate courts may discount or set aside problematic witness evidence and still uphold a verdict where the remaining evidence independently establishes guilt beyond reasonable doubt.
  • Where the Crown concedes an error in the backdating of a sentence, the Court of Criminal Appeal will generally give effect to the agreed correction without engaging in an independent analysis of the custodial history.
  • The applicable standard for unreasonable verdict appeals derives from M v The Queen (1994) 181 CLR 487, with further guidance drawn from MFA v The Queen (2002) 213 CLR 606 and SKA v The Queen (2011) 243 CLR 400.

Legislation and Cases Referenced

Cases:
- Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Legislation: No specific legislation was cited in the material provided.