O'Meara v R - [2006] NSWCCA 131

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: O'Meara v R [2006] NSWCCA 131

FILE NUMBER(S):
2003/3195

HEARING DATE(S): 16 May 2005
25 May 2005
27 July 2005
28 July 2005
6 September 2005
7 September 2005

DECISION DATE: 28/04/2006

PARTIES:
Kenneth Ian O'Meara - Appellant
Crown - Respondent

JUDGMENT OF: Simpson J Buddin J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/3206

LOWER COURT JUDICIAL OFFICER: Graham DCJ

COUNSEL:
P Ingram - Respondent

SOLICITORS:
Appellant in person
S Kavanagh - Respondent

CATCHWORDS:
appeal against conviction
charge of cultivate no less than commercial quantity of cannabis
two charges of unauthorised possession of firearm
appellant unrepresented at trial and on appeal
application for stay of proceedings
appellant unrepresented and indigent
application refused
appellant refused leave to appeal
grounds of appeal
appeal against refusal of stay
pre-trial voir dire
pre-trial procedures
- whether court should have held inquiry into appellant's fitness to be tried
appellant's medical fitness to continue with trial
appellant complains of voir dire being held in absence of jury
items taken from appellant's home in execution of two search warrants
bail conditions
evidence of identification of appellant
evidence alleged to have been illegally or improperly obtained
seizure of items in execution of search warrant
trespass to property
validity of search warrant
validity of certificate of identification of cannabis plants
evidence that shotgun was previously stolen
evidence of appellant's possession of police badge
evidence before jury in error
irregularity
no consequences
no miscarriage of justice
whether evidence illegally or improperly obtained
no such evidence
juror ineligibility
ground abandoned
alleged improper relationship between members of jury and members of prosecution team
no impropriety established
ground abandoned
execution of bench warrants during course of trial
alleged by appellant to have been observed by some jury members
ground abandoned
double jeopardy
certificate of dismissal of count of goods in custody
amendment of indictment
power to grant leave to amend indictment
separate trial of counts
abuse of process
official amnesty with respect to possession of firearms
firearms legislation repealed and replaced by time of trial
effect of repeal
prerepeal operation preserved by s30 Limitation Act 1987
asserted bias of trial judge
post conviction remarks
no bias or reasonable apprehension of bias established
complaint about summing up
directions with respect to failure of accused person to give evidence
directions with respect to failure to call a witness
directions concerning firearms amnesty
verdict asserted to be unsafe and unsatisfactory
whether jury properly sworn
validity of indictment
whether appellant charged on indictment with offences that could only be prosecuted summarily
whether appellant initially charged under Firearms Act 1996 or Firearms Act 1989
application for leave to appeal against sentence
comparable offender
whether irrelevant or unsubstantiated circumstances taken into account on sentencing
whether prior convictions wrongly taken into account
no error
appeal against conviction dismissed
leave granted to appeal against sentences
each appeal dismissed

LEGISLATION CITED:
Crimes Act 1900, s352(now repealed)
Crimes Act 1914 (Cth) s29D
Crimes (Sentencing Procedure) Act 1999 s44(2)
Criminal Appeal Act 1912 s5F(3)
Criminal Procedure Act 1986 s20(1), s21(1), s29, s66, s205, s206, s208
Drug Misuse and Trafficking Act 1985 s23(2), s38, s43
Evidence Act 1995 s20(2), s114, s116, s138, s189
Firearms Act 1989 Regulation 98, Regulation 98A, s5
Firearms Act 1996
Interpretation Act 1987 s30
Jury Act 1977 cl 8 Schedule 2
Search Warrants Act 1985 Part 2 (now repealed)
Firearms Act 1989 s5(a)
Mental Health (Criminal Procedure) Act 1990, s9, s10
Justices Act 1902 (now repealed)

DECISION:
(i) appeal against convictions dismissed
(ii) leave granted to appeal against sentences
(iii) each appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2003/3195
SIMPSON J
BUDDIN J
HALL J
Friday 28 April 2006

