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Court of Criminal Appeal 1 May 2002

R v SLATTERY

[2002] NSWCCA 145

Drugs
CRIMINAL LAW DIRECTIONS TO JURY FABRICATION OF EVIDENCE MEMORY LOSS

Citation: R v Slattery [2002] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 1 May 2002
Judge(s): Sheller JA, Grove J, Simpson J

Background

The appellant was convicted by a jury in the District Court of knowingly taking part in the cultivation of a commercial quantity of cannabis plants, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The alleged offending occurred between December 1992 and January 1994 at a remote bush crop site at Colo Heights, as well as at a residential property in Strathfield where the appellant lived.

The Crown's case rested on circumstantial evidence and direct testimony. The circumstantial evidence included the appellant's thumbprints on items found at the crop site, matching grates found at both locations, a radio last seen in the appellant's garage, and botanical evidence supporting the presence of a glove with a hole at the thumb. The direct evidence came from the appellant's former de facto partner, who testified that he had admitted being at the plantation and described the glove.

The appellant was sentenced to a total term of four years, four months and five days, with a minimum term of just under two years. He appealed against both conviction and sentence, appearing in person before the Court of Criminal Appeal.

  • Whether the trial judge's directions to the jury incorrectly cast the onus of proof on the appellant to point to a reasonable explanation consistent with his innocence, rather than leaving the burden on the Crown
  • Whether the trial judge adequately directed the jury that any alternative explanation for the circumstantial evidence had to be excluded before guilt could be found
  • Whether the appellant's alleged profound memory loss had impaired his defence at trial so as to constitute a miscarriage of justice
  • Whether evidence from the former de facto partner and certain police officers was fabricated
  • Whether the sentencing judge erred by failing to take into account all time the appellant spent in custody on remand

Decision

On the jury directions issue, the Court examined the trial judge's summing-up closely and rejected the contention that it shifted the onus of proof to the appellant. The Court drew an important distinction: directing a jury not to convict if there is a reasonable explanation consistent with innocence is fundamentally different from directing them not to convict unless no such explanation exists. The former correctly places the burden on the Crown; the latter would impermissibly reverse it. The Court found the trial judge's directions fell on the correct side of that line.

On the memory loss and fabrication arguments, the Court found the appellant's claims about impaired memory were inconsistent with the detailed evidence he himself gave in chief and under cross-examination at trial. No adequate basis was established to conclude that his defence had been materially impaired. The credibility issues raised about the former de facto partner's evidence had been adequately addressed by the trial judge in directions to the jury, and the fabrication allegations had been dealt with at first instance.

On sentencing, the Court rejected the submission that the trial judge had failed to account for a period of approximately eight months spent on remand in 1991. That remand period related to a separate arrest arising from an entirely different cannabis plantation matter at Mount Kaputar National Park. No basis was established for treating time served in relation to a different offence as relevant to the sentence for the later offending.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A fine but significant distinction exists in jury directions on circumstantial evidence: directing a jury not to convict where there is a reasonable explanation consistent with innocence is correct, while directing them not to convict unless no such explanation exists would wrongly reverse the onus of proof.
  • In dismissing the conviction appeal, the Court confirmed that allegations of memory loss raised on appeal carry little weight where the appellant gave detailed evidence from memory at trial without raising any such impairment.
  • Fabrication allegations and credibility challenges directed at Crown witnesses are matters for the jury, and adequate directions by a trial judge on those issues will generally be sufficient to address them on appeal.
  • Time spent on remand in relation to a separate, distinct offence does not automatically reduce a sentence imposed for unrelated later offending, even where the earlier remand period was served without ultimate conviction on those charges.
  • Circumstantial evidence cases require the exclusion of reasonable explanations consistent with innocence, but the Court of Criminal Appeal confirmed that the adequacy of directions on that requirement is assessed by reading the summing-up as a whole, not by isolating individual passages.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 23(2)(a)
- De Facto Relationships Act 1984 (NSW)
- Felons (Civil Proceedings) Act 1981 (NSW)

Cases:
- R v Oliverio (NSW Court of Criminal Appeal, 30 August 1989, unreported)
- Shepherd v The Queen (1990) 170 CLR 573
- Peacock v R (1911) 13 CLR 619