[2019] NSWCCA 95

Fenech v R

1. Appeal allowed 2. Conviction and sentence imposed in the District Court quashed. 3. Order that there be a new trial in the District Court.

Catchwords

CRIME – conviction appeal – jury misconduct – where jury members made inquiries about trial matters and failed to disclose conduct – no question of principle

Legislation cited

Drug Misuse and Trafficking Act 1985 (NSW), § 24
Jury Act 1997 (NSW), § 68C

Judgment

[1]
THE COURT: On 13 June 2018, the Court made the following orders in this appeal:
1. (1)
  The appeal against the conviction is allowed.
2. (2)
  Order that the appellant’s conviction on 13 July 2016 of the offence of manufacture a prohibited drug, methylamphetamine of a quantity not less than a large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and the sentence for that offence, be quashed.
3. (3)
  Order that there be a new trial of that charge.
4. (4)
  Reserve the Court’s reasons for the making of those orders.
[2]
What follows, rather belatedly, are the Court’s short reasons for making those orders.
[3]
On 17 July 2016, the appellant, Mr Fenech, was found guilty of an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act. The jury trial resulting in that verdict was conducted before Colefax DCJ. On 30 September 2016, his Honour sentenced the appellant to a term of imprisonment of 4 years and 6 months.
[4]
The appellant appealed against his conviction on the ground of jury misconduct, both in members of the jury making inquiries about trial matters contrary to Jury Act 1997 (NSW), s 68C, and in their failing when questioned to disclose that conduct to the Court.
[5]
The Crown is satisfied that the relevant misconduct occurred and that as a result the trial process was flawed in a fundamental respect. For that reason, the Crown accepts that there was a miscarriage of justice requiring that there be a new trial.
[6]
Having read the submissions of the parties, the Court was satisfied that the appeal against conviction should be allowed, the conviction quashed and a new trial ordered.