Kenneth Ian O’MEARA v REGINA

Judgment

SIMPSON J: The appellant appeals against his convictions in the District Court on 18 June 2003 on all counts in an indictment which charged three offences; he seeks leave to appeal against the sentences thereupon imposed. Regrettably, the appellant, who is not legally qualified, appeared unrepresented in the trial, and again appeared unrepresented in this Court. His unrepresented status has created severe difficulties in the appeal, as, indeed, it did in the trial. Despite the appellant’s recognised intellectual capacity, it is plain that not all legal concepts and principles are within his grasp. Nevertheless, he has clearly put an enormous amount of time and effort into his research and the preparation of his written and oral submissions. He is, as the trial judge noted, an intelligent man who has been able to present his case with some skill. There are, however, a number of areas where he has plainly misapprehended the law.
The charges on the indictment were:
Count 1:cultivation of not less than the commercial quantity of cannabis, contrary to s23(2) of the Drug Misuse and Trafficking Act 1985;
Count 2:unauthorised possession of a firearm (a .22 calibre Jennings self-loading pistol), contrary to s5(a) of the Firearms Act 1989;
Count 3:unauthorised possession of a firearm (a 12 gauge Mossberg repeating shotgun), also contrary to s5(a) of the Firearms Act.
The first charge carries a maximum penalty of imprisonment for 15 years; the first firearms charge carries a maximum penalty of imprisonment for 10 years; the second of imprisonment for five years. (The differential between the statutory maximum in relation to the firearms offences occurs because the section provides for different penalties, dependent upon whether the unauthorised firearm was or was not proven to be a pistol.)
Each offence was alleged to have been committed on (or, in the case of the drug offence, about) 15 February 1997, at Tahmoor.
The trial commenced on 19 April 2003, before Graham DCJ and a jury. It continued, over almost nine weeks, until the jury returned verdicts of guilty on each count on 18 June 2003.
Pre-trial procedures, which became very long and involved, and involving the admissibility of various aspects of the prosecution’s proposed evidence, commenced on the day initially fixed for the commencement of the trial, 19 March 2003, a Wednesday. They proceeded thereafter over the next four complete weeks. Evidence was given by at least five police officers, in the case of one, Detective Grant, on four different days. Evidence was also given by the appellant, over three days. Previously, the appellant had also sought a stay of proceedings on the indictment.
On 18 March Graham DCJ delivered a lengthy judgment in relation to the stay application. He identified four different bases for the stay then sought. Relevantly, it seems, the appellant sought a stay because of what he contended was the improper conduct of committal proceedings; because he was unrepresented and indigent; because he was hampered in his preparation for the trial by reason of restrictive bail conditions; and because, by reason of events subsequent to his being charged, he had lost material necessary for his defence.
His Honour rejected all the appellant’s contentions, and dismissed the notice of motion, giving several reasons. One of these was that, so far as the appellant complained that loss of material deprived him of a potential alibi defence, no notice of alibi had been given; that evidence was given in the proceedings on the notice of motion, and, it was common ground, the appellant was able to download onto a floppy disc the materials he requested (although it might be that that attempt was unsuccessful).
On 21 July 2003, pursuant to s5F(3) of the Criminal Appeal Act 1912, the appellant sought leave to appeal to this Court against the refusal of the stay. Since, by that time, the trial had run to a conclusion and the appellant had been convicted, the Court as then constituted refused the leave sought. Essentially, the Court held that, the trial having concluded, there was nothing of substance left to stay and that the application was misconceived. That ruling does not stand as an impediment in the way of the appellant now raising the same grounds and the same arguments in challenging Graham DCJ’s refusal to stay the trial. Indeed, Tobias JA, who delivered a judgment adopted by the other members of the Court, expressly noted that the appellant, in an appeal against conviction, would be able to agitate the matters the subject of that application. On this appeal the appellant specifically relied upon the written submissions he had provided to this Court on that occasion. He further relied upon an affidavit which he had put before the District Court in support of his application for a permanent stay.
On 1 August 2003 Graham DCJ sentenced the appellant. On the second count (unauthorised possession of the pistol) he imposed a fixed term of imprisonment for 18 months, commencing on 18 June 2003; on the third count (unauthorised possession of the Mossberg) he imposed a wholly concurrent sentence of imprisonment for 12 months; on the first count (the drug offence) he imposed a partially cumulative sentence of imprisonment for two and a half years with a non-parole period of 19 months, commencing on 18 June 2004. The effective sentence was therefore one of imprisonment for three years and six months with a non-parole period of two years and seven months.
the Crown case
At the outset it may be observed that the Crown case was extraordinarily strong. It was quite straightforward and may be stated with relative brevity. It was that, on 15 February 1997, a police helicopter en route to the Thirlmere area flew over a property at Tahmoor that belonged to the appellant. A police officer on board recognised a large number of plants on the property as cannabis. Police on board the helicopter completed their Thirlmere operation and returned to Tahmoor. They guided other police, in ground vehicles, to the property. There they conducted a search. Eventually they located the appellant, in the roof cavity of a garage. He explained his presence in the roof cavity by saying that he had a rat problem. One police officer, Senior Constable Gomes, recognised the appellant as a man he had earlier seen from the air while the helicopter was circling overhead. The appellant was searched, arrested and taken to the Picton Police Station. When asked about the cannabis, he said that there was a very simple explanation, but he declined at that time to say what it was. He said again that he had been in the roof looking for rats.
Later, a search warrant was executed on the property. In two greenhouses, in garden beds and in the garage, a large number of cannabis plants, in varying stages of cultivation, were found. In all there were 598 plants. Some had white plastic labels, with handwritten markings on them. An irrigation system, with a timer, was set up in one greenhouse. In the garage an elaborate hydroponic growing system was established. In an office in the main house (of two houses on the property) was a box containing 46 computer discs, and four books on the subject of hydroponic gardening and cannabis cultivation.
Parked in the garage was a Ford Falcon, in the spare wheel of which was found a fully loaded .22 Jennings brand silver and black handgun, several boxes of .22 ammunition, a holster, and a bottle of gun oil. The firearm was the subject of Count 2.
In one of the bedrooms was a vinyl gun bag, containing a fully-loaded Mossberg pump-action shotgun (the subject of Count 3), together with an ammunition belt containing 18 rounds of ammunition. Several boxes of unused shotgun cartridges were found under the bed. The appellant gave no evidence in the trial.
That is, for present purposes, a sufficient outline of the Crown case. It will be necessary, in dealing with the grounds of appeal advanced, to refer to some additional evidence and also to some factual matters concerning the history of the proceedings.
the grounds of appeal
Initially the appellant pleaded grounds of appeal as follows:
“1.The District Court was not competent to conduct the Trial
2.The DPP is not and was not competent to prosecute
3.The Trial was unfair
4.The brief of evidence was contaminated
5.The Trial Judge reasoned contrary to evidence or submissions
6.The Jury comprised members who are ineligible
7.The sentence is manifestly excessive”
Each of these grounds was supported by detailed written submissions dated 24 September 2003 and received in the Registry of the Court on 30 September 2003. The appellant specified the orders he sought as follows:
“1.An order that the District Court is incompetent and was not competent to conduct the trial.
2.An order that the DPP is not, and was not competent to Prosecute.
3.An order that the trial was unfair.
4.An order that the brief of evidence was contaminated.
5.An order that the trial judge in his determination under S138 of the Evidence Act:
5.1    reasoned contrary to evidence or submission
5.2    erred at law in finding the warrant invalid only by way of not stating an offence
5.3 erred at law in putting the s43 certificate before the Jury
5.4    erred at law in allowing the identification evidence of Mr J Zuchetti
5.5    erred a (sic) law in allowing unfair prejudicial evidence to be put before the Jury
6.Order that the Jury was not lawfully empanelled.
7.An order that the verdict of guilty be discharged and a verdict of not guilty be entered.
8.Alternatively that the sentence imposed be quashed and the appellant sentenced to time served.
9.Such further or other orders that this honourable court deems appropriate.”
In supplementary submissions, filed by the appellant on 6 October 2004, he abandoned grounds 1 and 2. But in these supplementary submissions he appears to add a variety of additional grounds. None of these is properly formulated as a ground of appeal, but they may be stated in summary form (as they appear in an index to the submissions) as:
“8.Double jeopardy.
9.Indictment.
10.Separate trials.
11.Amnesty and abuse of process.
12.Bias.
13.Summing up.
14.Verdict unsafe or unsatisfactory.”
(Items numbered 15 and 16 in this catalogue were a “Summary” and “Orders sought”. They do not constitute separate substantive grounds of appeal. I mention them merely for continuity, since I propose to adopt the appellant’s numbering system.)
In yet another document, entitled “Appellant’s supplementary submissions – No 2” and dated 12 January 2005, the appellant raised, apparently as ground 17, a question about the formalities of the empanelling and swearing of the jury. The new ground was cryptically framed as:
“Trial was a nullity”.
During the course of the hearing of the appeal (in fact, on the fourth of six days on which the appeal was listed) the appellant was granted leave to add a further ground, which may be expressed as follows:
“The trial proceeded on an invalid indictment in that the appellant was tried on indictment on charges that could only be dealt with summarily.”
(I have treated this ground as ground 18.)
In very lengthy and detailed written submissions supporting these additional grounds, and supplementing the written submissions previously made, the appellant raised a number of specific factual matters, some of which have become the subject of evidence. It will be convenient to deal with the evidence in the context of disposing of each of the individual grounds of appeal advanced.
* * *
The appeal was first fixed for hearing in this Court on 14 September 2004. It seems, from the transcript of the proceedings on that day, that the appellant sought to raise grounds additional to those initially pleaded, and that these involved factual allegations of which the Crown had not had prior notice. As a consequence the appeal was stood out of the list on that day, to be re-listed. I infer that the appellant’s supplementary written submissions, which are dated 6 October 2004, came about as a result of that adjournment.
The appellant presented a massive amount of written material to the Court; he called oral evidence on a number of issues. He made extensive and detailed oral submissions. While it is necessary to recognise the appellant’s unrepresented status, and thereby to make considerable allowances, it is also appropriate to record that much of the material was presented in a diffuse, rambling, convoluted, and, in some cases, positively misleading, way. The Court made strenuous efforts, and allowed an extraordinary amount of time, for the appellant to make out his case. Notwithstanding that, there remain some areas of the appellant’s argument that are simply incomprehensible. There were occasions on which the appellant changed his ground, apparently in order to avoid the consequences (that were plainly apparent to him) of legitimate responses to some of the propositions he put. There were many assertions of fact unsupported by any evidence. At times the submissions were hyperbolic. The manner in which the appellant presented his case has made it quite impossible to maintain any order in these proceedings. In many respects the connection between the facts or arguments put in support of specified grounds of appeal were tenuous, at best.
the appeal against conviction
I will now proceed to deal with the grounds of appeal as particularised by the appellant. I will adopt the numbering system used by the appellant both in stating the grounds of appeal, and in his written submissions. He began his written submissions with:
“The appellant holds the view that the trial was such a farce as to barley (sic) warrant the term ‘trial’.”
Much of what is complained of found its way into the submissions advanced in support of more than one of the grounds of appeal.
ground 3: the trial was unfair
This ground itself had many tentacles.
In particularising this ground of appeal the appellant contended:
“3.1The processes preceeding (sic) the Trial were unlawful ...
3.2A ‘Dietrich Stay’ was wrongly refused.
3.2.1 On 19 March 2003 the prosecution presented fresh Charges ...
3.3New charges were laid, an adjournment sought, and refused to enable the appellant to meet the charges.
3.3.1On 19 March 2003 new charges were laid removing time being of the essence
...
3.4An adjournment was wrongly refused which deprived the appellant access to material of substantial assistance
...
3.5The appellants bail conditions prevented his re finding material which would be of material assistance.
...
3.6The Trial Judge erred at law by not conducting an inquiry under the Mental Health (Criminal Procedure) Act.
...
3.7The Trial Judge erred at law in allowing preliminary questions not caught by s189(2) of the Evidence Act 1985 to be heard in the absence of the Jury and/or The trial Judge erred at law in allowing material evidence to be heard in the absence of the jury.
...
3.8The Trial Judge erred at law by hearing the preliminary questions referred to at 3.7.1 and 3.7.2 in the absence of the Jury, without considering the imperative questions required under [s]189(5).
...
3.9The appellant was too ill to properly conduct his Trial at the critical stage.
...”
I have attempted to distil the multifarious complaints made by the appellant. So far as I can establish, the issues that arise under the arguments advanced in support of the ground that the trial was unfair are the following which I will treat as sub-grounds of the appeal:
(i)that certain pre-trial procedures were unlawful;
(ii)that, in accordance with the principles stated by the High Court in Dietrich v The Queen [1992] HCA 57; 177 CLR 292, a stay of the trial ought to have been granted unless and until the appellant was granted legal aid;
(iii)that an amendment to the indictment caused irreparable prejudice to the appellant; and that, when the amendment was permitted, an application for adjournment was wrongfully refused;
(iv)that on or about 12 May, the trial judge ought to have stopped the trial and conducted an inquiry under the Mental Health (Criminal Proceedings) Act 1990;
(v)that police had executed a search warrant on the appellant’s home on 23 September 1999, and had removed a computer containing material essential to his defence;
(vi)that, on 26 February 2003, a computer belonging to the appellant and containing material relevant to the preparation of his defence was seized by an officer of the Australian Federal Police;
(vii)that the conditions imposed upon the appellant in respect of a grant of bail unduly hampered him in the preparation of his defence;
(viii)that, during the course of the trial, the appellant was medically assessed as unfit to continue to defend himself;

