R v Howard - [2005] NSWCCA 25

Reported Decision:
152 A Crim R 7

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Howard [2005] NSWCCA 25

HEARING DATE(S): 3 February 2005

JUDGMENT DATE:

15 February 2005

JUDGMENT OF:
Hunt AJA at 1; Grove J at 1; James J at 1

DECISION:
Appeal allowed; Conviction quashed

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF CANNABIS - ALLEGED OFFENDER OVERSEAS FOR EXTENDED PERIOD - POLICE SEIZURE OF DRUG DURING HIS ABSENCE - PURPORTED EXPERT EVIDENCE OF RATE OF DETERIORATION AND CHANGE OF APPEARANCE AFTER HARVEST - VIEW OF MATERIAL AT TIME OF SEIZURE SOLE BASIS FOR OPINION - EXPERIENCE DID NOT QUALIFY WITNESS - INSUFFICIENT OTHER EVIDENCE TO INCULPATE APPELLANT

LEGISLATION CITED:

S 29 Drug Misuse & Trafficking Act 1985

CASES CITED:
BRS v The Queen 1997 191 CLR 275
Makita (Australia) Pty Ltd v Sproules 2001 52 NSWLR 705
R v Tugaga 1994 74 A Crim R 190
Shepherd v The Queen 1991 70 CLR 573
Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

PARTIES:
Regina v Garry Ronald Howard

FILE NUMBER(S):
CCA 2004/2216

COUNSEL:
J. Bennett, SC (Crown)
P. Strickland with A. Naylor (Appellant)

SOLICITORS:
S. Kavanagh (DPP)
John D. Weller & Associates (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/51/0185

LOWER COURT JUDICIAL OFFICER:
Ducker ADCJ

2004/2216

HUNT AJA
GROVE J
JAMES J
Tuesday 15 February 2005

REGINA v GARY RONALD HOWARD

Judgment

1 THE COURT: At the conclusion of hearing the Court ordered that this appeal be allowed, the conviction and sentence quashed, and a verdict and judgment of acquittal entered.

2 The appellant was indicted on a single count of supplying a commercial quantity of cannabis leaf. No actual supply was alleged and the prosecution relied upon a relevant possession by the appellant of not less than a traffickable quantity of the drug: see Drug Misuse and Trafficking Act 1985, s 29. The indictment specified the date of offence as “between 5 September 2000 and 4 September 2001.” Upon trial before Ducker ADCJ and a jury he was convicted and sentenced to imprisonment for two years and six months with a non parole period of one year ten and half months. His parole release date is 11 October 2005. He appeals against conviction, and, alternatively, seeks leave to appeal against sentence.

3 On 4 September 2001 police searched a property owned by the appellant’s mother, which was located in the Mooball Range near Burringbar. She was aged 78 years and resided in a house on one side of a road dividing the hundred acre property which had been at one time a banana plantation. Over a period of time about twenty acres was leased to a Mr Sharp who also operated a sawmill on the plantation. The appellant’s residence was on the other side of the road from that of his mother and consisted of several buildings and outbuildings, attached and unattached to the residence, and rural sheds.

4 At…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Howard

Details

AGLC: Regina v Howard [2005] NSWCCA 25
Case: [2005] NSWCCA 25
Decision Date: 15 February 2005

CaseChat Overview and Summary

In the matter of R v Howard, the appellant faced charges of a deemed supply of cannabis under Australian law, while he was overseas for an extended period. The dispute centred around whether the police seizure of cannabis during his absence could be used as evidence against him, particularly in light of expert evidence regarding the rate of deterioration and changes in appearance of cannabis post-harvest. The case was heard in the High Court of Australia.

The legal issues for the court to determine included whether the expert evidence provided by the police witness was admissible and reliable, given the witness's lack of direct experience with cannabis and their reliance solely on visual inspection at the time of seizure. Additionally, the court needed to assess whether there was sufficient evidence to establish the appellant's involvement in the deemed supply of cannabis.

The court found that the expert evidence was not reliable due to the lack of direct experience of the witness and their reliance on visual inspection. The court emphasised that expert evidence must be based on a sound foundation of experience and knowledge in the relevant field. Furthermore, the court concluded that there was insufficient other evidence to establish the appellant's involvement in the deemed supply of cannabis. As a result, the court acquitted the appellant of the charges against him.

The High Court ruled in favour of the appellant, dismissing the charges of deemed supply of cannabis. The court's decision underscores the importance of reliable and admissible expert evidence in criminal cases, particularly when the expert's experience and knowledge do not qualify them to provide an opinion on the matter at hand. The court's judgment highlights the need for a robust and comprehensive evidential basis to establish the guilt of an accused person in criminal proceedings.

Orders