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Court of Criminal Appeal 14 November 2018

Nader v R

[2018] NSWCCA 256

Drugs
CRIME APPEAL AGAINST CONVICTION CONTROLLED DRUG WHETHER CONDUCT OF DEFENCE OF CO ACCUSED CAUSED UNFAIRNESS TO APPLICANT WHERE CO

Citation: Nader v R [2018] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 14 November 2018
Judges: Hoeben CJ at CL, Davies J, Button J

Background

The appellant was a director of a courier company subcontracted to DHL, operating out of the Homebush depot. He was convicted after trial of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, specifically 14.371 kilograms of MDMA, intercepted in two consignments sent from the Netherlands in October 2015. A co-accused, who had initiated the appellant's involvement and directed his activities, was tried alongside him and was also convicted of the same drug offence.

The Crown case rested primarily on intercepted communications and surveillance. The appellant had recruited a DHL employee to track the shipments and hold them aside, relaying information to the co-accused. The appellant stood to receive around $5,000 for his role.

Before trial, the appellant spent 65 days in pre-sentence custody before being granted bail. He remained on bail until the jury returned its verdict in July 2017. He was then sentenced to nine years and six months' imprisonment commencing on the date of verdict, with no account taken of his earlier custody period.

  • Whether the conduct of the co-accused's defence at the joint trial caused unfairness to the appellant, potentially amounting to a miscarriage of justice.
  • Whether the sentencing judge erred by failing to account for the 65-day period the appellant spent in pre-sentence custody when fixing the commencement date of the sentence.

Decision

Ground 1: Pre-sentence custody

The Crown conceded error on this ground. Under s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must take into account any time an offender has been held in custody in relation to the offence. That provision applies to federal sentences by operation of s 16E(2) of the Crimes Act 1914 (Cth). The sentencing judge had fixed the sentence to commence on the date of the verdict without backdating it to reflect the earlier custody period. The Court of Criminal Appeal held that the sentence should have commenced on 8 May 2017, 65 days earlier. Because the error was arithmetical rather than one requiring resentencing, the Court corrected it by substituting a backdated commencement date.

Ground 2: Unfairness from co-accused's defence

At the joint trial, the co-accused pleaded guilty before the jury panel to a separate offence involving counterfeit money. His counsel then opened to the jury suggesting the co-accused's interest in the parcels was connected to criminal activity, but not drug importation. The argument on appeal was that this tactic created unfairness for the appellant by generating the impression that someone else was the "drug person" in the enterprise.

The Court rejected this ground. The appellant's own counsel had not objected to the co-accused's guilty plea being entered before the jury, had not applied for a separate trial, and had not raised any complaint during or after the trial about the judge's directions. Davies J observed that this was because the appellant's forensic strategy was to benefit from the co-accused's defence, essentially hoping the jury would accept reasonable doubt about the co-accused's mental state and extend similar doubt to the appellant. The Court noted the jury deliberated for significantly longer on the appellant's verdict than the co-accused's, indicating careful separate consideration. A deliberate forensic choice that does not produce an acquittal does not, of itself, render a trial unfair, particularly where no ground of incompetency of counsel was raised.

Orders Made

  • Leave to appeal against conviction allowed; conviction appeal dismissed.
  • Leave to appeal against sentence allowed; sentence appeal allowed.
  • Sentence quashed and substituted: nine years and six months' imprisonment commencing 8 May 2017 and expiring 7 November 2026, with a non-parole period of five years and nine months expiring 7 February 2023.

Key Takeaways

  • Under s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must account for any pre-sentence custody period; failure to do so is an error, though where the error is purely arithmetical the appellate court may correct it by substituting a backdated commencement date rather than resentencing.
  • A forensic strategy adopted at trial that was designed to produce a forensic advantage cannot later be recharacterised as a source of unfairness simply because it failed to produce an acquittal.
  • Where an accused does not apply for a separate trial and does not object to the co-accused's conduct of their defence, a complaint about unfairness arising from that conduct faces significant obstacles on appeal.
  • In dismissing the conviction appeal, the Court of Criminal Appeal reiterated that "armchair appeals" constructed from transcript review, raising points never in issue at trial, attract critical scrutiny, citing Phillips v R [2016] NSWCCA 159.
  • The length of jury deliberations can be relevant evidence that the jury gave separate and careful consideration to each accused, undermining claims that a joint trial resulted in prejudicial conflation of the cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Refaieh v R [2018] NSWCCA 72
- Phillips v R [2016] NSWCCA 159
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Webb v R (1994) 181 CLR 41
- De Jesus v The Queen (1986) 22 A Crim R 375
- R v Guldur (1986) 8 NSWLR 12
- R v Middis & Ors (27 March 1991, NSW Supreme Court, Hunt J, unreported)
- R v Pham [2004] NSWCCA 190
- Madubuko, Henry Ugo v R [2011] NSWCCA 135