I shall deal with these as best I can, on the basis of the material put before the court by the appellant. As I have already indicated, it was never easy, and sometimes impossible, to keep track of the appellant’s submissions.
(i) unlawful pre-trial procedures:
(ii) the Dietrich application:
These sub-grounds appear to have a common foundation. They may (I think) accurately be characterised as an appeal against Graham DCJ’s refusal of the stay.
The appellant’s written submissions on this were not easy to follow. He adopted evidentiary and argumentative material that he had put before Graham DCJ and before this Court in his application for leave to appeal. He submitted as follows:
“3.1The processes preceding the Trial were unlawful. The appellant relies upon the written submissions made to this Court in CCA NO: 60122/03 heard 21 July 2003.”
He made reference to what he called “Annexure B” which appears to be written submissions prepared for the purposes of his application for leave to appeal to this Court following the refusal of a stay in the District Court, and to which more detailed reference will be made below. In those submissions the appellant argued that he had been unfairly denied a fair chance of acquittal in the pre-trial procedures and that a permanent stay ought to have been granted, or alternatively, the matter remitted to the Local Court to be heard according to law. By notice of motion filed in the District Court, the copy of which presented to this Court is undated, the appellant sought orders as follows:
“1.An order that the presentation of a fresh indictment (requiring the applicant to meet a new case) on the first day of the applicant’s trial is an abuse of process.
2.An order that the indictment be permanently stayed.
3.An order that the indictment is defective.
4.An order that the indictment be quashed.
5.An order that consequent to the failure of the respondent to present a valid indictment the jurisdiction of the District Court has not been validly ignited.
6.An order that the proceedings have not been validly commenced.
7.An order that the respondent is not competent to prosecute the proceeding.
8.An order that the respondent is not competent to invoke the jurisdiction of this court.
9.Such further or other orders as this honourable court deems appropriate.”
The first matter relied upon by the appellant in support of his application for a stay concerned the conduct of the committal proceedings preceding the trial. I take it that this is what he was referring to in the ground numbered 3.1, when he asserted that the processes preceding the trial were unlawful. In this material, in turn, he referred to affidavit evidence in the District Court. So far as I can discern, however, there is nothing in that affidavit that calls in question the propriety of the committal proceedings. However, the matter was clearly raised before Graham DCJ and dealt with at length by his Honour. His Honour appears to have accepted that there was a “material irregularity” in the conduct of the committal proceedings in that provisions of the Justices Act 1902 (now repealed) particularly concerned with the manner in which an unrepresented defendant is treated did not appear to have been complied with. However, after an exhaustive analysis of the transcript of the committal proceedings, he held that the appellant had not established that the irregularity created any likelihood of unfairness in the trial. In this, in my opinion, he was plainly correct. There is no substance in this complaint.
(ii) stay of proceedings: Dietrich v The Queen:
The second matter was put in reliance on the decision of Dietrich. Graham DCJ found that the appellant’s unrepresented status came about as a result of his own conscious decision to withdraw instructions to solicitors who had been assigned to him by the Legal Aid Commission. While accepting that the appellant lacked the financial means to obtain legal representation for himself (one of the circumstances referred to in the decision in Dietrich) Graham DCJ observed that the appellant had become experienced in the conduct of litigation, was intelligent, and had demonstrated himself to be skilled in legal research and capable of cross-examining witnesses.
It appears that the appellant, in the District Court, relied upon that part of the decision in Dietrich in which Mason CJ and McHugh J accepted that disadvantage to an unrepresented litigant might arise by reason of an inability dispassionately to assess and present his or her case in the same manner as counsel for the Crown.
The appellant held himself out as lacking the capacity to assess and present his case dispassionately. His Honour appears to have rejected this, dealing at some length with the manner in which the appellant had previously conducted himself in a multiplicity of court appearances, including in the High Court of Australia. That was an assessment well open to his Honour. No error is disclosed.
(iii) amendment to indictment and adjournment:
In an affidavit filed in support of the notice of motion the appellant deposed that the indictment had been amended by the substitution of the words “on or about 15 February 1997” for the words “on 15 February 1997”. The appellant deposed that, for the six years from the day he was charged until the date of the amendment, he had focussed his efforts on “time being of the essence” and claimed to be unable to meet the new case as he was deprived of evidence relevant to periods “on or about 15 February 1997” as distinct from “on 15 February 1997”. He said that he had maintained an electronic diary on his computer which had been destroyed by the actions of police in a search of his premises on 23 September 1999 and that the loss of the diary precluded his being able to identify and call alibi defence witnesses; and he could not retrieve emails which would assist in determining his movements on or about 15 February 1997. He claimed also that his memory of the events of the days surrounding 15 February 1997 had deteriorated.
Although this was the affidavit put before this Court by the appellant, it is apparent that it is not the affidavit that was put before Graham DCJ. In his judgment of 18 March 2003 his Honour referred to an affidavit sworn on 12 March 2003. The appellant has not put that affidavit before this Court.
His Honour recorded that, in that affidavit, the appellant claimed, inter alia, that he was restricted in his preparation of his defence because, on 26 February 2003, material was seized by police; that material included subpoenas which had been prepared for issue, authorities on which the appellant proposed to rely, and notes for cross-examination.
He rejected the applicant’s contention that he was deprived of materials necessary for his defence. There is no error in his Honour’s approach to this issue. There is no substance in this sub-ground.
(iv) inquiry under Mental Health (Criminal Procedure) Act
In further support of the ground of appeal that the trial was unfair, the appellant complained of the failure of Graham DCJ to conduct an inquiry under the Mental Health (Criminal Procedure) Act 1990. In his written submissions the appellant asserted as follows:
“3.6.1During the course of the trial my GP assessed me as being unfit to continue the unrepresented conduct of the trial and arranged an urgent referral to a Psychiatrist.
3.6.2I then raised the question of my mental health at trial. The trial judge refused me leave to attend the Psychiatrist, and refused to conduct an inquiry and proceeded with the trial.
3.6.3When the question of the defendant’s mental health is raised during the course of the trial the trial judge is required to halt the trial and conduct an inquiry.
3.6.4The action of the appellant in drinking a near fatal dose of organic sulphate at the conclusion of the trial would dispel any doubt as to his mental condition at the time.”
Ss9 and 10 of the Mental Health (Criminal Procedure) Act 1990 provides:
“Procedure where question of unfitness raised after arraignment
9If the question of a person’s unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence.”
S10 relevantly provides:
“Procedure on raising question of unfitness
10(1)       If, in respect of an offence:
(a)   ...,
(b)      the question of a person’s unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence,
the Court must (except as provided by this section), as soon as practicable after ... the question is raised, ... conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.
(2)The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.”
In support of the proposition contained in 3.6.3, the appellant cited “Terrence Tier v the DPP”. This was a reference to the decision of this Court in R v Tier [2001] NSWCCA 53; 121 A Crim R 509.
There the appellant, whose trial had commenced six weeks earlier, failed to appear on one day. He had been admitted to the psychiatric unit of a public hospital. A psychiatric report provided a provisional diagnosis of major depression over the preceding two months. The diagnosis was confirmed by that appellant’s treating psychiatrist two days later. The psychiatrist stated that the appellant was unfit to undergo the rigours of a trial at that time.
An application made on that appellant’s behalf for a hearing, under the Mental Health (Criminal Procedure) Act was rejected, the judge stating that he did not believe it had been made in good faith.
The proceedings in that case had had a lengthy history.
As to the application in Tier, Kirby J, with whom Grove J expressly agreed, and with whom Sheller JA also agreed, although giving his own statement of reasons, said:
“71The exception provided by s10(2) recognises that an inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s10(2)) for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the court that the question has not been raised in good faith (s10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process. ... Conversely, where there is a real and substantial question, good faith will be presumed.
72Section 10, therefore, suggests a sequence of questions. Usually, an accused person will be represented (s12(1)). Where an accused’s representative raises a question concerning the unfitness of the accused, the trial judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie, an obligation on the trial judge to halt the trial, and to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial judge to seek an elaboration upon the matters giving rise to the concern ... Where that elaboration demonstrates a real and substantial question, good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the court may impute an absence of good faith, and decline to conduct an inquiry (s10(2)).”
The Court found error in the approach there taken by the trial judge, allowed the appeal, quashed the conviction and ordered a new trial.
Although the present appellant has provided extensive affidavit evidence in relation to some of his grounds of appeal, he has not provided any additional evidence in support of this aspect of the appeal. The relevant facts must be drawn from the record of the trial. To deal with the matters raised requires something of an excursion that may, initially, appear to be of dubious relevance.
As I have set out above, the trial itself was preceded by many days of preliminary hearings, including extensive examination of various witnesses on the voir dire. The appellant was arraigned in the presence of the jury panel on 19 April 2003. On Thursday 8 May it became apparent that the appellant had failed to appear, as he was required to do, in the Newcastle Local Court in relation to other charges. As a result a number of bench warrants were issued for his arrest. The transcript records considerable discussion about accommodating the appellant’s need to attend at the Newcastle Court. The trial was adjourned until the following Monday, 12 May. Arrangements were made for the bench warrants to be executed in a public street not far from the Downing Centre Court where the trial was being conducted.
When the trial resumed on Monday 12 May the appellant sought an adjournment for a week. He made lengthy and diverse complaints about his treatment over the weekend. After execution of the bench warrants he was kept in custody, according to the appellant, until about midday on the Friday (9 May). Eventually, he was pressed to state with particularity the basis for his adjournment application. He said that it was to seek medical attention. The transcript records him saying:
“Your Honour I have a distinct feeling that at the moment following that, I; (i) would require normal medical attention and my fitness to be tried without specialist treatment might be in doubt, and I seek an adjournment to clarify that issue. Quite simply my body hasn’t recovered from this. It is just jumping. I could not possibly follow the proceedings.”
In response to a question from the trial judge he said that he had not had any opportunity to obtain a medical certificate but he wished to consult his family doctor. He said he could not concentrate.
The judge and the Crown Prosecutor cooperated in providing the appellant with an opportunity to consult a medical practitioner. Indeed the judge even arranged for his staff to provide the appellant with the telephone numbers of nearby medical practices.
Later in the day the appellant returned to court with a medical certificate stating that he was suffering from hypertension and was unfit to participate in the trial until the following Thursday (Voir Dire Exhibit 2). The judge accordingly adjourned the trial until Thursday 15 May.
On 15 May the appellant presented a further medical certificate, this time from his own general practitioner who was said to practise in the Nelson Bay area, where the appellant lived. This certificate stated that the appellant was:
“... suffering a medical condition such that his mental state precludes his attendance at court from today.”
The general practitioner said that the appellant was:
“... suffering symptoms of depression and anxiety - specifically he complained of mental clouding, agitation, poor sleep, early morning waking, fatigue.”
The certificate went on to say that the appellant was to undergo specialist examination on the following Tuesday. The trial judge regarded that certificate as inadequate and allowed the appellant a short additional adjournment to enable him to contact his general practitioner and supplement the certificate. That was done, by a further certificate, transmitted to the court by facsimile. The general practitioner said that the appellant was suffering symptoms of depression and anxiety. The appellant sought a further adjournment pending specialist advice and opinion.
Graham DCJ refused further adjournment. In doing so he directed himself as to the relevant sections of the Mental Health (Criminal Procedure) Act. He adverted to the decision in Tier. He concluded that the material provided to him did not raise an issue as to the fitness of the appellant to be tried; did not raise any issue that was a real or substantial one; and was not raised in good faith.
In my opinion this material demonstrates conclusively that the trial judge approached the question correctly and reached the correct result. There is no substance in this complaint.
(v), (vi) loss of materials to appellant:
The next basis on which this ground of appeal is sought to be supported is framed in the following way:
“3.7The trial Judge erred at law in allowing preliminary questions not caught by s189(2) of the Evidence Act 1985 (sic) to be heard in the absence of the Jury and/ or The Trial Judge erred at law in allowing the material evidence to be heard in the absence of the Jury.”
As a subsidiary matter, the appellant argued that:
“3.8The trial judge erred at law by hearing the preliminary questions referred to at 3.7.1 and 3.7.2 in the absence of the Jury, without considering the imperative questions required under 2189(5) (sic – probably s189(5)).”
(The matters identified in 3.7.1 and 3.7.2 were evidence of the execution of search warrants at the appellant’s house in 1999 and 2003, and the removal of his computer and other items.)
He also submitted that:
“3.8.1Those imperative questions must be considered prior to the trial proceeding in the absence of the jury.”
I am puzzled by the content of 3.8.1.
S189 of the Evidence Act is concerned with proceedings on a voir dire. It may, as a preliminary matter, be observed that it is rare to find complaints to the effect that evidence is heard, or argument is taken, in the absence of the jury; it is impossible to see how proceeding in the absence of the jury could in any way have affected the outcome in such a way as to constitute a miscarriage of justice. However, the appellant appears to complain that the jury was kept in the dark in respect of some relevant evidence and/or argument.
By s189(1) determination of certain identified questions (such as the admission of evidence) is defined as “a preliminary question”. By s189(2), where there is a jury, preliminary questions as to the admission of evidence, or evidence to which s138 applies, or the admission of such evidence, is to be heard and determined in the absence of the jury. By subs(4), where there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders. Subs(5) prescribes matters the court is to take into account in deciding whether to make an order under subs(4).
The appellant complains in two respects about evidence taken in the absence of the jury. Each of these concerns the removal of items from his home, pursuant to the execution of two separate search warrants, firstly on 23 September 1999. The appellant’s complaint is that, if the jury had heard that evidence, it could have assisted their understanding as to his limited ability to present defence material. In answer to that it need only be said that it was always open to the appellant to have that evidence adduced in the presence of the jury if it suited him to do so – he could have done so either through cross-examination of the relevant witnesses (and making arrangements for the Crown to call any witnesses who it did not otherwise intend to call), or by giving evidence himself, or calling a family member with relevant knowledge to give as evidence.
The second aspect of the complaint is as to evidence of the alleged removal of the appellant’s computer and its contents on 26 February 2003. Again, the appellant complains that this could have assisted the jury’s understanding. The same response may be made. Indeed, Detective Sergeant Grant, who led the search of the appellant’s home in September 1999, gave evidence in the trial and was cross-examined on this subject matter by the appellant.

