Regan v R

1. [1]

   BATHURST CJ: The appellant Scott Edward Regan (the appellant) was charged on indictment for the following offences:

2. [2]

   In relation to Count 1 of the indictment, the Crown relied on the fact that at the time of the execution of a search warrant at the appellant’s business premises, a total of 162.5 grams of methylamphetamine was located in four different places, as follows:

3. [3]

   Count 2 related to the discovery of 3.84 grams of methylamphetamine located behind the driver’s door window switch of the Toyota Hilux that the applicant drove.

4. [4]

   In bringing the charges against the appellant, the Crown relied upon the extended definition of supply in s 3 of the Drug Misuse and Trafficking Act 1985 (NSW) as including possession for supply and the deeming provision in s 29 which provides that a person who has in possession an amount of a prohibited drug of not less than the traffickable quantity should be deemed to have the prohibited drug in his or her possession for supply (subject to various exceptions). The trafficable quantity of methylamphetamine is 3 grams, so each separate quantity of drugs found on the premises fell within the deeming provision.

5. [5]

   The appellant was tried before a jury and convicted on both counts on 18 August 2018. On the same day, he was sentenced on Count 1 to a term of imprisonment of 4 years with a non-parole period of 3 years and on Count 2 to a term of imprisonment of 1 year to be served concurrently with the sentence on Count 1.

6. [6]

   The appellant appealed against his conviction and sought leave to appeal against his sentence. The only relevant grounds of appeal for present purposes are Grounds 1 and 3 of the appeal against his conviction, which are in the following terms:

7. [7]

   The appeal was heard on 22 August 2018. On that date, the Court indicated that it had come to the view that Ground 1 of the grounds of appeal had been made out and in those circumstances, allowed the appeal, quashed the conviction and ordered that there be a new trial. The Court also indicated that as the matter was of some importance, it would express its conclusions on Ground 3. These are my reasons for joining in the orders made on 22 August 2018.

The case at trial

1. [8]

   Because of the nature of the grounds of appeal it is not necessary to deal with the evidence led at the trial in any detail. The drugs that were the subject of the two counts were found on the execution of a search warrant on 29 October 2014 at the business premises of the appellant, situated in Bathurst.

2. [9]

   The first item seized during the execution of the search warrant was a grey coloured shopping bag which contained a dismantled spotlight and a smaller plastic bag which contained what was later analysed to be 28.6 grams of methylamphetamine. This item was found on a horizontal crossbeam near the large roller door at the entrance to the premises. The bag was reached by using a ladder that was on the premises.

3. [10]

   At the time the first item containing the 28.6 grams of methylamphetamine was seized, the search warrant camera was not operating. However, shortly after, the police seized a CCTV security hard drive which recorded the police officer using the ladder to retrieve the bag on 29 October 2014, but also it was alleged, showed the applicant using a ladder to place the plastic bag on the beam at 8.50pm on 27 October 2014.

4. [11]

   The search continued and the other drugs were found at the various locations in the premises which I have set out at [2] above.

5. [12]

   The Crown’s case was circumstantial. The Crown summarised its case in its written submissions on appeal in the following terms:

6. [13]

   The appellant described the Crown case as having “its problems” and noted that “there was no forensic evidence linking the appellant to any of the drugs located and the business premises were accessed by a number of other people, some of whom the police had never contacted”. He noted that the bag containing 28.6 grams of methylamphetamine was located on the beam when the search warrant camera was not operating, and no photograph was taken of the bag in situ. He pointed to the fact that “there were no other indicia of drug dealing by the appellant: nothing incriminating at his home, no unexplained wealth, nothing other than the drugs themselves at his workplace and in the utility, and no evidence in the form of police surveillance to establish he had been selling drugs”. It was also common ground that the appellant was a person of previous good character.

Ground 1

1. [14]

   At the conclusion of the Crown case, the applicant called a character witness, a Richard Hailstone. After Mr Hailstone had given some family history including the fact that his son had battled an addiction to drugs, Mr Hailstone was asked what his wife’s career was and answered that she managed the Department of Family and Community Services “here in Bathurst”.

2. [15]

   Immediately after this question was answered, the judge directed the jury to wait outside and the following exchange took place:

3. [16]

   The jury then returned and the trial judge gave the following direction:

4. [17]

   Thereafter a note was delivered to the trial judge answering the question ‘Yes’. The following exchange then occurred in the absence of the jury:

5. [18]

   Thereafter counsel for the appellant sought an adjournment and the following exchange took place:

6. [19]

   Counsel for the appellant then requested the trial judge to ask a question in similar terms to that asked of the jury in Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206 at [304]. The trial judge then asked counsel for the appellant to read the question and the following exchange occurred:

7. [20]

   The trial judge then delivered a judgment on the issue in which he gave reasons for declining to ask the question of the jury. The judge made the following remarks:

8. [21]

   Mr Hailstone did not return to the witness box. There was no consideration given as to whether this was the appropriate course. Rather, it seemed to be simply accepted by both parties and the trial judge that this was appropriate. There were then two further character witnesses called on behalf of the appellant and thereafter the defence case was closed.

