Citation: Gage v Regina [2006] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 10 February 2006
Judges: Giles JA; Howie J; Hoeben J
Background
A police task force investigated methylamphetamine distribution on the Central Coast of New South Wales in 2001. An undercover officer, posing as a buyer under the assumed name "Danny", made a series of purchases of methylamphetamine from two intermediaries. The Crown alleged that the appellant was the source of the drugs supplied on three occasions, with the intermediaries passing them through to Danny.
The appellant denied any involvement in drug supply. His explanation was that conversations recorded between himself and one of the intermediaries related to the supply of EPO, a performance-enhancing substance used for greyhounds, not amphetamines. One of the intermediaries gave evidence for the defence to the same effect.
After an eleven-day trial in the District Court before Williams DCJ, the jury returned guilty verdicts on all three counts: two counts of supplying methylamphetamine and one count of supplying not less than the commercial quantity of methylamphetamine. The appellant appealed against conviction on four grounds.
Legal Issues
- Whether it was procedurally irregular or productive of bias to discharge the original jury, return the remaining jurors to the general panel, and select a fresh twelve-person jury from that enlarged pool.
- Whether the verdict on Count 1 was unsafe because the evidence was insufficient to support a finding of guilt beyond reasonable doubt.
- Whether the failure to discharge the jury after arguably prejudicial evidence of cocaine dealing emerged during trial constituted a miscarriage of justice.
- Whether defence counsel's conduct, including alleged failure to follow the appellant's instructions and alleged inadequate preparation, caused a miscarriage of justice.
Decision
Ground 1: Jury panel procedure. Early in the trial, a juror disclosed to the sheriff's officer that he believed he recognised the accused as a patron of the hotel where he worked, and expressed concern that the accused might be able to identify him. The judge discharged that juror and, at the request of the appellant who wished to have a full twelve-person jury, discharged the remaining eleven and returned them to the general panel. A fresh twelve-person jury was then selected from that pool. The Court found no reasonable apprehension of bias arising from this procedure. Both counsel consented to the course taken, and the juror who raised the concern had been kept separate and there was no evidence of communication with the other jurors about the substance of the case.
Ground 2: Safety of the verdict on Count 1. The Court examined the evidence relating to the first count and was satisfied it was open to the jury to be satisfied of guilt beyond reasonable doubt. The recorded telephone conversations, the evidence of the undercover officer, and the surrounding surveillance material collectively provided a sufficient evidentiary basis for the verdict.
Ground 3: Prejudicial evidence of other drug dealings. Evidence emerged during the trial of a possible connection between the appellant and cocaine dealings with one of the intermediaries. The trial judge did not discharge the jury but directed them to put aside any question of dealing in other drugs. The Court held that the judge was in the best position to assess how the evidence should be handled and found no miscarriage of justice. The issue was not later expressly returned to, and the direction was adequate in the circumstances.
Ground 4: Conduct of defence counsel. The appellant alleged that his counsel failed to act on his instructions in cross-examining the undercover officer, failed to obtain telephone records that might have assisted the defence, and wrongly declined to call a witness (Mr Borgman) against the appellant's wishes. The Court rejected each allegation. It found that instructions had been read to and understood by the appellant, that the telephone records had not been shown to be material to the outcome, and that the decision not to call Mr Borgman was plainly correct given that, when interviewed, Borgman indicated he would say in cross-examination that he obtained the drugs from a person called "Kenny." The Court was not satisfied that any deficiency in representation had affected the outcome of the trial.
Orders Made
- Appeal dismissed.
Key Takeaways
- Returning discharged jurors to the general jury pool and empanelling a fresh jury from that pool does not, without more, give rise to a reasonable apprehension of bias, particularly where counsel consented and there was no evidence the discharged jurors communicated with the others about the case.
- A trial judge's decision to address potentially prejudicial evidence by direction rather than jury discharge will not constitute a miscarriage of justice where the judge was well positioned to assess the impact of the evidence and the issue was not revisited at trial.
- Alleged ineffective assistance of counsel does not ground a miscarriage of justice unless it is demonstrated both that counsel's conduct fell short of acceptable standards and that the deficiency might have affected the outcome.
- Where a proposed witness, if called, would have given evidence damaging to the defendant, the decision not to call that witness cannot be treated as a failure to follow instructions amounting to a miscarriage of justice.
- Sufficient evidence, including recorded conversations and surveillance material, can support a conviction for drug supply even where the accused and a defence witness offer an alternative explanation for the communications in question.
Legislation and Cases Referenced
Cases:
- Ali v The Queen (2005) 214 ALR 1
- M v The Queen (1994) 181 CLR 487
- R v K (2003) 59 NSWLR 431
- R v Skaf [2004] NSWCCA 37
- TKWJ v The Queen (2002) 212 CLR 124
- Webb v The Queen (1994) 181 CLR 41
Legislation: No specific legislation was cited in the text provided, although the Jury Act (NSW) was referenced in passing during the trial proceedings.