AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 1 February 2018

Romolo v R

[2018] NSWCCA 3

Drugs
CRIME APPEAL AGAINST CONVICTION OFFENDER APPEALS APPEALS AGAINST CONVICTION WHETHER RE TRIAL APPROPRIATE

Citation: Romolo v R [2018] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 1 February 2018
Judge(s): Macfarlan JA; Fullerton J; Button J

Background

The applicant was convicted in the District Court of jointly committing the offence of importing a commercial quantity of methamphetamine into Australia, contrary to ss 307.1(1) and 11.2A(1) of the Criminal Code (Cth). The indictment named the applicant and one other individual, Mejid Hamzy, as the two parties to the joint enterprise. The applicant stood trial alone and received a sentence of 11 years and 6 months imprisonment with a non-parole period of 7 years and 6 months.

The undisputed facts were that a consignment of methamphetamine was transported from the USA to Australia by air, and that both the applicant and the named co-offender separately took steps to arrange its release from the freight forwarder FedEx. Both men used the same mobile phone registered to a false name and the same email account created in a fictitious consignee's name to communicate with FedEx over a period of several days in October 2012.

The sole issue at trial, and on appeal, was whether the Crown had proved beyond reasonable doubt that the applicant and the co-offender had actually agreed with each other to take steps to complete the importation.

  • Whether the verdict was unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW), specifically whether the Crown proved an agreement between the applicant and the named co-offender.
  • Whether the parallel use of shared tools (a phone and email account) by two individuals was sufficient to establish a mutual agreement between them, where the indictment named only those two persons as parties.
  • Whether, if the conviction could not stand, a retrial was appropriate or whether a verdict of acquittal should be entered.

Decision

The Court of Criminal Appeal unanimously granted leave to appeal and allowed the appeal. Macfarlan JA (with Fullerton J and Button J agreeing) held that the Crown had not proved beyond reasonable doubt that there was an actual agreement between the applicant and the named co-offender. The trial judge's written directions to the jury had correctly identified that guilt required proof of some form of communication between the two men and that they knew each other. The Crown had accepted those directions without objection, in part because the indictment confined the alleged agreement to precisely those two individuals.

The evidence showed that both men used the same phone and email account to contact FedEx, and that their conduct was apparently coordinated over several days. However, the Court found that this coordination was equally consistent with each man acting under the direction of a common third party or parties, without necessarily knowing of or communicating directly with each other. The evidence could not exclude this alternative beyond reasonable doubt.

Fullerton J emphasised that the conviction failed not because there was insufficient evidence that the applicant participated in a joint criminal enterprise to import the drugs, but because the particular indictment framed the agreement as one between only the applicant and the named co-offender. Had the indictment alleged a joint enterprise with the co-offender and others, or charged conspiracy, the trial would likely have proceeded differently and the directions would have taken a different form. The evidential burden the Crown accepted was one of its own making, tied to the narrow particulars of the indictment.

The Court also considered whether to order a retrial. Because any retrial would require an amendment to the indictment (given the evidence was capable of supporting a broader charge), the Court followed the principles in Parker v The Queen (1997) 186 CLR 494 and concluded that a retrial was not appropriate. A verdict of acquittal was entered instead.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction quashed.
  • Judgment and verdict of acquittal entered on the charge.
  • Applicant released from custody forthwith.

Key Takeaways

  • A conviction for jointly committing an offence under s 11.2A of the Criminal Code (Cth), where the indictment names only two parties to the agreement, requires proof beyond reasonable doubt that those two individuals actually communicated and knew each other. Parallel conduct using shared tools does not, of itself, establish that direct agreement.

  • Where the Crown accepts jury directions that confine the elements of guilt to the specific particulars of the indictment, it is bound by the evidentiary burden that follows from those particulars.

  • The Court of Criminal Appeal confirmed that evidence of apparently coordinated conduct between two individuals can be equally consistent with each acting independently under the direction of common third parties, meaning the inference of a direct bilateral agreement was not the only rational one available on the evidence.

  • Under the principles in Parker v The Queen, a retrial is not appropriate where a successful appeal would necessitate amendment of the indictment to reflect a charge broader than the one the applicant faced at trial. In such circumstances, a verdict of acquittal is the correct order.

  • Fullerton J clarified expressly that the acquittal did not reflect any finding that the applicant was not party to a joint criminal enterprise to import the drugs. The conviction failed solely because the evidence could not prove the particular bilateral agreement alleged in the indictment as drawn.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 8(1)
- Criminal Code (Cth), ss 11.2A(1), (2), (4), (5), (7); 11.5; 307.1(1)

Cases:
- Parker v The Queen (1997) 186 CLR 494
- Osland v The Queen (1998) 197 CLR 316
- R v Taufahema (2007) 228 CLR 232
- IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27
- Dickson v R [2017] NSWCCA 78
- Gilham v R [2012] NSWCCA 131
- Masri v R [2015] NSWCCA 243