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Court of Criminal Appeal 22 November 2004

R v Micalizzi

[2004] NSWCCA 406

Drugs
APPEAL AGAINST CONVICTION DIRECTIONS TO THE JURY

Citation: Micalizzi v R [2004] NSWCCA 406
Court: New South Wales Court of Criminal Appeal
Date: 22 November 2004
Judge(s): Hulme J, Simpson J, Howie J

Background

The appellant was convicted in the District Court of supplying not less than the large commercial quantity of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The charge arose from a 2000 surveillance operation in which police observed the appellant receive a backpack from another man in the Haymarket area of Sydney. The backpack was later found to contain over 3,500 grams of heroin.

None of the physical facts were in dispute at trial. The sole contested question was whether the Crown had proved, beyond reasonable doubt, that the appellant knew what was in the backpack and that the quantity met the large commercial threshold of one kilogram or more.

The jury returned a guilty verdict and the appellant appealed against his conviction, arguing that the trial judge's directions to the jury on the knowledge element were confusing and legally inadequate.

  • Whether the trial judge's directions adequately conveyed to the jury that the Crown was required to prove, beyond reasonable doubt, that the appellant knew both the nature of the drug (heroin) and that the quantity was not less than the large commercial quantity (one kilogram)
  • Whether any confusion in the directions concerning the deeming provision in s 29 of the Act gave rise to a miscarriage of justice
  • Whether, applying the proviso in s 6(1) of the Criminal Appeal Act 1912, any identified misdirection warranted setting aside the conviction
  • Whether leave to rely on the grounds of appeal should be refused under Rule 4 of the Criminal Appeal Rules, given the failure of trial counsel to object or seek further directions

Decision

Simpson J, with whom Howie J generally agreed, found that the trial judge's directions were confusing in several respects. In particular, the directions at times emphasised the appellant's knowledge of quantity at the expense of clearly delineating the two separate aspects of knowledge: knowledge of the drug's nature and knowledge of the quantity. The directions concerning the operation of s 29 of the Act compounded this problem.

Despite those deficiencies in form, the Court was satisfied there had been no miscarriage of justice. The trial judge had, at an early point in the summing-up, stated explicitly that the Crown had to establish both that the appellant possessed a large commercial quantity and that he knew it was heroin. The Court found this sufficiently anchored the substance of the required direction, even if subsequent passages were less clear.

Hulme J agreed in the result and added observations about trial counsel's duties. His Honour noted that where a direction is inadequate or confusing, counsel carries a duty to specify the correction needed and to formulate the precise direction sought. Expressing a general concern that the jury "might be confused" does not constitute a proper objection and does not discharge that duty.

On the Rule 4 question, the judges took slightly different positions in emphasis. Simpson J declined to refuse leave under Rule 4 in relation to the directions concerning s 29, because it was difficult to see how counsel could practically have rectified the confusion once the directions were given. Hulme J and Howie J agreed that the failure to object was relevant but found it unnecessary to decide whether Rule 4 definitively barred the grounds, since no miscarriage of justice had occurred in any event.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A conviction for supplying not less than the large commercial quantity of heroin under s 25(2) of the Drug Misuse and Trafficking Act 1985 requires the Crown to prove beyond reasonable doubt that the accused knew both the nature of the substance and that the quantity met the relevant threshold.
  • Where a trial judge's directions are unclear or internally inconsistent, the Court of Criminal Appeal will examine the summing-up as a whole to determine whether the jury was adequately directed on the essential elements, rather than isolating individual passages in isolation.
  • Applying the proviso in s 6(1) of the Criminal Appeal Act 1912, even identified deficiencies in jury directions will not lead to a conviction being set aside if the court is satisfied no miscarriage of justice resulted.
  • Trial counsel who considers a direction to be inadequate carries a positive duty to specify the inadequate passage and to formulate, with precision, the redirect sought; a vague submission that the jury "could be confused" does not satisfy that duty, as affirmed by reference to Singleton v Ffrench (1986) 5 NSWLR 425 and subsequent criminal authorities.
  • Rule 4 of the Criminal Appeal Rules is directed to failures to object, rather than to broader failures of counsel to discharge their duties to the fullest extent, and its application will depend on the specific circumstances of the failure in each case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), Rule 4
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 29, 33(3)

Cases
- He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
- R v Clark (2001) 123 A Crim R 506
- R v Fung [2002] NSWCCA 479; 136 A Crim R 95
- R v GPP (2001) 129 A Crim R 1
- R v Lau (1998) 105 A Crim R 167
- R v Williams (1990) 50 A Crim R 213
- Singleton v Ffrench (1986) 5 NSWLR 425
- Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348