R v Melhuish - [2002] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v William John Melhuish [2002] NSWCCA 85

FILE NUMBER(S):
60217/2001

HEARING DATE(S): 8 March 2002

JUDGMENT DATE: 08/03/2002

PARTIES:
Regina
William John Melhuish

JUDGMENT OF: Stein JA O'Keefe J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0806

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
GI Rowling (Crown)
DN Stewart (Applicant)

SOLICITORS:
SE O'Connor (Crown)
Ross Hill & Associates (Applicant)

CATCHWORDS:
Possession of firearms - denied knowledge of same - alleged error in failure to exclude finding of gun holster - Rule 4 - affidavit from trial counsel - proviso considered - application for leave to appeal against severity of sentence - cumulative sentence

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985
Evidence Act
Firearms Act 1996

DECISION:
Appeal against conviction dismissed. Leave to appeal granted. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60217/01
STEIN JA
O’KEEFE J
BUDDIN J
Friday 8 March 2002

REGINA v WILLIAM MELHUISH

Judgment

BUDDIN J: The appellant faced trial upon an indictment containing the following six counts:
1On 4 May 2000 at Brookvale in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine, in that he did have in his possession an amount of the prohibited drug which was not less than the trafficable quantity.
2On 4 May 2000 at Brookvale in the State of New South Wales, did possess a firearm, namely a .38 calibre Smith & Wesson revolver, serial number J197863, without being authorised to do so by a licence or permit.
3On 4 May 2000 at Brookvale in the State of New South Wales, did possess a firearm, namely a .38 calibre Astra revolver, serial number R280859, without being authorised to do so by a licence or permit.
4On 4 May 2000 at Brookvale in the State of New South Wales, did possess a firearm, namely a Fabrique Nationale pistol, serial number unknown, without being authorised to do so by a licence or permit.
5On 4 May 2000 at Brookvale in the State of New South Wales, did possess a firearm, namely a Belgian manufacture revolver, serial number unknown, without being authorised to do so by a licence or permit.
6On 4 May 2000 at Brookvale in the State of New South Wales, did possess a firearm, namely a .22 calibre pen pistol, without being authorised to do so by a licence or permit.
In the absence of the jury panel the appellant pleaded guilty to the first count in the indictment. He was then convicted by a jury in respect of the remaining five counts. Each of those charges carries a maximum penalty pursuant to s 7 of the Firearms Act 1996, of 10 years’ imprisonment.
The quantity of methyl amphetamine was 20.29 grams. Pursuant to s 32(1) of the Drug Misuse and Trafficking Act 1985 that offence exposes an offender to a maximum penalty of 2000 penalty units and/or 15 years’ imprisonment. The appellant also asked that a further charge of possessing 15.5 grams of cannabis be taken into account in sentencing. The drugs and the firearms were all located in the appellant’s bedroom. Also located there were scales, plastic bags and a quantity of cash which, as his Honour found, strongly suggested that the appellant was engaged in the sale of methyl amphetamine for profit.
The appellant had a number of prior convictions although he had never previously served a term of imprisonment. In 1976 he had been convicted of possessing a firearm and in 1980 of assaulting a police officer. In 1990 he was convicted of possessing a prohibited weapon, namely a knuckle duster, and in 1994 for possessing a quantity of amphetamine. There were also some minor dishonesty offences. In respect of the firearms offences the appellant was sentenced to concurrent fixed terms of 2 years imprisonment to date from the date upon which he went into custody which was 29 March 2001. In respect of the supply charge (and taking into account the cannabis matter on a Form 1) the appellant was sentenced to imprisonment for 3 years to be served cumulatively upon the firearm offences. In those circumstances the sentencing judge found special circumstances. A non-parole period of 1 year was fixed in respect of those offences which meant that the appellant will be eligible for parole on 28 March 2004.
The appellant filed a Notice of Appeal within time. The grounds upon which he relies are set out below:
1His Honour erred in allowing evidence to be admitted of the finding of a gun holster in the residence of the appellant. The evidence should have been excluded pursuant to s 137 Evidence Act 1995 NSW.
2His Honour erred in not giving proper directions to the jury in regard to the failure of the Crown to call evidence from Police officers Cambell (sic) and Bucco.
Grounds of Appeal on Sentence
3His Honour erred in failing to have regard to the principle of totality of criminality by accumulation of the Possess Prohibited Weapons charge.
