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Court of Criminal Appeal 8 March 2002

Regina v William John Melhuish

[2002] NSWCCA 85

DrugsFirearms & weapons
POSSESSION OF FIREARMS DENIED KNOWLEDGE OF SAME RULE 4 AFFIDAVIT FROM TRIAL COUNSEL PROVISO CONSIDERED CUMULATIVE SENTENCE

Citation: Regina v William John Melhuish [2002] NSWCCA 85
Court: New South Wales Court of Criminal Appeal
Date: 8 March 2002
Judges: Stein JA, O'Keefe J, Buddin J

Background

The appellant was charged with six offences arising from a police search of his bedroom at a Brookvale premises associated with a motorcycle club. Police executing a search warrant found a locked silver case, labelled with the appellant's nickname, containing four handguns wrapped in towels and quantities of ammunition. A pen pistol was found in a filing cabinet at the foot of his bed. The appellant had pleaded guilty before trial to supplying methylamphetamine, and a jury convicted him on all five firearms possession counts.

The appellant's defence at trial was that he had no knowledge of the firearms. He claimed the silver case was his camera case and that he had brought it inside that morning from a common kitchen area accessible to many club members. He denied any connection to the guns.

At sentencing, the District Court imposed concurrent fixed terms of two years for the firearms offences, with a further three-year cumulative term for the drug supply offence. The total effective sentence meant the appellant would be eligible for parole in March 2004.

  • Whether the trial judge erred in admitting evidence of a gun holster found under the appellant's bedside table, when the appellant argued it should have been excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that its prejudicial effect outweighed its probative value
  • Whether the trial judge erred in failing to direct the jury appropriately on the Crown's failure to call two police officers as witnesses
  • Whether the sentencing judge erred by failing to apply the totality principle when imposing a cumulative sentence for the drug supply offence

Decision

Admission of the holster (Ground 1): The Court found no error in admitting the holster into evidence. O'Keefe J reasoned that the holster, found in the appellant's bedroom under his bedside table, was no less relevant and no more prejudicial than the evidence concerning the labelled, locked case and its contents, which had not been challenged. All elements of a Crown case carry some prejudice, but the Court found no unfair prejudice sufficient to engage s 137. This ground was rejected.

Failure to direct on absent witnesses (Ground 2): The Court considered the position of trial counsel and the applicable principles. Although the particulars of the reasoning on this ground are not reproduced in the available text, the Court rejected this ground as well. The Court applied the proviso under the Criminal Appeal Act 1912 (NSW), noting that even if there were any error concerning the holster evidence, it would not have affected the verdict given the strength of the remaining evidence.

Sentence appeal (Ground 3): No written submissions were filed in support of the sentence appeal. Buddin J expressed the view that it was clearly open to the sentencing judge to impose the drug supply sentence cumulatively upon the firearms sentences, because the offences were separate and distinct. The Court found nothing in the sentencing judge's approach or the structure of the sentences to suggest the totality principle had been overlooked. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Evidence of a gun holster found in an accused's bedroom was properly admitted where it formed part of a series of circumstances relevant to the question of knowing possession, and where no unfair prejudice distinguishable from the prejudice inherent in the other unchallenged evidence was identified.
  • Under s 137 of the Evidence Act 1995 (NSW), the mere fact that evidence has a prejudicial quality does not require exclusion; the court must be satisfied that the unfair prejudice to the defendant substantially outweighs probative value.
  • Imposing a cumulative sentence for a drug supply offence upon firearms offences was held to be clearly available where the offences were separate and distinct, and did not of itself indicate a failure to apply the totality principle.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the absence of any written submissions, combined with nothing in the sentencing structure to suggest error, was fatal to the ground asserting a totality error.
  • The proviso under the Criminal Appeal Act 1912 (NSW) remained available even where a trial error might technically be established, if the error could not have affected the jury's verdict given the overall strength of the evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 137
- Firearms Act 1996 (NSW), ss 7, 87

Cases:
- Pemble v The Queen (1971) 124 CLR 107
- R v BD (1997) 94 A Crim R 131
- R v Glennon (1993) 179 CLR 1
- R v Meier (NSWCCA, unreported, 21 May 1996)
- Wilde v R (1988) 164 CLR 365