Citation: BANIC v R [2004] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 23 September 2004
Judge(s): Spigelman CJ, Barr J, Hoeben J
Background
The appellant was convicted in the District Court on two counts of supplying prohibited drugs, namely methylamphetamine and MDMA (ecstasy), following a jury trial before Nield DCJ. The convictions arose from events at a Darlinghurst nightclub in the early hours of 3 March 2003, where a security officer observed the appellant and two companions receiving a series of brief visits from patrons before calling police.
When police attended, two officers observed a plastic bag containing 23 tablets appear on a shelf near the appellant as he moved his arms away from the surface. The appellant gave evidence that the bag was not in his possession and had been sitting behind him, not under his hands. He denied selling drugs. At the trial, supply was established through a statutory deeming provision, meaning that proof of possession for the purpose of supply was sufficient.
The jury convicted on both counts. Nield DCJ sentenced the appellant to four years' imprisonment with a three-year non-parole period for each offence. The appellant then sought to appeal both the conviction and the sentence.
Legal Issues
- Whether the trial judge's summing-up unfairly identified with the Crown case and presented the appellant's evidence in a prejudicial manner
- Whether the summing-up conveyed to the jury that the judge held strong views as to the appellant's guilt
- Whether the appellant received a fair trial overall
- Whether, in addressing the jury about the bottle of water issue, the trial judge should have directed the jury that counsel may have had reasons, unknown to the jury, for not cross-examining police witnesses on that point
- Whether the sentence of four years' imprisonment was manifestly excessive given the quantity of drugs involved and the appellant's criminal history
Decision
The Court unanimously dismissed the conviction appeal. Barr J (with whom Spigelman CJ and Hoeben J agreed) reviewed the passages from the summing-up that the appellant criticised. The Court found that the trial judge had directed the jury correctly on the burden of proof, the assessment of witnesses, and the central factual question: whether the appellant's hands had been cupped over the plastic bag. The directions were described as conventional and comprehensive.
On the bottle of water issue, the appellant had given evidence at trial about holding a bottle of water, but defence counsel had not put this to the police witnesses in cross-examination. The trial judge addressed this in the summing-up by noting the omission, which created a basis for the jury to draw an inference of recent invention (meaning an inference that the story was fabricated after the event, rather than being a genuinely held account from the start). Barr J acknowledged that a direction telling the jury there may be reasons unknown to them why counsel did not cross-examine on a point is usually desirable in such circumstances. However, the Court concluded that counsel at trial bore a responsibility to raise this with the trial judge and had not done so appropriately. No satisfactory reason for the omission emerged, and the inference of recent invention was therefore reasonably open.
On sentence, the appellant did not identify a specific sentencing error but argued the length of the sentence itself demonstrated error. Barr J noted the small quantity of drugs, but also the appellant's long and troublesome criminal history, two prior rehabilitation attempts that had each ended in relapse, and the trial judge's findings about the limited prospects of rehabilitation. The Court held the sentence fell within the proper range of sentencing discretion.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge's summing-up is not rendered unfair merely because it identifies the central factual issue clearly and notes that the Crown put the accused's account directly in issue.
- Where an accused gives evidence about a matter that was not put to Crown witnesses in cross-examination, the jury may draw an inference of recent invention, and no misdirection arises simply because the judge draws attention to the omission.
- A direction informing the jury that defence counsel may have had reasons unknown to them for not cross-examining on a point is generally desirable, but the failure to give such a direction will not necessarily constitute a ground of appeal where trial counsel did not pursue the point with the trial judge at the time.
- In dismissing the sentence appeal, the Court confirmed that a sentence is not manifestly excessive merely because the quantity of drugs was small, where the sentencing judge properly weighed the offender's criminal history and limited prospects of rehabilitation.
- No error was established in the trial judge's assessment of the appellant's credibility or in the directions given on the burden of proof, the accused's right not to prove innocence, or the treatment of his evidence alongside that of other witnesses.
Legislation and Cases Referenced
Legislation:
- Statutory deeming provision treating possession of a prohibited drug (above a threshold quantity) as possession for the purpose of supply (the specific NSW Drug Misuse and Trafficking Act provision is referenced in the judgment but not cited by name in the available text)
Cases:
No specific cases are cited by name in the portions of the judgment provided.