Citation: Vacic v R [2011] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 7 February 2011 (judgment delivered; updated 15 July 2011)
Judges: James J, Hislop J (principal judgment), Price J
Background
The appellant owned adjoining premises at Coniston. Police searched those premises in May 2007 and discovered 69 cannabis plants in a hydroponic cultivation setup and approximately seven kilograms of cannabis drying in an upstairs bedroom, all at a property the appellant owned but did not occupy.
The appellant was charged with knowingly taking part in the cultivation of a prohibited plant by enhanced indoor means (a commercial quantity) and with supplying cannabis. After initially pleading guilty and then withdrawing those pleas, he was tried before a judge and jury, representing himself with some pro bono assistance.
The appellant's sole defence was duress. He claimed that around June or July 2006, three men had confronted him at his home at gunpoint and ordered him to allow and assist them in cultivating cannabis at the property. The jury rejected that defence and returned guilty verdicts on both counts. The appellant was sentenced to a total of nine months' non-parole period and a two-year balance of term on count one, with a concurrent fixed term of six months on count two.
Legal Issues
- Whether banking records and property purchase evidence were relevant and admissible in the context of a duress defence to drug cultivation and supply charges.
- Whether the Crown's use of that financial evidence constituted impermissible tendency or coincidence evidence requiring compliance with statutory constraints.
- Whether the trial judge was required to give the jury specific directions on how to use the financial evidence in relation to each charge and in rebuttal of duress.
Decision
Admissibility of financial evidence (Grounds 1 and 4)
Hislop J held that the banking records for March 2006 to May 2007, showing cash deposits totalling over $250,000 during a period when the appellant was not employed, were relevant and admissible. The jury could reasonably conclude those deposits represented profits from the cannabis operation, and the receipt of such profits was incompatible with the appellant's claim that others were running the cultivation under duress.
Records from the end of 2003 to March 2006 were admitted in circumstances where the appellant himself had indicated he would address financial matters from before 2006. He did not object to the tender of that material at trial. Hislop J found those records were also properly admitted. The evidence of property purchases during 2004 to 2007 formed part of the same circumstantial case and was likewise admissible.
Tendency evidence argument
The appellant submitted the Crown was using the financial evidence as tendency evidence, indicating a propensity to cultivate cannabis over several years, without complying with statutory requirements. Hislop J rejected this characterisation as misconceived. The Crown's case was that the appellant had cultivated cannabis at the specific property for a continuous period stretching back to around 2004, well before the alleged duress began in 2006. That is direct circumstantial evidence of a continuing course of conduct, not tendency evidence.
Jury directions (Grounds 2, 3 and 5)
The appellant argued that if the financial evidence was admissible, the trial judge was required to give clear and specific directions on how the jury should use it in relation to each charge and in rebuttal of duress. Hislop J disagreed. The judge had directed the jury on circumstantial evidence and on the relevant questions for assessing duress. He had also reminded the jury of the Crown's reliance on the bank records. The issue was a straightforward one, and no special directions were necessary, consistent with the Court of Criminal Appeal's earlier approach in King v R.
Orders Made
• The appeal should be dismissed.
Key Takeaways
- Evidence of large unexplained cash deposits into a defendant's bank account during the period of an alleged offence can be admissible as part of a circumstantial case to rebut a duress defence, where the jury could reasonably infer the deposits represent proceeds of the very offending charged.
- A defendant who invites the jury to consider financial matters predating the Crown's original evidentiary period may not later object to the admission of financial records covering that earlier period.
- The Court of Criminal Appeal confirmed that using financial evidence to establish a continuous course of offending does not constitute tendency evidence simply because it covers an extended timeframe.
- No special jury direction is required concerning the use of financial evidence to rebut duress where the issue is straightforward and the judge has adequately directed the jury on circumstantial evidence and the elements of the duress defence: King v R [2008] NSWCCA 101 applied.
- In dismissing the appeal, the Court found no miscarriage of justice where the trial judge's directions, taken as a whole, fairly put the case to the jury.
Legislation and Cases Referenced
Cases:
- King v R [2008] NSWCCA 101; (2008) 184 A Crim R 304
Legislation:
No specific legislation was identified in the provided text, though the charges related to prohibited plant cultivation and drug supply under NSW drug offences legislation.