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Court of Criminal Appeal 15 December 2017

Strachan v R

[2017] NSWCCA 322

Firearms & weapons
CRIME APPEAL JURY DIRECTIONS VIDEO OF SEARCH ADMISSIBILITY ACCUSED TO FIREARM POSSESSION OFFENCES

Citation: Strachan v R [2017] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 15 December 2017
Judges: Basten JA at [1]; Bellew J at [48]; Hamill J at [49]

Background

Police executing a search warrant at a residential property in Glenmore Park in January 2014 discovered a box in the garage containing four firearms and ammunition. The box bore branding from the appellant's employer, and the appellant's fingerprints were found on tape on the outside of the box and on a plastic bag inside containing the weapons.

The appellant was jointly charged with a co-accused under the Firearms Act 1996 (NSW) with possessing more than three unregistered firearms, at least one of which was a prohibited firearm or pistol. The appellant's defence at trial was that he had no knowledge the firearms were in his garage, pointing to the fact that several people stored possessions there. He was convicted by a jury in June 2016 and sentenced to imprisonment with an aggregate non-parole period of three years and three months.

The appellant applied for leave to appeal against conviction only, raising four grounds relating to the admission of certain evidence and the adequacy of the trial judge's directions to the jury.

  • Whether a "machine gun construction manual" found at a co-accused's premises was properly admitted into evidence against the appellant, including whether it constituted inadmissible tendency evidence under the Evidence Act 1995 (NSW)
  • Whether the trial judge erred by failing to discharge the jury after a video of the police search was replayed, briefly showing inadmissible evidence (a taser and a crossbow) before being stopped
  • Whether the trial judge erred by failing to direct the jury on how to treat the appellant's sworn evidence
  • Whether the trial judge erred in directing the jury on the issue of lies told by the appellant under oath

Decision

Machine gun manual. The manual was found at the co-accused's home, printed on paper bearing the appellant's employer's branding. The appellant's fingerprints appeared on several pages. The Court held the manual was relevant because, contrary to the appellant's denials, his fingerprints on its pages permitted an inference that he was aware of and interested in its contents. That interest in firearms, in turn, could rationally affect the jury's assessment of whether his denial of knowledge of the weapons in his garage was plausible. The Court found the evidence was not tendency evidence within the meaning of s 97 of the Evidence Act because it did not go to a tendency to act in a particular way; rather, it bore directly on the question of knowledge by demonstrating a pre-existing interest in firearms. The probative value of the evidence was not outweighed by any unfair prejudice, and leave to appeal on this ground was refused.

Video replay showing inadmissible items. During the trial, a video of the police search was replayed but stopped before the jury saw the inadmissible footage in its entirety. The trial judge gave an immediate direction telling the jury to disregard anything they may have seen. The Court found no error in the refusal to discharge the jury, noting the prompt intervention and the limited extent of any exposure to the inadmissible material.

Jury directions on the appellant's sworn evidence. The appellant argued the trial judge should have directed the jury on how to assess his sworn testimony. The Court noted that counsel for the appellant had not requested such a direction at trial, and no miscarriage of justice was established. The failure to give the direction did not, in the circumstances, occasion any substantial wrong or miscarriage.

Directions on lies. The trial judge directed the jury that if it found the appellant had told lies, those lies could only go to his credibility. The judge also accepted the joint submission of both counsel that no direction should be given on lies as evidence of consciousness of guilt, which was consistent with the High Court's approach in Zoneff v The Queen. The Court accepted that further directions might theoretically have been given to prevent circular reasoning, but found that the absence of such directions, in circumstances where no application for redirection was made, caused no miscarriage of justice.

Orders Made

• Leave to appeal under grounds 3 and 4 refused
• Leave to appeal under ground 2 refused

Key Takeaways

  • Evidence of a document found on a co-accused's premises can be admissible against another accused where that person's fingerprints appear on it, provided the evidence is capable of rationally affecting the jury's assessment of a fact in issue, such as knowledge.
  • A document bearing on an accused's pre-existing interest in the subject matter of the offence (here, firearms) is not necessarily "tendency evidence" under s 97 of the Evidence Act 1995 (NSW); it may instead be directly relevant to knowledge without invoking the tendency evidence regime.
  • In dismissing all four grounds, the Court of Criminal Appeal reinforced that appellate intervention for alleged misdirection or non-direction is not warranted in the absence of a demonstrated miscarriage of justice, particularly where trial counsel made no application for redirection.
  • Under Zoneff v The Queen (2000) 200 CLR 234, where parties jointly submit that no consciousness-of-guilt direction should be given regarding alleged lies, a trial judge who accepts that submission and limits the lies direction to credibility does not thereby fall into error.
  • Prompt judicial intervention to stop replayed video evidence and direct the jury to disregard what they may have seen can be sufficient to avoid the need for a jury discharge, depending on the extent of exposure to the inadmissible material.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 55, 97, 101
- Firearms Act 1996 (NSW), s 4A

Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Elomar v R [2014] NSWCCA 303
- Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
- Hughes v The Queen [2017] HCA 20; 344 ALR 187
- R v Cooper (1849) 3 Cox CC 547
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28