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Court of Criminal Appeal 18 August 2014

Lazaris v R

[2014] NSWCCA 163

Drugs
CRIMINAL LAW OFFENCE OF SUPPLYING PROHIBITED DRUG TRIAL BEFORE JUDGE ALONE

Citation: Lazaris v R [2014] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 18 August 2014
Judges: Hoeben CJ at CL, Adamson J, Bellew J

Background

The appellant was the director and effective controller of a brothel business operating from premises in Surry Hills. Following a three-day judge-alone trial before Judge Huggett in the District Court, he was found guilty of three counts of supplying methylamphetamine to an associate, contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW). He was sentenced to a non-parole period of 1 year and 8 months, with a balance of term of 1 year and 2 months.

The Crown's case was entirely circumstantial, relying on a large volume of documentary evidence tendered without objection, supported by brief oral evidence from the investigating officer. The defence called three witnesses, including the appellant's wife and the brothel's manager.

The appellant was granted bail pending appeal in December 2013 and remained on bail until the appeal was heard. He sought to overturn his convictions on two grounds: that the verdicts were unreasonable, and that the trial judge had wrongly relied on hearsay evidence as proof of its truth.

  • Whether the three verdicts of guilty were unreasonable or could not be supported by the evidence
  • Whether the trial judge erred by treating certain hearsay representations as evidence of the truth of their contents, when no objection had been raised at trial
  • Whether leave should be granted under Rule 4 of the Criminal Appeal Rules to raise the hearsay ground for the first time on appeal

Decision

Ground 1: Unreasonable verdicts

The Court of Criminal Appeal granted leave to appeal on the first ground (since it did not involve a question of law alone) but dismissed it on the merits. The Court, having reviewed the whole of the evidence, was satisfied it was open to the trial judge to be convinced beyond reasonable doubt of the appellant's guilt on all three counts. The circumstantial case, when considered in its totality, was sufficient to exclude any reasonable alternative hypothesis.

Ground 2: Hearsay representations

The second ground concerned three out-of-court representations: that a person known as "Peter" lived near the alleged recipient of the drugs, that "Peter" was married, and that "Peter" had previously operated a business called "Touch of Class." These statements had been admitted without objection at trial, but the appellant argued on appeal that the trial judge wrongly relied on them as proof of their truth.

The Court refused leave under Rule 4 of the Criminal Appeal Rules to rely on this ground. Bellew J reasoned that the evidence may well have been admissible in any event under the hearsay exception in s 65(2)(c) of the Evidence Act 1995 (NSW), as the representations were made in circumstances making it highly probable they were reliable. Critically, even if the evidence had been wrongly admitted, Bellew J was not satisfied any miscarriage of justice had occurred. The hearsay material formed only a relatively small part of a much larger circumstantial case, and the remaining evidence independently supported the verdicts.

Orders Made

  • Leave to rely on ground 2 refused
  • Leave to appeal on ground 1 granted
  • Appeal dismissed
  • Appellant returned to custody forthwith
  • Non-parole period adjusted to reflect 4 months and 1 day served between 16 August and 17 December 2013; non-parole period to expire 17 December 2015
  • Eligible for parole 18 December 2015; sentence to expire 17 February 2017

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a circumstantial Crown case can support convictions for drug supply where, taken as a whole, the evidence excludes any reasonable alternative hypothesis to guilt.
  • Where a ground of appeal raises an evidentiary objection not taken at trial, leave under Rule 4 of the Criminal Appeal Rules is required, and will be refused where no miscarriage of justice is established.
  • Hearsay representations admitted without objection may nonetheless fall within the exception in s 65(2)(c) of the Evidence Act 1995 (NSW) where the circumstances render them highly probably reliable, which is a relevant consideration when assessing whether leave to raise the issue on appeal should be granted.
  • Even if improperly admitted evidence had been excluded, no miscarriage of justice arises where the remaining evidence was independently sufficient to support the verdicts and the contested material played only a minor role in the trial judge's reasoning.
  • Appellate courts will adjust non-parole periods to account for time actually served in custody before bail was granted pending appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Appeal Rules, Rule 4
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), s 65(2)(c)

Cases
- ARS v R [2011] NSWCCA 266
- Gilham v R [2012] NSWCCA 131
- Gonzales v R [2007] NSWCCA 32; (2007) 178 A Crim R 321
- Libke v R [2007] HCA 30; (2007) 230 CLR 559
- M v R (1994) 181 CLR 487
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- Poniris v R [2014] NSWCCA 100
- R v Hillier (2007) 228 CLR 618
- R v Masters (1992) 26 NSWLR 450
- Rasic v R [2009] NSWCCA 202
- SKA v R [2011] HCA 13; (2011) 243 CLR 400
- W v R [2014] NSWCCA 110