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Court of Criminal Appeal 10 March 2023

La Rocca v R

[2023] NSWCCA 45

Also reported as (2023) 306 A Crim R 301
Drugs
CRIMINAL PROCEDURE

Citation: La Rocca v R [2023] NSWCCA 45
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2023
Judges: Bell CJ; Davies J; N Adams J

Background

The applicant was charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug (14.69kg of MDMA) under the Criminal Code Act 1995 (Cth). The charge arose from a controlled delivery operation in which NSW Police intercepted, repackaged, and reconstructed a consignment of three boxes originally imported from Singapore. During that process, the officer in charge affixed a Singapore Airlines label to one of the boxes, thereby identifying its status as imported goods.

Section 307.5(4) of the Criminal Code provides a statutory defence: a person can avoid conviction by proving, on the balance of probabilities, that they did not know the drug was unlawfully imported. The Crown conceded that the affixation of the label by police caused the applicant an incurable forensic disadvantage, effectively depriving him of any practical ability to run that defence.

The applicant applied to the District Court for a permanent stay of proceedings. The primary judge (Musgrave DCJ) found that the label had indeed caused an incurable forensic disadvantage but refused the stay, concluding that the prosecution continuing would not bring the administration of justice into disrepute. The applicant sought leave to appeal that refusal.

  • Whether the primary judge's discretion miscarried by treating as relevant the fact that the unfairness only "crystallised" when the applicant took possession of the box.
  • Whether the absence of any deliberate or reckless intention by the officer to deprive the applicant of the statutory defence was a sound basis to refuse the stay.
  • Whether, on the facts as found, refusal of the permanent stay was a decision reasonably open to the primary judge.

Decision

The Court of Criminal Appeal granted leave to appeal, allowed the appeal, and ordered that the proceedings be permanently stayed. Bell CJ (with Davies J and N Adams J agreeing) held that the primary judge's exercise of discretion had miscarried on several grounds.

First, the primary judge erred by treating the timing of when the unfairness "crystallised" as a relevant mitigating factor. The seriousness of the forensic disadvantage was not diminished by the circumstance that it only became operative when the applicant took possession of the box. Nor could the disadvantage be cured by directions to a jury or undertakings by the prosecution.

Second, while the absence of deliberate or knowing misconduct by the officer was a relevant consideration, it was not determinative. The Court affirmed that the administration of justice may be brought into disrepute irrespective of whether the offending conduct was deliberate, reckless, or inadvertent. The officer's conduct had subverted Parliament's intention to afford accused persons a genuine opportunity to run an ignorance-of-importation defence, and the resulting prejudice was real and incurable.

Third, the Court drew on the conceded incurable disadvantage and the gravity of the offence (carrying a maximum sentence of life imprisonment) to conclude that the deliberate alteration of the physical appearance of the evidence went to the root of the administration of justice. On those extraordinary facts, it was not reasonably open to refuse the stay.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A permanent stay of criminal proceedings remains an extraordinary remedy, available only in rare and exceptional circumstances, but the categories of case in which it may be granted are not closed.
  • Where police conduct creates an incurable fundamental defect in the trial process by depriving an accused of the practical ability to raise a statutory defence, that conduct can bring the administration of justice into disrepute regardless of whether it was deliberate, reckless, or inadvertent.
  • The Court of Criminal Appeal confirmed that the timing at which forensic disadvantage "crystallises" does not diminish its seriousness, and prejudice that cannot be cured by jury directions or prosecutorial undertakings weighs heavily toward a stay.
  • Subverting Parliament's intention to afford accused persons a genuine opportunity to run a statutory defence is itself a factor capable of grounding a permanent stay, particularly where the offence carries a maximum sentence of life imprisonment.
  • Applying the House v The King miscarriage-of-discretion principle, an appellate court may intervene where a primary judge takes into account an irrelevant consideration or reaches a conclusion not reasonably open on the facts.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1) and 307.5(4)
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 13(a)

Cases
- Barton v The Queen (1980) 147 CLR 75
- Bunning v Cross (1978) 141 CLR 54
- Dupas v The Queen (2010) 241 CLR 237
- House v The King (1936) 55 CLR 499
- Jago v District Court (NSW) (1989) 168 CLR 23
- La Rocca v R [2021] NSWCCA 116
- Lee v The Queen (2014) 253 CLR 455
- Moti v The Queen (2011) 245 CLR 456
- R v Glennon (1992) 173 CLR 592
- R v Grant [2009] 2 SCR 353
- R v Horseferry Road Magistrates' Court; ex parte Bennett [1994] 1 AC 42
- Ridgeway v The Queen (1995) 184 CLR 19
- Rogers v The Queen (1994) 181 CLR 251
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325
- Truong v The Queen (2004) 223 CLR 122