Citation: Regina v Lonie & Groom [1999] NSWCCA 319
Court: Court of Criminal Appeal, New South Wales
Date: 15 October 1999
Judge(s): Barr J, Greg James J, Smart AJ
Background
The two appellants were convicted in the District Court following the discovery of a fenced cannabis plantation containing 225 mature plants in bushland near Bucketty, west of Gosford. The plantation was located during a large-scale police search involving a helicopter and tracker dog. Approximately 1.75 kilograms of cannabis leaf was also allegedly found at the appellants' home in Somersby, some 40 kilometres away.
The male appellant (referred to here as the first appellant) was convicted of cultivating a cannabis plantation, supplying cannabis leaf, and setting a device capable of inflicting grievous bodily harm with intent to cause such harm. The device charge arose from punji boards concealing protruding nails along pathways within the fenced crop area. The female appellant (the second appellant), the first appellant's de facto partner, was convicted of knowingly taking part in the supply of cannabis leaf and was placed on a three-year good behaviour bond.
A significant complication arose from the conduct of one of the investigating police officers. That officer admitted to being corrupt and further alleged that two other officers involved in the investigation were also corrupt. This raised questions about the reliability of those officers' evidence and the adequacy of the trial judge's directions to the jury on that issue.
Legal Issues
- Whether the trial judge erred by failing to warn the jury under s 165 of the Evidence Act 1995 about the potential unreliability of the evidence given by the officers accused of corruption by their corrupt colleague
- Whether the trial judge's directions on the corrupt officer's own evidence were adequate
- Whether the trial judge's summary of the Police Royal Commission report was misleading to the jury
- Whether the conviction of the second appellant for supply was supported by sufficient evidence, given the meaning of "suffers or permits" in the relevant offence
- Whether there was sufficient evidence to sustain the conviction for setting a device capable of inflicting grievous bodily harm
- Whether the trial judge's directions on lies (consciousness of guilt) were correctly applied across all counts
- Whether the summing-up was so favourable to the Crown case as to constitute a miscarriage of trial
Decision
The Court held that the trial judge's handling of the corrupt police evidence undermined a fair trial for the first appellant. The judge's directions on the corrupt officer's testimony undermined its legitimate use, without adequately directing the jury as to the purposes for which that evidence could and could not be used. The judge also failed to give appropriate reliability directions regarding the two officers accused of corruption by their colleague, whose evidence was at least potentially unreliable.
On the device charge, the Court found that the Crown's case had been put on a narrow basis: the first appellant's involvement in the plantation was established only to the extent that he had watered the crop. The Crown had not sought to prove his earlier or wider involvement, such as in establishing the plantation or setting the traps. The admissions and the cultivation evidence were insufficient to prove beyond reasonable doubt that the first appellant set the traps or was party to their setting. A verdict of acquittal was entered on this count, and the Court declined to order a retrial given the narrow way the Crown had conducted its case.
On the supply conviction of the second appellant, the Court found the verdict was not supported by the evidence. The offence required proof that she "suffered or permitted" the cannabis to be in the home for the purposes of supply. Mere knowledge that the first appellant had drugs in the house for that purpose was not sufficient to establish this element. The evidence did not rise to that standard, and an acquittal was entered.
The Court also noted that the trial judge's summing-up contained a powerful endorsement of the Crown case and a strong discounting of the defence, often expressing what appeared to be the judge's own views rather than a balanced summary. This contributed to the conclusion that a miscarriage of trial had occurred on the cultivation and supply counts, warranting retrials.
Orders Made
Second appellant (Groom):
- Appeal allowed
- Conviction quashed
- Verdict of acquittal entered
First appellant (Lonie):
- Appeal allowed; convictions quashed on all three counts
- Verdict of acquittal entered on the count of setting a device capable of inflicting grievous bodily harm with intent
- New trials to be held on the counts of cultivation and supply
Key Takeaways
- A conviction for knowingly taking part in supply by "suffering or permitting" a drug to be present requires proof beyond mere knowledge of another person's possession for supply purposes. The jury must be satisfied the accused actually permitted or suffered that state of affairs.
- Where a witness's evidence is potentially unreliable, such as that of police officers accused of corruption by an admitted corrupt colleague, the trial judge is obliged to give appropriate reliability and credibility directions to assist the jury in evaluating that evidence.
- The Court of Criminal Appeal confirmed that where the Crown runs its case on a narrow factual basis, it cannot later rely on a broader factual foundation to sustain a conviction on appeal or at a retrial. The first appellant's acquittal on the device charge reflected this principle directly.
- Directions on consciousness of guilt (lies told by a defendant) must be carefully confined to the counts to which those lies logically relate. Extending such a direction to a charge insufficiently supported by evidence was held to be an error.
- A trial judge's summing-up that reads as a strong personal endorsement of the Crown case, rather than a balanced summary, can contribute to a finding that the trial miscarried and may warrant a retrial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 165
Cases:
- R v Flood [1999] NSWCCA 198
- R v Vonarx (Court of Appeal, Victoria, unreported, 15 November 1995)
- Gipp v The Queen (1998) 72 ALJR 1012
- R v Sanewski [1987] 1 Qd R 374
- R v Siouter (1971) Cr App R 403
- Broad v Parish (1941) 64 CLR 588
- Adelaide Corporation v Australasian Performing Rights Association (1928) 40 CLR 481
- R v Horton (1998) 45 NSWLR 426
- R v Reid [1999] NSWCCA 258
- Parker v The Queen [1997] HCA 13; (1997) 186 CLR 494