Citation: Gardiner v Regina [2006] NSWCCA 190
Court: New South Wales Court of Criminal Appeal
Date: 21 June 2006
Judge(s): McClellan CJ at CL; James J; Simpson J
Background
The appellant was tried in the District Court on seven counts arising from the discovery of five unregistered prohibited firearms and various prohibited weapons in a storage unit at a facility in Toormina. The unit had been leased in the appellant's name from October 1999 to November 2002, and witnesses placed him as the only person observed accessing it and paying the account. Documents bearing his name were also found inside.
The appellant was the president of the Gladiators Motorcycle Club. On the same day police searched the storage unit, they also executed a search warrant on the club's premises at Grafton, where they found three loaded firearms in a wooden box and two safes that could be opened with keys found on the appellant when he arrived at the clubhouse later that afternoon.
The jury convicted the appellant on count one (possession of more than three unregistered prohibited firearms at the storage unit) but acquitted him on counts two to seven (possession of various prohibited weapons). He was sentenced to a total term of five years with a non-parole period of three and a half years. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge erred in admitting evidence of firearms found at the motorcycle club's premises as tendency evidence going to knowledge of the firearms in the storage unit
- Whether the trial judge's directions to the jury about that tendency evidence were adequate
- Whether the trial judge's directions complied with ss 116 and 165 of the Evidence Act in relation to identification and recognition evidence
- Whether the inability to investigate or subpoena information about a police informer constituted a miscarriage of justice
- Whether the summing-up was unbalanced and unfair
- Whether, on sentence, the judge correctly determined the facts consistently with the jury's verdicts, and whether the sentence was manifestly excessive
Decision
The Court of Criminal Appeal upheld the appeal and quashed the conviction, with the majority finding error in the admission and direction relating to the tendency evidence. The central question was whether evidence of the firearms found at the Grafton clubhouse on the same day was capable of having "significant probative value" (as required under s 97 of the Evidence Act) in proving that the appellant knew the firearms were in the storage unit.
McClellan CJ at CL found that the evidence was wrongly admitted as tendency evidence. Simpson J agreed, reasoning that even if the presence of firearms in two locations to which the appellant had ready access could establish a tendency to possess firearms, tendency alone is not the fact in issue. The relevant fact was whether the appellant possessed the storage unit firearms with knowledge on 20 November 2002, and the clubhouse firearms evidence was not capable of rationally affecting the probability of that specific fact.
Simpson J further noted that, even if some probative value could be identified, the significance of that value had to be assessed against the comings and goings of other club members at the clubhouse, which would have weakened any inference that the appellant was in possession of those firearms. Her Honour concluded that the evidence was not capable of having significant probative value for the purposes of s 97.
The Court also found inadequacy in the trial judge's directions concerning identification and recognition evidence. Given these errors, the Court declined to apply the proviso in s 6(1) of the Criminal Appeal Act (which would have allowed the conviction to stand despite the errors), and ordered a new trial.
Orders Made
- Appeal upheld
- Conviction quashed and new trial ordered
Key Takeaways
- Tendency evidence under s 97 of the Evidence Act requires significant probative value assessed by reference to the specific fact in issue, not merely a general tendency; establishing a tendency is a step in the reasoning process, not the ultimate fact to be proved.
- Where firearms are found in two locations accessible by a defendant, the presence of other persons with access to one of those locations will reduce the probative weight of any inference drawn against that defendant.
- The Court of Criminal Appeal confirmed that a jury's acquittals on related counts are relevant context when assessing whether improperly admitted evidence caused a substantial miscarriage of justice.
- Directions to the jury about recognition evidence must comply with both s 116 and s 165 of the Evidence Act; failure to give adequate warnings can constitute a separate ground of appellate error.
- Applying the proviso in s 6(1) of the Criminal Appeal Act (which allows a conviction to stand despite trial error if no substantial miscarriage of justice occurred) was not appropriate where the admitted evidence went directly to the central contested issue of knowledge and possession.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 98, 116, 165
- Firearms Act 1996 (NSW), ss 4A, 51D
- Weapons Prohibition Act 1998 (NSW), ss 4, 7
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases cited:
- Alister v The Queen (1984) 154 CLR 404
- Carroll v Attorney-General for NSW (1993) 70 A Crim R 162
- Cornwall v R [2006] NSWCCA 116
- Dhanhoa v The Queen (2003) 217 CLR
- Domican v The Queen (1992) 173 CLR 555
- Festa v The Queen (2001) 208 CLR 593
- R v Abdullah & Ors [1999] NSWCCA 188
- R v Ali (2001) 122 A Crim R 498
- R v Anna Zhang [2005] NSWCCA 437
- R v Aziz [1982] NSWLR 322
- R v Clarke (1997) 97 A Crim R 414
- R v Coe [2002] NSWCCA 385
- R v Filippetti (1978) 13 A Crim R 335
- R v Fletcher [2005] NSWCCA 338
- R v Lockyer (1996) 89 A Crim R 457
- R v Meher [2004] NSWCCA 355
- R v Saleam (1989) 16 NSWLR 14
- R v Shamouil [2006] NSWCCA 112
- R v Zammit [1999] NSWCCA 65
- Travel Compensation Fund v Blair [2002] NSWSC 1228
- Weiss v The Queen [2005] HCA 81