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Court of Criminal Appeal 10 July 2006

Tennant v Regina

[2006] NSWCCA 208

Drugs
CRIMINAL LAW COUNSELS' ADDRESSES DEFENCE COUNSEL ADDRESSING FIRST SEPARATION OF JURY DURING RETIREMENT NO MISCARRIAGE OF JUSTICE

Citation: Tennant v Regina [2006] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 10 July 2006
Judge(s): McClellan CJ at CL, James J, Hoeben J

Background

The appellant was convicted in the District Court of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine (one kilogram or more) under the Drug Misuse and Trafficking Act. The Crown alleged she participated in a drug supply network involving her de facto husband and two suppliers, Richard Walsh and Melinda Love. The offending was said to span approximately two years, from July 1999 to September 2001.

The Crown's principal witness was Ms Love, who had been granted immunity from prosecution by the Attorney-General. Ms Love gave evidence of the appellant's direct involvement: collecting drugs, making and receiving payments, and participating in telephone conversations that she interpreted as coded references to drug transactions. A small number of other witnesses, including Paul Chapman and his wife, provided corroborating evidence.

The appellant did not give evidence at trial. Two defence witnesses were called, neither of whom could implicate the appellant in drug activity. Following conviction, the appellant appealed on five grounds, arguing that various procedural irregularities and the weight of the evidence against her meant the trial had miscarried.

  • Whether the trial miscarried because defence counsel addressed the jury before the Crown, reversing the conventional order of closing addresses
  • Whether the trial miscarried because defence counsel was directed to address the jury on an alternative charge
  • Whether the jury's separation during deliberations constituted a miscarriage of justice
  • Whether comments made by the Crown Prosecutor in opening address gave rise to a miscarriage of justice
  • Whether the guilty verdict itself was a miscarriage of justice because the jury ought to have entertained a reasonable doubt

Decision

Order of addresses: At trial, defence counsel addressed the jury first, followed by the Crown. The Court noted this was irregular under standard procedure. However, the Court found that this irregularity did not produce any miscarriage of justice in the circumstances of the case.

Alternative charge and Crown's opening: Counsel for the appellant conceded at the hearing that neither ground 2 (addressing on an alternative charge) nor ground 4 (Crown Prosecutor's opening comments) would independently constitute a sufficient ground of appeal. The Court rejected both grounds accordingly. On the Crown's opening, the trial judge had already directed the jury that an opening address is not evidence and only indicates what the Crown expects to prove. The gap between the Crown Prosecutor's estimate of total drug quantity and what was ultimately proved did not cause any miscarriage.

Jury separation: The Court considered the ground concerning the jury being separated during their deliberations. Taking into account all the circumstances, the Court concluded that the separation did not result in any miscarriage of justice.

Sufficiency of evidence: The Court rejected the submission that the verdict was unreasonable. The jury had the benefit of seeing and hearing Ms Love give evidence, which this Court did not. Her evidence extended beyond the telephone conversations to direct observations of the appellant's involvement. The trial judge had given a strong warning about Ms Love's evidence as a witness who had been criminally involved in the supply of drugs, and no complaint was made about the adequacy of that warning. Corroborating evidence from the Chapmans was also available for the jury to consider. The Court was satisfied it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that procedural irregularities at trial, including an irregular order of closing addresses, do not automatically result in a miscarriage of justice. The operative question is whether the irregularity actually caused injustice.
  • A jury's separation during deliberations is similarly not automatically fatal to a conviction. The Court must assess whether, in all the circumstances, the separation gave rise to a miscarriage of justice.
  • Where a trial judge gives the jury an adequate direction that an opening address is not evidence, a subsequent discrepancy between what the Crown promised to prove and what the evidence ultimately established is unlikely to constitute a miscarriage of justice.
  • Appellate courts reviewing the sufficiency of evidence acknowledge a structural limitation: they did not see or hear the witnesses give evidence. The jury's assessment of witness credibility, particularly where a strong judicial warning about that witness has been given, carries significant weight.
  • No single ground of procedural complaint succeeded here. The Court examined each ground individually and, in the absence of demonstrated actual injustice, declined to interfere with the conviction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25(2)
- Jury Act (NSW)

Cases:
- R v Locchi (1991) 22 NSWLR 309