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Court of Criminal Appeal 9 June 2021

La Rocca v R

[2021] NSWCCA 116

Drugs

Citation: La Rocca v R [2021] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 9 June 2021
Judge(s): Adamson J (leading judgment); Bellew J; Cavanagh J

Background

The appellant was convicted by jury in the District Court of attempted possession of approximately 19.7 kilograms of MDMA (a commercial quantity of a border controlled drug) contrary to the Criminal Code Act 1995 (Cth). His co-accused was tried jointly but acquitted. The appellant was sentenced to 10 years' imprisonment with a non-parole period of 6 years.

Before trial, the Crown obtained leave to lead tendency evidence. That evidence consisted of a forwarded text message about purchasing sodium borohydride (a chemical the Crown's forensic expert described as a precursor in the manufacture of MDMA) and Google search results from the appellant's phone. The tendency the Crown sought to establish was that the appellant had a tendency to acquire, or take an interest in acquiring, MDMA.

At trial, further evidentiary issues arose, including a listening device recording, conduct said to evidence consciousness of guilt, and two additional exhibits admitted partly at the urging of the appellant's own trial counsel. The appellant's appeal was ultimately conducted on five grounds, including incompetence of counsel and the cumulative unfairness arising from all the errors combined.

  • Whether the tendency evidence (the sodium borohydride text message and associated Google searches) met the threshold of "significant probative value" required for admission under s 97(1) of the Evidence Act 1995 (NSW), and whether s 101 and the discretionary exclusion provisions in ss 135 and 137 were engaged
  • Whether the trial judge's failure to direct the jury on the permitted and impermissible uses of the tendency evidence occasioned a miscarriage of justice
  • Whether the trial judge's provision of advice or guidance to the Crown, in the absence of the jury, regarding inferences it could draw from a listening device recording gave rise to a reasonable apprehension of bias
  • Whether the trial judge erred in failing to direct the jury on the use of evidence capable of constituting consciousness of guilt
  • Whether two exhibits, admitted partly at trial counsel's urging, rendered the trial unfair
  • Whether the cumulative effect of counsel's failures at trial amounted to incompetence that deprived the appellant of a fair trial
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to any of the errors, such that the appeal should nonetheless be dismissed

Decision

Tendency evidence (Ground 1(a)): The Court of Criminal Appeal found that the pre-trial judge erred in admitting the tendency evidence. The connection between sodium borohydride (a manufacturing precursor) and the charged offence of attempted possession of MDMA was too indirect to satisfy the significant probative value threshold. The charge was one of attempted possession, not manufacture, and there was no suggestion the appellant had the skills, equipment, or access to manufacturing infrastructure. Although the pre-trial judge set out the parties' arguments, her reasons for concluding that the evidence had significant probative value were described as scant.

Failure to direct the jury (Ground 1(b)): Even had the tendency evidence been admissible, the trial judge gave the jury no directions on how to use it or what limitations applied. The Court confirmed that such directions are essential when tendency evidence is led, and the absence of them compounded the harm caused by the admission of inadmissible material.

Trial judge's guidance to the Crown and consciousness of guilt (Ground 2): The Court found that the trial judge's in-chambers guidance to the Crown about inferences available from a listening device recording did not give rise to a reasonable apprehension of bias. However, the trial judge did err by failing to direct the jury on how to use conduct that was capable of being construed as evidencing the appellant's consciousness of guilt. Without such a direction, the jury was left to reason about that conduct without any limiting framework.

Exhibits 25 and 35, counsel incompetence, and the proviso (Grounds 3 to 5): The Court found that two further exhibits, each prejudicial to the appellant, were admitted partly through the actions of his own trial counsel. This fed into the broader ground of counsel incompetence. The Crown argued the proviso applied to preserve the conviction despite any errors, but the Court rejected that argument. The verdict was contaminated by so much inadmissible and prejudicial evidence, and the jury had received no curative directions, that no proper weight could be given to the guilty verdict. The Court also noted that the differences in evidence between the appellant and the acquitted co-accused were largely attributable to the errors found, which had unduly prejudiced the appellant. The Court treated the tendency evidence error alone as so fundamental as to exclude the proviso, and found the cumulative effect of all errors deprived the appellant of a fair trial.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction allowed
  • New trial ordered
  • Application for leave to appeal against sentence not determined (rendered unnecessary by the conviction appeal outcome)

Key Takeaways

  • Tendency evidence led by the prosecution must satisfy the "significant probative value" threshold in s 97(1) of the Evidence Act 1995 (NSW). Where the proposed tendency is one step removed from the actual conduct charged (here, manufacturing precursors in a case about possession), the connection may be insufficient to clear that bar.

  • A trial judge who admits tendency evidence must direct the jury on both the permitted uses of that evidence and its limitations. Failing to give those directions is an independent error that can compound the harm from wrongful admission.

  • The Court of Criminal Appeal confirmed that a trial judge providing guidance to counsel, in the absence of the jury, about available inferences does not automatically give rise to a reasonable apprehension of bias. The specific circumstances will determine whether that threshold is met.

  • Where a conviction is contaminated by the cumulative effect of multiple errors, including inadmissible evidence and the absence of curative directions, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) may be unavailable. Some errors are so fundamental that they exclude the proviso regardless of the apparent strength of the Crown case.

  • Incompetence of trial counsel can form part of the foundation for a successful conviction appeal, particularly where counsel's conduct contributed to prejudicial evidence being placed before the jury without any protective direction from the trial judge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code Act 1995 (Cth), ss 11.1, 307.5
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137, 191
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Demirok v The Queen (1977) 137 CLR 20
- DJF v R [2011] NSWCCA 6; (2011) 205 A Crim R 412
- Edwards v The Queen (1993) 178 CLR 193
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Kalbasi v Western Australia (2018) 264 CLR 62
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- R v Basha (1989) 39 A Crim R 337
- R v Birks (1990) 19 NSWLR 677
- The Queen v Bauer (2018) 266 CLR 56
- TKWJ v The Queen (2002) 212 CLR 124
- Weiss v The Queen (2005) 224 CLR 300
- Zoneff v The Queen (2000) 200 CLR 234