McLaughlin v The Queen

Case [2020] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

MCLAUGHLIN v THE QUEEN

[2020] SASCFC 67

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Livesey)

9 July 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Appeal against conviction.

The appellant is originally from Northern Ireland. On 14 February 2017 he left a black bag at the Strathmore Hotel. It was picked up by the waiter just after 9:20 pm and put into the manager’s office as “lost property”. The next day, just after 9:00 am, the manager arrived for work, went inside the office and opened the black bag. Inside the bag a number of items were found including a tub that contained 72.1 grams of a substance that contained methylamphetamine, another tub containing a substance that had 2.28 grams of methylamphetamine, a resealable bag which had 0.24 grams of a substance that contained methylamphetamine, numerous unused resealable bags, plastic straws with “scoop” or “splayed” ends and $3,580 cash. Police were called and the bag was seized.

The appellant was arrested and charged with the offence of trafficking in a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA). Police later searched the appellant’s house and found an iPhone on which were found incriminating photographs taken in late 2016.

A trial commenced in the District Court before a jury. The jury returned a unanimous verdict of guilty and a conviction for the offence of trafficking in a controlled drug was recorded.

In this Court the appellant sought permission to appeal his conviction. In effect, he sought to challenge the jury’s verdict on the ground that it was “unsafe or unsatisfactory”. He contended that on an independent assessment of the evidence, though there was evidence upon which a jury might convict, it would nonetheless be dangerous in all the circumstances to allow the verdict of guilty to stand. In this regard, the appellant focused on the suggested inability of the evidence to exclude the reasonable possibility that a third party had access to the black bag and had left the drugs inside it, in the 12 hours or so between the appellant leaving it, and it being opened and seized by police the following day.

Held, per Livesey J (Kourakis CJ and Nicholson J agreeing) refusing an extension of time in which to pursue the appeal and dismissing the appeal;

1. The question of the appellant's possession of the bag and its contents (including the "chain of custody") was a question of fact to be determined by the jury having regard to whether there existed a reasonable explanation consistent with innocence for all of the contents, including those on which the appellant's DNA was found but which the appellant disavowed.

2. The verdict of guilty returned by the jury was not…

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McLaughlin v The Queen [2020] SASCFC 67
Case
[2020] SASCFC 67
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CaseChat Overview and Summary

The case of *McLaughlin v The Queen* was heard by Kourakis CJ, Nicholson and Livesey JJ of the Court of Criminal Appeal. The appeal concerned a conviction for drug trafficking offences. The appellant sought an extension of time to lodge his appeal, which was filed approximately ten months after his conviction.

The legal issues before the court included whether the jury's verdict of guilt was unreasonable or unsupported by the evidence, specifically in relation to the appellant's submissions regarding DNA transference and the admissibility of iPhone photographs as hearsay. The court was also required to determine whether to grant the appellant an extension of time to pursue his appeal, considering the significant delay and the appellant's conduct.

The court rejected the appellant's submissions regarding DNA transference, finding the hypothesis of DNA transfer to items disavowed by the appellant to be difficult to maintain. The court also dismissed the hearsay argument concerning the iPhone photographs, noting that there was no challenge at trial to the method of downloading and that the photographs themselves were relevant and admissible evidence. The court considered the principles for granting an extension of time, including the length of delay, reasons for it, the existence of an arguable case, and prejudice to the respondent. The court noted that the appellant had absconded after being granted bail pending sentence, which would have been a factor against granting an extension.

Ultimately, the court concluded that the jury's verdict was neither unreasonable nor unsupported by the evidence. The court ordered that the extension of time in which to pursue the appeal be refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant relied upon the same submissions, including the possibility of “transference” of DNA from items belonging to him to the implicating items found inside the bag. These submissions must be rejected: it is difficult to maintain the hypothesis of DNA transfer over items found inside the reading glasses case and inside the Ted Baker purse, both of which the appellant disavowed. Ground 3: The iPhone evidence was hearsay This ground was addressed only briefly at the hearing. The submission appeared to be that it was not open to the prosecution to rely upon photographs which had been downloaded from the iPhone by a detective and not by an expert. Quite apart from the fact that there was no challenge at trial to the means by which the photographs were downloaded,[41] the photographs were themselves relevant and admissible evidence. [41] Brevet Sergeant Stevens was cross-examined by counsel who first appeared for the appellant. There was no challenge to the source or timing of any of the photographs. The critical issue was the absence of any explanation consistent with innocence as to how the appellant’s iPhone came to contain photographs that the appellant denied taking, during the same timeframe as photographs that the appellant admitted taking when the iPhone was in his possession.Extension of time After his conviction on 26 June 2019, the appellant did not lodge a Notice of Appeal until 9 April 2020. Accordingly, he requires an extension of time in which to appeal. The appellant’s handwritten grounds of appeal explain that he needs an extension of time because he was informed on 13 March 2020 that he had been denied legal aid. He also said that he had no access to a legal library and he struggled to complete the relevant appeal form. The Crown, however, says that following conviction an application to revoke bail was refused. The appellant was remanded on home detention bail to appear in the District Court in August 2019 for submissions in mitigation of penalty. The trial Judge warned the appellant that he should be prepared for his bail to be revoked. The trial Judge told the appellant that she was giving him “some time to organise your affairs”. The appellant failed to appear when the matter was called on in August 2019. On the morning of his scheduled appearance he cut off his electronic ankle bracelet and absconded. A bench warrant was issued. The appellant was not arrested until 14 November 2019. He was sentenced in February 2020.[42][42] The appellant received a head sentence of five years and a non-parole period of three years backdated to commence from 14 November 2019. On 18 May 2020 Stanley J granted permission to appeal on grounds 1 and 2, refused permission to appeal on ground 3,[43] and referred the application for an extension of time to this Court. [43] Although the standard Form 51 was not before us, we were told that the appellant had prepared it and provided it to his new legal advisors. No issue was taken. The principles applicable to an extension of time are well known.[44] The relevant considerations include the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice to the respondent. [44] The authorities are discussed in R v Jones (2017) 129 SASR 522, [89]-[101] (Peek J).

Decision

Reasons for decision

Had the question of an extension arisen prior to, or separately from, the substantive hearing of the appeal, the fact that the appellant had absconded would have been a factor, though not necessarily decisive, telling against the favourable exercise of discretion.[45] [45] R v Jones (2017) 129 SASR 522, [23] (Kourakis CJ, with whom Nicholson J agreed at [23]): “the circumstances of this case may be compared with the position if the applicant was convicted in his presence but had absconded after being granted bail pending his appeal. The appeal may have been stayed whilst he was at large, but it is doubtful that it could have been dismissed because there is no requirement for the presence of an accused on appeal” cf [72]-[101] (Peek J, contra). That, however, was a case where a majority of the Court of Criminal Appeal ruled in favour of the case of the appellant who required an extension of time.Conclusion For these reasons the jury’s verdict of guilt was neither unreasonable nor unsupported having regard to the evidence.[46] [46] Criminal Procedure Act 1921 (SA), s 158(1)(a). I would order that the extension of time in which to pursue the appeal dated 9 April 2020 be refused.

Ratio Decidendi

Legal Principle Established

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