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13
Court of Criminal Appeal 13 March 2023

Geraghty v R

[2023] NSWCCA 47

Drugs
CRIME APPEAL REFERENCE T O HASHISH WHETHER DANGER OF UNFAIR PREJUDICE EVIDENCE ACT 1995 (NSW), S 137 CRIME SENTENCE

Citation: Geraghty v R [2023] NSWCCA 47
Court: Court of Criminal Appeal
Date: 13 March 2023
Judges: Basten AJA; Button J; Chen J

Background

Following a four-month jury trial in the District Court, the appellant was convicted of conspiring to import a commercial quantity of cocaine into Australia contrary to the Criminal Code Act 1995 (Cth). The conspiracy involved three attempted importations between January 2014 and February 2017, with the third attempt intercepted by the Australian Navy approximately 210 nautical miles off the New South Wales coast. The total cocaine seized weighed 1.42 tonnes, with a pure weight of 1.11 tonnes.

The appellant played an overarching coordinating role within the syndicate, linking those who sourced the drug overseas with other Australian-based conspirators. He had previously served a lengthy term of imprisonment for importing cocaine in 1996 and 1997, having been released on parole in November 2012, just over a year before the charged conspiracy commenced.

The appellant was sentenced to life imprisonment with a non-parole period of 25 years, making him eligible for release in February 2042 at the age of 88. He appealed against both his conviction and his sentence, raising three grounds.

Legal Issues

  • Whether the trial judge erred in admitting tendency evidence comprising the appellant's prior convictions for drug importation offences in 1996 and 1997, specifically whether the evidence met the requirements of ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in admitting, in redacted form, an intercepted conversation containing a reference to hashish, applying the exclusionary test in s 137 of the Evidence Act 1995 (NSW)
  • Whether the non-parole period of 25 years was manifestly excessive, having regard to the appellant's age and physical health

Decision

Ground 1: Admissibility of tendency evidence (prior drug importation convictions)

The Court confirmed that it must form its own view on admissibility, applying a correctness standard rather than simply reviewing the trial judge's exercise of discretion (at [23]). Admissibility is to be assessed at the time the trial judge ruled, allowing for any clarification of disputed issues that occurred before the evidence was actually adduced (at [26]-[28]).

The Court held that the appellant's prior convictions for importing cocaine in 1996 and 1997 had significant probative value within the meaning of s 97(1)(b) of the Evidence Act (at [47]). The 16-year gap between the earlier offending and the charged conspiracy did not undermine that value: the appellant was in custody for all but approximately two of those years (at [46]). The Court further found that the probative value substantially outweighed any risk of prejudicial misuse under s 101(2), because the evidence explained an otherwise implausible scenario in which a 60-year-old man with apparent expertise would organise a massive cocaine importation, and because the legitimate reasoning the evidence supported was powerfully probative (at [47]-[49]). Ground 1 was rejected (at [50]).

Ground 2: Admissibility of hashish reference in intercepted conversation

An intercepted conversation from May 2015 between the appellant and a co-conspirator contained a reference to hashish and the phrase "what we use to," suggesting the appellant had prior experience concealing drugs on boats. The prosecution redacted the phrase "what we use to," leaving the statement: "The only way you can do this is do with the hashish" (at [55]).

The Court found the redacted evidence had significant probative value: many intercepted conversations were deliberately guarded in their references, and the hashish passage provided explicit confirmation that a conversation about boat fitting-out concerned drug concealment methods (at [63]). The risk of unfair prejudice was low, because the trial judge directed the jury that it was no part of the prosecution case that the appellant had been involved in a prior hashish importation, and because the jury had received broader directions about the proper use of tendency evidence (at [64]). To the extent any residual risk remained, defence counsel's own submissions had characterised the drug importation inference as otherwise overwhelming, making it difficult to accept the hashish reference added any meaningful prejudice (at [65]). Ground 2 was rejected (at [66]).

Ground 3: Manifest excess of the non-parole period

The appellant did not challenge the life sentence itself, confining the appeal to the 25-year non-parole period. He submitted that insufficient weight had been given to his age and degenerative physical condition, and that the practical effect of the non-parole period meant he would die in custody (at [68]-[69]).

