Citation: R v SH [2014] NSWCCA 218
Court: Court of Criminal Appeal
Date: 15 October 2014
Judge(s): Macfarlan JA; Fullerton J; Hamill J
Background
In February 2013, police found the respondent in possession of four pieces of cardboard perforated into 696 squares. Analysis of 32 randomly selected squares, weighing 0.29 grams, confirmed the presence of lysergide, a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW). A government analyst certified the total weight of the four pieces of cardboard as 6.43 grams and confirmed they contained lysergide, but she was unable to determine the actual quantity of lysergide within the cardboard.
The respondent was charged on indictment with supply of lysergide in an amount not less than the large commercial quantity, based on the total weight of the cardboard. The Crown's case rested on the argument that the cardboard itself constituted an "admixture" of the prohibited drug under s 4 of the Act, meaning the full weight of the cardboard should count toward the quantity threshold.
The trial judge, Jeffreys DCJ, sitting as a judge alone, declined to quash the indictment but indicated he would direct an acquittal at the end of the Crown case. He did so, finding there was no evidence capable of satisfying a tribunal of fact beyond reasonable doubt that the quantity of lysergide met or exceeded the large commercial quantity threshold. The Crown appealed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW).
Legal Issues
- Whether the total weight of cardboard containing lysergide could establish the "large commercial quantity" element of the offence, relying on s 4 of the Drug Misuse and Trafficking Act 1985, which extends references to a prohibited drug to include any "preparation, admixture, extract or other substance" containing any proportion of that drug.
- Whether the cardboard constituted an "admixture" or other substance within the meaning of s 4.
- Whether the Crown's ground of appeal raised a "question of law alone" as required by s 107 of the Crimes (Appeal and Review) Act 2001.
- Whether the Crown should be granted leave, during the respondent's address, to amend its ground of appeal.
Decision
The Court of Criminal Appeal dismissed the appeal. Macfarlan JA, with whom Fullerton J and Hamill J agreed, found that the Crown's formulated ground of appeal did not accurately reflect what the trial judge had actually decided.
The ground of appeal asserted that the trial judge found s 4 of the Act was inapplicable to determining the quantity element of the offence. However, Macfarlan JA found that the trial judge made no such finding. The trial judge had in fact accepted that s 4 applied in principle, but concluded there was insufficient evidence to establish that the cardboard met the statutory threshold for a large commercial quantity. Because the ground did not correspond to any error actually made by the trial judge, the question it posed simply did not arise.
The Court also refused the Crown's application, made during the respondent's address, for leave to amend its ground of appeal. Macfarlan JA identified that granting leave would require a further appeal hearing, that the Crown had ample opportunity to properly define its case, and that the respondent had raised the deficiencies in the Crown's appeal in a timely and clear fashion. Allowing amendment at that stage would have been unfair and oppressive to a respondent who had already been acquitted and remained at risk of retrial.
The Court noted that the Crown's notice of appeal had also been filed without a defined ground, notwithstanding that the Crown's representatives were present for both relevant oral judgments and could have identified the ground from their notes well within the statutory 28-day period.
Orders Made
• The Crown's application for leave to amend its ground of appeal is refused
• The appeal is dismissed
Key Takeaways
- A Crown appeal under s 107 of the Crimes (Appeal and Review) Act 2001 is limited to questions of law alone; a ground of appeal that does not accurately reflect the trial judge's actual findings cannot engage that jurisdiction.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the trial judge had not held s 4 of the Drug Misuse and Trafficking Act 1985 to be inapplicable; rather, he found the evidence insufficient to establish the quantity element beyond reasonable doubt.
- Where the respondent is a person already acquitted and at risk of retrial, courts will weigh the personal strain of continued litigation as a factor against granting leave to amend a ground of appeal at a late stage.
- Under s 107(3) of the Crimes (Appeal and Review) Act 2001, a Crown appeal must be lodged within 28 days of acquittal; the Court observed that delay in transcribing reasons does not excuse a failure to identify grounds from counsel's own notes of oral judgments.
- An element of unfairness and oppression can arise where the Crown seeks to change the basis of its appeal case after the respondent has already answered the original grounds, a principle the Court of Criminal Appeal had previously applied in R v Carroll [2010] NSWCCA 55.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, 43, Sch 1
Cases:
- R v Carroll [2010] NSWCCA 55; 77 NSWLR 45
- R v R2 (1990) 19 NSWLR 513
- R v PL [2009] NSWCCA 256; 199 A Crim R 199
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
- Richards v Cornford (No 3) [2010] NSWCA 134
- Landsman v Director of Public Prosecutions [2013] NSWCA 369
- Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
- Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Williams v The Queen [1986] HCA 88; 161 CLR 278
- Davern v Messel [1984] HCA 34; 155 CLR 21