To the extent that the evidence was relevant, it was open to the appellant to adduce it from Detective Grant in cross-examination; if he did not do so, he can hardly complain that the evidence was not before the jury by reason of its having initially been given only on a voir dire proceeding.
The Australian Federal Police Officer involved in the events of 26 February 2003 was not called to give evidence; however, the appellant has made himself very well aware of his rights in respect of a criminal trial and could have but, (this Court was told) did not, request that he be made available for cross-examination.
Again, the appellant cannot now complain that that material was not before the jury.
I am, in any event, quite satisfied that this submission is entirely misconceived. So far as I can make out, the complaint made by the appellant is that evidence was taken and argument conducted in the absence of the jury; and that this evidence might have revealed to the jury matters relevant to its consideration of the charges.
It was entirely appropriate for the judge to conduct the voir dire into preliminary questions in the absence of the jury. As I have mentioned, anything that was appropriate to be put before the jury could also have been put before the jury in the trial proper. That was a matter for the appellant. There is no substance to these complaints
(vii) bail conditions:
This sub-ground appears to be associated with sub-grounds (v) and (vi). The appellant asserted, in the written submissions, that bail conditions precluded him from pursuing the inquiries he would otherwise have made in order to compensate for the loss of materials taken in the execution of the search warrants. The first thing to note is that the appellant was, in fact, on bail throughout the majority of the period pending trial. His bail was subject to various conditions, including reporting conditions (the frequency of which varied from time to time), but these do not appear to be unusual.
Following his arrest in July 2002 on Commonwealth fraud charges, he remained in custody for about one month.
I see no reason to accept that the appellant was in any way hampered in the preparation of his defence by reason of any bail conditions. I would reject this sub-ground.
(viii) the appellant’s medical fitness to continue the trial:
Another matter advanced by the appellant in support of the first ground is that he was too ill properly to conduct his trial “at the critical stage”.
In support of this, the appellant submitted:
“3.91. (sic)During the course of the trial the appellant contracted a severe (sic) The Appellant could barely talk, walk or think. The appellants illness was apparent to the court who adjourned for the purpose of a doctors opinion to be obtained. The doctor found that the appellant was unfit to attend trial for five days. The Trial Judge refused to adjourn the trial and forced the appellant to continue.
3.9.2For want of a more appropriate term, the appellant submits the above action clearly illustrates the cowardly, biased conduct of the unfair trial.”
Again, no additional evidence was put before this Court in respect of this aspect of the appeal. It must be determined upon the trial record.
At the commencement of proceedings on Monday 2 June, the 42nd day of the trial (including the preliminary and voir dire proceedings), the appellant made a further application for the purpose of seeking medical attention. He said that he was having difficulty talking, and that, in the condition he found himself, he had no hope of following the proceedings.
The Crown Prosecutor acknowledged that the appellant’s voice was “not in its usual condition”. Graham DCJ allowed a short adjournment for the appellant to obtain medical advice. On resumption the appellant presented a medical certificate (Voir Dire Exhibit 8). The certificate, from a city practitioner, stated that the appellant was suffering “palpitation with high pulse rate, state of anxiety and stress” and was “unable to attend work/school” until 6 June. The appellant accordingly sought an adjournment. His application for adjournment was refused. Graham DCJ expressed some scepticism about the bona fides of the appellant’s complaints. He was fully justified in so doing. He observed that on the previous occasion that the appellant had sought adjournment on medical grounds, he had provided one medical certificate diagnosing hypertension, followed by another diagnosing a “mental condition”. He observed that, when the trial resumed before the jury, the appellant appeared to recover his capacity. He noted that the doctor who provided the most recent certificate had not turned his attention to the critical question which was whether the appellant was able to attend to his trial.
The question of whether an application ought to be granted or not is essentially a discretionary matter for the trial judge, to be determined in accordance with established principles: see House v The King [1936] HCA 40; 55 CLR 499. Many factors are relevant to the determination, including the convenience of the jury, the stage to which the trial has progressed, and any relevant matters of history.
In my opinion Graham DCJ was well within his rights to take the course he did. The transcript does not provide any ex post facto support for the appellant’s contentions.
There is no substance in this aspect of the appeal.
Other matters appear to have been put before Graham DCJ in support of the appellant’s application for a stay of the proceedings. These include the effect of restrictive bail conditions, which the appellant categorised as “house arrest”; and the effects of loss of documents on his capacity to prepare for trial. It is apparent from the materials that the appellant was, on or about 23 September 1999, arrested by Australian Federal Police and charged with four offences against s29D of the Crimes Act 1914 (Cth); and it appears that, some time in or about February 2003 a search warrant was executed resulting in the seizure by Australian Federal Police of the appellant’s computer.
All of these matters were dealt with comprehensively by Graham DCJ. I can see no error in the manner in which his Honour approached the question; and, indeed, the appellant has not identified any specific or general error in the approach taken by his Honour.
Ground 3, that the trial was unfair, should be rejected.
ground 4: “the brief of evidence was contaminated”
I find it impossible to comprehend the basis on which this ground of appeal was advanced. It is best to set out in full the argument presented by the appellant. It was:
“4.1The Crown claimed the appellant had assumed the identity of one Gray Michael Wade.
4.1.1 The Crown Produced a statement from Gray Michael Wade.
4.1.2Under cross-examination Mr Wade admitted his statement was false, not authored by himself but by the informant to the proceedings.
4.2 The Crown produced a statement from John Zuchetti dated 8 May 1997.
4.2.1Mr Zuchetti denied that he had made a previous statement dated 20 February 1997.
4.2.2The informant to the proceedings Det. SGT. Grant and Det. S/C P. Fryer both gave unrebutted evidence that statement had been obtained from Mr Zuchetti on 20 February 1997.
4.2.3Mr Zuchetti’s statement of 20th February 1997 was not produced, nor its contents, and contradiction, if any, to his statement of 8 May 1997 made known to the court.
4.2.4Mr Zuchetti’s statement of 8 May 1997 included knowledge of a ‘timer’ connected to a watering system on the subject property as of January 1997.
A timer was located by police attending the property on 15 February 1997.”
As best I can determine, the evidence of Mr Zuchetti was relevant to the existence of a watering system, presumably in support of the contention that an elaborate cannabis plantation was under cultivation on the appellant’s property. Whether that is so or not, Mr Zuchetti and Detective Grant both gave evidence. Any factual discrepancies between the evidence given by the two witnesses was either before the jury, or available to be put before the jury. I do not understand how a factual dispute, such as is suggested in the appellant’s submissions at 4.2, could amount to a contamination of the brief of evidence.
I am even more mystified about the submissions made in 4.1. Apparently, Mr Wade gave evidence about the purchase of a property at Buxton.
There is nothing in the appellant’s submissions that illuminates this ground of appeal. I would reject it.
ground 5:
Ground 5 is pleaded in the following terms:
“The trial judge reasoned contrary to evidence or submissions.”
However, in the supporting argument the ground is expressed as:
“The trial judge [erred] in his determination under s138 of the Evidence Act”
Again, it is very difficult to discern the basis on which this ground of appeal is advanced. I take it to be a challenge to the decision of the trial judge to admit evidence that the appellant contends ought to have been excluded under s138 of the Evidence Act.
Under this ground the appellant appears to raise issues concerning evidence of a number of different matters. As best I can tell, these are:
(a)seizure of plants;
(b)trespass to property;
(c)the invalidity of a search warrant;
(d)a certificate issued under s43 of the Drug Misuse and Trafficking Act;
(e)identification evidence given by Mr Zuchetti;
(f) evidence that the shotgun found in the appellant’s possession was stolen;
(g)evidence that a NSW Police badge had been found in the appellant’s possessions.
Each of these matters appears to be advanced as evidence that should have been excluded by reason of the provisions of s138 of the Evidence Act. By subs(1) of that section, evidence that was obtained improperly or in contravention of an Australian law or in consequence of such impropriety or contravention is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the particular evidence in question was obtained. Subs(3) prescribes (non-exhaustively) the matters that the court must take into account in determining whether to admit the evidence.
On 14 and 15 April Graham DCJ delivered a judgment which extends to 160 pages of transcript. This is principally concerned with the issues that arose concerning s138 of the Evidence Act. His Honour correctly recognised that the onus of establishing that evidence obtained improperly or illegally ought to be admitted lies upon the Crown. The Crown discharges the onus by establishing that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the particular evidence under consideration has been obtained. His Honour also carefully directed himself as to the provisions of subs(3), and the factors there catalogued as pertaining to the decision.
Under s138 two separate questions arise. The first is whether the evidence was obtained improperly, illegally, or in consequence of impropriety or illegality; the second, which arises only where that is answered in the affirmative, is whether, having regard to the nature of the impropriety or illegality, the desirability of admitting the evidence outweighs the undesirability of admitting evidence so obtained.
In respect of some of the items on the appellant’s list, it appears that his challenge is to a finding that the evidence was not obtained improperly or illegally. Such a determination may involve a question of fact, a question of law, or a question of mixed fact and law. In other items of evidence, where his Honour has found impropriety or illegality, the challenge is to his determination to admit the evidence. In order to succeed in an appellate challenge to such a determination, it is necessary for the appellant to show that, on the principles stated in House v The King that the evaluation was not reasonably open to Graham DCJ, or that he proceeded on a wrong principle.
I turn now to attempt to set out what it is that the appellant appears to challenge. The first task is to identify which, if any, of the evidence in question was improperly or illegally obtained.
Evidence was given that the search warrant was issued at 4.45 pm.
In his very lengthy judgment Graham DCJ recounted the evidence given on the voir dire. He accepted that, prior to the issue of the search warrant, a good deal of activity had taken place. This included fairly extensive aerial surveillance of the property followed by entry onto the property by police officers, and, after some searching, the arrest of the appellant.
(a) and (b) entry and seizure:
The first two items on the appellant’s list concern the police entry into the property, and the seizure of a number of cannabis plants. As I understand what the appellant puts, it is that the entry was effected, and some plants seized, prior to the issue or execution of the search warrant, and both entry and seizure were therefore unlawful.
The appellant’s submissions on this are as follows:
“5.5.1The trial judge reasoned that no prohibited plants had been taken (seized) prior to search warrants being executed at the subject property.
5.5.2Det. SGT Grant gave evidence that plants had been taken prior to the warrant being obtained.
5.5.3Det. Insp Henness gave evidence that a video showeing (sic) plants seized and placed into bundles commenced at approximately 5.05 pm. At-the-scene notes produced by Det. Insp Henness showed the warrangt (sic) time at the property as 5.40 pm.”
It appears to me that what the appellant is suggesting is that police have entered the property and seized plants at a time prior to the issue of the search warrant. That seizure would, accordingly, be unlawful and the evidence thereby obtained in contravention of an Australian law, or, at the very least, as a consequence of impropriety.
Graham DCJ dealt exhaustively with the evidence given in relation to this issue. Although there does not appear to be any explicit finding to this effect, it seems to me that his Honour accepted that no plants had been seized prior to 4.45 pm, the time at which the search warrant was issued. If that were so, the search warrant having authorised the seizure of cannabis plants, that seizure (and the evidence thereby obtained) was not unlawful, and there is no occasion for a s138 determination. That is a finding of fact and one which I would not disturb.
The entry into the premises is in a slightly different category. There is no question that entry was effected, and the appellant arrested, well before the search warrant was issued. Indeed, the appellant was in the dock at Picton Police Station by 1.30 pm. It was there that the Occupier’s Notice that must accompany the search warrant was served upon him.
At the relevant time s352 of the Crimes Act 1900 (now repealed) provided:
“Person in act of committing or having committed offence
352(1) Any constable or other person may without warrant apprehend,
(a)any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,
(b)any person who has committed a serious indictable offence for which the person has not been tried,
and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.
(2)Any constable may without warrant apprehend,
(a)any person whom the constable, with reasonable cause, suspects of having committed any such offence,
(b)...
and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.”
Graham DCJ appears to have been satisfied that the circumstances in which the police officers made their observations of the cannabis plantation were sufficient to bring into play the provisions of s352. However, he was more doubtful about whether the section authorised the forcible entry into the premises. His Honour referred to DPP v Nassif [2002] NSWSC 1065; 135 A Crim R 391 in which Levine J identified the conditions that are necessary before forcible entry may be made. In short, Levine J held that, in order to gain entry lawfully, police are required to give notice of their presence, notice of their authority, and notice of their purpose by stating a lawful reason for entry. Graham DCJ held that the first two conditions were met – that is, that notice of the presence of the police, and notice of their authority as police, had been given, but that no lawful reason for entry had been stated. However, he declared himself satisfied that their purpose was implicit in their presence, and in what they had otherwise said, such as to obviate the need for any further announcement. He also declared himself satisfied that this was a case within the category of “hot pursuit”. There was urgency in the fact that the offence was continuing to be committed, in the sense that the cannabis plants were in the ground and apparently growing.
Accordingly, he was satisfied that the entry was lawful. Thus, no occasion arose to consider the desirability or undesirability under s138 of admitting the evidence.
Graham DCJ’s careful analysis of the facts, and the authorities, leave no room for doubt that he was correct. There was nothing unlawful or improper about the entry by police. Accordingly, there is no call for this Court to consider whether the s138 test had been met.
(c) search warrant:
The next complaint made by the appellant is that Graham DCJ was in error at law in finding that the search warrant was invalid only because it did not state the offence to which it related. The appellant made a number of other challenges to the legality of the search warrant. Many of these were plainly misconceived. For example, the appellant argued that the warrant could only be issued to the Director General of the Department of Agriculture and Fisheries. This came about, it seems, because the appellant assumed that the warrant was issued under s38 of the Drug Misuse and Trafficking Act. That section does, it is true, authorise the issue of a warrant authorising the Director General to exercise certain identified powers for the purpose of destroying any prohibited plants on the premises the subject of the search warrant, and preventing any regrowth of those plants.
However, the warrant that was issued to Detective Grant was issued under Part 2 of the Search Warrants Act 1985 (as it applied – now repealed). That legislation contains no such limitations.
That the appellant recognised this is clear, because he argued that the Drug Misuse and Trafficking Act postdates the Search Warrants Act and therefore that its provisions take precedence over those of the Search Warrants Act. This, he said, was the result of a rule he called “the rule of last resort”. Any such rule applies only where there is an inconsistency between two statutory provisions such that the two cannot sit together. There is no such inconsistency between s38 of the Drug Misuse and Trafficking Act and Part 2 of the Search Warrants Act.
In any event, by s39 of the Drug Misuse and Trafficking Act any cannabis plant (or other identified items) in the possession of any person may be seized by any member of the police force. Again, the appellant recognised the difficulty this section posed for his argument. He sought to avoid its consequences by further arguing that s39 has no application because the plants were not “in the possession of any person”.
This argument does not appear to have been put before Graham DCJ. If it were, he plainly rejected it. He was correct to do so. This Court should also reject the argument. The cannabis plants found on the appellant’s property were plainly in the possession of the owner or occupant of that property. For the purpose of the present argument it does not matter whether that person was the appellant or was some other person, whether known or not.

