Citation: SCICLUNA v R [2007] NSWCCA 120
Court: New South Wales Court of Criminal Appeal
Date: 30 April 2007
Judges: McClellan CJ at CL, Adams J, Howie J
Background
The appellant was tried in the District Court on four counts arising from a police search of a property: knowingly taking part in the manufacture of methylamphetamine, supplying methylamphetamine, possessing a precursor (hypophosphorous acid) with intent to manufacture a prohibited drug, and possessing a prohibited weapon. The trial proceeded on the basis, accepted by both parties, that the jury would likely return the same verdict on each of the first three counts, given that the Crown relied on essentially the same evidence for all three.
The trial judge directed the jury that it could use factual findings made on one count when considering another related count. She also expressed the view that, as a matter of common sense and logic, it was difficult to see how the jury could be satisfied beyond reasonable doubt on count three if it was not satisfied on count one. No objection was raised by defence counsel at the time of those directions.
During deliberations, the jury asked for the cross-count direction to be repeated. At that point, defence counsel objected and sought a direction that guilt on one count could not be used as a basis for finding guilt on another. The trial judge responded by clarifying that it would be impermissible to reason from a guilty verdict on one count directly to guilt on the others, but maintained that factual findings on one count remained relevant to the consideration of related counts.
Legal Issues
- Whether the trial judge erred in failing to direct the jury to return not guilty verdicts on two of the counts
- Whether it was legally appropriate for the trial judge to direct the jury that factual findings made on one count could be taken into account when determining another count on the same indictment
- Whether the direction, as given and repeated in response to the jury's question, carried a risk of impermissible tendency reasoning or otherwise misled the jury
Decision
By majority, the Court of Criminal Appeal dismissed the appeal against conviction. McClellan CJ at CL and Howie J adopted the account of the evidence set out by Adams J, whose judgment addressed the issues in detail.
The majority accepted that the trial judge's cross-count direction was not legally erroneous in the circumstances. Where multiple counts on an indictment share a common evidentiary foundation, a jury may legitimately use factual findings on one count as an input when reasoning about another. The direction did not sanction impermissible tendency reasoning; the trial judge expressly told the jury it would be impermissible to reason from a verdict of guilty on one count directly to guilt on the others.
The Court was also not persuaded that the trial judge should have directed not guilty verdicts on the two counts in question. The jury's question during deliberations signalled that it was attempting to understand the logical relationship between counts rather than engaging in impermissible reasoning, and the trial judge's response adequately addressed that concern.
Adams J, however, reached a different conclusion on certain counts. His Honour would have quashed the convictions on counts 1, 3 and 4 and entered verdicts of acquittal on those counts. Adams J also identified a technical sentencing issue concerning count 2, noting that the sentence as structured did not comply with the statutory ratio under the Crimes (Sentencing Procedure) Act 1999, and proposed that written submissions be invited from the parties before any variation was made.
Orders Made
• Convictions in respect of counts 1, 3 and 4 of the indictment be quashed and verdicts of acquittal be entered
• The question of sentence be deferred to permit the parties to make written submissions
Key Takeaways
- A trial judge may direct a jury that factual findings made on one count can inform the consideration of a related count where the Crown relies on the same evidence across those counts, provided the direction does not sanction impermissible tendency reasoning.
- The Court of Criminal Appeal confirmed that such a cross-count direction must be accompanied by a clear instruction that a verdict of guilty on one count cannot, of itself, ground a finding of guilty on another count.
- Where defence counsel fails to object to a jury direction at trial, that omission is a relevant consideration on appeal, though it does not necessarily foreclose a ground of appeal entirely.
- Sufficient clarity in a trial judge's redirection during deliberations can cure any initial ambiguity arising from cross-count directions, provided the redirection accurately states the permissible limits of the jury's reasoning.
- Where an appeal court proposes to vary a sentence in a way that would increase the penalty on any count, established practice requires that the parties, particularly the appellant, be given an opportunity to make submissions before any such variation is made.
Legislation and Cases Referenced
Legislation:
- Evidence Act
- Drug Misuse and Trafficking Act 1985 (NSW)
- Criminal Appeal Act 1912 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- MFA v The Queen (2002) 213 CLR 606
- R v Amanatidis (2001) 125 A Crim R 89
- R v Micallef (2002) 136 A Crim R 127