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Court of Criminal Appeal 7 April 2010

R v Scott McCONALOGUE

[2010] NSWCCA 56

Drugs
CRIMINAL LAW CROWN CASE CIRCUMSTANTIAL

Citation: R v Scott McCONALOGUE [2010] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 7 April 2010
Judge(s): Tobias JA, Hidden J, Howie J

Background

The respondent faced trial in the District Court on a charge of knowingly taking part in the manufacture or production of a large commercial quantity of amphetamine, a State offence under the Drug Misuse and Trafficking Act 1985. The alleged offence took place between late March and early April 2006 at a remote property in north-eastern New South Wales. The property was owned by a man (referred to here as the principal offender) who, along with three others, had already pleaded guilty to a Commonwealth conspiracy offence relating to the same amphetamine production.

The Crown's case was entirely circumstantial. It alleged the respondent's role was to be present at the property and secure it during the production process. Key facts included that police found the respondent alone at the property during a search, discovered documents in his name there, observed him attending the property on several occasions during the relevant period, and found a handwritten note suggesting he may have been attempting to warn the principal offender of a police presence.

At a pre-trial hearing, the District Court judge made evidentiary rulings excluding two specific items from the Crown's case. The Crown appealed those rulings under section 5F of the Criminal Appeal Act 1912.

  • Whether the District Court judge erred in excluding evidence that the respondent admitted knowing a pistol was present in the house when police arrived.
  • Whether the judge erred in excluding evidence of a hydroponic cannabis set-up in a bedroom of the house, which contained fingerprints of the principal offender.
  • Whether the excluded evidence, individually or in combination, substantially weakened the Crown's circumstantial case, thereby meeting the jurisdictional threshold under section 5F(3A) of the Criminal Appeal Act 1912 to permit a Crown appeal.

Decision

Hidden J (with whom Tobias JA and Howie J agreed) addressed the jurisdictional threshold first. Section 5F(3A) of the Criminal Appeal Act requires that the impugned ruling eliminate or substantially weaken the prosecution case before the Court of Criminal Appeal can intervene. Hidden J found that threshold was crossed here, given the narrow and circumstantial nature of the Crown's case.

On the merits, Hidden J held that the evidence of the respondent's knowledge of the pistol was admissible. The pistol was found in a bedroom primarily used by the principal offender. The respondent's unprompted disclosure of its existence, when asked by police during the search, was relevant to demonstrate that his association with the principal offender went beyond an ordinary landlord-and-tenant relationship. That inference was open and the evidence was not unfairly prejudicial.

Similarly, the hydroponic set-up found in the third bedroom, bearing the principal offender's fingerprints, was held to be admissible. Its relevance lay in showing that the respondent, as the regular occupant of the house, was aware of illegal activity on the property connected to the principal offender. Again, this went to the nature and closeness of their relationship.

Hidden J concluded that both items of evidence, taken together, formed an important plank in a circumstantial case that was otherwise fairly narrow. Without them, the Crown case would be substantially weakened. The appeal was therefore allowed and the rulings set aside.

Orders Made

  • Appeal allowed.
  • The evidentiary rulings of the District Court judge excluding the evidence of the respondent's knowledge of the pistol and the hydroponic set-up were set aside.

Key Takeaways

  • Under section 5F(3A) of the Criminal Appeal Act 1912, a Crown appeal against a pre-trial evidentiary ruling is only available where the ruling eliminates or substantially weakens the prosecution case; the Court of Criminal Appeal confirmed this threshold must be assessed by considering the combined effect of all excluded items, not each in isolation.
  • In a wholly circumstantial case built on a small number of particulars, evidence capable of demonstrating that a defendant's relationship with the principal offender exceeded an innocent explanation can constitute an important plank in the Crown's case.
  • Evidence of a defendant's unprompted knowledge of an illegal item found at a property they occupied was held to be relevant and admissible where it bore on the nature of the defendant's association with the person primarily implicated.
  • The District Court's observation that a particular inference was "too remote" was not itself a ruling susceptible to appeal under section 5F, which is limited to interlocutory judgments or orders; the Court of Criminal Appeal declined to address that observation's status.
  • Admissibility decisions in circumstantial cases must account for whether the evidence strengthens the overall inferential picture, not merely whether each item individually advances the Crown's case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5F, 5F(3A)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes Act 1914 (Cth)
- Evidence Act 1995 (NSW)

Cases:
- Qualtieri v R [2006] NSWCCA 95, 171 A Crim R 463
- R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228