I perceive no invalidity of the search warrant other than that identified by Graham DCJ. For the reasons given by Graham DCJ it was appropriate, notwithstanding the (technical) invalidity of the warrant, to admit the evidence obtained as a result of its execution.
(d) certificate under s43 of the Drug Misuse and Trafficking Act:
It is not easy to follow the appellant’s argument in relation to the s43 certificate, nor, indeed, the response made on behalf of the Crown. Both parties submit, for different reasons, that his Honour erred in his approach to this matter. But the Crown, however, further submits that the appellant benefited from his Honour’s erroneous approach.
S43 appears in the Drug Misuse and Trafficking Act under the heading “Certificate evidence”. It relevantly provides, in subs(1), that an analyst may give a certificate of the result of the analysis of “any plant or substance” submitted for analysis; in subs(2) that the production of a certificate, in any legal proceedings under that Act, purporting to be signed by an analyst, shall be prima facie evidence of the identity of the plant or substance, of the quantity or mass of the plant or substance and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to sign the certificate; by subs(4) that, in any legal proceedings under the Act, production of a certificate, purporting to be signed by an appointed person (that is, a person appointed under subs(5), which subsection enables the Director General of the Department of Agriculture and Fisheries to appoint a person to give certificates for the purposes of the section), is, like the certificate of an analyst, prima facie evidence of the identity and/ or quantity or mass of the plant analysed without proof of the signature or appointment of the person appearing to have signed the certificate. Subs(4) is subject to the proviso that it applies only if the plant identified is cannabis plant or cannabis leaf.
The s43 certificate which was admitted into evidence identified Pablo Vazquez as a regulatory officer who was an appointed person. Mr Vazquez certified that he had analysed 598 plants and that they were all cannabis plants, botanically known as cannabis sativa. The certificate therefore met the requirements of s43(4). At the relevant time the Drug Misuse and Trafficking Act contained a definition of “cannabis plant” in the following terms:
“... any growing plant of the genus Cannabis.”
The objection that was taken by the appellant on the voir dire appears to have been entirely different to the point he now seeks to make. A second certificate under s43 certified that the drugs the subject of the certificate had been destroyed. The appellant appears to have argued in the District Court that this destruction deprived him of an opportunity to test the identification of the plants the subject of Mr Vazquez’s analysis. As Graham DCJ correctly pointed out, there was no evidence that, even if this was so, any evidence had been obtained as a result of the destruction, and, therefore, even if that destruction could be shown to have been contrary to law, this argument did not raise a s138 issue.
(e) identification evidence of Mr Zuchetti:
By this complaint the appellant appears to be challenging the admission of evidence given by Mr Zuchetti. The Crown proposed to, and eventually did, call Mr Zuchetti to give evidence of having seen the appellant working on and around the property. This, it appears, arose because the appellant raised an issue about his ownership or occupation of the property on which the cannabis plants were found.
Prior to his being called to give evidence before the jury, a voir dire into Mr Zuchetti’s evidence was conducted. He said that he had lived next door to the appellant’s property since 1972; and that the appellant had lived in his property for seven years prior to 1997. He had met the appellant once, while he and his father were working on the boundary fence, and the appellant was on his side of the fence. He had seen him in the paddocks attending to what looked like plants.
Although the appellant has raised this issue under a ground in which he challenges rulings made under s138 of the Evidence Act, he does not, in fact, raise any point under s138 in relation to this evidence. He has submitted that the evidence was inadmissible. This is because he characterised the evidence as evidence of identification and it was therefore subject to the particular provisions of the Evidence Act governing evidence of that kind. It is as well to deal with the argument here, even though it is not properly brought under ground 5 as expanded by the appellant.
“Identification evidence” is relevantly defined in the Dictionary to the Evidence Act as evidence that is:
“(a)an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:
(i)the offence for which the defendant is being prosecuted was committed, or
(ii)an act connected to that offence was done,
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time ...”
It may be accepted that the evidence given by Mr Zuchetti came within this definition.
By s114(2) visual identification adduced by the Crown is not admissible unless an identification parade that included the defendant was held before the identification was made, or it would not have been reasonable to have held such a parade, or the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
Subs(3) prescribes, non-exhaustively, the matters to be taken into account in determining whether it was reasonable to hold an identification parade. These include the kind and the gravity of the offence concerned; the importance of the evidence, and the practicality of holding an identification parade, having regard to any failure in cooperation by the defendant; the timing of the identification relevant to the commission of the offence; and the appropriateness of holding an identification parade having regard, inter alia, to the relationship, if any, between the defendant and the witness making the identification.
Evidence was given by Detective Sergeant Grant that he had not conducted an identification parade because he believed Mr Zuchetti knew the appellant well, and (by implication) an identification parade would have been superfluous. Graham DCJ accepted that, in the circumstances, an identification parade would have been pointless. He permitted the evidence to be given.
The evidence given by Mr Zuchetti was, essentially, the evidence of a neighbour of the conduct and activity of a person known to him. In my opinion the evidence was properly admitted.
By s116 of the Evidence Act, where identification evidence has been admitted, the judge is to inform the jury that there is a special need for caution before accepting identification evidence, and the reasons for the need for that caution, both generally and in the particular circumstances of the case.
The appellant complains that no appropriate warning was given.
The cross-examination directed by the appellant to Mr Zuchetti was wide-ranging and, so far as I can make out, largely irrelevant. For example, the following appears in cross-examination:
“Q:Are you aware that the boundary fence was relocated?
A:Part of the boundary fence was relocated.
Q:Yes?
A:Eventually.
Q:I put it to you, the second time I met your father, was after I had taken my Case tractor (sic) onto your property, and pulled the corner-post onto our property; would you agree with that?
A:I don’t think you’d do that. Why would you go onto our property with your tractor?
Q:Because your father had invited me to?
A:You’re telling me that.
Q:That is why I’d go onto it. And I put it to you that after I pulled the corner post back onto our property - -
A:But you’ve told me that you’ve come onto our property, and took a strainer post off our property, and pulled it back onto your property. That would be a part of our property, why would you do that?
Q:It’s not your property, it’s your father’s property?
A:You don’t know how much I own of that property.
Q:Go and impress somebody else with that. What we’re dealing with here, is the second time I met your father, and I pulled that strainer post back onto our property, and your father strode across – my son was standing behind me, probably 13, `14, 15 at the time, and your father threatened me, didn’t he?
A:I wasn’t there.
Q:Did he tell you that he threatened me?
A:No, he never told me that.
Q:Climbed on the fence, up over the barbed wire, and thought he’d do the biffo on me, didn’t he. And I said to my son, ‘Stand back’. He said, ‘Why?’ ‘Because as soon as this silly old bastard steps a foot onto our ground, I’m going to deck him.’ And your father did the dog, didn’t he; he climbed back over the fence. Did he tell you about that?
ABut that doesn’t seem right. Why didn’t you deck him on our property; why would he go over onto your property? So I don’t believe that story.”
There was more cross-examination in the same vein. The challenge to Mr Zuchetti’s evidence made by the appellant directly went to his honesty. Essentially, what the appellant was putting to Mr Zuchetti was that the two had never met. The issue for the jury to determine in respect of Mr Zuchetti’s evidence was whether they accepted that he had met, and was able to recognise, the appellant or not. It did not concern the circumstances in which he was able to make observations of the appellant, such as to strengthen or weaken the evidence that he gave.
It did not require a warning to the jury under s116.
(f) evidence that the shotgun was stolen:
This complaint was framed as follows:
“5.5The trial judge allowed unfair prejudicial evidence to be put before the jury.”
The appellant’s complaint in this respect is that, contrary to an agreement reached during the conduct of the voir dire, a document had been put before the jury which suggested that one of the firearms the subject of the indictment was a stolen firearm.
The event gave rise to an application on the part of the appellant for a discharge of the jury. His Honour refused the application and gave reasons for doing so. The circumstances may be drawn from the judgment given by his Honour.
The document (Exhibit WWW) was admitted without objection. It is not clear what its purpose was, and it does not presently matter.
Copies of the document were made available to the jury. Graham DCJ was explaining the document to them, when he realised that the statement about the stolen firearm was included. He immediately withdrew the copies of the document from the jury, and took the morning adjournment.
What occurred constituted an irregularity. It was, however, an irregularity of such a minor kind as to have had no consequences for the trial. There is certainly no error demonstrated in any determination by the trial judge to admit the evidence; he made no such determination.
(g) evidence of a NSW Police badge in appellant’s possession:
A similar irregularity occurred in relation to a police badge found in the boot of a motor vehicle belonging to the appellant, along with a firearm and ammunition. This was tendered by the Crown, but rejected by the trial judge. Steps were taken to exclude reference to the police badge from oral evidence given by witnesses, and from a video recording of the execution of the search warrant. However, during the jury’s deliberations it was discovered that there was a mention of the police badge on a police exhibit tag that was in evidence as Exhibit CCCC. The jury specifically asked a question about its relevance. The appellant sought a discharge of the jury. In a judgment delivered on 18 June 2003 Graham DCJ refused the application. His Honour gave the jury a careful and comprehensive direction. He began by pointing out that not every item seized in the course of a search warrant turns out to be relevant to the charges brought before the court. He explicitly told them that the badge was not relevant to any of the issues in the trial, or any of the charges. He frankly told them that the reference to the badge found its way into the evidence by inadvertence and was there by mistake. He told the jury to disregard the reference to the police badge.
This is a perfectly conventional direction given to juries and one with which, the law presumes, the jury will comply.
The presence of the reference to the police badge could not possibly have given rise to any miscarriage of justice.
There is no substance to any of the complaints the appellant makes under ground 5.
Accordingly, I would reject ground 5 of the appeal.
ground 6: jury ineligibility
It is necessary to take a little time to explain ground 6 although, at a very late stage, the appellant decided to abandon it. Initially the appeal was fixed for hearing on 14 September 2004. By ground 6 the appellant asserted that the jury comprised members who were ineligible. In his September 2003 submission he supported this by submitting:
“6.1At the conclusion of the trial, and at sentencing, it was obvious that at least 3 members of the jury were on first name terms with the Crown Prosecutor ... and the informant Detective SGt R Grant. The appellant has a reasonable apprehension that at least one of the jurors was a serving police officer. On 18 August 2003 the appellant raised these fears with the Sheriff for NSW.”
On 25 June 2004 the appellant filed an affidavit in this Court. In this affidavit he deposed that, on 15 June 2004, at Muswellbrook Correctional Centre, he recognised a person, apparently employed by the Department of Corrective Services, as one of the jurors at his trial. He had a conversation with her, in which he said that she had a familiar face and asked if she recognised him. She replied that she did. The appellant asked how long she had been with the Department of Corrective Services to which she replied “some years”.
By cl 8 of Schedule 2 to the Jury Act 1977, a person employed or engaged in the public sector in, inter alia, the administration of justice or penal administration is ineligible to serve as a member of a jury.
When the appeal came on for hearing on 14 September 2004, the then presiding judge asked the appellant about this contention. The appellant replied:
“I ran across one of the members of the jury at Muswellbrook Correctional Centre. She is employed by Corrective Services. She recognised me, I recognised her, I spoke to her.”
The appellant added:
“Also I strongly believe that one of the jurors, one of the three present on 1 August, was either a police officer – present or past – or very closely aligned to the prosecution.”
He claimed to have asked the Sheriff to investigate this assertion but to have received no response.
The reference to 1 August was a reference to the date upon which Graham DCJ heard submissions as to sentence, and imposed the sentences that he did.
What occurred then was the subject of further, and discrete, complaint by the appellant, set out in an affidavit affirmed on 6 June 2004 but never framed as a specific ground of appeal. In his affidavit the appellant deposed that on the date of sentencing, and prior to the formal commencement of the proceedings, three female members of the jury attended and greeted the Crown Prosecutor and Detective Grant in a manner suggestive of an unduly, or improperly, close, familiar or friendly relationship. He also deposed that, during the course of the trial, he had “felt” that he recognised one of the jurors as a serving or former police officer. He said that he wrote to the Sheriff raising concerns about the trial jury, but had not had any response.
The appellant’s son, Daniel O’Meara, filed an affidavit sworn 17 June 2004 in which he, up to a point, confirmed what the appellant had deposed about the events in the courtroom, and added that, as he and his mother left the courtroom, they found themselves among the group of former jurors, Detective Grant, the Crown Prosecutor and her assistant. He said that he overheard Detective Grant inviting the three women to join the rest of the group for a drink. At least one of the women rejected the offer. The appellant’s wife provided an affidavit (and gave oral evidence) to similar effect.
On 27 August 2004 the Crown Prosecutor from the trial swore an affidavit in response to that of the appellant. She deposed that there was, on 1 August, some delay in the convening of the court and that during that time three female jurors entered the courtroom, as did Detective Grant. She said that she had some conversation with Detective Grant and the jurors but this was inconsequential and was not directed at the appellant or his family. She said that at no time did the jurors introduce themselves by name; and that she had never spoken to any of them before. She said that the three jurors appeared to know one another quite well.
The Crown Prosecutor denied that there had ever been any arrangement for Detective Grant, her instructing solicitor and herself to meet for a drink after court on the day of the sentence, and denied any discussion with the former jurors about socialising outside the court. She said that she and Detective Grant did join several other people (unidentified) for lunch at a nearby restaurant.
When the appeal was listed in this Court on 14 September 2004 a considerable amount of discussion took place about grounds of appeal recently raised by the appellant, of which the Crown had not had adequate notice. It became apparent that the appeal could not proceed on that day. Wood CJ at CL, presiding, stood the matter out of the list and directed that it be re-listed before the Registrar for directions.
His Honour requested the Sheriff:
“... to investigate whether there was on the jury either a police officer or a member of the Correctional Service.”
Following the adjournment of the appeal, when first listed, on 6 October 2004, the appellant filed supplementary submissions. These submissions, it may be observed, are even more difficult to follow than those earlier filed. However, for present purposes, it can be noted that, under ground 3, the appellant made the following assertions:
“3.6.7During the course of the trial, other matters involving myself were mentioned at Newcastle Local Court.
His Honour refused me permission to attend the above court, which issued a warrant for my arrest, despite being informed that the trial was in progress.
3.6.8During the course of the trial I was arrested and escorted outside to wait for a police escort vehicle.
While waiting to be placed in the police van, jury members filed past and saw me under arrest. No doubt that explained to them better than the trial judge’s untruths, my sudden absence from the trial.
The above could only have prejudiced the jury and caused a more unfair trial than was already in progress.”
(I pause to observe that the factual assertions made by the appellant are not borne out by the transcript. It is apparent that the trial judge did not refuse the appellant the opportunity to attend the Newcastle Court; those matters were, in fact, listed on a day when the trial was not proceeding. When Graham DCJ learned of the issue of bench warrants he made arrangements for the appellant to be taken into custody in an uncontroversial and civilised way. However, the truth of the assertion is not presently in issue. I have already, in the context of considering sub-ground 3(iv) set out what, the transcript discloses, did occur.)

