R v Macris - [2004] NSWCCA 261

Reported Decision:
147 A Crim R 99

New South Wales

Court of Criminal Appeal

CITATION: R v Macris [2004] NSWCCA 261

HEARING DATE(S): 8 July 2004

JUDGMENT DATE:
3 August 2004

JUDGMENT OF: Studdert J at 1; Kirby J at 2; Hislop J at 3

DECISION: Appeal upheld; convictions and sentences quashed; new trial ordered.

LEGISLATION CITED: Evidence Act, ss 89, 137

CASES CITED: Azzopardi v The Queen (2001) 205 CLR 50
R v OGD (1997) 45 NSWLR 744
R v Naudi [1999] NSWCCA 259
R v Nguyen [2002] NSWCCA 342

PARTIES :
Regina v John Macris

FILE NUMBER(S): CCA 60139/04

COUNSEL: D. Howard (Crown)
P. Byrne SC (Appellant)

SOLICITORS: S. Kavanagh (Crown)
K. Kyriacou (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0127

LOWER COURT
JUDICIAL OFFICER : J.X. Gibson DCJ

60139/04

STUDDERT J
KIRBY J
HISLOP J
Tuesday 3 August 2004

REGINA v John MACRIS

Judgment

1 STUDDERT J: I agree with Hislop J.

2 KIRBY J: I agree with Hislop J.

3 HISLOP J: The appellant was convicted by a jury in respect of the following counts:

Drug Misuse and Trafficking Act 1985

s 25(2)

Drug Misuse and Trafficking Act 1985

s 25(1)

4 On the first count the appellant was sentenced to imprisonment for 3 years 4 months commencing on 18 November 2003 with a non-parole period of 2 years and 6 months. On the second count he was sentenced to a fixed term of 18 months commencing on 18 November 2003.

Facts

5 On 26 March 2000, following information received from John Christopher, police executed a search warrant at the appellant’s residence, a home unit in Surry Hills. The drugs, the subject of counts 1 and 2, were found by police during the execution of the search warrant at three different locations in the residence. In a cupboard under a stairwell, there was found a tin with the brand name “Versace” printed on it, which tin had been owned by the appellant for some time and had his fingerprints on it. Inside the tin were bags containing various coloured tablets, crystalline powder (the subject of the second count), plastic bags and a set of scales. In a drawer in some furniture in the dining room, the sum of $3,100 in cash together with 20 green tablets was found. In a bedside table in the bedroom upstairs, three blue tablets were found. All the tablets contained methylamphetamine.

6 The appellant, when initially asked by police, denied there were any drugs on the premises. He made no admissions in that regard. He did not give evidence. He called John Christopher as a witness.

7 Mr Christopher said in evidence that it was he who placed the items in the Versace tin and…

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 Macris

Details

AGLC: R v Macris [2004] NSWCCA 261
Case: [2004] NSWCCA 261
Decision Date: 3 August 2004

CaseChat Overview and Summary

In the matter of Regina v John Macris, the New South Wales Court of Criminal Appeal has allowed the appeal of the appellant, quashed his convictions and sentences, and ordered a new trial. The appellant was convicted of drug supply charges under the Drug Misuse and Trafficking Act 1985 and was sentenced to imprisonment terms that were to run concurrently. The conviction related to the supply of a commercial quantity of methylamphetamine and a quantity of ephedrine. The appeal arose from the appellant’s conviction and sentence in the District Court. The appellant raised four grounds of appeal, the first three of which were initially argued at the hearing. A fourth ground, relating to evidence of white powder in a coffee grinder, was later added and considered by the court.

The court examined whether the directions given to the jury regarding the evidence of the witness John Christopher and the appellant’s silence were adequate. The court found that while the directions concerning Christopher’s evidence were not misdirecting, the directions regarding the appellant’s silence were deficient. The court held that the trial judge failed to adequately warn the jury that the appellant's silence could not be used to fill gaps in the evidence or as a factor in assessing whether the prosecution had proved its case beyond reasonable doubt, as required by Azzopardi v The Queen. This omission constituted a real possibility of injustice, warranting the allowance of the appeal on this ground.

The appeal also argued that the trial judge erred in admitting parts of the record of an interview with the appellant, where he answered "no comment" to police questions. The court found that the probative value of the evidence outweighed any prejudicial effect, particularly as the judge had given appropriate directions to the jury. Similarly, the court found no miscarriage of justice arose from the evidence of white powder in the coffee grinder, as the trial judge had adequately responded to the jury's question and the appellant had not objected to the answer.

Ultimately, the court allowed the appeal on the second ground, quashed the convictions and sentences, and ordered a new trial for the appellant.

Orders