9. [22]

   On the following day counsel for the appellant apologised to the trial judge for what occurred. He made the following remarks:

The evidence of Mr Horsburgh

1. [23]

   Mr James Horsburgh was a solicitor for the appellant at the trial and in that capacity had taken a proof of evidence from Mr Hailstone. The proof of evidence was annexed to an affidavit sworn by Mr Horsburgh on 4 May 2018.

2. [24]

   Two paragraphs in the affidavit were objected to. The first was paragraph 5 in which Mr Horsburgh stated that he regarded Mr Hailstone as “the most impressive” of the appellant’s character witnesses. It seems to me that the perceived importance of Mr Hailstone as a witness to the defence case has some relevance to the question of whether there was a miscarriage of justice, assuming that the trial judge in fact directed Mr Hailstone to stop giving evidence.

3. [25]

   Objection was also taken to paragraph 14. In that paragraph Mr Horsburgh stated that he understood that Mr Hailstone “did not continue to give evidence” as a result of the “intervention” of the trial judge. Mr Horsburgh’s statement is relevant as it indicates the basis on which Mr Hailstone did not continue to give evidence. However, Mr Horsburgh’s statement cannot prove that the basis on which Mr Hailstone did not continue to give evidence was justified by the course taken by the trial judge.

4. [26]

   It is unnecessary to set out details of the proof of evidence of Mr Hailstone. Suffice to say it provides a “powerful” character reference from a person who had known the appellant for a lengthy period of time and had had the unfortunate experience of having a drug addicted son.

5. [27]

   In his written submissions the appellant submitted that the intervention of the trial judge was “unnecessary”. He submitted that “by sending the jury out and conducting a short voir dire, then both informing the jury of the full name and previous position of Mrs Hailstone, and then requiring that the jury provide a note as to whether Mrs Hailstone was known to any of them either personally or through her previous position”, the trial judge “created an issue that would otherwise never have arisen”. He submitted that by “refusing the application for a question to be posed of the jury as to their capacity to consider the evidence impartially, the trial judge created a situation that resulted in the appellant being deprived of powerful evidence as to his good character”.

6. [28]

   Senior counsel for the appellant accepted that there were two issues. The first was whether the trial judge had either expressly or impliedly directed that the witness could not be called if any of the jurors knew Mrs Hailstone, and the second was whether the acts of the trial judge, coupled with the concerns of trial counsel for the appellant, led to the course of not resuming the evidence of Mr Hailstone being taken. Senior counsel for the appellant noted, however, that there was no application for leave for the witness to withdraw.

7. [29]

   Senior counsel for the appellant submitted that even if it could not be concluded that the judge did not expressly or impliedly direct the witness not be called, the manner in which he “mishandled” the matter led to that course being taken. Senior counsel for the appellant further submitted that Mr Horsburgh, the appellant and the appellant’s counsel shared an understanding that Mr Hailstone did not continue to give evidence as a consequence of the trial judge’s intervention, as set out in [14] of his affidavit.

8. [30]

   The Crown noted that “the trial took place in the country area of Bathurst” and that it was “clear” that the trial judge was “at pains to ensure that no-one on the jury was familiar with any of the witnesses”. He submitted that when a person’s name was raised, the trial judge on a “number of occasions” “asked the jury to retire and indicate whether or not they were familiar with that particular person”.

9. [31]

   The Crown submitted that the statement complained of, “I better find out if any of the jury knows her. If the answer to that is ‘Yes’, this witness will have to stop”, cannot be seen “in isolation”. He submitted that there was “no application made by counsel for the applicant to continue with the witness”.

10. [32]

    The Crown submitted that the trial judge was justified in not asking the jury the question sought by trial counsel for the applicant, as the jury did not know what evidence the witness was going to give and it was a “long bow” to “assume that the jury might have been adverse to the appellant because it had been disclosed that his wife was an employee or a manager of the of the Department of Family and Community Services”. He accepted that the trial judge “having raised it himself”, “dismissed it”, submitting that the highest he could put it was that it was “a decision in the atmosphere of the trial”.

Consideration

1. [33]

   I have set out what occurred at [14]-[20] above. After what, on one view, was a seemingly innocuous question by counsel for the appellant to Mr Hailstone, the trial judge in the absence of the jury made the inquiries to which I have referred to at [15] above. It was evident, at least at this stage of the proceedings, that the trial judge regarded the matter as one of some significance.

