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Court of Criminal Appeal 23 February 2022

Faraj v R

[2022] NSWCCA 31

Drugs
DIRECTION — WHETHER AN ANTI

Citation: Faraj v R [2022] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 23 February 2022
Judges: Gleeson JA, Harrison J, Adamson J (Adamson J delivered the principal judgment)

Background

The appellant was convicted by a jury on six counts following a trial in the District Court in May 2018. Counts one to five related to the supply of MDMA and methylamphetamine at various commercial and large commercial quantities. Count six concerned possession of a $40,000 Rolex watch alleged to be proceeds of crime.

Evidence at trial included covert video and audio recordings from the appellant's unit, intercepted telecommunications (spanning over 100 calls), police searches of the unit and a VW motor vehicle, and the oral evidence of the appellant's then-girlfriend. The central issue at trial was whether it was the appellant, rather than his girlfriend, who possessed and supplied the drugs.

The appellant was sentenced to an aggregate 13 years' imprisonment with a non-parole period of 9 years. He sought leave to appeal against both his convictions and his sentence.

  • Whether the trial judge erred by failing to give an anti-tendency direction in respect of the intercepted telecommunications evidence, which included references to drug dealings beyond the charged offences
  • Whether leave to appeal on that conviction ground should be granted, given trial counsel had not sought such a direction
  • Whether the sentencing judge erred by finding, without sufficient evidence, that counts one to three involved the supply of 9,000 tablets
  • Whether the sentencing judge erred in assessing the appellant's prospects of rehabilitation as "slim," particularly by relying on his denial of responsibility

Decision

Conviction ground: The Court granted leave to appeal on the conviction ground but dismissed the appeal. Adamson J examined the conduct of the trial in detail, noting that trial counsel had not only declined to seek an anti-tendency direction but had actively used the telephone intercept evidence in the defence's own closing address. Defence counsel relied on the absence of panicked calls after the VW Bora was searched as evidence favouring the appellant, and expressly conceded the appellant had engaged in some supply (characterising it as casual sharing at parties). In those circumstances, an anti-tendency direction would have cut across the defence case rather than assisted it.

Sentence ground 1 (the 9,000 tablets finding): The Court accepted that the trial judge was entitled to make findings of fact on sentence based on evidence beyond reasonable doubt, consistent with the High Court's approach in The Queen v Olbrich (1999). On the evidence available, including video surveillance and analysis of what was visible in the appellant's kitchen on counts one and two, it was open to the sentencing judge to find that approximately 9,000 tablets were involved. No error was established.

Sentence ground 2 (rehabilitation prospects): The Court rejected the submission that the sentencing judge had impermissibly inferred poor rehabilitation prospects solely from the appellant's denial of guilt. Adamson J found that the judge had regard to multiple factors: inconsistencies between histories the appellant had given to different people, an elaborate theory that police had planted drugs (which itself reflected a pattern of blaming others), and qualifications to the pre-sentence report's more favourable assessment. The finding that rehabilitation prospects were slim was open on the evidence as a whole.

Orders Made

  • Leave granted to appeal against conviction under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence
  • Appeal against sentence dismissed

Key Takeaways

  • Where trial counsel not only fails to seek an anti-tendency direction but actively relies on the same evidence in the defence's closing address, an appellate court is unlikely to find that the trial judge erred by not giving that direction unrequested.

  • A conviction ground requiring leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) will not succeed merely because a direction was available in theory; the Court of Criminal Appeal will examine whether such a direction would actually have served the defence case as it was conducted at trial.

  • Under the principle in The Queen v Olbrich, a sentencing judge may not make adverse factual findings against a convicted person unless those facts are proved beyond reasonable doubt; however, where evidence supports that standard, it remains open to the sentencing judge to make the finding.

  • A sentencing judge assessing rehabilitation prospects is not confined to considering only the fact of a denial of guilt. The court may take into account inconsistencies in personal histories, implausible conspiracy theories, and a pattern of attributing blame to others when weighing rehabilitation evidence.

  • In dismissing both the conviction and sentence appeals, the Court of Criminal Appeal confirmed that appellate intervention requires an identifiable error, not merely a submission that a different course was available to the trial or sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B (possession of proceeds of crime)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 (supply of prohibited drugs)
- Evidence Act 1995 (NSW), s 97 (tendency evidence rule)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- R v Isaacs (1997) 41 NSWLR 374
- Quach v The Queen [2002] NSWCCA 519; (2002) 137 A Crim R 345
- Sultana v R (1994) 74 A Crim R 27