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Court of Criminal Appeal 31 October 2019

D’Agostino v Regina

[2019] NSWCCA 259

Drugs

Citation: D'Agostino v Regina [2019] NSWCCA 259
Court: Court of Criminal Appeal, NSW
Date: 31 October 2019
Judges: Bathurst CJ, Hamill J, N Adams J

Background

Following a jury trial in the Sydney District Court, the applicant was convicted of five offences committed on 2 August 2011: two counts of supplying more than a commercial quantity of a prohibited drug (cocaine and heroin), one count of supplying cocaine, and two counts of knowingly possessing the proceeds of crime. He was sentenced to a total of 8 years and 9 months imprisonment with a non-parole period of five years, and did not challenge his sentence.

The prosecution case centred on two sets of evidence. First, large quantities of cocaine and heroin, together with cash, were found in a roof cavity above the ensuite bathroom of the applicant's bedroom. Second, on 2 August 2011, another man (Mr Kyriacou) was observed visiting the applicant's apartment carrying a black bag, leaving with the same bag, and was subsequently intercepted by police. The bag was found to contain cocaine.

The applicant's defence included evidence from a witness who gave evidence that a deceased third party (a transgender woman named Sarah Bartley) had placed the drugs and money in the roof cavity without the applicant's knowledge. The jury rejected that account and convicted on all counts.

  • Whether the trial judge erred by failing to direct the jury that certain intermediate or "crucial" facts in the prosecution's circumstantial case had to be proved beyond reasonable doubt before being used against the applicant (a so-called "Shepherd direction").
  • Whether the guilty verdict on count 1 (supply of more than a commercial quantity of cocaine, relating to the drugs found on Mr Kyriacou) was unreasonable or unsupported by the evidence.
  • Whether the guilty verdicts on counts 2 and 3 (supply of more than commercial quantities of cocaine and heroin, relating to the roof cavity drugs) were unreasonable or unsupported by the evidence.

Decision

Ground 1: Shepherd direction

The Court refused leave to appeal on the first ground. A Shepherd direction (requiring the jury to be satisfied beyond reasonable doubt of specific intermediate facts before using them to support guilt) is required where those intermediate facts form an indispensable link in a chain of reasoning, meaning the prosecution case rises or falls on each link being proved. The Court found that this was not such a case. The prosecution's evidence on each count was not wholly dependent on findings about the other counts, and independent evidence existed to support the inferences the jury was invited to draw on each charge. The trial judge's directions on circumstantial reasoning, the standard of proof, and the requirement to consider each count separately were found to be clear, correct, and accepted by the applicant's senior counsel at trial.

Hamill J noted that the applicant's trial counsel had made no application to sever the drug and money counts from those relating to the drugs seized from Mr Kyriacou, and no application was made to exclude or limit use of the evidence. The Court declined to second-guess those forensic decisions made by experienced counsel.

Grounds 2 and 3: Unreasonable verdicts

The Court granted leave to argue these grounds but dismissed both. In assessing whether a verdict is unreasonable, the Court is required to make an independent assessment of the evidence to determine whether it was open to the jury, acting rationally, to be satisfied of guilt beyond reasonable doubt.

On count 1 (the drugs found on Mr Kyriacou), the Court was satisfied that the text message exchanges, the CCTV footage showing Mr Kyriacou carrying a bag into and out of the applicant's apartment, and the subsequent police interception all provided a sufficient evidentiary foundation for the jury's conclusion. On counts 2 and 3 (the roof cavity drugs), the Court found the prosecution case was very strong once the jury rejected the defence witness's account. The Court pointed to the applicant's fingerprints on an envelope associated with the drugs, cash found in a safe and on the applicant's person at arrest, his long-term residence in the apartment, the physical accessibility of the roof cavity from his ensuite, and the inherent implausibility of the third-party story, including that a person allegedly raising money through drug dealing would leave all of the drugs and proceeds somewhere she could not access them.

Orders Made

  • Leave to appeal on ground 1 refused.
  • Leave to appeal on grounds 2 and 3 granted.
  • Appeal dismissed.

Key Takeaways

  • A Shepherd direction, requiring the jury to find an intermediate fact proved beyond reasonable doubt before using it, is only necessary where that intermediate fact constitutes an indispensable link in a chain of reasoning. Where independent evidence exists to support each count separately, and the prosecution case does not rise or fall on any single intermediate finding, such a direction is not required.
  • In dismissing the unreasonable verdict grounds, the Court applied the established test from authorities including Knight v The Queen (1992) 175 CLR 495 and SKA v The Queen (2011) 243 CLR 400: the relevant question is whether it was open to the jury, acting rationally, to be satisfied of guilt beyond reasonable doubt, with the appellate court undertaking its own independent assessment of the evidence.
  • Where a trial judge's directions on circumstantial reasoning and the onus and standard of proof are clear and correct, and were accepted by defence counsel at trial, they are unlikely to found a successful conviction appeal.
  • No error was established in the trial judge's decision to allow all five counts to be tried together, particularly where experienced defence counsel made no application to sever the counts or restrict the use of the evidence.
  • The inherent implausibility of a defence account, assessed against the surrounding circumstances, is a matter the jury is entitled to weigh when determining whether reasonable doubt exists.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules 1952 (NSW), r 4

Cases
- Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Greenhalgh v R [2017] NSWCCA 94
- ARS v R [2011] NSWCCA 266
- Burrell v Regina [2009] NSWCCA 163
- Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150
- Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95
- Minniti v R [2006] NSWCCA 30
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Carlton v The Queen [2008] NSWCCA 244
- Picken v R [2007] NSWCCA 319
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Quach v Regina (2002) 137 A Crim R 345
- R v Carey (1990) 20 NSWLR 292