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Court of Criminal Appeal 3 August 2015

Czako v R

[2015] NSWCCA 202

DrugsFraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL CONVICTION EVIDENCE EXAMINATION

Citation: Czako v R [2015] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 3 August 2015
Judge(s): Hoeben CJ at CL, Harrison J, McCallum J (judgment delivered by McCallum J)

Background

The appellant, a Hungarian national on a temporary visa in Australia, was convicted in the District Court on two counts: participating in a criminal group (s 93T(1) of the Crimes Act 1900 (NSW)) and money laundering (s 193B(2) of the same Act). The Crown alleged he was a participant in a heroin and cocaine distribution network led by a close friend.

The Crown's case rested on three strands of conduct: the appellant's assistance with installing surveillance equipment at properties used by the group, three electronic transfers totalling approximately $29,780 from his bank accounts to his friend's Hungarian account, and his accompaniment of another group member as she withdrew around $95,000 in cash after the leader's arrest. By the time the matter reached the jury, the money laundering charge was left only on the basis of the three electronic transfers.

The appellant received suspended sentences of 18 months and two years respectively. Following his conviction, he was required to leave Australia and returned to Hungary. He appealed against both convictions on nine grounds.

  • Whether the jury's verdict on the money laundering count was unreasonable or unsupported by the evidence, particularly given the absence of direct proof that the transferred funds were proceeds of crime
  • Whether the trial judge erred in her directions to the jury
  • Whether the trial miscarried because the Crown addressed the jury in closing submissions on a point that had not been put to the appellant in cross-examination (raising a Browne v Dunn issue)
  • Whether evidence of the appellant's admissions to police should have been excluded under s 90 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in admitting expert evidence from a police officer on the illicit drug trade
  • Whether the trial judge erred in failing to give a warning about the potential unreliability of the police expert's evidence under s 165 of the Evidence Act 1995 (NSW)
  • Whether the overall verdicts were unreasonable or unsupported by evidence (raised as a separate omnibus ground)

Decision

Money laundering and the "proceeds of crime" element: The trial judge had herself noted the absence of direct evidence that the transferred funds were proceeds of crime, and directed the jury to approach that element with care. The Court of Criminal Appeal acknowledged the strength of those remarks but held that the matter nonetheless remained one for the jury. Applying the High Court's approach in M v R and SKA v R, the Court made its own independent assessment of the evidence and concluded that the jury was not obliged to entertain a reasonable doubt. Circumstantial evidence, including the appellant's own evidence that the money came from the group's leader, was capable of supporting the verdict.

Crown's closing address and Browne v Dunn: The Court considered whether a failure to put a particular matter to the appellant in cross-examination, combined with the Crown later relying on that matter in closing, caused the trial to miscarry. The Court found no reversible error on this ground, accepting that any procedural unfairness was adequately addressed by the trial judge's directions.

Police expert evidence and s 165 warning: The appellant challenged the admission of a police detective's expert evidence about the illicit drug trade and the absence of a judicial warning about its potential unreliability. The Court rejected both contentions, finding that the detective's evidence was properly admitted and that the matters identified by the appellant did not engage the s 165 warning obligation.

Omnibus unreasonable verdict ground: The Court refused leave on the final ground, which alleged generally that both verdicts were unreasonable. The ground was supported by no discrete reasoned argument beyond a bare assertion. The Court confirmed, consistent with several prior decisions of the same court, that leave should be refused where an unreasonable verdict ground is appended without any substantive supporting submissions.

Orders Made

  • Leave to appeal granted on all grounds except ground 9
  • Leave to appeal on ground 9 refused
  • Appeal dismissed

Key Takeaways

  • A trial judge's strong comment to the jury about a weakness in the Crown's evidence does not, by itself, establish that a verdict is unreasonable or unsupported. The Court of Criminal Appeal must conduct its own independent assessment of the evidence under the standard confirmed in M v R and SKA v R.
  • Under s 193B(2) of the Crimes Act 1900, the Crown must prove beyond reasonable doubt that funds dealt with were proceeds of crime. Where direct evidence is absent, a circumstantial case can still be sufficient if the jury was properly directed and the evidence was capable of supporting the inference.
  • Where a ground alleging an unreasonable or unsupported verdict is added as a catch-all without any discrete reasoned argument, the Court of Criminal Appeal will refuse leave. This approach has been consistently applied in Golossian v R, Clarke v R, and El Haddad v R.
  • Admission of police expert evidence on the illicit drug trade is not automatically attended by a s 165 reliability warning obligation. The categories in s 165 are inclusive, but the party seeking the warning must identify matters that actually bring the evidence within the section's scope.
  • No reversible error arose from the Crown addressing the jury in closing on a matter not put to the appellant in cross-examination, where the trial judge gave appropriate directions to address any resulting unfairness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 193B(2), 193A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 90, 137, 165
- Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW)

Cases:
- M v R [1994] HCA 63; 181 CLR 487
- SKA v R [2011] HCA 13; 243 CLR 400
- Libke v R [2007] HCA 30; 230 CLR 559
- Browne v Dunn [1989] VR 845
- Golossian v R [2013] NSWCCA 311
- Clarke v R [2014] NSWCCA 236
- El Haddad v R [2015] NSWCCA 10
- Nasrallah v R [2015] NSWCCA 188
- R v Burton [2013] NSWCCA 335
- Smith v R [2001] HCA 50; 206 CLR 650
- Keller v R [2006] NSWCCA 204
- Ex parte Coffey; Re Evans & anor [1971] 1 NSWLR 434