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Court of Criminal Appeal 14 March 2014

Mac v R

[2014] NSWCCA 24

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION JOINT TRIAL OF COUNTS WHETHER EVIDENCE CROSS ADMISSIBLE WHETHER DEFENCES PREJUDICED

Citation: Mac v R [2014] NSWCCA 24
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2014
Judge(s): Basten JA; Hidden J; RS Hulme AJ

Background

The appellant was convicted in the District Court on four counts: attempting to import a marketable quantity of heroin and dealing with the proceeds of crime (both Commonwealth offences), and supplying large commercial quantities of heroin and methylamphetamine (both New South Wales offences). All four counts arose from events in October and November 2010.

The Crown case was that the appellant operated a drug supply enterprise. He had travelled to Vietnam and, shortly after his return, a package of heroin arrived from Vietnam addressed to his daughter at a property he owned. He was arrested when he attended a delivery centre to collect the package. A subsequent search of his Lakemba home uncovered large quantities of heroin and methylamphetamine, over $554,000 in cash, scales, a heat seal machine, and other items consistent with drug supply. A cutting agent for methylamphetamine was also found at the second property.

The appellant's defence was that he used drugs but did not deal them, that the cash came from gambling, and that the drugs found in his safe belonged to an acquaintance he was minding them for. He denied any knowledge that the package from Vietnam contained heroin.

  • Whether the trial judge erred in refusing to order separate trials of each count, or at least to sever the first count from the remaining three
  • Whether the joint trial of Commonwealth and New South Wales counts caused a miscarriage of justice, given the question of whether evidence relating to each count was cross-admissible in relation to the others
  • Whether the trial judge misdirected the jury on a specific factual aspect of the defence case
  • Whether leave to appeal against sentence should be granted

Decision

Separate trials and cross-admissibility

The trial judge had rejected a defence application to try the counts separately, accepting the Crown's submission that the evidence on each count had high probative value in relation to the others, properly understood as illuminating the overall nature of the alleged drug supply enterprise rather than as tendency evidence. Her Honour also found that appropriate jury directions would guard against prejudice. The Court of Criminal Appeal applied the principles from Harriman v The Queen and R v Quach, which address when evidence on one count is properly admissible on another in a joint trial. The Court granted leave to appeal on this ground, noting that the proper application of Quach warranted leave, but ultimately found no miscarriage of justice had occurred.

Direction on the defence case

The Court also considered the third ground of appeal, which concerned a direction given to the jury about the appellant's specific factual defence. The reasoning on this ground, set out by Hidden J, led to the same conclusion: no error warranting the quashing of the convictions had been established.

Sentence

As to the aggregate sentence of 13 years with a nine-year non-parole period, Hidden J reviewed the sentencing judge's approach in detail. Her Honour at first instance had correctly identified the verdicts as entailing a rejection of the gambling explanation for the cash and an acceptance that the money was the proceeds of drug dealing. The subjective case, including the appellant's lack of prior criminal history and community standing, had been taken into account. No error in reasoning was identified, and the sentences were not found to be excessive individually or in their cumulative effect.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against sentence is refused.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a joint trial of multiple drug counts will not produce a miscarriage of justice where the evidence relating to each count is genuinely cross-admissible as proof of the nature of an overall criminal enterprise, provided the jury receives appropriate limiting directions.
  • The relevant test on appeal is not simply whether the trial judge's severance ruling was correct in isolation, but whether the joint trial, as actually conducted, occasioned a miscarriage of justice.
  • Under the framework in Harriman v The Queen and R v Quach, evidence may be cross-admissible across counts without being characterised as tendency evidence, where it bears directly on the character or operation of the enterprise alleged.
  • Leave to appeal against conviction was granted because the Quach principles warranted that step, demonstrating that leave and ultimate success on appeal are assessed separately.
  • No error in the sentencing exercise was established where the sentencing judge drew reasonable inferences from jury verdicts about the source of cash found alongside substantial quantities of drugs and drug-supply paraphernalia.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.2, 307.2, 400.4
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Judiciary Act 1903 (Cth), s 68
- Criminal Procedure Act 1986 (NSW), ss 21, 29
- Evidence Act 1995 (NSW), ss 97, 101, 137

Cases
- R v Quach [2002] NSWCCA 519; 137 A Crim R 345
- Harriman v The Queen (1989) 167 CLR 590
- Sutton v The Queen (1983-4) 152 CLR 528
- R v Carey (1990) 20 NSWLR 292