It was unnecessary for Graham DCJ finally to decide the question of the onus of proof, because, as he correctly observed, no factual basis arose for considering whether the exemption applied to the appellant. His Honour was conscious that that situation might have changed if the appellant had given relevant evidence but he did not do so. There is no basis to this aspect of the appeal.
The appellant also raised another issue concerning the application of the Firearms Act 1989. That Act was repealed and replaced by the Firearms Act 1996, which came into effect on 1 July 1997. The appellant accordingly submitted that since the section under which he was charged was no longer in force, prosecution of him under that section could not proceed. He submitted:
“The effect of repealing an act is that ‘the act never existed’ ‘except for matters past and concluded’.”
The complete answer to this submission is to be found in s30 of the Interpretation Act 1987 which preserves the operation of repealed legislation. The ground must be rejected.
ground 12: bias
The appellant has submitted that the trial judge was actually biased against him, or, alternatively, that his conduct was such that a reasonable bystander might apprehend that he was so biased.
In order to demonstrate this the appellant referred to three passages in the remarks made by the judge on sentence following the appellant’s conviction. The first of these occurred in the early pages of the remarks, and appeared in the context of Graham DCJ observing that, in addition to sentencing in respect of the cannabis offence, he was obliged to sentence in respect of the two firearms offences. He then said:
“Those offences can be tried together with the cultivation offence, because of the probability that there was some connection between the accused’s possession of those firearms and his cultivation of the cannabis.”
The appellant denied that such a “probability” was part of the Crown case. He would interpret the remarks as indicating that it was the judge himself who had formed a view about a connection between the firearms offences and the cannabis offence.
Even if that were so, it is not an unreasonable inference to draw from the allegations made in the Crown case, of which the judge was fully aware, by reason of the extensive pre-trial procedures over which he had presided.
The second passage in the remarks on sentence which the appellant claims is indicative of bias is this:
“I concluded fairly rapidly – and that conclusion was confirmed and became stronger as the trial proceeded – that it was unlikely that the accused, even if he had access to unlimited financial resources and could have chosen any lawyer in the law almanac to appear for him, would have been prepared to accept the constraints of litigation, including the obligation which a lawyer owes as an officer of the court.”
He went on in the same vein. A little later, he said:
“... his [the appellant’s] hobby seems to be to ensure that the laws are strictly and absolutely applied to others, whilst himself not being restrained by them. He is an intelligent and, no doubt, a talented man, however he has demonstrated by his criminal history and in the personality characteristics which have emerged from the reports and which were apparent in the course of these proceedings, that, despite the period of time which has elapsed since these events occurred, significant penalties must still be imposed.”
These passages, the appellant submitted, are evidence that the judge formed an opinion adverse to the appellant which had not been the subject of evidence or submission. I do not accept that this is so. It is of no little importance that these remarks were made well after the trial had concluded. No doubt the judge progressively observed the appellant over the many weeks during which he had to deal with him. He was, in fact, ideally placed to reach conclusions of the kind that he did. Even if he were forming preliminary, or developing, views of that kind during trial, the test of apprehended bias is whether the trial was conducted in such a way as to demonstrate bias, or give rise to a reasonable apprehension of bias. The appellant did not point to anything in the trial itself which was indicative of bias other than the exercise of the discretion under s138 of the Evidence Act, which he claimed was erroneous, and resulted from the bias he asserts.
I have already concluded that there was no error in the way the s138 discretions were exercised; even if there were error, that is not necessarily indicative, without more, of bias.
I would reject this ground of appeal.
ground 13: the summing up
The complaint made by the appellant under this ground appears to be related to several aspects of the directions, which, he claims, ought to have been, but were not, given. These fall into several categories:
(a) directions in accordance with the decision of this Court in R v OGD (1997) 45 NSWLR 744; and of the High Court in Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
Each of these cases concerned the appropriate direction to be given where an accused person fails to give evidence. In OGD a series of general principles was extracted from the authorities by Gleeson CJ, with whom Grove J and Sperling J agreed. These were expressed as:
“First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. ...
Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown ...
Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or
explain evidence, remains silent.”
In Azzopardi the High Court was concerned with the construction of s20(2) of the Evidence Act. The majority emphasised:
“...that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.”
The appellant does not appear to me to complain of any infringement of the principles stated in Azzopardi. He does appear to complain of a failure to direct the jury in terms of OGD. The point he appears to make concerns a matter that has been alluded to much earlier in these reasons. He claims that the bulk of the documentary (and perhaps other) material was removed from him and has never been restored to him. In his submissions he stated:
“The trial judge was aware that a stay on terms had been granted by Moore DCJ on 14 November 2000, and that the factual basis for that stay had never been challenged.”
This occurred during the course of the execution of a search warrant on his premises by agents of the Australian Federal Police in September 1999.
The appellant then submitted:
“Consequently, at trial I stood virtually naked of corroboratable (sic) evidence, through no fault of my own.”
In the light of the decision of this Court on appeal (R v O’Meara [2001] NSWCCA 201) the submissions made by the appellant appear, at least, disingenuous. Powell JA, with whom Wood CJ at CL and Sully J agreed, dealt comprehensively with the various categories of material of which the appellant claimed to have been deprived. It is fair to say that his Honour dismantled the appellant’s contention, there made, that the documents were “critical” to his defence.
There is no substance to this complaint.
(b) directions in accordance with the decision of the High Court in Jones v Dunkel [1959] HCA 8; 101 CLR 298
The appellant complained that:
“His Honour spoke of the need to give a Jones v Dunkel [[1959] HCA 8; 101 CLR 298] direction, but I do not recall him doing so.”
The short answer to this complaint is that the appellant has not identified any issue to which a Jones v Dunkel direction might have been relevant.
(c) directions the appellant contends were required by this Court in R v O’Meara [2001] NSWCCA 201
The complaint is:
“His Honour did not give the specific direction suggested as necessary by this Court when it discharged Moore DCJ’s stay on terms, on technical grounds.”
The final three words of this submission are, like much else, disingenuous. The Court did not discharge the stay granted by Moore DCJ “on technical grounds”; it discharged that stay on grounds of substance.
Nor did it suggest that any specific direction should be given. There is no substance to this complaint.
(d) directions concerning the “firearms amnesty” in force in 1997
The appellant relies upon evidence of Detective Grant, in cross-examination, relevant to the firearms amnesty to which reference has been made above. Detective Grant accepted the possibility that a sign had been posted outside the Picton Police Station concerning the amnesty. The appellant appears to be submitting that the existence of the sign had some bearing upon his “mens rea”.
Again, this proposition can be answered simply. There was just no evidence before the court that the appellant’s mind was affected in any way, relevant to his possession of the firearms, by the existence of any signs, posters, or advertising materials. There was no basis for a direction of the kind for which he now contends. There is no substance in this complaint.
There is no merit in any aspect of this ground of appeal. I would reject it.
ground 14: “jury verdict unsafe or unsatisfactory”
The appellant did not present, under this ground, the familiar argument that the evidence taken as a whole was insufficient to justify his conviction. In the light of the evidence I have briefly outlined at the commencement of these reasons, such a proposition would be untenable. Instead, the appellant made further criticisms of directions given to the jury. One of these concerned the validity or admissibility of the s43 (Drug Misuse and Trafficking Act) Certificate.
He again raised the issue of the banner or poster concerning the firearms amnesty.
The submissions put in support of this ground of appeal do not support a contention or conclusion that the verdicts were unsafe or unsatisfactory, or unreasonable, or not available on the evidence. I would reject this ground of appeal.
* * *
ground 17: jury formalities
The appellant supported the ground he numbered 17 (that the trial was a nullity) by asserting that, although the jury was empanelled, its members were not sworn, and nor was the appellant “put in charge of the jury”.
He stated:
