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Court of Criminal Appeal 24 March 2014

Mortada v R

[2014] NSWCCA 36

DrugsFraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION PROVISO APPLIED TO DISMISS APPEAL

Citation: Mortada v R [2014] NSWCCA 36
Court: Court of Criminal Appeal, NSW
Date: 24 March 2014
Judges: Leeming JA; Hall J; Schmidt J

Background

The appellant was tried over six weeks on charges of supplying a commercial quantity of heroin (496.75 grams, found in a hotel room booked in his name) and two counts of dealing with proceeds of crime. He was convicted on all three counts and sentenced to a total of ten years' imprisonment with a non-parole period of six years and eight months.

The appellant's defence was that a close associate had impersonated him, booked the hotel room in his name, and possessed the drugs and money without his knowledge. The Crown case relied substantially on circumstantial evidence, including documentary records, telephone records, and fingerprint evidence linking the appellant to the room and its contents.

At the time the propensity evidence was admitted during trial, the judge indicated he would direct the jury on the limitations of propensity reasoning. Three weeks later, when he summed up, he omitted that direction entirely. Neither the Crown nor defence counsel raised the omission.

  • Whether the failure to give the promised propensity direction constituted appellable error.
  • Whether defence counsel's failure to seek the direction reflected a deliberate forensic decision, which would have precluded leave to appeal under r 4 of the Criminal Appeal Rules.
  • Whether, even if appellable error was established, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied because a guilty verdict was inevitable and no substantial miscarriage of justice had occurred.

Decision

The Court accepted, and the Crown did not contest on appeal, that the trial judge's failure to give the propensity direction was an error. The sole live questions were whether the omission was deliberate and, if not, whether the proviso applied.

On the first question, the Court was not satisfied that experienced defence counsel had made a deliberate forensic decision to refrain from seeking the direction. The Court granted leave to appeal accordingly.

On the proviso question, the Court undertook a thorough review of all the trial evidence. It found that the documentary evidence (including Post-it notes and Western Union transfer records), telephone records, and fingerprint evidence independently and incontrovertibly connected the appellant to the heroin and money. The same documents that the appellant said he had given to his associate also served to confirm his own involvement. On that basis, the Court concluded that a guilty verdict was inevitable and that no substantial miscarriage of justice had in fact occurred.

The Court dismissed the appeal but appended a noteworthy observation: where the Crown relies on the proviso in a serious, lengthy trial, it carries a responsibility to assist the appellate court with detailed analysis of the evidence underpinning the inevitability of the verdict, rather than leaving the court to conduct that review unaided.

Orders Made

  • Extension of time to appeal granted.
  • Leave under Rule 4 granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's failure to give a propensity direction, promised both informally and in a formal ruling, constituted appellable error, even where neither party reminded the judge of the obligation.
  • Appellate leave may be refused under r 4 of the Criminal Appeal Rules where a failure to seek a jury direction reflects a deliberate forensic decision by experienced trial counsel; however, that conclusion requires positive satisfaction on the evidence, and the court here was not so satisfied.
  • Under s 6(1) of the Criminal Appeal Act 1912 (NSW), the proviso permits dismissal of an appeal despite established error where the appellate court is satisfied the guilty verdict was inevitable and no substantial miscarriage of justice has occurred; the court applied this standard by conducting an independent review of the entire evidential record.
  • Incontrovertible documentary, telephonic, and fingerprint evidence can render a guilty verdict inevitable for proviso purposes, even in a lengthy trial with a live and not entirely implausible defence.
  • In applying the proviso following a conceded non-trivial error in a serious six-week trial, the Court noted that the Crown bears responsibility to provide detailed and substantial assistance on why a guilty verdict was inevitable, rather than leaving the appellate court to reconstruct the circumstantial case itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29, Sch 1

Cases:
- Baini v The Queen [2012] HCA 59; 246 CLR 469
- BRS v The Queen (1997) 191 CLR 275
- Cesan v The Queen [2008] HCA 52; 236 CLR 358
- Shepherd v The Queen (1991) 170 CLR 573
- Quartermaine v The Queen (1980) 143 CLR 595
- DJV v R (2008) 200 A Crim R 206
- Gilham v R [2012] NSWCCA 131
- Giourtalis v R [2013] NSWCCA 216
- Lee v R [2013] NSWCCA 68
- R v Giovannone [2002] NSWCCA 323
- Burrell v R [2009] NSWCCA 193
- Reg v Kilbourne [1973] AC 729
- Lundy v The Queen (New Zealand) [2013] UKPC 28
- Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361