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Court of Criminal Appeal 13 August 2015

Standen v Regina

[2015] NSWCCA 211

Also reported as (2015) 253 A Crim R 301
Drugs
CRIMINAL LAW APPEAL CONVICTION EVIDENCE ADMISSION RELEVANCE

Citation: Standen v Regina [2015] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 13 August 2015
Judges: Bathurst CJ; Hoeben CJ at CL; McCallum J

Background

The appellant was the Assistant Director, Investigations of the NSW Crime Commission (NSWCC). In that role, he handled a British informer who had been arrested in Australia in 2003 for drug trafficking and money laundering. A third party, an importer/exporter of foods, was also involved.

The Crown alleged that the appellant used his law enforcement expertise and senior position to help his co-conspirators avoid detection and prosecution. His role included monitoring the food importer, instructing him on what to say if questioned by investigators, and leveraging his access to confidential NSWCC information to shield the operation.

A jury in the Supreme Court convicted the appellant on three counts: conspiracy to import a commercial quantity of pseudoephedrine intending that it be used to manufacture a controlled drug (under the Criminal Code 1995 (Cth)); knowingly taking part in the supply of 300kg of pseudoephedrine; and conspiracy to pervert the course of justice. He was sentenced to a total of 22 years imprisonment with a non-parole period of 16 years on the supply count, with the other sentences to be served concurrently or partly cumulatively. He appealed both his conviction and the sentence on the supply count.

  • Whether the trial judge erred in admitting NSWCC documents, evidence of acetone possession, evidence relating to MDMA, and evidence that the appellant made false statements about a personal loan
  • Whether the jury was adequately directed on the elements of conspiracy under the Criminal Code, specifically whether the Crown had to prove that the accused and at least one co-conspirator simultaneously held the required belief about the intended use of the substance
  • Whether the trial judge should have dismissed the jury on the 68th day of the trial following a note expressing concerns about the length of the proceedings
  • Whether the summing-up was unbalanced or unfair, causing a miscarriage of justice
  • Whether the sentence imposed on the supply count was manifestly excessive

Decision

Admission of evidence: The Court dismissed each evidentiary ground. Under s 137 of the Evidence Act 1995 (NSW), evidence is not prejudicial merely because it tends to establish the Crown case; there must be identifiable unfair prejudice to the accused. The NSWCC documents were highly probative in demonstrating the impropriety of the appellant's relationship with the informer and his motive for joining the conspiracy. The acetone evidence supported the inference that the intended importation involved a substance usable for drug manufacture. The MDMA evidence was relevant to the appellant's involvement in the conspiracy and to the perverting justice count. Evidence about the undisclosed personal loan was relevant to the appellant's financial position and supported an inference of a corrupt relationship.

Conspiracy directions: The Court confirmed that for a conspiracy offence under ss 307.11(1) and 11.5 of the Criminal Code to be made out, the Crown must prove that the accused and at least one other party participated in an agreement to commit the prescribed offence during the indictment period, and that both held the required belief about the intended use of the substance at the same time during the currency of the conspiracy. However, the Crown does not need to prove the precise date on which the accused and another party first entered the agreement. The Court found the trial judge's directions adequately addressed these requirements.

Jury note and summing-up: The Court found no error in the trial judge's decision not to discharge the jury after their note on the 68th day. The trial judge was best placed to assess whether the jury could continue to discharge their function, and there was no evidence of incapacity. On the summing-up ground, the Court found the trial judge properly directed the jury that they were the judges of fact, that they could disregard the judge's comments on the facts, and that the judge's references to submissions did not constitute endorsement of them.

Sentence appeal: The Court confirmed that when sentencing for multiple offences, a court must first determine an appropriate sentence for each individual offence before applying principles of cumulation, concurrence and totality. It would be wrong to use the sentence on one count as a benchmark against which to measure sentences on other counts without regard to the relevant maximum penalties. The Court found the 22-year sentence on the supply count was not manifestly excessive given the maximum penalty, the trial judge's assessment that the offending was above the middle range of objective seriousness, and the fact that the supply and conspiracy counts were based on different elements and facts.

Orders Made

  • Leave to amend Ground 3 of the grounds of appeal refused
  • Appeal against conviction dismissed
  • Leave to appeal against sentence on Count 2 granted, but appeal dismissed

Key Takeaways

  • Under s 137 of the Evidence Act 1995 (NSW), unfair prejudice to the accused must be positively identified before evidence is excluded; the mere tendency of evidence to support the Crown case does not constitute unfair prejudice.
  • A conspiracy to import a controlled drug under the Criminal Code 1995 (Cth) requires proof that the accused and at least one co-conspirator simultaneously held the requisite belief about intended use during the currency of the conspiracy, but the Crown need not establish the precise date the agreement was formed.
  • In dismissing the jury-discharge ground, the Court of Criminal Appeal confirmed that a trial judge is best placed to assess whether a jury's expressed concerns about trial length indicate an incapacity to continue, and that such concerns do not automatically require discharge.
  • Where a summing-up clearly instructs the jury that they are the sole judges of fact and that judicial comments on the evidence are not binding, that direction will generally be sufficient to address any alleged imbalance.
  • Sentencing for multiple offences requires a separate assessment of the appropriate sentence for each count before cumulation, concurrence and totality principles are applied; using one sentence as a yardstick for others without regard to their respective maximum penalties is an error of approach.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.5, 307.11
- Evidence Act 1995 (NSW), s 137
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1914 (Cth), s 42
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Jury Act 1977 (NSW)

Cases
- Agius v The Queen [2013] HCA 27; 248 CLR 601
- Patel v R [2012] HCA 29; 247 CLR 531
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Harriman v The Queen [1989] HCA 50; 167 CLR 590
- Crofts v R (1996) 186 CLR 427
- R v BD (1997) 94 A Crim R 131
- R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
- R v Campbell [2008] NSWCCA 214; 73 NSWLR 272
- Cesan v DPP (Cth); Mas Rivadavia v DPP (Cth) [2007] NSWCCA 273
- Abdel-Hady ("SA") v R [2011] NSWCCA 196
- Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119; 80 NSWLR 486