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Court of Criminal Appeal 2 September 2016

Yazdani v R

[2016] NSWCCA 194

Drugs
CRIMINAL LAW SUPPLY DRUGS MULTIPLE CHARGES LARGE COMMERCIAL QUANTITIES COMMERCIAL QUANTITIES KNOWINGLY PARTICIPATE IN CRIMINAL GROUP

Citation: Yazdani v R [2016] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 2 September 2016
Judges: Simpson JA, McCallum J, Davies J

Background

The appellant was convicted in the District Court following a two-month trial on charges arising from his alleged role as a principal member of an extensive drug syndicate operating between Sydney and Perth. The syndicate was alleged to have distributed heroin, MDMA, and methylamphetamine, and operated out of several eastern suburbs apartments. The principal Crown witness was a co-offender who pleaded guilty and agreed to assist prosecutors in exchange for a significantly reduced sentence.

The jury returned guilty verdicts on 13 of the remaining counts, including multiple charges of supplying large commercial quantities of prohibited drugs, supplying commercial quantities, dealing in proceeds of crime, and knowingly participating in a criminal group. The trial judge sentenced the appellant to an aggregate term of 28 years imprisonment with a non-parole period of 21 years.

The appellant challenged his conviction on four grounds. He did not seek leave to appeal against the sentence.

  • Whether evidence of drugs found in a car park on 22 December 2010 should have been excluded under s 138 of the Evidence Act 1995 (NSW), on the basis that ACC officers improperly searched bags without a warrant and then failed to disclose that search to the magistrate when applying for a warrant
  • Whether fresh expert evidence obtained after trial, not pursued before trial due to financial constraints, should be admitted and whether it would have raised a reasonable doubt about the appellant's guilt
  • Whether the Crown's alleged failure to disclose the existence of covert listening devices in the Elizabeth Bay apartment, and an alleged misrepresentation about the source of listening device product, caused a miscarriage of justice
  • Whether the Australian Crime Commission's failure to produce unredacted interview transcripts of the Crown's principal witness under subpoena caused a miscarriage of justice

Decision

Ground 1: Improperly obtained evidence. ACC surveillance officers entered a car park under an existing surveillance warrant and observed a backpack and suitcase left by the appellant. Before obtaining any search warrant, an officer opened the bags, discovered what proved to be 1.71 kilograms of MDMA and glassware, and the subsequent warrant application made no mention of this preliminary inspection. The Court examined whether this conduct amounted to an improper search and whether the affidavit in support of the warrant application misled the magistrate. The trial judge admitted the evidence after weighing the factors in s 138(3), and the Court of Criminal Appeal found no error in that exercise of discretion, upholding the decision to admit both the physical evidence and the surveillance video.

Ground 2: Fresh evidence. The appellant sought to rely on expert evidence about surveillance footage of the Bondi apartment that had not been obtained before trial. The explanation offered for not obtaining the evidence earlier was financial difficulty. The Court found this explanation unsatisfactory, noting there was no adequate account of the financial position, and that the evidence had been available prior to trial. Even setting this threshold issue aside, the Court concluded that the fresh evidence would not have been likely to cause the jury to have a reasonable doubt about guilt when considered against the whole of the evidence.

Ground 3: Failure to disclose listening devices. The appellant alleged that the Crown failed to disclose that covert listening devices had been installed in the Elizabeth Bay apartment, and positively misrepresented their absence. The Court examined the relevant material and rejected this ground, finding no miscarriage of justice was established on the evidence available.

Ground 4: ACC transcripts. The appellant argued that the ACC's failure to produce unredacted transcripts of its examination of the principal Crown witness denied him a fair trial. The Court invoked its powers under the Criminal Appeal Act 1912 (NSW) to obtain and review the unredacted transcript confidentially. Having done so, the Court was unanimously satisfied that the un-redacted portions were wholly unrelated to the issues identified by the appellant's counsel. The Court noted it was unfortunate the matter had not been properly resolved at trial, but found no miscarriage of justice.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 138 of the Evidence Act 1995 (NSW), the desirability of admitting improperly obtained evidence is weighed against the undesirability of admitting it, and a trial judge's exercise of that discretion will not be disturbed on appeal absent identifiable error.
  • Fresh evidence obtained after trial due to claimed financial hardship will not be admitted where there is no satisfactory explanation of the financial circumstances and the evidence was in fact available before trial.
  • A miscarriage of justice on the fresh evidence ground also requires a finding that the evidence would, when considered against all other evidence, be likely to have caused the jury to entertain a reasonable doubt about guilt.
  • The Court of Criminal Appeal confirmed that it may, under s 12(1)(a) of the Criminal Appeal Act 1912 (NSW), order production of documents on a confidential basis to assess whether a subpoena-related ground of appeal has substance, even where statutory protections under the Australian Crime Commission Act 2002 (Cth) may not extend to appellate proceedings.
  • In dismissing all four grounds, the Court expressed some concern about the procedural handling of the ACC transcript issue at trial, noting that a perceived error in a subpoena request should have been corrected rather than resulting in non-production of relevant material.

Legislation and Cases Referenced

Legislation:
- Australian Crime Commission Act 2002 (Cth), s 25A
- Crimes Act 1900 (NSW), s 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 12
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 21
- Surveillance Devices Act 2004 (Cth), s 16

Cases:
- Grey v The Queen [2001] HCA 65; 184 ALR 593
- House v The King [1936] HCA 40; 55 CLR 499
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
- R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510