2. [34]

   Further, during the course of the discussion which followed, the trial judge quite unequivocally stated that if any member of the jury knows Mrs Hailstone “this witness will have to stop”. It is unclear what basis the trial judge had for making that comment.

3. [35]

   The jury was then asked the question in [16] and it was answered in the affirmative. The trial judge then refused a request by the Crown to inquire whether the jury’s knowledge of the witness (presumably intending to refer to the witness’ wife) would affect their verdict although, stating in effect, that it may have to be done during the course of the witness’ evidence.

4. [36]

   The trial judge subsequently rejected an application by counsel for the appellant to ask a similar question.

5. [37]

   Taken in context, it may be that the trial judge could not be said to have directed that Mr Hailstone’s evidence not continue. This is because his remarks after the jury had answered “yes” were inconsistent with such a direction. Nevertheless, his initial comment “this witness will have to stop”, followed by him raising the issue with the jury and then refusing to have the matter clarified, left the appellant in a position which was quite unfair.

6. [38]

   The evidence of Mr Horsburgh was that he understood Mr Hailstone did not continue to give evidence as a result of the intervention and statement of the trial judge that if Mrs Hailstone was known to the jury, the evidence of Mr Hailstone would have to stop. It may be inferred from what occurred that the appellant and his counsel had the same understanding. There was no other reason for not proceeding with the evidence of a favourable character witness. The initial remark of the trial judge coupled with his refusal to clear up the matter by asking the jury whether their knowledge of Mrs Hailstone would affect their ability to consider the matter impartially, deprived the appellant of a fair trial.

7. [39]

   For these reasons I joined in the orders made on 22 August 2018.

Ground 3

1. [40]

   The trial judge provided the jury with a question trail for use when deliberating. That question trail posed the following question (Question 3):

2. [41]

   The trial judge also gave the following oral directions:

3. [42]

   The trial judge also gave the following general direction:

4. [43]

   Senior counsel for the appellant submitted that the effect of the direction was that all the jury had to be satisfied of was whether one of the quantities of drugs, the subject of Count 1, was in the possession of the appellant, and it was sufficient that one member of the jury could be satisfied that one particular quantity was in his possession and another could be satisfied that a different quantity was in his possession.

5. [44]

   He submitted, referring to The Queen v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [75]-[76] and Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 at [42]-[46], that it was necessary for all members of the jury to be satisfied beyond reasonable doubt that at least one particular package of drugs was in the possession of the appellant.

6. [45]

   The Crown seemed to accept that it was sufficient for a conviction that it be established that the applicant was in possession of one of the packages of drugs. However, he submitted referring to Deng v R (1996) 91 A Crim R 80, that the case was a single criminal enterprise, the enterprise being the possession of the drugs in a number of locations for the purpose of supply. He submitted that the directions of the trial judge were on its face not incorrect because the drugs at each of the four locations exceeded the trafficable quantity. However, he submitted that the Crown did not put its case that way. Instead, he submitted that the Crown case was that the appellant “was in possession of all the drugs in the warehouse”, relying on the fact that he was also in possession of the drugs found in the vehicle, as a relevant circumstance to establishing possession on the part of the appellant for the purposes of Count 1.

Consideration

1. [46]

   The direction of the trial judge to which I have referred to at [40] clearly left it open to the jury to convict, even if they were not unanimously satisfied that the appellant was in possession of one particular package of drugs providing that each juror was satisfied that the appellant was in possession of at least one package, albeit that the packages in respect of which they were so satisfied were different. Such a direction was incorrect: see The Queen v Klamo; Lane v The Queen. The correct approach was set out in The Queen v Klamo where Maxwell P at [75] cited the following passage from The Queen v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at 316 with approval:

2. [47]

   The Crown submitted that it was in fact relying on a single criminal enterprise involving proof that all the drugs found on the premises were in the possession of the appellant. That may be so, but that was not how the jury was directed. If that was the way the Crown had put its case, it would have been necessary to direct the jury that they had to be satisfied beyond reasonable doubt that all the packages of drugs were in the appellant’s possession, rather than they had to be unanimously satisfied that at least one of them was.

3. [48]

   For these reasons Ground 3 has been made out.

4. [49]

   HOEBEN CJ at CL: I agree with the reasons given by the Chief Justice for allowing the appellant’s appeal against conviction.

5. [50]

   PRICE J: For the reasons enunciated by the Chief Justice in respect of Ground 1, I joined in the orders made by the Court on 23 August 2018. I am grateful for the Chief Justice’s consideration of Ground 3 and agree with the Chief Justice’s reasons that Ground 3 has been made out.