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Court of Criminal Appeal 21 December 1999

R v Watson

[1999] NSWCCA 417

Drugs
CRIMINAL LAW SUPPLY OF AMPHETAMINES NO QUESTION OF PRINCIPLE

Citation: Watson v R [1999] NSWCCA 417
Court: NSW Court of Criminal Appeal
Date: 21 December 1999
Judge(s): Newman J; Simpson J; Hidden J

Background

The appellant was tried in the District Court on two counts of supplying methylamphetamine under the Drug Misuse and Trafficking Act 1985. The first count alleged supply of not less than a large commercial quantity; the second, framed in the alternative, alleged supply of not less than a commercial quantity. The jury acquitted on the first count and convicted on the second.

The Crown case rested substantially on an undercover police operation conducted in May 1992 near Albury. An undercover operative negotiated a purchase of approximately three pounds of speed from a co-accused, Dick Garner. Surveillance evidence and intercepted telephone recordings placed the appellant at the centre of events as the supplier behind the transaction. The appellant was sentenced to a minimum term of six years and an additional term of two years.

The appellant challenged both his conviction and his sentence on appeal, raising grounds that included the adequacy of the trial judge's directions to the jury on joint enterprise.

  • Whether the trial judge's directions to the jury adequately explained the doctrine of joint enterprise as an essential element of the second count.
  • Whether the omission of any reference to joint enterprise in the written outline of directions provided to the jury in the jury room constituted a substantial miscarriage of justice.
  • Whether, if the conviction appeal succeeded, a new trial should be ordered rather than a verdict of acquittal entered.
  • Whether the sentence was excessive and should be reduced.

Decision

The court divided on the conviction appeal. Newman J, in the lead judgment, reviewed the summing-up and concluded that the trial judge had adequately directed the jury on joint enterprise across the course of his directions. His Honour would have dismissed the conviction appeal but allowed the sentence appeal, substituting a reduced sentence.

Simpson and Hidden JJ took a different view and formed the majority. They identified a critical problem: while the written document provided to the jury setting out the elements of each offence referred to an agreement between the appellant and Garner in the context of the first count, it made no mention of joint enterprise or common purpose in relation to the second count. Because the second count was the one on which the appellant was convicted, this omission was directly material to the verdict.

The majority accepted that some oral directions in the summing-up correctly stated the basis of liability for the second count, but described this treatment as "somewhat laconic." The directions also tended at times to blur the distinction between the two counts. Critically, the concept of joint enterprise did not appear in the written directions the jury took into the jury room, leaving no confidence that the jury understood all the elements required to establish the second count.

The majority held that even if there was abundant evidence from which the jury could have found a joint enterprise, the deficiency in the written directions meant it could not be said there was no substantial miscarriage of justice. The majority allowed the appeal and ordered a new trial.

Orders Made

Newman J proposed the following orders (sentence appeal):
- Leave to appeal against sentence granted.
- Appeal upheld; original sentence quashed.
- Substituted sentence: minimum term of four years and six months from 20 November 1998 (parole eligibility from 19 May 2003), with an additional term of eighteen months expiring 19 November 2004.

Simpson and Hidden JJ (majority, conviction appeal):
- Appeal against conviction allowed.
- New trial ordered.

Key Takeaways

  • Where joint enterprise is an essential element of a charge, the jury must be clearly directed on that element in relation to that specific count; a correct statement buried in directions on a different count is insufficient.
  • The Court of Criminal Appeal confirmed that written directions provided to a jury for use in the jury room carry particular weight. An omission from those written directions can constitute a substantial miscarriage of justice even where oral directions partially addressed the point.
  • Abundant evidence of the omitted element does not cure the deficiency if there is no confidence the jury was properly directed to consider it.
  • A new trial, rather than an acquittal, was the appropriate remedy where the deficiency lay in the directions rather than in any insufficiency of evidence.
  • The majority and minority judgments illustrate that courts assess the overall fairness of jury directions as a whole, but written directions given to the jury room are scrutinised carefully for completeness on each discrete count.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)

Cases:
- R v Tangye (1997) A Crim R 545
- Bulejcik v R (1994-95) 185 CLR 375
- R v Smith [1984] 1 NSWLR 462