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Court of Criminal Appeal 4 May 2016

Brown v R

[2016] NSWCCA 76

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION DRUG SUPPLY WHERE PRINCIPAL CROWN WITNESS IS A CO OFFENDER APPEAL DISMISSED

Citation: Brown v R [2016] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 4 May 2016
Judge(s): R A Hulme J (leading judgment); Garling J; Wilson J

Background

The applicant was convicted after a six-week jury trial of four drug supply offences and one proceeds of crime offence, relating to events in the Byron Bay and Ballina regions in 2012. The charges included supplying a large commercial quantity of ecstasy (over 1,000 grams) across a series of transactions, possessing proceeds of crime, and possessing three prohibited drugs deemed to be held for supply following their discovery in his bedroom.

The Crown's case rested primarily on the evidence of a co-offender (referred to in the judgment by the pseudonym "Charlie"), who had pleaded guilty to related offences and received sentencing discounts for his early plea and cooperation with authorities. Charlie gave evidence that the applicant was his drug supplier, providing ecstasy on credit across multiple transactions. There was no forensic evidence directly linking the applicant to the drugs supplied to undercover police operatives, and none of the recorded buy-money was found in his possession.

The applicant was sentenced to an aggregate term of 11 years and 9 months imprisonment with a non-parole period of 4 years and 6 months. He sought leave to appeal against conviction on the sole ground that the jury verdicts were unreasonable and could not be supported by the evidence.

  • Whether the jury verdicts of guilty were unreasonable or unsupported by the evidence under section 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether, in the absence of forensic evidence linking the applicant to the offences, the circumstantial evidence and Charlie's testimony were sufficient to sustain the convictions
  • How the court should assess the reliability and credibility of a principal Crown witness who was a co-offender with a demonstrated motive to assist authorities

Decision

R A Hulme J, with Garling J and Wilson J agreeing, dismissed the appeal. The court applied the established test for unreasonable verdict appeals: whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the applicant's guilt. The absence of forensic evidence, while potentially favourable to the applicant, did not automatically render the verdicts unreasonable where strong independent evidence existed.

The court examined the detailed pattern of text message exchanges between the applicant and Charlie surrounding each drug transaction. Those messages, described as objective and uncontroverted, corroborated Charlie's account in critical respects. In particular, the timing of the applicant's movements and communications closely corresponded with Charlie's stated need to restock before meeting the undercover officers.

Surveillance evidence placed the applicant meeting Charlie at various locations consistent with the alleged supply transactions. Drugs and drug-related paraphernalia, including a document described as a "tick list" bearing the applicant's fingerprints, were found in the applicant's bedroom. The court noted that the absence of the applicant's fingerprints on the drug bags was a potentially strong point in his favour, but it was outweighed by the combination of other objective evidence.

Garling J noted that while criticisms of Charlie's credibility could properly be made, any resulting doubt was capable of resolution by the jury, which had the advantage of observing the witness over many days of evidence. The court concluded that a considerable body of independent, objective evidence supported the critical aspects of Charlie's testimony, and the applicant had not established that the verdicts were outside the range reasonably open to the jury.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an absence of forensic evidence does not, of itself, render a jury verdict unreasonable where strong circumstantial and objective evidence independently corroborates the principal witness's account.
  • Where a principal Crown witness is a co-offender who has received sentencing benefits for cooperation, the jury's credibility assessment carries particular weight: the appellate court acknowledged legitimate criticisms of Charlie's evidence but held that those criticisms were capable of resolution by a jury that had observed the witness extensively.
  • Objective evidence such as phone records, text message exchanges, and surveillance observations can provide substantial independent support for a co-offender's testimony, even in the complete absence of forensic links between the accused and the drugs in question.
  • Under the Criminal Appeal Act 1912 (NSW) s 5(1)(b), the test on an unreasonable verdict appeal is whether it was open to the jury, acting reasonably, to reach the guilty verdict, not whether the appellate court itself would have harboured doubt.
  • A document consistent with drug dealing records ("tick list"), found bearing the accused's fingerprints in his own home alongside prohibited drugs, can constitute significant objective evidence of involvement in drug supply even where the drugs themselves carry no forensic trace of the accused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 193B(2)
- Criminal Appeal Act 1912 (NSW) s 5(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 29
- Evidence Act 1995 (NSW) s 165

Cases:
- Glover v R; Stuart v R [2015] NSWCCA 285
- Jones v The Queen [1997] HCA 56; 191 CLR 439
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400