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Court of Criminal Appeal 30 April 2007

SCICLUNA v R

[2007] NSWCCA 120

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION 4 COUNTS SUPPLY METHYLAMPHETAMINE POSSESSION OF PRECURSOR POSSESSION OF PROHIBITED WEAPON

Citation: Scicluna v R [2007] NSWCCA 120
Court: Court of Criminal Appeal, New South Wales
Date: 30 April 2007
Judge(s): McClellan CJ at CL, Adams J, Howie J

Background

The appellant was convicted by a jury on four counts arising from a police search of his Penrith property in the early hours of 4 September 2003. Police found a functional clandestine methylamphetamine laboratory in a rear shed, two jugs of methylamphetamine in the main bedroom, hypophosphorous acid (a manufacturing precursor) in a backpack inside the shed, and a stun gun in the bedside drawer on the appellant's side of the bed. The appellant owned the property and held keys to the shed and a locked cabinet within it. A woman, Ms Pickett, was also present in the bedroom.

The four counts were: (1) knowingly taking part in the manufacture of methylamphetamine between January and September 2003; (2) supplying methylamphetamine; (3) possessing hypophosphorous acid intended for use in manufacture; and (4) possessing a prohibited weapon (the stun gun). The jury returned guilty verdicts on all four counts.

The appellant appealed his convictions to the Court of Criminal Appeal on three grounds: that the trial judge should have directed acquittals on counts 2 and 4 at the close of the Crown case; that the trial judge erred in directing the jury it could use findings of fact on one count when considering another; and that all four verdicts were unreasonable on the evidence.

Legal Issues

  • Whether the trial judge erred by directing the jury that findings of fact made on one count could inform its consideration of another count, and whether this risked circular or propensity reasoning
  • Whether the jury verdicts were unreasonable or unsupported by the evidence, particularly in respect of possession of the drugs in the bedroom, possession of the precursor, knowing participation in manufacture, and possession of the stun gun
  • Whether the trial judge ought to have directed acquittals on counts 2 and 4 at the close of the Crown case
  • How sentencing should be approached following the quashing of three of the four convictions

Decision

Ground 3 (Unreasonable Verdicts) — considered first:

Adams J addressed each count in turn. On count 2 (supply, based on possession of the bedroom drugs), he concluded the verdict was not unreasonable. The drugs were found in plain view in the appellant's bedroom, the larger quantity was on the bedside table immediately beside him, and he must have been aware of their nature given his knowledge of the shed's manufacturing activity. Even accounting for Ms Pickett's presence, the inference of the appellant's knowing physical control was open to the jury.

Count 4 (prohibited weapon): Adams J found this verdict unreasonable. The stun gun was concealed in a drawer, not in plain view. There was no evidence of how long it had been there or how long the appellant had occupied the bedroom. The location on his side of the bed was suggestive but insufficient to establish knowledge beyond reasonable doubt.

Count 1 (knowing participation in manufacture): Adams J also found this verdict unreasonable. The critical problem was an absence of evidence as to when the manufacture of methylamphetamine had occurred. The indictment spanned eight months. Without evidence placing the appellant in occupation at the time of manufacture, or evidence that he was aware of and participated in the manufacturing while it was occurring, mere ownership and later knowledge could not ground the offence. The presence of drugs in the bedroom did not bridge this temporal gap.

Count 3 (possession of precursor): Adams J found this verdict unreasonable too. Even accepting the appellant had a key to the cupboard containing the backpack, there was no evidence he knew the substance was a precursor, or that he intended it to be used (by himself or another) in future manufacture. The section required proof of that specific intent. Past use of the acid in manufacture did not establish the appellant's present intention to use the remaining acid for that purpose.

Ground 2 (jury directions on interconnected findings):

McClellan CJ at CL and Howie J (the majority) rejected this ground. The trial judge's directions were properly framed in terms of findings of fact, not verdicts. Her Honour explicitly told the jury it could not reason from a guilty verdict on one count to guilt on another. The directions reflected the practical reality that the Crown relied on largely the same evidence across the first three counts. When the jury sought clarification, the judge reinforced the correct approach. Defence counsel raised no objection to the original directions and only a limited objection when the jury asked its question; the judge's response addressed that concern.

Ground 1 (failure to direct acquittal at close of Crown case):

The majority noted this ground was not pressed at the appeal hearing, with counsel sensibly choosing to rely instead on the unreasonable verdicts ground. The majority confirmed that if no case existed on any count, the verdict would necessarily be unreasonable, so the issues effectively merged.

Result:

The appeal produced a split outcome. Adams J would have quashed convictions on counts 1, 3, and 4 and entered verdicts of acquittal, leaving only the count 2 conviction standing. McClellan CJ at CL and Howie J, by contrast, would have dismissed the appeal on all grounds. By majority, the appeal against conviction was dismissed. Adams J proposed that sentencing questions arising from his proposed orders be deferred for written submissions from the parties.

Orders Made

  • By majority, appeal against conviction dismissed
  • No application for leave to appeal against sentence was made

(Note: Adams J's proposed orders to quash convictions on counts 1, 3, and 4 and enter acquittals, and to defer the sentence question on count 2, did not represent the majority outcome and were not given effect.)

Key Takeaways

  • A trial judge may properly direct a jury that findings of fact made on one count can inform consideration of another count, provided the direction makes clear that a verdict on one count cannot automatically determine the verdict on another, and that propensity reasoning is impermissible.
  • Under s 24A of the Drug Misuse and Trafficking Act 1985, a possession of precursor conviction requires proof that the accused intended the substance to be used in future manufacture; evidence of past use of the precursor does not, without more, establish that intent (per Adams J in dissent on this point).
  • Where the Crown cannot establish when a clandestine laboratory was operated, or whether the accused was in occupation at the relevant time, a conviction for knowingly taking part in manufacture may be unreasonable for lack of evidence linking the accused to the manufacturing at the time it occurred (per Adams J).
  • Possession of an item concealed from view in shared premises requires evidence sufficient to establish the accused's knowledge of that item's presence; proximity alone, without more, may not suffice to ground a conviction beyond reasonable doubt (per Adams J on the stun gun count).
  • In circumstantial evidence cases, courts apply the principle that it is the combination and totality of all circumstances, not each circumstance viewed in isolation, that must be inconsistent with innocence, following the approach confirmed in R v Micallef (2002) 136 A Crim R 127.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated