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Court of Criminal Appeal 21 August 2020

Parker v R

[2020] NSWCCA 206

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION CIRCUMSTANTIAL CASE COINCIDENCE EVIDENCE APPEALS

Citation: Parker v R [2020] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 21 August 2020
Judge(s): R A Hulme J, Wright J, N Adams J

Background

The appellant was employed as a conveyor belt technician at Sydney International Airport, a role that gave him unrestricted access to the baggage handling system using a security identification card. The Crown alleged he used that access to retrieve cocaine from arriving luggage on 12 occasions between May 2013 and April 2014, departing the airport to deliver the drugs before returning to resume his shift. He was tried by jury and convicted on three counts of importing a commercial quantity of cocaine under the Criminal Code (Cth).

The appellant had separately pleaded guilty to five counts of dealing with proceeds of crime, including approximately $5.37 million in cash found at his home. On 15 December 2017, Judge Sweeney in the District Court imposed a total effective sentence of 33 years with a non-parole period of 22 years.

The appellant sought leave to appeal both his conviction and his sentence before the Court of Criminal Appeal.

  • Whether a miscarriage of justice arose because the Crown impermissibly relied on tendency or coincidence reasoning when proving guilt across the three counts
  • Whether the trial judge erred by failing to warn the jury against impermissible tendency or coincidence reasoning
  • Whether there was non-compliance with Part 3.6 of the Evidence Act 1995 (NSW), which governs the use of tendency and coincidence evidence
  • Whether the total sentence of 33 years with a non-parole period of 22 years was manifestly excessive

Decision

On the conviction grounds, the Court found that the Crown case did not in fact rely on tendency or coincidence reasoning within the meaning of the Evidence Act 1995 (NSW). The similarities across the three counts were not deployed to establish guilt through the improbability of coincidence. Rather, the consistent methodology observed across all three counts was used as circumstantial evidence to demonstrate the appellant's involvement in a continuing drug importation syndicate, which is a distinct and permissible form of reasoning.

Because there was no actual reliance on coincidence reasoning, there was no obligation on the trial judge to give a coincidence warning under section 98 of the Evidence Act. The failure to give such a warning was therefore not an error. Likewise, the non-compliance argument under Part 3.6 fell away: the Crown had withdrawn its coincidence notice before the applicant's trial, and no notice under sections 97 or 98 was relied upon at trial.

On the sentence ground, the Court rejected the submission that the sentence was manifestly excessive. The Court noted the applicant's role was "essential and high ranking," that he abused a position of trust at an international airport, that the total quantity of pure cocaine exceeded 125 kg, and that his financial reward was in excess of $5 million. While the sentence was characterised as a stern one, the Court was not satisfied it was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against conviction refused
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Circumstantial evidence showing a "consistent methodology" across multiple drug importation events does not automatically constitute coincidence reasoning under the Evidence Act 1995 (NSW); where the similarities are relied upon to prove involvement in a continuing criminal enterprise rather than through an improbability-of-coincidence inference, sections 97 and 98 are not engaged.
  • A trial judge's obligation to give a tendency or coincidence direction under Part 3.6 of the Evidence Act only arises where the Crown actually relies on such reasoning; if the Crown withdraws its coincidence notice and does not rely on the relevant reasoning at trial, no warning is required.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentence may be "stern" without being manifestly excessive where the offender's role was essential to a large-scale importation syndicate, the quantity of drugs was substantial, and the financial rewards were significant.
  • Under the Criminal Code (Cth) section 311.4, the Crown may prove the quantity element of a drug importation charge by establishing that the accused engaged in a repeated pattern of organised commercial importation activity, with the total quantity across those imports reaching a commercial quantity threshold.
  • No remorse for the drug offences, combined with approximately $6 million in financial gain, reinforced the Court's view that a heavy sentence was appropriate to neutralise the financial incentives associated with serious drug trafficking.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Appeal Rules, r 4
- Criminal Code (Cth), ss 11.2(1), 300.2, 305.3(1), 307.1(1), 311.4, 400.4(1), 400.5(1)
- Evidence Act 1995 (NSW), Part 3.6, ss 97, 98

Cases:
- Barrett v R [2020] NSWCCA 11
- El-Haddad v R (2015) 88 NSWLR 93
- Harriman v The Queen (1989) 167 CLR 590
- Hili v The Queen (2010) 242 CLR 520
- The Queen v Falzon (2018) 264 CLR 361
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
- Moodie v R [2020] NSWCCA 160
- Obeid v R (2017) 96 NSWLR 155
- Keung, Bow, Liu v R [2008] NSWCCA 193