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Court of Criminal Appeal 18 March 2022

Salgado v R

[2022] NSWCCA 58

Drugs
CRIMINAL LAW EVIDENCE ADMISSIBILITY MULTIPLE COUNTS OF DRUG SUPPLY CROSS ADMISSIBILITY OF EVIDENCE

Citation: Salgado v R [2022] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 18 March 2022
Judge(s): Brereton JA, Campbell J, Hamill J

Background

The appellant was tried in the District Court on a six-count indictment involving drug supply and proceeds of crime offences. Before trial, he unsuccessfully applied to have certain counts severed and heard separately. He ultimately pleaded guilty to three counts (two drug supply counts and one proceeds of crime count) when arraigned before the jury, and contested the remaining three drug supply counts.

The defence strategy was built around the guilty pleas. By acknowledging guilt on the smaller offences, the defence sought to portray the appellant as a minor, small-scale dealer who was not the type of person involved in the large commercial quantities alleged in the contested counts. The prosecution, by contrast, framed the case from the outset as involving a "significant drug dealer" who supplied continuously over a defined period.

The appellant was convicted on the three contested counts and sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 8 years. He appealed on two grounds: that the cross-admissibility rulings were wrong, and that the trial judge's directions to the jury were inadequate to guard against impermissible tendency reasoning.

  • Whether evidence relating to the admitted counts was properly cross-admissible to prove the contested counts on a basis other than tendency reasoning (for example, as circumstantial evidence of an ongoing drug supply enterprise)
  • Whether, even if the evidence was admissible on that other basis, the risk of impermissible tendency reasoning was so high that a stringent anti-tendency direction was required
  • Whether the direction actually given by the trial judge was adequate to prevent the jury from reasoning impermissibly
  • Whether the prosecutor's opening and closing addresses compounded any risk of impermissible tendency reasoning

Decision

The Court allowed the appeal on both grounds. On the first ground, the Court accepted that the evidence of the appellant's involvement in drug supply across the period covered by all six counts could, in principle, be admitted as circumstantial evidence rather than formally as tendency evidence under the Evidence Act 1995 (NSW). Its purpose, on the Crown's case, was to make it less plausible that the appellant's association with a co-offender was innocent (Count 1) and that drugs found in a cooler bag in his backyard were there without his knowledge (Counts 4 and 5).

However, the Court found that this use of the evidence came so close to inviting tendency reasoning that, at a minimum, a stringent anti-tendency direction was necessary. Tendency reasoning is the impermissible process of concluding that, because a person committed one offence, they therefore have a tendency to commit that type of offence and must therefore be guilty of the other alleged offences. The trial judge's direction told the jury they must not reason "automatically" that the guilty pleas meant the appellant was guilty of the contested counts. The Court held this formulation was not merely inadequate; it effectively invited the very reasoning it was supposed to prohibit, since it implied the conclusion could be reached through considered, rather than automatic, reasoning.

Campbell J added that both pathways the direction described, reasoning automatically and reasoning after mature deliberation, were equally impermissible as forms of tendency reasoning. The word "automatically" introduced a distinction the law does not recognise. The prosecutor's addresses, which characterised the appellant as a "significant drug dealer" who supplied drugs "continuously," further heightened the risk that the jury would reason in an impermissible way. The respondent conceded at the appeal that the prosecutor had not adequately explained the permissible use of the cross-admissible evidence.

Orders Made

  • Leave to appeal granted against the convictions on counts 1, 4 and 5
  • Appeal allowed
  • Convictions on counts 1, 4 and 5 quashed
  • Convictions on counts 2, 3 and 6 confirmed
  • Retrial ordered on counts 1, 4 and 5
  • Aggregate sentence quashed
  • Matter remitted to the District Court for retrial on counts 1, 4 and 5 and resentencing on counts 2, 3 and 6 upon finalisation of those proceedings

Key Takeaways

  • Where evidence is admitted not as formal tendency evidence but as circumstantial evidence of an ongoing criminal enterprise, the closeness of that use to tendency reasoning determines how stringent any corrective jury direction must be.
  • A direction telling a jury not to reason "automatically" from proved offending to guilt on other counts is insufficient and may itself be misleading. It implies that the same impermissible conclusion could lawfully be reached through careful deliberation, when in fact both pathways are equally forbidden.
  • The Court of Criminal Appeal confirmed that prosecutors carry a responsibility to explain to the jury the permissible basis on which cross-admissible evidence is received. Characterising an accused as a persistent or continuous offender in opening and closing addresses, without that explanation, materially increases the risk of impermissible reasoning.
  • Appellate leave to challenge a summing-up where no objection was taken at trial remains available where the risk of a miscarriage of justice is sufficiently demonstrated.
  • Quashing an aggregate sentence is a consequence of quashing one or more of the component convictions, even where no separate sentence appeal is brought, and the matter must be remitted for resentencing on the confirmed counts as well.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1)
- Criminal Procedure Act 1986 (NSW) ss 21(2)(a), 29(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1)-(2), 29
- Evidence Act 1995 (NSW) ss 97, 98, 99, 100, 101, 137
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases
- BRC v R [2020] NSWCCA 176; (2020) 284 A Crim R 124
- De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- JWM v R [2014] NSWCCA 248; (2014) 245 A Crim R 538
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Mac v R [2014] NSWCCA 24
- Makin v The Attorney General for NSW [1894] AC 57
- Markby v The Queen (1978) 140 CLR 108; [1978] HCA 29
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75
- Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40