The Court rejected this ground. The sentencing judge had addressed the appellant's age and health in an orthodox and unexceptional manner, recognising both as potentially mitigating factors while weighing them against all other circumstances (at [83]-[93], [102]). Medical evidence regarding the appellant's hip condition was limited: he had been referred for orthopaedic review but no recommendation for surgery had been made and no evidence suggested prison facilities could not address any future treatment needs (at [101]). The Court confirmed that there is no principle requiring a non-parole period to allow an aged offender a prospect of release within their statistical life expectancy, and that giving determinative weight to age alone would be inconsistent with principle (at [113]). Given findings of the highest objective seriousness, offending committed shortly after parole, the absence of remorse, and powerful considerations of general and specific deterrence, the non-parole period was not unreasonable, plainly unjust, or manifestly excessive (at [115]-[116]).

Orders Made

  • The time for filing the Notice of Appeal was extended to 5 May 2022
  • The appeal against conviction was dismissed
  • Leave to appeal against the sentence imposed on 28 February 2020 was granted
  • The appeal against sentence was dismissed

Key Takeaways

  • On an appeal against conviction, the Court of Criminal Appeal must form its own view on the admissibility of tendency evidence by applying a correctness standard, not a discretionary review standard; admissibility is assessed as at the time the trial judge ruled, with allowance for clarification of disputed issues that arose before the evidence was adduced (at [23], [26]-[28]).

  • A lengthy gap between prior offending and the charged offence does not necessarily prevent tendency evidence from having significant probative value under s 97(1)(b) of the Evidence Act; where that gap is substantially explained by the offender's incarceration, the tendency is not treated as ephemeral (at [46]-[47]).

  • Under s 137 of the Evidence Act, where an intercepted conversation contains a reference capable of suggesting involvement in earlier criminal conduct, redaction combined with an appropriate jury direction may reduce the danger of unfair prejudice to a level that does not outweigh the probative value of the evidence (at [61]-[65]).

  • There is no rule of law or principle requiring a sentencing court to fix a non-parole period that allows an aged offender a realistic prospect of release before death; age is one consideration to be weighed against objective seriousness, deterrence, and all other circumstances of the case (at [113]-[114]).

  • In dismissing the sentence appeal, the Court reaffirmed that a complaint of manifest excess based on insufficient weight given to particular factors must show the resulting sentence is unreasonable or plainly unjust, not merely that a different weight might reasonably have been assigned (at [94]-[95], [116]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), Pt 1B; ss 16, 16A, 17A, 19AB
- Crimes (Administration of Sentences) Act 1999 (NSW), s 236A
- Criminal Appeal Act 1912 (NSW), s 5, 10
- Criminal Code Act 1995 (Cth) , ss 11.5 , 307.1
- Evidence Act 1995 (NSW), ss 97, 101, 137
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5

Cases
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354
- Betts v Queen (2016) 258 CLR 420; [2016] HCA 25
- Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13
- Dibbs v The Queen (2012) 225 A Crim R 195
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Gulyas v The State of Western Australia [2007] WASCA 263; 178 A Crim R 539
- Hanania v R [2012] NSWCCA 220
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- L v Tasmania (2006) 15 Tas R 381
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McCartney v The Queen (2012) 38 VR 1
- Nguyen v R [2019] NSWCCA 87
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- R v Badanjak [2004] NSWCCA 395
- R v Bazley (1993) 65 A Crim R 154
- R v Ford (2009) 273 ALR 286
- R v Holyoak (1995) A Crim R 502
- R v LN; R v AW (No 1) [2017] NSWSC 119
- R v Neale (2004) 148 A Crim R 493, [2004] NSWCCA 311
- R v Newman [2022] NSWCCA 218
- R v RLP (2009) 213 A Crim R 461; [2009] VSCA 271
- R v Smith (1987) 44 SASR 587
- R v Zhang (2005) 158 A Crim R 504
- Ragg v R [2022] NSWCCA 150
- SB v R [2022] NSWCCA 164
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40