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Court of Criminal Appeal 12 April 2001

R v SEYMOUR

[2001] NSWCCA 272

DrugsFirearms & weapons

Citation: SEYMOUR v R [2001] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 12 April 2001
Judge(s): Giles JA, Studdert J, Hulme J (Hulme J delivering the principal judgment)

Background

The appellant was charged with three offences arising from events in late 1998: supplying a commercial quantity of methylamphetamine on 1 December 1998; supplying methylamphetamine on three or more separate occasions within a 30-day period between 6 October and 1 December 1998; and unlawfully possessing a Beretta pistol on 1 December 1998.

The jury could not reach a verdict on the first count. It convicted the appellant on the second and third counts. Judge Luland in the District Court sentenced him to five years imprisonment with a non-parole period of three and a half years on the second count, and a concurrent fixed term of 12 months on the third count.

The appellant appealed both convictions to the Court of Criminal Appeal.

  • Whether the trial judge's failure to direct the jury in accordance with s 25A(3) of the Drug Misuse and Trafficking Act (requiring all jurors to be satisfied as to the same three occasions of supply) rendered the conviction on the second count unsafe.
  • Whether the charge itself was fatally defective by failing to identify the particular 30-day period relied upon by the Crown.
  • Whether the absence of a warning about the dangers of object identification evidence (concerning the pistol) was an error warranting the quashing of the conviction on the third count.

Decision

Second count (repeated supply): The Court found that the trial proceeded without anyone, including the judge and trial counsel, adverting to the requirement in s 25A(3) that all jurors must be satisfied as to the same three occasions of supply. The Crown argued this omission was academic because the jury would either have accepted or rejected the witness's evidence wholesale. The Court rejected that argument, finding that the imprecision and variation in the key witness's testimony meant it was impossible to assume the jury accepted the higher estimates of frequency.

More fundamentally, the Court identified a defect in the charge itself. The indictment covered a period of approximately 56 days, which contained roughly 27 possible 30-day windows. The Crown never nominated which 30-day period was relied upon. Without that particularity, the charge was too vague to support a conviction, and the proviso (which allows an appellate court to dismiss an appeal despite an error, if no substantial miscarriage of justice occurred) could not be applied.

The Court ordered a new trial rather than simply entering an acquittal. Although the inconsistencies in the evidence gave some reason to hesitate, the Court noted that the deficiencies had never been identified or addressed at trial. The Court was unwilling to conclude that the Crown should be denied another opportunity to prosecute, subject to any decision by the Director of Public Prosecutions.

Third count (firearm possession): The appellant argued the trial judge erred by failing to warn the jury of the dangers of object identification evidence, relying on decisions dealing with voice and other non-visual identification. The Court accepted in principle that such a warning can be required for identification of inanimate objects where that evidence forms a significant part of the proof of guilt. However, it found the pistol identification by the witness was not a significant component of the case on this count. The critical question was whether the appellant possessed the pistol found in his bedroom on 1 December 1998, and the surrounding circumstantial evidence connecting the appellant to the weapon was substantial. The conviction on the third count was upheld.

Orders Made

  • Appeal against conviction on the second count allowed; conviction quashed.
  • New trial ordered on the second count.
  • Appeal otherwise dismissed (conviction on the third count upheld).

Key Takeaways

  • Under s 25A(3) of the Drug Misuse and Trafficking Act, where more than three occasions of supply are relied upon, all jurors must be satisfied as to the same three occasions; failure to direct the jury accordingly is a ground for appeal.
  • A charge under s 25A(1) must identify, with sufficient particularity, the specific 30-day period relied on by the Crown; proceeding without that identification constitutes a fundamental defect in the charge.
  • Imprecision and variation in a witness's evidence about the number and timing of supply transactions prevents an appellate court from inferring that the jury accepted the version most favourable to the Crown.
  • A warning about the dangers of identification evidence can be required where the identification relates to an inanimate object, such as a weapon, but only where that evidence represents a significant part of the proof of guilt against the accused.
  • In ordering a new trial rather than an acquittal, the Court of Criminal Appeal emphasised that trial-level failures to identify evidentiary and statutory issues weighed against foreclosing a further prosecution.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25A(1) and s 25A(3)

Cases:
- R v Clout (1995) 41 NSWLR 312
- Lowe (1997) 98 A Crim R 300