It is convenient at this stage to refer to the evidence that was led at the trial. On 4 May 2000 a number of police attended premises at 128 Harbord Road Brookvale. At that location is a factory complex behind which is a four bedroom house and further behind that is a shed. The premises are described as being “part of the Finks Motor Cycle Club”. The house has two bedrooms at the front, one of which was occupied by the appellant and the other by a woman named Heidi French. No one else lived at the premises. Police had in their possession a search warrant. The process of executing the search warrant was recorded on video. The appellant’s bedroom was searched in his presence. A silver case was located in the bedroom on the floor near the appellant’s bed. The case had a sticker upon it which read “Hands off, this is the property of Pommie Bill, Finks MC.” Because it was locked the case was jemmied open. The appellant had earlier told police that he did not have a key with which to open the case. Within the case police located four handguns wrapped in towels, together with a piece of board, an empty Downtown Duty Free bag, two plastic bags containing ammunition and a box also containing ammunition. Each of the four firearms discovered was the subject of a separate count in the indictment (counts 2-5).
The appellant was asked the following question by police “Do you have any knowledge in relation to [the items which had been located in the case]?” He replied “No I bought it in here this morning, it was out the back”.
He was asked “Whereabouts out the back was it?” to which he replied “Just in the kitchen”. He was asked “Can you tell me who uses that kitchen?”, to which he replied “Thirty people I suppose”.
Two of the handguns were observed by police to be loaded and ready to be used.
The search of the appellant’s bedroom continued. A shoulder holster was located under the bedside table next to the appellant’s bed. When questioned about this discovery, the appellant said “You buy them from Aunty May’s…you buy them from the Mall at Aunty May’s, they’re for dress up.”
He was asked “Can you tell me who owns that?” to which he replied “Me, I bought it from Aunty May’s at the Mall, it’s for dress up parties.”
He was asked “Can you tell me how much that cost you?” to which he replied “About twelve dollars.”
A little later a pen gun which had a round of ammunition in it (this was the subject of the sixth count of the indictment) was located in the sixth drawer of a filing cabinet which was at the end of the appellant’s bed.
The appellant was then taken to Dee Why Police Station. An electronically recorded interview was there conducted with the appellant who declined to answer any questions in relation to the property seized at his residence. A certificate which was tendered pursuant to s 87 of the Firearms Act 1996 indicated that the appellant held neither a Firearms license nor a permit as at 4 May 2000. No identifiable fingerprints were detected upon the firearms. An unidentifiable print which did not match the appellant’s print was located on the Downtown Duty Free bag.
The appellant gave evidence. He told the jury that he had resided at the clubhouse at the time of his arrest. He had performed the role of caretaker at the premises. He said that he had been a long-term member of the Finks Motor Cycle Club. Club members and associates had access to the premises and on weekends there could be twenty to thirty people there. On occasions, he said, his girlfriend stayed overnight with him in his bedroom.
The appellant said that he had a keen interest in photography and that the silver case located by police was his camera case. He said that it had a lock and that originally there had been a key on a piece of string around the handle. He said that he had last used it in the November prior to his arrest when he had taken it to the Phillip Island bike races. He said that upon his return from that event he had removed his camera from the case and left the case in the spare room. He said that as his bedroom was crowded he often kept things in other parts of the clubhouse.
The appellant said that he had next seen the camera case in the kitchen on a glass cabinet the day before the police searched his bedroom. Ms French had told him that she had placed it there after having brought it in from the back laundry. He said that he had taken the case to his room about three hours before the arrival of the police. He said that he had noticed that it was heavy and that the key and string were no longer around the handle. He said that he had intended asking other members of the club about the case.
The appellant denied any knowledge of the various firearms. He did say however that he had seen a pen-gun similar to the one which was discovered by police being flashed around by some-one, whom he did not know, at a clubhouse party about three weeks or a month prior to his arrest. Inquiries of other club members had failed to reveal that person’s identity.
The appellant repeated to the jury what he had told police about the shoulder holster. He said that it was for dress-up parties at the club, at which the men dressed like gangsters. He said that he had purchased it from a shop named “”It’s My Party” and that he had been confused when he had told police that he had bought it from “Aunty May’s.”
Ms French gave evidence supporting that aspect of the appellant’s version of events which was to the effect that she had located the case in the laundry and had moved it into the kitchen area, a fact of which she had informed the appellant.
Ground 1 His Honour erred in allowing evidence to be admitted of the finding of a gun holster in the residence of the appellant. The evidence should have been excluded pursuant to s 137 of the Evidence Act 1995