“17.2The appellant recalls that he was re-arraigned days, or weeks after the jury was empanelled. No attempt was made to swear, or re-swear, the jury.”
He maintained this position throughout the appeal.
The transcript of 29 April 2003 records the arraignment of the appellant, conventional remarks made to the jury panel by Graham DCJ, and:
“Jury empanelled”.
From that alone, I would infer that the jury was empanelled and sworn in the usual way. It is not usual for the transcript separately to record the swearing of the jury. Nevertheless, the appellant continued to maintain that the jury had not been sworn, and that he had not been formally put into their charge. Accordingly, evidence, both by way of affidavit and oral, was given by Ms Kristina Wakefield, who was, at the time of the trial, the Associate to Graham DCJ, and Ms Terrie Roberts, solicitor employed by the Office of the Director of Public Prosecutions.
From their evidence I am quite satisfied that the trial was conducted regularly, and that all necessary steps, including the swearing of the jury and the placing of the appellant in the charge of the jury, were taken. Indeed, Ms Roberts produced her handwritten notes of the empanelling of the jury, complete with the notation “sworn in”. I would reject this ground of appeal.
ground 18: validity of indictment
Finally, in the course of the hearings (on the third day that this matter was before this Court) the appellant sought and was granted leave to add yet another ground of appeal to the effect that:
“... the trial proceeded on an invalid indictment in that the appellant was charged and tried on indictment on offences required to be dealt with and that could only be dealt with summarily.”
This ground was not the subject of any written submissions on the appellant’s part.
Yet again, it is quite impossible to follow the argument the appellant advanced. The members of the Court went to inordinate lengths in an attempt to extract from the appellant the essence of his argument. The attempts were far from successful. So far as I can discern from what he said, his argument rested upon the assertion that, initially, the firearms charges had erroneously been brought under the Firearms Act 1996 rather than the applicable legislation which was the Firearms Act 1989. That this is incorrect is demonstrated conclusively by Local Court charge sheets annexed to an affidavit sworn by Ms Helen Langley, a solicitor employed in the Office of the Director of Public Prosecutions, who had been involved in the proceedings against the appellant. Each of the charge sheets specifically identifies the Firearms Act 1989 as the legislation under which the charge was brought. It may be that that is sufficient to dispose of this ground of the appeal.
As with so many other aspects of the appeal, the ground shifted from time to time as the appellant realised that he was unable satisfactorily to respond to questions or propositions put to him that contradicted his position. Included in his assertions was that an additional four charges had at some stage been laid, and that there was some devious conduct on the part of the Crown and/or the Local Court Magistrate. At one stage he contended that the Crown could prosecute the offences on indictment only if it made an election. In the course of putting that, he volunteered the following:
“Bear in mind the Crown had – yes hidden the duplicated firearms charges from us ...”
Shortly after that he said this:
“What happened and I can go through the committal transcript and show you page by page where each one of those charges is dealt with. We can even see a reference to the firearms charges, a very minute one, because it would be fair to say and I make no apology for saying this, that the Magistrate was extremely deceitful in his dealing with the charges. You will note my affidavit says, the Magistrate stopped recording and screwed up the charges and put them in the bin back to his right hand side behind him and suggested to Ms Wilson that she do the same and then switched the machine back on. This was all done covertly, so it is not - - ” (T 28 July 2001, p 79)
(I have examined the affidavit evidence filed by the appellant and am unable to find any reference to the events asserted in this passage.)
At another point, when pressed by one member of the Court concerning his claim that the charges had been laid under the 1996 Act, he is recorded as saying:
“Well let us go to the – here we are, okay. I understand the difficulty that you’re having in understanding that firearms charges under the 1996 Act were laid. You’re probably labouring under the same difficulty in coming to the realisation that line charge number 97/43 is a fraudulent document. I laboured under that same difficulty despite my knowledge that having been charged with ten offences I laboured under that same difficulty for some years. It’s only when I got my mind set to the point, and this came only very recently, that 97/43 might be fraudulent. Once I allowed my mind to think that the very next step was 97/43 must be fraudulent.” (T 83)
So far as I could ascertain the appellant maintained that he had originally been charged under the 1996 Act, because a “Notice of Committal” (annexure C to the affidavit of Ms Langley) identified an offence in respect of which he had been committed for trial, as “possess proh. weapon”. The point, as I understood it, was that the Firearms Act 1989 did not have (as did its successor, the Firearms Act 1996) a reference to, or definition of, a “prohibited weapon”, and created no offence of having possession of a “prohibited weapon”. That concept was new to the 1996 legislation. S5 of the Firearms Act 1989 merely prohibited possession (or use) of a firearm unless authorised to do so by a licence or permit.
I can think of a number of perfectly reasonable explanations for the Notice of Committal being expressed as it was. By the time the appellant went to committal, in 1997, the Firearms Act 1996 was in force. Its language would no doubt have become familiar to magistrates, and to the ancillary court staff who complete the documentation necessary to the legal process. The notation on the Notice of Committal does not pretend to be precise or formal; it is a simple, shorthand way for whoever completed the form to convey basic information to the District Court. It is no indication that the appellant was ever charged under the Firearms Act 1996. Even if he had been, it is a simple matter to amend the charge so that it is brought under the applicable legislation.
There was much more. It is apparent to me that the ground was based on at least one, and possibly two fundamental misconceptions of fact. Further analysis will not improve an argument that rests upon such an unstable foundation. I would reject this ground of appeal.
That disposes of all aspects of the conviction appeal. I would dismiss the appeal against the conviction on each count.
ground 7: application for leave to appeal against sentence
Although the appellant gave evidence in the voir dire, he gave no evidence in the trial itself, and no evidence in the sentence proceedings following his conviction. Graham DCJ had available to him the appellant’s criminal history, a pre-sentence report, and a psychiatric report prepared within the Corrections Health Service. From those materials the following emerged. The appellant was born on 3 February 1943. At the time of the offences he was less than two weeks short of his 54th birthday. His first recorded offence was in 1980 and was a conviction for manslaughter. For this he was sentenced to penal servitude for seven years, with a non-parole period of fourteen months. He unsuccessfully appealed against the conviction. Thereafter he was convicted of an offence of assault occasioning actual bodily harm, four offences of imposition on the Commonwealth, and offences of “intimidation/violence to unlawfully influence persons”, but these last convictions were quashed on appeal.
All assessments of the appellant are that he is an intelligent man, although somewhat eccentric. (That, I might observe, was, in my opinion borne out in his conduct of the appeal.) He is married with two adult sons. The family is extremely close. (That, too, was borne out in the appeal proceedings. One son and the appellant’s wife were both present, if not throughout, at least frequently, and both gave evidence in relation to one of the grounds of appeal. They were actively assisting the appellant in locating and marshalling his voluminous materials.)
The appellant left school at the age of 13 and attained no formal qualifications of any kind. He did, however, begin a furniture business and this expanded to, at one stage, include ownership of seven furniture stores. There appears to have been a downturn in fortunes, however, and these, or some of them, were sold at a loss. In 1997 he and wife and younger son entered into a franchised real estate business and began operating their own property agency in 2001.
The appellant is said not to be affected by mood anxiety or psychotic disorder, although the psychiatrist reported that there seemed to be “some antisocial and narcissistic aspects to his personality”. To the psychiatrist the appellant described himself as “pedantic”. The psychiatrist accepted that there had been two significant acts of self-harm. One of these occurred on the day the jury returned its verdicts of guilty. The appellant deliberately ingested insecticide. He told the Probation and Parole Service Officer who provided the pre-sentence report that he did this to make a “statement”, which he accepted was a “high risk statement” as well as an attempt to abort the trial (which by that time had concluded). He acknowledged to that officer that the attempt at suicide was not genuine. That does not appear to accord with what he told the psychiatrist who considered that in committing that act, like the earlier one, the appellant appeared “to have lethal intent”. The early attempt, in 2002, involved an overdose of Valium and other sleeping tablets taken in a car park near the court.

