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Court of Criminal Appeal 29 June 2015

Boutros v R

[2015] NSWCCA 171

Drugs
APPEAL CONVICTION CRIMINAL CODE (CTH), S 11.1 AND S 307.6 NO CHANGE OF DIRECTION IN CROWN CASE GROUND BASED ON A FALSE PREMISE APPEAL CONVICTION

Citation: Boutros v R [2015] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 29 June 2015
Judges: Simpson JA (principal judgment); Rothman J and Bellew J (agreeing)

Background

The appellant was convicted by a District Court jury of attempting to possess a marketable quantity of a border controlled drug (cocaine), contrary to ss 11.1 and 307.6 of the Criminal Code (Cth). The trial was brief and unusually cooperative: most factual matters were agreed by the parties and placed before the jury in an Agreed Statement of Facts. The appellant did not give or call evidence.

The Crown's case centred on a December 2010 controlled delivery operation. A package originating in Lebanon, addressed to an alias, arrived in Australia and was found by Customs to contain 324.1 grams of cocaine. The cocaine was removed and replaced with an inert substance before an Australian Federal Police undercover operative posed as a FedEx delivery driver and attempted delivery to a premises in Strathfield.

The appellant was observed at those premises at the time of the attempted delivery. Intercepted telephone calls placed him there at the relevant time and connected him to the person who had organised the delivery. He spoke with the undercover operative but did not accept the package. The jury convicted him. He was sentenced to two years' imprisonment, to be served by way of intensive correction in the community.

  • Whether the trial judge left to the jury a factual basis for conviction that was different from the case advanced by the Crown, thereby denying the appellant a fair trial.
  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence.

Decision

Ground 1: Different factual basis left to jury

The appellant argued that the Crown's case was framed around his presence at the premises and his refusal to accept the package, but that the trial judge's directions permitted the jury to convict on a different factual basis. Simpson JA found this ground was built on a false premise. There had been no change of direction in the Crown's case, and no complaint was made at trial about the directions. The ground was rejected.

Ground 2: Unreasonable verdict

The appellant contended that his presence at the premises was consistent with his employment in construction, and that this alternative explanation was accepted by the Crown during its closing address. Simpson JA acknowledged that there was some evidence of building-related activity at the premises, but found that this did not foreclose the jury's ability to conclude that the appellant had attended for the purpose of taking possession of the package.

The court found that the telephone conversations, the appellant's exchange with the undercover operative, and the surrounding circumstances amply supported the conviction. It was open to the jury to convict, and Simpson JA expressed personal satisfaction beyond reasonable doubt that the evidence supported the verdict. Both Rothman J and Bellew J agreed, with Rothman J noting that his own analysis of the evidence left him with no reasonable doubt as to guilt. Ground 2 was also rejected.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing both grounds, the Court of Criminal Appeal confirmed that an appeal ground alleging the jury was left a different factual basis from the Crown's case will fail if the premise that the case changed cannot be established on the trial record.
  • A verdict will not be set aside as unreasonable merely because evidence at trial was consistent with an innocent explanation, provided it was nonetheless open on the whole of the evidence for the jury to find guilt beyond reasonable doubt.
  • Under s 11.1 of the Criminal Code (Cth), the prosecution must prove conduct that is more than merely preparatory; here, the court found the jury was entitled to treat the appellant's attendance at the delivery premises, combined with the intercepted calls, as satisfying that threshold.
  • No error was established from the absence of any complaint at trial about the trial judge's directions: the failure to raise a point at trial remained a significant obstacle to raising it on appeal.
  • Sufficient evidence existed, including circumstantial evidence from telecommunications intercepts and surveillance, to sustain a conviction for attempted possession even where the accused did not ultimately receive the package.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.1 and 307.6
- Evidence Act 1995 (NSW), ss 184 and 191
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7
- Telecommunications (Interception and Access) Act 1979 (Cth)
- Surveillance Devices Act 2007 (NSW)

Cases:
- Black v The Queen [1993] HCA 71; 179 CLR 44