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Court of Criminal Appeal 6 October 2000

R v Jimenez

[2000] NSWCCA 390

Also reported as 119 A Crim R 299
Drugs
CRIMINAL LAW VERDICT UNSUPPORTABLE CORRECT PROCEDURES ON SEARCH INCONSISTENT POLICE EVIDENCE

Citation: R v Jimenez [2000] NSWCCA 390
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Fitzgerald JA; Smart AJ; Ireland AJ

Background

The appellant was convicted in the District Court of supplying a prohibited drug (heroin, 48.6 grams) allegedly found on his person during a police search on 25 November 1998. The search arose from a controlled operation targeting another individual at a Potts Point unit. Police obtained a search warrant and attended the premises with, among other equipment, a video camera.

The appellant denied the drugs were his and maintained throughout the trial that police had planted the heroin on him. Despite the video camera being present and in use during the search, police did not film the moment when the heroin was allegedly found in the appellant's trousers. The explanations offered for this omission were found unsatisfactory, and the police gave inconsistent accounts about whether the officer operating the camera was even present when the drugs were discovered.

The trial judge sentenced the appellant following the jury's guilty verdict but expressed serious reservations about the reliability of the conviction. She certified the case as fit for appeal on the ground that a serious question of fact required review.

  • Whether the jury's verdict was unreasonable in circumstances where the prosecution evidence was materially unsatisfactory and internally inconsistent.
  • Whether, having regard to those deficiencies, a reasonable jury ought to have entertained a reasonable doubt as to the appellant's guilt.
  • Whether the Crown's appeal against the sentence imposed could succeed in light of the outcome of the conviction appeal.

Decision

The Court of Criminal Appeal unanimously held that the conviction could not stand. Smart AJ found that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and that the jury ought to have entertained a reasonable doubt.

Central to the Court's reasoning was the failure of police to record the critical moment of the search on video, despite the camera being present and actively used for lesser matters during the same operation. The police explanations for not filming that moment lacked weight, and the inconsistencies between the evidence of the officer responsible for filming and that of the other officers further undermined the prosecution case. The officer with the camera said he was present in the bathroom when the drugs were found; the other officers said he was not.

Fitzgerald JA emphasised the importance of police video-recording procedures, referencing the NSW Police Service's own 1998 "Education Package" on the execution of search warrants. That document explicitly recognised the execution of search warrants as a high-risk area for corruption and warned that unfavourable inferences could be drawn in court if recording was stopped at a crucial moment. Fitzgerald JA stressed that when police follow unsatisfactory procedures, their evidence must be sceptically scrutinised, and the benefit of any reasonable doubt belongs to the accused, not to the police.

The trial judge herself had expressed significant doubt about the correctness of the conviction, remarking that there was "much force" in the appellant's claim of being "fitted up." The Court took this into account, alongside the overall unsatisfactory character of the prosecution evidence, and concluded that a verdict of acquittal should be entered. The Crown's consequential appeal against the sentence was dismissed.

Orders Made

  • Appeal against conviction allowed; conviction and sentence quashed.
  • Verdict of acquittal entered on the charge of supplying a prohibited drug (heroin) on 25 November 1998.
  • Crown appeal against sentence dismissed.

Key Takeaways

  • A conviction will be set aside where the Court of Criminal Appeal is satisfied that a reasonable jury ought to have experienced a reasonable doubt that could not be resolved by reference to the demeanour of prosecution witnesses, applying the principles in M v The Queen and Jones v The Queen.
  • Unexplained failure by police to video-record the critical part of a search, when a camera was present and being used, may render a verdict unreasonable where it is combined with inconsistent police accounts of events.
  • The NSW Police Service's own Standing Operating Procedures for the video-recording of search warrants explicitly anticipated this problem, warning that stopping a recording at a crucial moment could attract unfavourable inferences in court.
  • Where police follow procedures that are materially unsatisfactory, their evidence implicating an accused person cannot be accepted on an assumption that police would not fabricate evidence; the criminal justice system entitles accused persons, not police, to the benefit of reasonable doubt.
  • A trial judge's formal certificate that a case is fit for appeal, combined with expressed doubts about the correctness of a verdict, constitutes a significant factor in the appellate assessment of whether a jury's finding was reasonably open.

Legislation and Cases Referenced

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)

Other materials referenced:
- NSW Police Service Education Package for Video/Audio Recordings of Search Warrants and Planned Operations (1998)
- NSW Police Service Commissioner's Phase One Reform Agenda, point 115
- Standing Operating Procedures for the Video/Audio Recording of Search Warrants and Planned Operations