Citation: Regina v Howard [2005] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 15 February 2005
Judge(s): Hunt AJA, Grove J, James J
Background
The appellant was convicted in the District Court of supplying a commercial quantity of cannabis leaf. No actual supply was alleged. The prosecution relied on the deemed supply provision in s 29 of the Drug Misuse and Trafficking Act 1985, which treats possession of not less than a traffickable quantity as supply. The indictment specified a period spanning the whole of the year to 4 September 2001.
Police searched the appellant's rural property on 4 September 2001 and found cannabis stored in locked and nailed-shut containers across three locations. It was an agreed fact at trial that the appellant had been overseas in the Philippines from 15 May 2001 and did not return until 15 October 2001, meaning he was absent when the search took place. Police also found recently irrigated cannabis plants on the property, which were not the subject of any charge against the appellant.
Because the appellant was overseas when police found the drugs, the Crown needed to establish he had been in possession of them before he left. To bridge that gap, the Crown called a Department of Agriculture officer, Mr Wassell, who had identified the cannabis on the day of the search. Mr Wassell purported to give expert evidence that the harvested cannabis he observed on 4 September had been cut between six months and two years earlier, which would place the harvest before the appellant's departure on 15 May 2001.
Legal Issues
- Whether Mr Wassell was qualified to give expert evidence about how long before seizure the cannabis had been harvested, based solely on its appearance at the time of the search.
- Whether, without that expert evidence, the remaining evidence was sufficient to support the conviction.
- Whether the trial judge erred in failing to give a circumstantial evidence direction concerning the age of the cannabis.
- Whether evidence from another witness about seeing the appellant near cannabis plants on the property in around 1998 was tendency evidence requiring appropriate jury directions.
Decision
The Court found that Mr Wassell lacked the expertise to give opinion evidence about when the cannabis had been harvested. His qualifications and experience were directed at identifying cannabis, not at assessing the rate at which harvested cannabis deteriorates over time. His opinions about age rested entirely on a visual inspection of the material on a single occasion, without any scientific basis, controlled comparison, or methodology capable of supporting such estimates. Under the principles governing expert evidence (as addressed in cases such as Makita (Australia) Pty Ltd v Sproules), a witness's experience must actually equip them to form a reliable opinion on the specific question in issue. Mr Wassell's experience did not meet that standard.
The Court held that the trial judge should have excluded Mr Wassell's evidence following the voir dire. Without that evidence, the Crown had no material capable of placing the harvested cannabis in the appellant's possession before his departure overseas. The remaining evidence, including the appellant's prior sighting near cannabis plants around 1998, was insufficient to support a finding of guilt beyond reasonable doubt. Accordingly, the verdict could not stand.
On the tendency evidence ground, the Court found that the trial judge's direction to the jury described evidence of the appellant being seen near cannabis plants as showing he had "an interest in cannabis." That framing engaged tendency reasoning, and no appropriate limiting direction was given. Although neither party sought a redirection at trial, the Court granted leave to raise this ground and found it was made out.
Despite several of the grounds ordinarily warranting a retrial, the Court declined to order one. Because the conviction could not be sustained without Mr Wassell's inadmissible evidence, and no sufficient body of other evidence remained, the appropriate outcome was an acquittal rather than a new trial.
Orders Made
- Appeal allowed
- Conviction and sentence quashed
- Verdict and judgment of acquittal entered
Key Takeaways
- A witness is not qualified to give expert opinion evidence merely because they have general experience in a related field. The experience must specifically equip them to address the particular question on which they are asked to opine.
- Where a conviction rests on a single critical piece of expert evidence that should have been excluded, and no other evidence is sufficient to establish guilt beyond reasonable doubt, the Court of Criminal Appeal may enter an acquittal rather than order a retrial.
- Under s 29 of the Drug Misuse and Trafficking Act 1985, deemed supply charges require the prosecution to prove the defendant was in possession of the relevant quantity. Where the defendant was overseas when drugs were found, timing evidence becomes essential to the Crown case.
- Evidence admitted to contradict a defendant's denial of knowledge does not automatically become permissible as tendency evidence, and where a judge's direction to the jury frames such evidence in tendency terms, a limiting direction is required.
- The Court of Criminal Appeal confirmed that opinion evidence formed solely from a visual inspection of seized material, without any scientific methodology, controlled observation, or established body of knowledge about deterioration rates, does not meet the threshold for admissible expert evidence.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 29 (deemed supply)
- Evidence Act 1995 (NSW), ss 97, 100
Cases:
- BRS v The Queen (1997) 191 CLR 275
- Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705
- R v Tugaga (1994) 74 A Crim R 190
- Shepherd v The Queen (1991) 170 CLR 573
- Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157