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Court of Criminal Appeal 12 April 2002

R v Chapman

[2002] NSWCCA 105

Drugs
CRIMINAL LAW: APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE.

Citation: Chapman v R [2002] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 12 April 2002
Judges: Stein JA, Hidden J, Howie J

Background

The appellant was a university student and part-time worker who was raising two children. She was tried by judge alone in the Armidale District Court on two counts: deemed supply of methylamphetamine, and supplying amphetamine on an ongoing basis over approximately two weeks in October 1999. The trial judge acquitted her on the first count but convicted her on the second, sentencing her to 18 months' imprisonment with a non-parole period of eight months.

The conviction on the supply count rested primarily on the evidence of a man who claimed the appellant had supplied him with amphetamine on nine or ten occasions. The trial judge found his evidence unsatisfactory in some respects, as well as questioning the reliability of a second Crown witness, but treated the discovery of the buyer's filofax at the appellant's home and a wooden box containing drug paraphernalia as compelling corroborative material.

The appellant gave evidence denying supply. She admitted to heavy personal amphetamine use and explained the presence of the paraphernalia by reference to her habit of buying drugs in bulk and dividing them into daily doses. Several defence witnesses supported her account of key events. She appealed against conviction only.

  • Whether the trial judge wrongly rejected evidence of the appellant's good character when a defence witness was prevented from giving her opinion of the appellant under section 110 of the Evidence Act 1995.
  • Whether trial counsel's failure to adduce evidence that the appellant had no prior convictions amounted to a miscarriage of justice.
  • Whether, given those errors, the proviso should be applied (that is, whether the conviction should stand despite the errors because no substantial miscarriage of justice had occurred).
  • What consequential orders were appropriate if the appeal succeeded.

Decision

On the first ground, the Court found the rejection of the character evidence was an error. Defence counsel had sought to elicit from a witness, Kelly Brown, her opinion of the appellant in terms that reflected the appellant's character as a person who would not be involved in drug supply. This fell squarely within section 110 of the Evidence Act 1995. The Crown conceded the point on appeal, acknowledging the question should have been allowed.

On the second ground, trial counsel frankly acknowledged in an affidavit filed on appeal that failing to adduce evidence of the appellant's clean criminal record was an oversight. The Crown did not concede this ground, arguing the strong corroborative evidence and the appellant's own admission of drug abuse rendered any character evidence inconsequential.

Hidden J, with whom Stein JA and Howie J agreed, was not persuaded by the Crown's argument. Although the corroborative material strengthened the prosecution case, the principal witnesses had identifiable weaknesses and the defence had meaningful support from several witnesses. In that context, evidence of good character may well have been of significance. There is a meaningful distinction between a drug user and a drug supplier, and evidence that the appellant, then aged 41, was otherwise of good character might have been sufficient to raise a reasonable doubt. The appellant had lost a fair chance of acquittal.

On the question of remedy, Hidden J noted that a new trial would ordinarily follow given the substantial case against the appellant. However, by the time of the appeal, the appellant had served her entire non-parole period and more than two-thirds of her head sentence. In those circumstances, the Court entered verdicts of acquittal rather than ordering a retrial.

Orders Made

  • Appeal allowed.
  • Verdict and judgment of acquittal entered on the second count.

Key Takeaways

  • A defendant's good character evidence, including opinion evidence from witnesses who know the defendant, is admissible under section 110 of the Evidence Act 1995, and wrongly excluding it can be a ground of appeal.
  • The failure by trial counsel to adduce evidence of a clean criminal record, acknowledged on appeal as an oversight, can constitute a miscarriage of justice where the omission deprives an accused of a fair chance of acquittal.
  • Where the principal Crown witnesses had credibility weaknesses and the defence case had material support, the absence of good character evidence is not necessarily rendered harmless by corroborating evidence alone.
  • The Court of Criminal Appeal confirmed that the appropriate remedy is not always a new trial; where a convicted person has served nearly all of their sentence by the time of the appeal, an acquittal may be entered in lieu of a retrial.
  • Applying the test from Mraz v The Queen (1955) 93 CLR 493, the relevant question is whether the accused lost a fair chance of acquittal, not merely whether the outcome would probably have differed.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1), 29
- Evidence Act 1995 (NSW), ss 102, 110

Cases
- Mraz v The Queen (1955) 93 CLR 493, per Fullagar J at 514