The psychiatrist had access to additional psychiatric information, which suggested assessments of the appellant as:
“somewhat grandiose, over familiar, slightly thought disordered [having possibly] some mild cognitive impairment, secondary to his alcohol use.”
One psychiatrist diagnosed a combination of personality disorder and alcohol abuse.
the remarks on sentence
Graham DCJ dealt comprehensively with the facts of the case, which had emerged during the trial, and which had been found by the jury adversely to the appellant. He concluded that the purpose of the cannabis cultivation was commercial and intended “for the purpose of sale and/or profit”. He noted that the quantity of cannabis plants involved was more than double the number required to constitute commercial cultivation for the purposes of the Drug Misuse and Trafficking Act. He considered that the possession of the firearms was associated with, and for the purposes of, the cannabis enterprise. He expressly rejected a suggestion made by the appellant to the psychiatrist that he had been looking after the firearms for a former prison associate; and he rejected another suggestion that they had been received by the appellant on the day they were discovered, and that his intention had been to hand them in under the firearms amnesty scheme that was then in force.
Although the appellant did not give evidence, he did, in submissions to the sentencing judge, make a lengthy statement concerning the conditions in which he was held in custody. One aspect of this was his exposure to the smoking of other prisoners. The appellant is asthmatic and it may be accepted that his asthma may be exacerbated by exposure to the smoke of other prisoners. Graham DCJ appears to have accepted as reasonably accurate the complaints made, and the description of conditions given by the appellant, but did not consider this as a factor which could be used to ameliorate the sentences.
He held that nothing had been established that would enable the court to extend any leniency towards the appellant.
By the time he was sentenced the appellant was 60 years of age. Graham DCJ considered the prospects of rehabilitation were not good and the need for sentences to contain a component for personal deterrence was reasonably strong.
He proceeded to impose the sentences I have already mentioned: that is, on the second count, a fixed term of imprisonment for eighteen months to commence on 18 June 2003; on the third, a fixed term of imprisonment for twelve months, to commence on 18 June 2003; on the first count (the drug charge), imprisonment for two years and six months to commence on 18 June 2004 and expire on 17 December 2006, with a non-parole period of nineteen months to expire on 17 January 2006.
The result was an overall head sentence of three and a half years with a non-parole period of two years and seven months. In doing this his Honour expressly intended to fix an overall term of imprisonment in accordance with the ratio between the head sentence and the non-parole period provided for by s44(2) of the Crimes (Sentencing Procedure) Act 1999 as it then applied. To do so, he varied the ratio in relation to the sentence for the drug charge.
the appellant’s submissions
The written submissions put forward by the appellant in support of the application for leave to appeal against the sentences were, by comparison with those advanced in support of the conviction appeal, fairly sketchy. He referred to some of the authorities put before Graham DCJ by the Crown. One of these was the decision of this Court in R v Francesco Barbara, unreported, 24 February 1997. He made particular reference to this case because, he said, that offender was the only one of those presented to Graham DCJ in the same age group as he. Mr Barbara was, in fact, at the time the matter was before this Court, 65 years of age.
It was, as it happens, Graham DCJ who had sentenced Mr Barbara. He sentenced him to imprisonment for two and a half years, but ordered that the sentence be served by way of periodic detention. Mr Barbara had pleaded guilty to an offence of the same nature as that of which the appellant was convicted, but involving not less than the large commercial quantity of plants, thereby carrying a maximum sentence of imprisonment for 20 years. In fact, there were 4,237 cannabis plants hidden in the roof cavity of Mr Barbara’s property.
Mr Barbara had served a short period in custody prior to being released on bail, about two and a half weeks. The appellant sought to compare the two sentences specifically by reference to the number of plants, and submitted that his sentence was approximately 17 times Mr Barbara’s.
That approach is, of course, inappropriate. But, in any event, a reading of the decision of this Court shows that the appellant can draw no comfort whatever from Mr Barbara’s case.
Firstly, Mr Barbara pleaded guilty; secondly, he was a first offender and the court accepted that the offence was out of character. Most importantly, however, the matter before this Court was a Crown appeal against the asserted manifest inadequacy of the sentence. The Court in fact accepted that the sentence imposed was manifestly inadequate. It was only in the exercise of this Court’s residual discretion to do so that the Court declined to interfere and impose a sentence of full-time custody. Three reasons were given. The first was the double jeopardy involved in a Crown appeal; the second was that Mr Barbara had served 20 weekends of his sentence, together with the two weeks’ full-time pre-sentence custody; most importantly, medical evidence showed that his health had markedly deteriorated to a point that his general practitioner concluded that any term of imprisonment would be life-threatening.
The appellant then complained that:
“Material not the subject of evidence or submission was taken into account at sentencing.”
In support of this, he submitted:
“The trial judge took it upon himself to find that the appellant had no prospect of rehabilitation.
No such evidence was offered, and no submission made.”
I would reject this. The judge had available to him a massive amount of material from the trial, and from the voir dire, in addition to the reports I have mentioned. The finding was entirely appropriate and open to him.
The appellant also complained that prior convictions subject to appeal were wrongly taken into account.
This matter was, in fact, raised by the Crown Prosecutor at the conclusion of the remarks on sentence. In fact, his Honour had referred to the offences of “intimidation/violence to unlawfully influence a person” but noted that that conviction was stayed by the lodging of an all grounds appeal. He expressly disregarded those offences. He did not take the same course in relation to four counts of imposition on the Commonwealth, which were also subject to appeal, to this Court. His Honour took the view (correctly in my opinion) that the convictions were relevant, but did not make very much difference to the end result of his own sentencing exercise.
In any event, as we are now aware, the appeals against those convictions were dismissed. It was entirely appropriate that they be taken into account.
The appellant further complained that:
“Sentences were made accumulative for no apparent reason, rather on a whim, or perhaps bias of the trial judge.”
He claimed that no reasoning for that decision was given. He also claimed that the effect of accumulation on the non-parole period had been overlooked.
Each of these submissions is plainly wrong. His Honour correctly directed himself of the need, in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610, to fix appropriate sentences in relation to each offence; he considered the appropriate sentences in relation to each offence and determined that a degree of accumulation was appropriate. He expressly considered the effect of accumulation on the non-parole period and adjusted the sentence imposed in respect of the drug offence in order to restore the statutory ratio.
In my opinion no error has been demonstrated in the sentencing exercise undertaken by Graham DCJ. I would grant leave to appeal against the sentences but dismiss the appeal.
The orders I propose are:
1.           appeal against convictions dismissed;
2.           leave granted to appeal against sentences;
3.           each appeal against sentence dismissed.
BUDDIN J: I agree with Simpson J.
HALL J: I agree with Simpson J.

**********

LAST UPDATED: 28/04/2006