Citation: Regan v R [2019] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 11 February 2019
Judge(s): Bathurst CJ; Hoeben CJ at CL; Price J
Background
The appellant was convicted by a jury on two counts of supplying a prohibited drug (methylamphetamine) under the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from the execution of a search warrant at his Bathurst business premises, where police found a total of 162.5 grams of methylamphetamine in four separate locations. A further 3.84 grams was found behind a door switch in a vehicle the appellant drove.
The Crown's case was entirely circumstantial. It relied on the extended definition of "supply" to include possession for supply, and on the statutory deeming provision that treats possession of at least the traffickable quantity (3 grams for methylamphetamine) as possession for supply. The Crown argued the appellant was the only person with widespread access to both the premises and the vehicle, and that the only rational inference was that all the drugs were his.
The appellant was convicted on both counts in August 2018 and sentenced to four years' imprisonment (with a three-year non-parole period) on Count 1, and one year concurrently on Count 2. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge's intervention during the evidence of a defence character witness, including directing that witness to stop giving evidence, caused a miscarriage of justice.
- Whether the trial judge's failure to direct the jury that it must be unanimous as to which specific quantity or package of drugs the appellant possessed caused a miscarriage of justice.
Decision
Ground 1: Intervention with the character witness
During the defence case, a character witness mentioned that his wife was the former head of the Department of Family and Community Services in Bathurst. The trial judge sent the jury out, made inquiries about the witness's wife, and subsequently asked the jury whether any of them knew her. The judge stated that if any juror knew the witness's wife, the witness would have to stop giving evidence. The judge did not ask the jury whether they could still return an impartial verdict, and did not later explain to the jury why the witness had not continued to give evidence.
The Court of Criminal Appeal held that this sequence of events gave rise to a miscarriage of justice. The judge's intervention, combined with the failure to ask whether the jury could remain impartial and the absence of any explanation to the jury, was sufficient to establish Ground 1.
Ground 3: Jury direction on unanimity as to specific drug quantities
The four separate packages of methylamphetamine found at the business premises were located in different places. Each package exceeded the traffickable quantity and could independently support the deeming provision. The trial judge directed the jury that they needed to be unanimously satisfied that the appellant possessed at least one of the packages, rather than directing that they must all agree on which specific package or packages he possessed.
The Court held this was an error. Applying the principles from The Queen v Klamo and The Queen v Walsh, where a single charge rests on proof of discrete acts that each go to an essential element of the offence, the jury must be unanimous as to which act constitutes that essential element. Each separate package represented a discrete factual basis for conviction on Count 1. The direction given did not adequately ensure that unanimity. The Court noted that if the Crown had truly been running a single-enterprise case (that the appellant possessed all the drugs together), the appropriate direction would have required the jury to be satisfied beyond reasonable doubt that he possessed all of the packages, not at least one.
Orders Made
- Appeal against conviction allowed.
- Conviction on both counts quashed.
- New trial ordered.
(The Court indicated on 22 August 2018 that Ground 1 had been made out; these reasons formalised the conclusions, including on Ground 3. The sentence appeal was not determined given the conviction was quashed.)
Key Takeaways
- A miscarriage of justice can arise from a trial judge's intervention with a witness where, without proper explanation or inquiry into ongoing juror impartiality, the jury is left without context for why that witness did not continue giving evidence.
- Where a single charge relies on proof of several discrete physical acts, each capable of independently establishing an essential element of the offence, jurors must be unanimous as to which specific act they rely upon, not merely that at least one of them occurred.
- Under the Drug Misuse and Trafficking Act 1985 (NSW), separate packages of drugs found in different locations can constitute distinct factual bases for the element of "possession," even where they are charged under a single count.
- The characterisation of a Crown case as a "single criminal enterprise" does not, by itself, resolve how a jury must be directed on unanimity. The actual jury direction must match the legal theory the Crown advances and must ensure genuine agreement on the essential elements.
- In dismissing neither ground summarily, the Court of Criminal Appeal confirmed that both the manner of judicial intervention during witness evidence and the precision of jury directions on proof of essential elements are matters capable of producing a miscarriage of justice warranting a new trial.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 29
Cases
- Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206
- Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
- The Queen v Klamo (2008) 18 VR 644; [2008] VSCA 75
- The Queen v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299