AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 22 November 2019

Allchin v R; Skepevski v R

[2019] NSWCCA 278

Drugs
CRIMINAL PROCEDURE APPEAL AGAINST CONVICTION APPEAL AGAINST CONVICTION SUPPLY OF COMMERCIAL QUANTITY OF DRUGS SUPPLY BY ONE CO ACCUSED TO THE OTHER

Citation: Allchin v R; Skepevski v R [2019] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 22 November 2019
Judges: Basten JA (principal judgment); Walton J and Bellew J agreeing

Background

In August 2015, police surveillance cameras recorded a drug supply transaction in Annandale, inner-west Sydney. One appellant placed a shopping bag containing almost 1 kg of methylamphetamine into the back seat of a car driven by a third man, Nathan Rowe. Police intercepted Rowe on the M1 freeway and recovered the drugs. Rowe subsequently made an induced statement implicating the second appellant, who Rowe said had arranged the transaction and inspected the bag at a petrol station before Rowe was stopped.

Both appellants were charged jointly in the NSW District Court with supplying a commercial quantity of a prohibited drug (998.7g of methylamphetamine). Each pleaded not guilty. Following a joint trial in May 2018, both were convicted. Each sought leave to appeal against conviction in the Court of Criminal Appeal.

The first appellant's sole pleaded ground was that the verdict was unreasonable or unsupportable on the evidence. The second appellant pleaded two grounds: the same unreasonable verdict ground, and a claim that the trial judge had improperly restricted cross-examination of Rowe. However, both appellants' written submissions went considerably further, raising complaints about the prosecutor's use of rhetorical questions, a shift in the prosecution case between opening and closing addresses, and inadequate judicial directions on the defence case.

  • Whether the verdicts against each appellant were unreasonable or could not be supported on the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge's restriction on cross-examination of Rowe occasioned a miscarriage of justice
  • Whether the prosecutor's use of rhetorical questions in closing address constituted an unfair trial
  • Whether the prosecution improperly changed its case between opening and closing
  • Whether the trial judge inadequately summarised the defence case in the summing-up
  • Whether the failure to call two potential witnesses (Bogdanovic and Grech) resulted in a miscarriage of justice
  • Whether grounds of appeal raised only in written submissions, outside the formal notice of appeal, could be entertained

Decision

Procedural concerns about grounds of appeal. Basten JA addressed at the outset the problem of parties raising substantive complaints in written submissions that did not correspond to any pleaded ground of appeal. His Honour noted that this can disrupt the orderly conduct of an appeal and may obscure the distinction between grounds available as of right and those requiring leave. The Court declined to require amended notices, but made clear this pragmatic course would not always be taken. The additional complaints were treated as separate grounds and addressed on their merits.

Unreasonable verdict: both appellants. The Court applied the test from Libke v The Queen, asking whether the jury must have entertained a doubt, not merely whether it might have. For the first appellant, the surveillance footage showed him placing the bag in Rowe's car, and the inferences available from the circumstances, including the nature and quantity of the drugs and the manner of the transfer, were sufficient to support the jury's findings as to his knowledge. For the second appellant, Rowe's evidence established that he had arranged the transaction and inspected the contents of the bag, and the video evidence was consistent with that account. The Court found the verdicts were open on the evidence and dismissed both unreasonable verdict grounds.

Restriction on cross-examination. The trial judge had limited the scope of cross-examination of Rowe concerning drug dealings with third parties, on the basis that allowing such questioning would open the door to broad re-examination creating an unfair trial. The Court of Criminal Appeal found no error in this ruling. The trial judge's power to control the scope of examination is well established, and the restriction imposed did not prevent the defence from challenging Rowe's credit or the substance of his evidence about the appellants.

Prosecutor's address and other trial complaints. The Court examined the prosecutor's use of rhetorical questions and found that, while the technique was capable of conveying personal opinion, the questions here were not so inflammatory or misleading as to have rendered the trial unfair. The complaints about the change in the prosecution case and the adequacy of the summing-up were similarly rejected. As to the failure to call Bogdanovic and Grech, no request had been made during the trial for those witnesses to be called, and no basis was established for why they were material. That ground was also dismissed.

Orders Made

  • Leave to appeal granted to each appellant
  • Appeals dismissed

Key Takeaways

  • Grounds of appeal must be properly pleaded in a notice of appeal; raising new complaints only in written submissions risks disrupting the appeal and may have consequences for whether leave is required, even where a court exercises discretion to deal with the issues.
  • The applicable test on an unreasonable verdict ground requires the appellate court to ask whether the jury must have entertained a doubt, not whether there was material that might have supported a different conclusion (applying Libke v The Queen).
  • A trial judge has a recognised power to limit the scope of cross-examination where broad questioning would risk creating an unfair trial, including by exposing the proceedings to potentially prejudicial re-examination.
  • Rhetorical questions in a prosecutor's closing address do not automatically constitute a ground for a new trial; the question is whether the conduct, viewed in context, actually occasioned a miscarriage of justice.
  • Where no request was made at trial to have particular witnesses called, and no basis is shown at the appeal stage for their materiality, the failure to call those witnesses will not establish a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 128, 165, 192A
- Criminal Appeal Rules (NSW), r 4

Cases
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- Wakeley v The Queen; Bartling v The Queen (1990) 64 ALJR 321; [1990] HCA 23
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19
- Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
- Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21
- Romolo v R [2018] NSWCCA 3
- R v Rugari [2001] NSWCCA 64; 122 A Crim R 1
- R v E (1996) 39 NSWLR 450
- R v Booth [1982] 2 NSWLR 847
- R v Collisson [2003] NSWCCA 212; 139 A Crim R 389