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Court of Criminal Appeal 27 February 2019

Wilson v R

[2019] NSWCCA 38

Drugs
CRIMINAL LAW CONVICTION APPEAL EXTENSION OF TIME INCONSISTENT VERDICTS OBLIGATION TO PRESENT MATERIAL EVIDENCE FAILURE TO RAISE ISSUES AT TRIAL

Citation: Wilson v R [2019] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 27 February 2019
Judges: Hoeben CJ at CL, Walton J (primary judgment), Button J (agreeing)

Background

The appellant was tried in the Sydney District Court alongside his brother and another man on a charge of conspiring, between February and March 2008, to import a commercial quantity of heroin into Australia, contrary to the Criminal Code Act 1995 (Cth). The jury convicted the appellant and one co-accused; it could not reach a unanimous verdict on the third accused. Following conviction, the appellant also pleaded guilty to dealing with money exceeding $100,000 believed to be proceeds of crime.

The appellant was sentenced in April 2012 to a total term of 23 years' imprisonment, comprising 20 years for the conspiracy offence and 5 years for the proceeds of crime offence, with a non-parole period of 15 years. He sought to appeal both his conviction and sentence, but his notice of appeal was not filed until February 2018, nearly six years after sentencing. An extension of time was therefore required before the appeal could proceed.

The Crown opposed the extension of time. The Court ultimately granted leave to appeal out of time but dismissed both the conviction and sentence appeals.

The Court was asked to resolve a wide range of questions across 22 grounds of conviction appeal and a further sentence appeal, including:

  • Whether the verdict was unreasonable or not supported by the evidence
  • Whether inconsistent verdicts between co-accused required the conviction to be set aside
  • Whether surveillance recordings and related transcripts were properly admitted into evidence
  • Whether the Crown failed to call or present material witnesses and evidence
  • Whether the trial judge erred in declining to discharge the jury following two prejudicial incidents
  • Whether the Crown's closing address was unfair or improper
  • Whether jury directions on conspiracy, circumstantial evidence, and alternative hypotheses were adequate
  • Whether evidence of the appellant's involvement in prior importations and other bad character evidence was wrongly admitted
  • Whether fresh evidence warranted a new trial
  • Whether the conviction of a separate individual (a Mr Mark Standen) for conspiracy to pervert the course of justice tainted the appellant's trial
  • On sentence: whether the appellant's role was correctly assessed, whether totality was properly applied, and whether there was impermissible disparity between the appellant's sentence and that of his co-accused

Decision

Conviction appeal. The Court rejected all 22 grounds. On the central ground that the verdict was unreasonable, the Court found the Crown case was strong, and Button J specifically noted the evidence against the appellant was compelling. The jury's verdict could not be characterised as unreasonable or unsupported by the evidence. The inconsistent verdict argument, based on the jury's inability to agree on the brother's guilt, also failed: it is well established that juries may return different verdicts on different accused, and no legal inconsistency arose here.

On the evidentiary grounds, the Court found no error in the admission of surveillance recordings, opinion evidence, or the relationship evidence concerning prior importations. The trial judge's decisions on those matters were within the permissible range. The Crown's failure to call certain witnesses did not amount to a breach of the obligation to present material evidence in the circumstances, and the fresh evidence application was refused on the basis that the proposed material did not meet the required threshold.

On the procedural grounds, the Court found the trial judge acted appropriately in declining to discharge the jury following the two incidents said to have been prejudicial. The jury directions, while scrutinised across multiple grounds, were found to be adequate overall. Although Walton J and Button J both noted that certain comments by the Crown prosecutor in closing address were inappropriate, the Court unanimously concluded those comments did not occasion a miscarriage of justice. The allegation that the conduct of a separate convicted individual tainted the trial was also rejected.

Sentence appeal. The Court granted leave to appeal but dismissed the appeal. The arguments on totality and the appellant's role were not established as errors. On parity, the Court compared the appellant's sentence to that of his co-accused, noting that by the time the co-accused was sentenced he had admitted guilt, confirmed his anticipated benefit was in the hundreds of thousands of dollars, and offered assistance to police. The Court found those differences justified the sentencing judge's approach of imposing identical terms, and no impermissible disparity arose.

Orders Made

  • The application to call fresh evidence is refused.
  • Leave is granted to the appellant to file the appeal out of time.
  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • A six-year delay in filing a conviction and sentence appeal did not preclude the grant of an extension of time, but the Court nonetheless dismissed both appeals on their merits.
  • Inconsistent verdicts between co-accused charged in the same indictment do not automatically render a guilty verdict unreasonable; a jury is entitled to reach different conclusions on different accused.
  • Inappropriate remarks by a Crown prosecutor in closing address will not necessarily occasion a miscarriage of justice; the Court assessed the comments in the context of the trial as a whole and found no miscarriage resulted.
  • On parity in sentencing, identical sentences imposed on co-accused may be perfectly appropriate even where their formal co-offending histories differ, provided the sentencing judge has regard to all relevant differences, including guilty pleas and offers of assistance to authorities.
  • Refusal of a fresh evidence application turns on whether the proposed material meets the necessary threshold; unsigned statements and supplementary materials that do not clear that bar will not justify a new trial.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1), 400.4(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 5(1)(c), 6(1)
- Criminal Appeal Rules (NSW)
- Evidence Act 1995 (NSW)
- Crimes Act 1914 (Cth)
- Surveillance Devices Act 2007 (NSW)
- Listening and Surveillance Devices Act 1972 (SA)

Cases:
- Aouad v The Queen (2011) 207 A Crim R 411; [2011] NSWCCA 61
- ARS v R [2011] NSWCCA 266
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Curran v R [2017] NSWCCA 123
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Flood-Smith v R [2018] NSWCCA 103
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Giourtalis v R [2013] NSWCCA 216
- Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
- Hughes v R [2018] NSWCCA 2
- Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Masri v R [2015] NSWCCA 243
- Maxwell v The Queen (1996) 184 CLR 501
- Obeid v R [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- R v Abusafiah (1991) 24 NSWLR 531
- R v AZ [2018] NSWCCA 294
- R v Bartle [2003] NSWCCA 329