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7
Court of Criminal Appeal 12 September 2014

Lau v R

[2014] NSWCCA 179

Drugs
CRIMINAL LAW CONVICTION APPEAL 102 KILOGRAMS OF PURE HEROIN EVIDENCE OF CROWN EXPERT NOT MISLEADING STRONG CIRCUMSTANTIAL CROWN CASE EVIDENCE OF FLIGHT PROPERLY ADMITTED

Citation: Lau v R [2014] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 12 September 2014
Judges: Hoeben CJ at CL; Harrison J; McCallum J

Background

The appellant, a Hong Kong resident and Chinese citizen, was convicted in the District Court following a 22-day trial of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, specifically 102 kilograms of pure heroin. The jury returned its verdict on the same day it commenced deliberations. The drug had been concealed inside timber doors shipped from Malaysia in a container consigned to a Sydney trading company.

The Crown case was circumstantial. Evidence showed the appellant had purchased a return airline ticket to Sydney timed closely to the expected arrival of the container, changed that return date on the day the container arrived, gave a false address when subscribing for a mobile phone, used backpacker accommodation despite originally indicating a different hotel, and was present in Sydney during the period the container was being processed through customs. A co-accused, referred to as Mrs Ma, was separately convicted in connection with the same importation.

The appellant sought an extension of time to appeal against conviction and leave to appeal against sentence. The sentence appeal turned on the parity principle: whether the difference between the appellant's sentence and that of the co-offender gave rise to a justifiable sense of grievance.

  • Whether a miscarriage of justice arose because the Crown's interpreter witness implied she held NAATI accreditation when she did not, and because this was not disclosed to the defence
  • Whether the jury's verdict was unreasonable or unsupported by the evidence, specifically as to the appellant's knowledge that what he attempted to possess was a border controlled drug
  • Whether evidence of the appellant's alleged "flight" (his changed return flight and related conduct) was wrongly admitted at trial
  • Whether the parity principle was correctly applied when sentencing the appellant compared to the co-offender

Decision

Ground 1: Interpreter qualifications. The Court rejected the argument that the interpreter's lack of formal NAATI accreditation caused a miscarriage of justice. Under s 79 of the Evidence Act 1995, an expert witness need not hold formal credentials provided their specialised knowledge is established by training, study or experience. The Court found the differences in interpretation between the Crown and defence experts were not significant to the conduct of the trial and were adequately explained by differences in audio equipment used by each. No breach of the standards required for the admission of opinion evidence was established.

Ground 2: Unreasonable verdict. The Court held that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, including the fault element of belief or awareness that what he attempted to possess was a border controlled drug. McCallum J, in a short concurring judgment, noted that careful analysis of the evidence on the fault element had not persuaded the Court that the jury ought to have entertained a doubt. The verdict was not unreasonable and could not be set aside on that basis.

Ground 3: Flight evidence. The trial judge's decision to admit evidence of the appellant's conduct as evidence of flight and consciousness of guilt was upheld. The Court found no wrong decision on a question of law and no miscarriage of justice. Admission of the flight evidence did not breach s 137 of the Evidence Act 1995, which requires exclusion of evidence where its probative value is outweighed by the danger of unfair prejudice. The overall Crown case was described as a strong circumstantial one.

Sentence appeal: Parity. The Court found that the parity principle had not been properly applied. The co-offender (Mrs Ma) had been sentenced more leniently, and while the Court accepted there were differences in the subjective circumstances of each offender, there was no significant difference in the level of criminality between them. Importantly, the Court noted the co-offender's sentence was itself manifestly inadequate, but as the Crown had not appealed against it, the appellant's sentence could not simply be aligned with it. Instead, the sentence was to be reduced, but not to a level that would itself be patently inadequate.

Orders Made

  • Extension of time granted for the appellant to seek leave to appeal against conviction
  • Leave to appeal against conviction granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by Flannery DCJ on 10 May 2012 quashed
  • Appellant re-sentenced to imprisonment with a non-parole period of 6 years commencing 30 October 2010 and expiring 29 October 2016, with a balance of term of 3 years expiring 29 October 2019

Key Takeaways

  • Under s 79 of the Evidence Act 1995, an interpreter or other expert witness need not hold formal accreditation from a recognised body, provided their specialised knowledge can be established through training, study or experience; absence of NAATI accreditation alone does not render expert evidence inadmissible or cause a miscarriage of justice.
  • A conviction will not be set aside as unreasonable merely because the Crown case was circumstantial, provided the totality of evidence was capable of supporting the jury's findings beyond reasonable doubt on all elements, including the fault element.
  • Admission of flight evidence as consciousness of guilt does not breach s 137 of the Evidence Act 1995 where its probative value is not outweighed by the danger of unfair prejudice, particularly in the context of a strong overall Crown case.
  • Where the parity principle requires a sentence reduction, the Court of Criminal Appeal will not reduce the sentence to a level that would itself be manifestly inadequate, even where the co-offender's sentence was unduly lenient and the Crown declined to cross-appeal.
  • In applying the parity principle, sentencing courts must assess both the comparative level of criminality and the differences in the subjective circumstances of each offender; a mere difference in subjective case does not automatically justify a substantial sentencing disparity.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.1(1), 307.5(1)
- Evidence Act 1995 (NSW), ss 79, 135, 137

Cases:
- DJS v R; NS v R [2009] NSWCCA
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- R v Burton [2013] NSWCCA 335
- R v Cook [2004] NSWCCA 52
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v XY [2013] NSWCCA 121; 84 NSWLR 363
- Ristevski v R [2007] NSWCCA 87
- SKA v R [2011] HCA 13; 243 CLR 400