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Court of Criminal Appeal 22 March 2023

Mohana v R

[2023] NSWCCA 61

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST CONVICTION SUPPLY OF PROHIBITED DRUG TRIAL BY JUDGE ALONE UNREASONABLE VERDICT

Citation: Mohana v R [2023] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judge(s): Simpson AJA; Davies J; Wilson J

Background

The applicant was convicted in the District Court after a judge-alone trial of two offences committed between July and October 2017: knowingly taking part in the supply of cocaine in a large commercial quantity (at least one kilogram), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and dealing with the proceeds of crime exceeding $100,000, knowing it was proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW). Following those convictions, the trial judge also found the applicant guilty of participating in a criminal group under s 93T(1) of the Crimes Act, a charge that had been held over on a certificate and resolved on the same evidence by agreement of the parties.

No drugs were physically recovered by investigators. The prosecution case rested substantially on intercepted audio and video surveillance. The applicant was tried alongside two co-accused, one of whom (his brother) was acquitted; the other was convicted on identical counts.

The applicant sought leave to appeal against all three convictions on the grounds that the verdicts were unreasonable and, in respect of the money laundering count, that the trial judge failed to adequately identify the money with which the applicant was found to have dealt.

  • Whether the verdict on the drug supply count was unreasonable given that no physical drugs were located by investigators
  • Whether the trial judge failed to comply with s 133 of the Criminal Procedure Act 1986 (NSW) by not sufficiently identifying the money the subject of the money laundering count
  • Whether the verdict on the money laundering count was unreasonable in any event
  • Whether the verdict on the criminal group participation count was unreasonable, including:
  • Whether proof of a "criminal group" under s 93S(1) requires a "shared objective" among three or more members
  • Whether that shared objective must relate to a single serious indictable offence, rather than a series of connected offences
  • Whether the fact that one participant was a purchaser (rather than a co-vendor) precluded a finding of shared objective

Decision

Supply count: The Court found that the audio and video surveillance evidence, though no drugs were physically seized, was sufficient in nature and quality to eliminate any reasonable doubt as to the applicant's guilt. The identity of the drug as cocaine, the applicant's participation in the supply, and the relevant quantity were all established to the criminal standard. The absence of a physical seizure did not render the verdict unreasonable.

Money laundering count: Simpson AJA addressed a preliminary question about the utility of a ground asserting inadequacy of reasons in a judge-alone trial where an unreasonable verdict ground is also raised. Following Dansie v The Queen [2022] HCA 25, the Court confirmed that on an unreasonable verdict appeal, it determines for itself whether the evidence was sufficient to eliminate reasonable doubt; it does not examine the trial judge's reasons to identify error. A separate ground asserting inadequacy of reasons or fact-finding therefore adds little where the unreasonable verdict ground is already in play. On the merits, the Court found the relevant money was sufficiently identified in the trial judge's reasons, and the evidence was sufficient to sustain the conviction.

Criminal group participation: The Court confirmed that proof of a "criminal group" requires proof that three or more individuals share a common objective, applying Czako v R [2015] NSWCCA 202. The definition in s 93S(1)(a) of the Crimes Act requires identification of a single serious indictable offence, not merely a series of connected offences. The Court rejected a narrow construction that would have treated the supplier's act of selling drugs to the applicant and the applicant's intended on-sale as two separate and distinct offences incapable of grounding a shared objective. Instead, the Court found that each of the three participants shared the objective of obtaining material benefits from the supplier's act of selling the drugs. That single supply transaction constituted the relevant serious indictable offence, and each participant stood to benefit from it. The fact that one participant's role was that of purchaser did not defeat the shared objective finding.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Surveillance evidence alone (audio and video interceptions) can be sufficient to sustain a conviction for large commercial drug supply even where no physical drugs are recovered by investigators.
  • Under Dansie v The Queen [2022] HCA 25, the Court of Criminal Appeal's task on an unreasonable verdict ground is to assess for itself whether the evidence eliminated reasonable doubt; examining a trial judge's reasons for error is not the correct approach, which limits the practical utility of a freestanding "inadequacy of reasons" ground when paired with an unreasonable verdict ground.
  • Proof of a "criminal group" under s 93S(1) of the Crimes Act 1900 (NSW) requires both a shared objective among three or more persons and identification of a single serious indictable offence, not merely a collection of related offences.
  • Where participants occupy different roles in a drug transaction (seller and purchaser), the existence of a shared objective is not automatically defeated: a purchaser who intends to on-sell may still share the objective of obtaining material benefits from the supplier's conduct of selling.
  • No error was established in the trial judge's identification of the relevant money for the money laundering conviction, even where the judgment contained no explicit, isolated reference to the specific funds.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25, Sch 1
- Crimes Act 1900 (NSW), ss 93S, 93T, 193B
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A, Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), s 5
- Surveillance Devices Act 2007 (NSW)
- Telecommunications (Interception and Access) Act 1979 (Cth)

Cases:
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Czako v R [2015] NSWCCA 202
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- SKA v The Queen (2011) 243 CLR 499; [2011] HCA 13
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 212 CLR 606; [2002] HCA 53
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29