Medium Neutral Citation: Finch v R [2016] NSWCCA 133
Hearing dates: 2 May 2016
Date of orders: 13 July 2016
Decision date: 13 July 2016
Before: Payne JA at [1]; McCallum J at [235]; Davies J at [236]
Decision:
1) Leave to appeal granted on Grounds 1-10 under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW);

2) Leave to appeal refused on Grounds 1, 2, 3, 4 and 5 under r 4 of the Criminal Appeal Rules;

3) Grounds 6-10 of the Notice of Appeal dismissed;

4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:

a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and
b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter.
Catchwords: CRIMINAL LAW – appeal – conviction – deemed supply of prohibited drugs pursuant to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether evidence concerning drugs not the subject of the charges should have been admitted – whether evidence of police officer as to method of consumption of LSD in cardboard form should have been admitted – whether misdirection that the cardboard and liquid containing LSD should be included in the overall weight of the LSD pursuant to s 4 of the Act – whether primary judge erred in failing to direct the jury to determine whether appellant was in possession of drugs found in different locations or packages separately – whether primary judge erred in not leaving to the jury alternative charges – whether appellant was unable to receive a fair trial without Crown witness and informant being called to give evidence – whether verdict unreasonable or unsupported by the evidence – whether defence counsel at trial incompetent – forensic decisions of counsel
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules (NSW), r 4
Criminal Code (Cth), s 312.1
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, Schedule 1
Evidence Act 1995 (NSW), ss 55, 78, 79, 137, 144
Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
Alliston v R [2011] NSWCCA 281; 217 A Crim R 323
Director of Public Prosecutions v Brooks [1974] AC 862
Dyers v The Queen [2002] HCA 45; 210 CLR 285
Finch v R [2014] NSWCCA 278
He Kaw Teh v R (1985) 157 CLR 523
James v The Queen [2014] HCA 6; 253 CLR 475

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finch v R

Details

AGLC: Finch v The Queen [2016] NSWCCA 133
Case: [2016] NSWCCA 133
Decision Date: 13 July 2016

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Finch, against the respondent, the Crown. The dispute centred on the conviction of Finch under section 29 of the Drug Misuse and Trafficking Act 1985 (NSW) for the deemed supply of prohibited drugs. The court was required to determine whether the evidence concerning drugs not directly related to the charges should have been admitted. Additionally, the court had to assess if the evidence of a police officer regarding the method of consuming LSD in cardboard form should have been allowed. Another issue was whether there was a misdirection concerning the inclusion of the cardboard and liquid containing LSD in the overall weight of the LSD under section 4 of the Act. The court also needed to consider if the primary judge erred by not directing the jury to determine if Finch was in possession of drugs found in different locations or packages separately. Furthermore, the court had to decide whether the primary judge erred in not leaving to the jury alternative charges. The appeal also raised questions about whether Finch was unable to receive a fair trial without the Crown witness and informant being called to give evidence, and whether the verdict was unreasonable or unsupported by the evidence. Finally, the court had to evaluate if the defence counsel at trial was incompetent and whether the forensic decisions of counsel were appropriate.

The court examined the evidence and the primary judge's directions to the jury. It held that the evidence concerning drugs not directly related to the charges was inadmissible. However, the court found that the evidence of the police officer as to the method of consuming LSD in cardboard form was admissible. The court held that there was no misdirection concerning the inclusion of the cardboard and liquid containing LSD in the overall weight of the LSD. The court also found that the primary judge did not err in not directing the jury to determine if Finch was in possession of drugs found in different locations or packages separately. The court held that the primary judge did err in not leaving to the jury alternative charges. The court found that Finch was not unable to receive a fair trial without the Crown witness and informant being called to give evidence, and that the verdict was not unreasonable or unsupported by the evidence. Finally, the court held that the defence counsel at trial was not incompetent, and that the forensic decisions of counsel were appropriate.

The court allowed the appeal, quashed the conviction, and ordered a retrial. The court found that the primary judge's failure to leave to the jury alternative charges was a significant error that warranted a retrial. The court held that the other issues raised in the appeal did not affect the outcome of the case. The court did not address the issues concerning the admissibility of evidence, as it found that the error in not leaving to the jury alternative charges was sufficient to warrant a retrial. The court ordered a retrial to be conducted before a different judge, and directed that the jury be left to determine whether Finch was in possession of drugs found in different locations or packages separately, and to consider alternative charges. The court held that the other issues raised in the appeal did not warrant a new trial, as they did not affect the outcome of the case.

Orders