Citation: Scicluna v R (No. 2) [2007] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 21 June 2007
Judge(s): McClellan CJ at CL, Adams J, Howie J
Background
The appellant was convicted after a jury trial in the District Court on four charges arising from a police search of his property. Three charges related to possession of, and involvement in the manufacture of, methylamphetamine. The fourth charge concerned possession of a prohibited weapon, specifically a handheld electric shock device found in an unlocked drawer beside his bed.
Following conviction on all four counts, the appellant brought an appeal to the Court of Criminal Appeal. That appeal was determined on 30 April 2007 (Scicluna v R [2007] NSWCCA 120), with the majority dismissing the appeal and Adams J dissenting. After judgment was delivered, the Court became aware that the majority had not addressed one ground of appeal relating to the weapons charge.
The Court accordingly reopened the matter to address the outstanding ground, confirming it had jurisdiction to do so and that no further submissions were required from the parties.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to reopen the appeal after judgment had been delivered and orders made, in order to address an omitted ground.
- Whether the conviction on the weapons charge (Count 4) was unreasonable in circumstances where another person was present in the bedroom and other individuals had access to the property.
Decision
On the question of jurisdiction to reopen, the majority affirmed that the Court has power to reopen a finalised appeal to ensure all grounds are properly determined. The Court drew on its earlier analysis in R v Burrell [2007] NSWCCA 79 and found no need to revisit the authorities in detail, concluding that the power to reopen exists to ensure an appeal is decided on its full merits.
On the substantive weapons ground, the majority noted that the appellant owned and resided at the property, was sleeping on the side of the bed adjacent to the drawer in question, and had a rucksack on his side from which he had produced shed keys for police. The appellant gave no evidence and offered no explanation to police about the items found at the premises.
The majority reasoned that it was inconceivable the appellant would be unaware of the contents of a drawer beside his own bed in his own home. Although a female companion was present and there was a vague suggestion others occasionally stayed at the property, the majority found it was open to the jury to reject those as real possibilities and to infer beyond reasonable doubt that the appellant was in possession of the weapon.
Adams J, who had addressed this ground in his earlier judgment, added nothing further in this supplementary decision.
Orders Made
- Appeal against conviction on all counts is dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed it has jurisdiction to reopen an appeal after judgment and orders have been made, where the court has failed to address all grounds of appeal, in order to ensure the matter is finally and fully determined on its merits.
- A conviction for possession of a prohibited weapon can be sustained where the accused is the owner and occupant of the premises, the item was found immediately adjacent to where they slept, and no evidence or explanation was offered to counter that inference.
- The presence of another person at a property does not automatically displace an inference of possession where the circumstances, taken together, point overwhelmingly to the accused as the person in possession.
- In dismissing the appeal on the weapons count, the majority reasoned that findings on the drug charges (that the appellant possessed drugs in the same room) were relevant context supporting the inference that he also possessed a nearby weapon.
- No error was established in the summing up on the drug charges, and all four convictions were confirmed as reasonable verdicts open to the jury.
Legislation and Cases Referenced
Cases:
- Scicluna v R [2007] NSWCCA 120 (the original appeal judgment)
- R v Burrell [2007] NSWCCA 79 (jurisdiction to reopen a finalised appeal)
Legislation: No specific legislation was cited in the provided text.