Citation: Regina v Slattery [2002] NSWCCA 367
Court: NSW Court of Criminal Appeal
Date: 4 September 2002
Judge(s): Hodgson JA, Hidden J, Smart AJ
Background
The appellant was convicted after a 26-day District Court trial of maliciously discharging a firearm (a shortened .22 calibre Stirling rifle) with intent to cause grievous bodily harm. The incident occurred in March 1991 at a large cannabis plantation in Mount Kaputar National Park, where police from the Drug Enforcement Agency discovered the appellant approaching their concealed position carrying the rifle. Police evidence was that the appellant raised the weapon and fired in the direction of a sergeant, with the bullet striking a tree centimetres from the officer's head.
The Crown case rested heavily on police eyewitness accounts, alleged admissions made by the appellant at the scene, and expert ballistics evidence. The ballistics evidence was particularly significant: it supported the conclusion that the weapon could not discharge accidentally and that the appellant must have deliberately reloaded it after the first shot. Critically, by the time of trial the rifle had been destroyed by police after August 1995.
The appellant had previously been acquitted on related charges, including cultivation and supply of a commercial quantity of cannabis and discharging a firearm to avoid lawful apprehension. He challenged his conviction on several grounds, including the adequacy of the trial judge's directions concerning the destruction of the rifle, the propriety of a Jones v Dunkel direction given against him, and whether his prior acquittals barred the Crown from alleging his motive was guarding the cannabis crop.
Legal Issues
- Whether the trial judge gave an adequate warning to the jury about the substantial disadvantage caused to the appellant by the destruction of the rifle
- Whether the trial judge erred in giving a Jones v Dunkel direction (a direction that the jury may draw an adverse inference from the failure to call a witness) in respect of four witnesses the appellant did not call
- Whether the appellant's prior acquittals on the cannabis cultivation and related charges precluded the Crown from alleging, on the wounding charge, that his motive was guarding the cannabis crop
Decision
On the destruction of the rifle, the Court found the trial judge's warning to the jury was inadequate. The Crown had chosen to lead expert ballistics evidence despite the gun's destruction, and that evidence, if accepted, was devastating to the appellant's case that the firearm had discharged accidentally. Hodgson JA noted that the appellant was left unable both to effectively cross-examine the Crown's experts and to lead his own satisfactory evidence. The directions given did not adequately convey to the jury the very substantial disadvantage the appellant suffered as a result.
On the Jones v Dunkel directions, the Court found they were given in error in relation to the four uncalled witnesses. A Jones v Dunkel direction permits a jury to draw an adverse inference from a party's failure to call a witness whose evidence would be expected to assist that party. The Court held that giving such a direction against the appellant was inappropriate in the circumstances of this case, as it risked conveying to the jury that there was an onus on the appellant to call evidence of his innocence and that he must have had something to hide. The jury had specifically raised a question about the non-calling of those witnesses, suggesting the direction had real potential to influence the verdict.
On the motive question, the Court found that the appellant's acquittals on the cannabis and related charges did not prevent the Crown from contending, on the wounding charge, that his motive was to guard the cannabis crop. These were separate legal questions, and the prior acquittals did not operate as a bar to the Crown advancing that motive.
Given the combined effect of the deficient warning on destroyed evidence and the erroneous Jones v Dunkel directions, the Court concluded the conviction could not stand. The Crown indicated it would not press for a new trial, noting the events occurred 11 years prior, the rifle had been destroyed, and the appellant's non-parole period was shortly to expire.
Orders Made
- Time for appeal extended
- Appeal allowed; conviction quashed; verdict of acquittal entered
Key Takeaways
- Where the Crown leads expert evidence concerning a destroyed exhibit, and that evidence is central to rebutting the accused's defence, the trial judge must give the jury a clear and adequate warning about the very substantial disadvantage the destruction causes to the accused's ability to challenge that evidence and run their own case.
- A Jones v Dunkel direction should not be given in circumstances where it risks conveying to the jury that an accused bears an onus to call evidence establishing innocence, or that the failure to call witnesses implies guilt.
- Prior acquittals on related charges do not automatically preclude the Crown from advancing a particular motive on a separate remaining charge arising from the same incident.
- The Court of Criminal Appeal took into account the age of the proceedings, the destruction of key evidence, and the appellant's imminent non-parole period expiry in declining to order a retrial, even where the original Crown case was described as strong.
- Jury questions during deliberations can be relevant in assessing whether a misdirection had the potential to affect the verdict: here, the jury's question about the uncalled witnesses indicated the Jones v Dunkel direction may have been taken seriously.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Proceedings) Act
- Mental Health Act 1990 (NSW)
Cases:
- Longman v The Queen (1989) 168 CLR 7
- Crampton v The Queen (2000) 75 ALJR 133
- Jones v Dunkel (the rule on adverse inferences from uncalled witnesses)
- R v Buckland (1977) 2 NSWLR 452
- R v Mohamed Zreika [2001] NSWCCA 57
- R v Scott [2000] NSWCCA 187