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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: New South Wales Court of Criminal Appeal
Date: 13 March 2023
Judges: Basten AJA; Button J; Chen J

Background

The appellant was convicted by a jury in the District Court following a four-month trial of conspiring to import a commercial quantity of cocaine into Australia, contrary to the Criminal Code Act 1995 (Cth). The conspiracy spanned from January 2014 to February 2017 and involved three separate attempts to bring cocaine into Australia by yacht. The third attempt was intercepted by the Australian Navy approximately 210 nautical miles off the New South Wales coast, resulting in the seizure of 1.42 tonnes of cocaine (1.11 tonnes pure weight).

The sentencing judge found the appellant to be the dominant figure within the conspiracy, describing his role as "paramount" and placing him, together with one co-accused, at "the top of the hierarchy." The sentencing judge imposed a life sentence with a non-parole period of 25 years, meaning the appellant would be eligible for parole at the age of 88.

The appellant filed a notice of appeal against conviction and sentence. The conviction appeal was filed approximately 13 months out of time. The Court granted an extension, accepting that the delay was attributable to the time senior counsel (not the trial counsel) needed to review a substantial volume of material, and that the Crown did not oppose the extension.

  • Whether the trial judge erred in admitting tendency evidence, specifically the appellant's prior convictions for drug importations
  • Whether the trial judge erred in admitting intercepted communications in which the appellant referred to transporting and storing hashish, without sufficient redaction to avoid unfair prejudice
  • Whether the non-parole period of 25 years was manifestly excessive, having regard to the appellant's age and ill-health

Decision

Ground 1: Tendency evidence. The Court of Criminal Appeal confirmed that on appeal it must determine admissibility of tendency evidence for itself, assessed as at the time the trial judge ruled on the question. The prior drug importation convictions were found to have significant probative value, demonstrating a tendency to engage in large-scale drug importation. The Court accepted that any gap in offending between the prior convictions and the charged conduct was adequately explained by the appellant's intervening incarceration, meaning the tendency was not ephemeral. Under s 101(2) of the Evidence Act 1995 (NSW), tendency evidence is admissible only if its probative value substantially outweighs any prejudicial effect. The Court was satisfied that threshold was met, and this ground failed.

Ground 2: Intercepted communications and hashish references. The Crown sought to adduce intercepted conversations in which the appellant referred to hashish in the context of transporting and storing drugs. A partial redaction had been made to avoid suggesting involvement in an earlier, uncharged importation. The appellant argued the residual references were unfairly prejudicial under s 137 of the Evidence Act, and that the danger of unfair prejudice outweighed probative value. The Court rejected this ground, finding the probative value of the communications was not substantially outweighed by any danger of unfair prejudice in the circumstances.

Ground 3: Manifest excess in the non-parole period. The appellant did not challenge the life sentence itself, focusing solely on the 25-year non-parole period. The Court applied the well-established principle from House v The King that appellate intervention in sentencing requires identification of error, not merely a different view of the appropriate sentence. The sentencing judge had regard to the appellant's age and ill-health and acknowledged he was likely to die in prison. The Court found no error in the weight given to those subjective features against the extreme objective gravity of the offending, which the sentencing judge had placed in the worst case category. This ground also failed.

All three grounds of appeal were dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • On a conviction appeal, the Court of Criminal Appeal must assess the admissibility of tendency evidence for itself, evaluated as at the time the trial judge made the ruling and taking into account any clarification of the issues in dispute before the evidence was actually led.
  • Under s 101(2) of the Evidence Act 1995 (NSW), tendency evidence derived from prior convictions for similar offending can satisfy the "substantially outweighs" test even where there is a temporal gap in offending, provided that gap is explained by incarceration rather than a genuine cessation of the relevant tendency.
  • A partial redaction of intercepted communications to remove prejudicial references does not automatically render residual references inadmissible; the court must weigh the remaining probative value against any surviving danger of unfair prejudice under s 137 of the Evidence Act.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that an offender's age and likely death in custody are relevant subjective considerations but do not automatically reduce a non-parole period where the objective gravity of offending falls within the worst case category.
  • The standard appellate test from House v The King continues to govern sentence appeals: intervention is not warranted merely because an appellate court might have fixed a different non-parole period, but only where identifiable error in the sentencing exercise is established.

Legislation and Cases Referenced

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

Cases:
- House v The King (1936) 55 CLR 499
- Hughes v The Queen (2017) 263 CLR 338
- Betts v Queen (2016) 258 CLR 420
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen (2010) 242 CLR 520
- Dinsdale v The Queen (2000) 202 CLR 321
- AB v The Queen (1999) 198 CLR 111
- Carroll v The Queen (2009) 83 ALJR 579
- Harriman v The Queen (1989) 167 CLR 590
- R v Achurch (2011) 216 A Crim R 152
- Hanania v R [2012] NSWCCA 220
- Nguyen v R [2019] NSWCCA 87
- R v Badanjak [2004] NSWCCA 395
- Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288
- Gulyas v The State of Western Australia [2007] WASCA 263