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Court of Criminal Appeal 13 May 2014

Villis v R

[2014] NSWCCA 74

Drugs
CRIMINAL LAW CONVICTION APPEAL

Citation: Villis v R [2014] NSWCCA 74
Court: Court of Criminal Appeal, New South Wales
Date: 13 May 2014
Judges: Bathurst CJ, Fullerton J (reasons), Bellew J

Background

The appellant was convicted at trial in the District Court on one count of supplying not less than a commercial quantity of methylamphetamine, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to four years' imprisonment with a non-parole period of two years and three months. No appeal against sentence was brought.

The Crown case rested on methylamphetamine found by police in a shopping bag on the front passenger seat of the appellant's car during a roadside search. The appellant admitted to possessing other drugs and paraphernalia found in a backpack in the back of the car, but denied knowledge of the methylamphetamine. His defence was that the shopping bag's contents must have been placed there by a woman, Ms Wiseman, whom he had arranged to drive to the Central Coast and who was in the vicinity of the car at the time.

The trial ran for eight days, longer than the original estimate of five to six days, due to juror illness and witness availability issues. The jury retired on a Thursday afternoon and, by the following Friday at around 12.30pm, reported that they were deadlocked nine votes to two.

  • Whether the trial judge erred in refusing to discharge the jury after a prosecution witness gave evidence that was said to reveal the appellant's bad character
  • Whether the jury's unanimous verdict should be set aside on the basis that it was reached under pressure from time constraints rather than through proper deliberation

Decision

Ground 3: Jury verdict and time pressure (upheld)

Fullerton J addressed the time-constraint ground first because, in her view, the trial judge's directions during the deliberation period fundamentally undermined the integrity of the verdict. Before the jury retired on Thursday afternoon, the trial judge had informed jurors that they would not be required to sit after 1pm the following Friday, as three jurors had personal commitments that afternoon, and other jurors had indicated they were unavailable the following Monday.

When the jury sent a note at approximately 12.30pm on Friday reporting a nine-to-two deadlock after roughly four hours and forty minutes of deliberations, the trial judge delivered a direction to encourage continued deliberation (known as a "Black direction," after Black v R (1993) 179 CLR 44). The difficulty was that the mandatory eight-hour deliberation period under section 55F(2)(a) of the Jury Act 1977 (NSW), which must elapse before a majority verdict direction can be given, had not yet been reached. Nor was the power to discharge the jury under section 56 of the Jury Act properly engaged. The interplay between the time constraints communicated to the jury, the deadlock note, and the subsequent direction created a real risk that the verdict was the product of pressure rather than genuine agreement. The Court found this undermined the integrity of the conviction and it could not stand.

Ground 2: Bad character evidence (dismissed)

The second ground arose from cross-examination of Ms Wiseman, during which she made a reference linking the appellant to a person named "Chris" in a way that implied a criminal or drug-related association. The trial judge refused to discharge the jury but indicated the risk of unfair prejudice could be addressed by direction. The judge ultimately directed the jury in summing up to disregard any suggestion of prejudice arising from the appellant's association with drug culture, and gave a separate direction under section 165(1)(d) of the Evidence Act 1995 (NSW) warning the jury that Ms Wiseman's evidence may be unreliable given her potential criminal involvement in the same events.

Fullerton J noted that the cross-examination question that elicited the problematic answer was, in the circumstances, a risk that the appellant's own trial counsel had chosen to take. Parties are generally bound by the conduct of their counsel at trial, as confirmed in Nudd v R [2006] HCA 9. The Court was not satisfied that the trial judge's refusal to discharge the jury resulted in a miscarriage of justice, and this ground was dismissed.

Orders Made

  • Appeal against conviction upheld
  • Conviction quashed
  • Retrial ordered

Key Takeaways

  • A unanimous verdict reached shortly before a hard deadline communicated to jurors may lack the integrity required to sustain a conviction, particularly where the jury was also in a declared deadlock and deliberation time fell well short of statutory thresholds.
  • Under section 55F(2)(a) of the Jury Act 1977 (NSW), a majority verdict direction cannot be given until eight hours of deliberation have elapsed; under section 56, the power to discharge a deadlocked jury is similarly constrained by statute and is not a matter of judicial discretion alone.
  • Where a trial judge communicates time constraints to jurors before deliberations begin, and those constraints coincide with a deadlock note and a direction to continue deliberating, there is a material risk that any resulting verdict reflects pressure rather than proper deliberation.
  • In dismissing the bad character ground, the Court of Criminal Appeal confirmed the well-established principle that parties are generally bound by the forensic choices of their counsel at trial, including cross-examination questions that elicit unfavourable answers.
  • Appropriate curative directions, including a reliability warning under section 165(1)(d) of the Evidence Act 1995 (NSW) and a general direction to disregard prejudice, can be sufficient to address the admission of inadvertent bad character evidence where no further redirection is sought by counsel.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), s 165(1)(d)
- Jury Act 1977 (NSW), ss 55F, 56

Cases:
- Black v R [1993] HCA 71; 179 CLR 44
- Burrell v R [2007] NSWCCA 65
- Hunt v R [2011] NSWCCA 152
- Nagti v R [2008] NSWCCA 3
- Nudd v R [2006] HCA 9; (2006) 162 A Crim R 301