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Court of Criminal Appeal 29 September 2017

Cranney v R; Huynh v R

[2017] NSWCCA 234

Drugs
CRIMINAL LAW APPEALS AGAINST CONVICTIONS CROWN CONCESSION OF ERROR S 311.16(B) CONSIDERED OFFENDERS ADMISSIBLE WHETHER EVIDENCE WAS TENDENCY EVIDENCE

Citation: Cranney v R; Huynh v R [2017] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 29 September 2017
Judges: Hoeben CJ at CL, Latham J, Price J

Background

Two appellants were jointly convicted in the District Court of conspiracy to import a commercial quantity of pseudoephedrine, contrary to ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). The conspiracy alleged in the relevant count related to importations occurring between January and June 2012. One appellant, a Customs officer, was also convicted of two bribery offences arising from the same period and was acquitted on a separate, earlier conspiracy count.

The Crown case was that the appellants, together with a number of named co-conspirators, organised the importation of pseudoephedrine, a precursor chemical used in the manufacture of controlled drugs. The trial lasted approximately eight weeks. Both appellants were sentenced to lengthy terms of imprisonment and subsequently appealed their convictions.

The appeal raised a range of grounds: erroneous jury directions on a key mental element of the offence, the sufficiency of evidence to establish a single conspiracy rather than two separate conspiracies, the admissibility of prior conduct evidence, and alleged miscarriages of justice arising from the Crown Prosecutor's conduct during the trial.

  • Whether the trial judge's directions on the element of "believes that another person intends to use" the substance to manufacture a controlled drug (s 307.11(1)(b) of the Criminal Code) were erroneous
  • Whether the erroneous directions caused any miscarriage of justice, given the Crown conceded the error
  • Whether the evidence was sufficient to establish a single conspiracy, as charged, rather than two separate conspiracies relating to separate importations
  • Whether the trial judge was required to direct the jury to distinguish between one conspiracy and two separate conspiracies
  • Whether the charge was bad for duplicity
  • Whether evidence of one appellant's involvement in a prior failed importation was properly admitted as relationship evidence
  • Whether the Crown Prosecutor's closing address remarks about character occasioned a miscarriage of justice
  • Whether the Crown Prosecutor's questions asking if a Crown witness was lying amounted to impermissible questioning
  • Whether the trial judge erred by failing to ascertain the prosecutorial use to be made of alleged lies by one appellant

Decision

Jury directions on the mental element. The Court accepted the Crown's concession that the trial judge's directions on s 307.11(b)(ii) were incorrect. The directions had required the jury to find that another person had an "immediate intention" to use the precursor to manufacture a controlled drug, which imposed a higher threshold than the provision actually requires. However, the Court held that the appellants were not prejudiced by this error precisely because the higher test favoured them. The Court also held that the appellants were bound by the way their cases were conducted at trial, where no objection to the directions had been raised.

Single conspiracy and sufficiency of evidence. The Court rejected the argument that the evidence disclosed two separate conspiracies rather than one. It was open to the jury to be satisfied beyond reasonable doubt that the appellants participated in a single conspiracy spanning both the March and June importations. The trial judge was not required to direct the jury specifically to find a single unbroken agreement. The duplicity grounds were also rejected.

Prior involvement evidence. The Court held that the evidence of one appellant's prior involvement in the failed December 2011 importation was properly admitted as relationship evidence, establishing the connection between the relevant parties. This was not tendency evidence within the meaning of s 97 of the Evidence Act 1995 (NSW), and no error in its admission was established.

Prosecutorial conduct. Various complaints about the Crown Prosecutor's conduct were rejected. The closing address remarks concerning character, while noted, did not rise to the level required to establish a miscarriage of justice. The "was this witness lying" questioning, though generally impermissible, did not cause a miscarriage in the circumstances of this trial. On the lies ground, the Court held that the trial judge was not obliged to seek clarification from the Crown Prosecutor about the use of the alleged lie, nor to give an Edwards-style direction, because it was plain the assertion went to credibility rather than consciousness of guilt, and no such direction had been sought by defence counsel.

Orders Made

  • Christopher Phillip Cranney's appeal against conviction is dismissed.
  • Huy Bao Van Huynh's appeal against conviction is dismissed.

Key Takeaways

  • Where a trial judge's direction imposes a more demanding test than the statute requires, and the error therefore favours the accused, no miscarriage of justice arises from that erroneous direction.
  • Appellants who do not object to jury directions at trial may be bound by the manner in which their cases were conducted, reinforcing the importance of contemporaneous objection.
  • Sufficient evidence of a single conspiracy existed where two separate importations occurred within a charged period, and the Court of Criminal Appeal confirmed that no special direction was required distinguishing one conspiracy from two.
  • Under the principles affirmed in Dhanhoa v R (2003) 217 CLR 1, a trial judge is not required to give an Edwards direction every time a suggestion is made that an accused has been untruthful, provided the prosecution has not relied on the lie as evidence of guilt and there is no real danger the jury will apply that reasoning.
  • Evidence of prior dealings between co-offenders can be properly admitted as relationship evidence without engaging the tendency evidence provisions in s 97 of the Evidence Act 1995 (NSW), where its purpose is to establish the connection between the parties rather than to prove a propensity.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.5, 11.5(1), 11.5(2), 141.1(3), 307.11, 307.11(1), 307.11(1)(b), 307.11(b)(ii), 311.16, 311.16(b), 311.8, 311.9, 311.18
- Criminal Code Regulations 2002 (Cth), s 5F, Sch 3
- Evidence Act 1995 (NSW), ss 97, 97(1), 101, 112, 137
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Customs Act 1901 (Cth), s 233B(1)(d)
- Acts Interpretation Act 1901 (Cth), s 33(2A)
- Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015

Cases
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
- Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 19
- Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- George v Rockett (1990) 170 CLR 104; [1990] HCA 26
- FP v R [2012] NSWCCA 182
- Ahmed v R [2012] NSWCCA 260
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Director of Public Prosecutions v Doot [1973] AC 807