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3
Court of Criminal Appeal 3 August 2004

R v Macris

[2004] NSWCCA 261

Also reported as 147 A Crim R 99
Drugs

Citation: Macris v R [2004] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 3 August 2004
Judge(s): Studdert J, Kirby J, Hislop J

Background

The appellant was convicted by a jury in the District Court on two counts of drug supply: supply of methylamphetamine in not less than a commercial quantity, and supply of ephedrine. Police found the drugs during a search of his Surry Hills unit in March 2000. He was sentenced to 3 years and 4 months imprisonment on the first count, with a non-parole period of 2 years and 6 months, and a fixed term of 18 months on the second count.

The central dispute at trial was whether the appellant was in possession of the drugs found on the premises. His defence rested heavily on the evidence of a witness, John Christopher, who claimed he had planted the drugs to frame the appellant in retaliation for what he believed was the appellant informing on him to police. The appellant did not give evidence himself.

The appellant appealed his convictions on three grounds, and was also granted leave to argue a fourth ground concerning evidence about a coffee grinder found at the premises.

  • Whether the trial judge's directions to the jury on how to assess the evidence of John Christopher were erroneous or inadequate
  • Whether the trial judge's directions on the standard of proof, specifically a reference to "reasonable likelihood" of the witness telling the truth, amounted to a misdirection
  • Whether the directions given regarding the appellant's election not to give evidence were inadequate, particularly in light of a specific jury question on that point
  • Whether evidence about white powder found in a coffee grinder caused a miscarriage of justice

Decision

The Court dismissed grounds one, three (as argued under ground two in the text), and four, but upheld the appeal on the ground concerning jury directions about the appellant's silence.

On the first ground, the Court found that the impugned direction simply left the weight of Christopher's evidence to the jury and was not erroneous. The Court also found that although the trial judge's reference to "reasonable likelihood" in relation to the standard of proof was unfortunate, it did not stand alone. The correct direction on the criminal standard was given in the same passage and was repeated multiple times throughout the summing up, including immediately before the jury retired. No objection had been taken at trial, and no miscarriage of justice was established.

On the coffee grinder evidence, the Court declined to grant leave to raise the point on appeal because no objection had been taken at trial, where a simple correction could have been made. Criminal Appeal Rules r 4 applied.

The appeal succeeded on the ground concerning directions about the appellant's failure to give evidence. The jury had specifically asked why the appellant had not been called to give evidence, and the Court found the directions given in response to that question were inadequate. This finding, although the details of the critical direction are not fully reproduced in the available text, was sufficient to warrant the setting aside of the convictions and the ordering of a new trial.

Orders Made

  • Appeal upheld
  • Convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • A trial judge's direction that inadvertently sets the standard of proof at too high a level will not necessarily constitute a reversible misdirection where the correct direction is given in the same passage and repeated consistently throughout the summing up.
  • The Court of Criminal Appeal confirmed that failure to object to a direction at trial, where the error would have permitted simple correction, is a significant obstacle to raising that ground on appeal under Criminal Appeal Rules r 4.
  • Where a jury raises a direct question about a defendant's election not to give evidence, adequacy of the directions given in response is critical and was found here to be insufficient to prevent a miscarriage of justice.
  • Upholding an appeal on a single ground is sufficient to quash convictions and sentences entirely and order a new trial, even where all other grounds of appeal have failed.
  • A direction that leaves the weight of a defence witness's evidence entirely to the jury is not erroneous merely because it acknowledges the evidence could theoretically assist the prosecution case, provided that characterisation is factually supportable.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), ss 89, 137
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)
- Criminal Appeal Rules, r 4

Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- R v OGD (1997) 45 NSWLR 744
- R v Naudi [1999] NSWCCA 259
- R v Nguyen [2002] NSWCCA 342