At the outset of the trial, counsel then appearing for the appellant submitted that the first count in the indictment should be severed upon the basis that the appellant intended to plead guilty to it. The Crown nonetheless sought to rely upon the evidence relating to the discovery of the drugs in support of its case upon the various firearm charges. In those circumstances counsel for the appellant sought a ruling, pursuant to s 137 of the Evidence Act, from the trial judge that the evidence concerning the drugs, and associated paraphernalia such as scales, plastic bags and money associated with drugs, all of which were located in his bedroom, should be excluded. After hearing full argument upon the matter his Honour ruled in the appellant’s favour. The transcript records what then occurred:
CROWN PROSECUTOR:    Sorry your Honour, there’s another matter. Police found a shoulder-holster in his bedroom. Is your Honour allowing that evidence?
HIS HONOUR:     I would think so, yes.
BAKER:                I didn’t make any application on that so --.
HIS HONOUR:     I think you can take it that other items which have relevance to the guns would be not subject to objection.
It is quite clear in the circumstances that counsel, then appearing for the appellant, raised no objection to the reception of the evidence which is now sought to be challenged. It can be readily inferred that counsel, who is a very experienced and capable practitioner in the field, had turned his mind to the question and had concluded that there was no proper basis upon which he could object to the evidence. Nor did counsel, it might be observed, see fit to object to the evidence at any subsequent stage of the trial. Prima facie rule 4 applies.
Counsel who appeared for the appellant in this Court, sought to rely upon an affidavit sworn by Robert Anthony Baker, dated 5 March 2002, who was counsel at the trial. The Court received the affidavit. Set out below are the relevant parts of that affidavit:
2.            In the preparation and conduct of his defence, I was of the opinion that the evidence of the finding by the Police of a shoulder holster in Mr Melhuish's bedroom was relevant to the issue of his alleged possession of the firearms found in a camera case in that room and, therefore, admissible.
3.            The discretionary exclusion of such evidence depended, in my opinion, on the resolution of the question as to whether the shoulder holster was capable of carrying any of the firearms found in the camera case, subject of the respective counts in the indictment.
4.            In the week prior to the commencement of the trial Mr Melhuish, as requested, purchased an apparently identical shoulder holster from the party-hire shop from which he had originally bought the shoulder holster located by the Police.
5.            On the morning of 26 March 2001 before the trial commenced, my instructing Solicitor, Mr Ronald Jenkins and I, in the presence of Mr Melhuish, examined the more recently purchased shoulder holster in an interview room at the Downing Centre Court Complex.
6.            As a result of our examination, I was of the opinion that, although the shoulder holster was apparently a cheap, vinyl item for fancy dress party wear and was not a sturdy and well-manufactured article, nonetheless, it was capable of carrying a firearm of the types found in the camera case. Mr Jenkins was of the same opinion.
7.            I, therefore, concluded that there were no grounds to object to the tender of the shoulder holster found by the Police and, accordingly, I did not do so.
The contents of the affidavit provide the clearest confirmation for the inference to which I earlier alluded as to why trial counsel did not object to the evidence now the subject of challenge. It may be observed that counsel appearing in this Court specifically disavowed any suggestion that trial counsel had in any sense displayed incompetence in his conduct of the trial.
The appellant seeks to circumvent the operation of rule 4 by relying upon a passage from a decision of this Court in R v Meier NSWCCA unreported, 21 May 1996 in which Gleeson CJ said that “the authorities recognise that there are obligations upon a trial judge which may, on occasion, necessitate intervention even if counsel remains inactive” (at 12) (my emphasis). His Honour then went on to rely upon the well-known passage from Pemble v The Queen (1971) 124 CLR 107 in which Barwick CJ said:
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law (at 117).
Those principles are well established and beyond question. What is important however is their application and more particularly their relevance, if any, to the present case. The circumstances of Meier itself are illustrative of the point. That case turned solely upon the issue of identification. The accused was sitting in an interview room of an isolated country police station when the victim was brought into the station. The victim identified the accused as his assailant. That identification was clearly highly important evidence in the Crown case and extremely damaging evidence from the accused’s perspective. Counsel for the accused had raised an objection to the reception of the evidence but “he had not gone the right way about seeking to have it excluded” (Gleeson CJ at 12). Counsel, for example, had not sought, as he should have done a voir dire examination. In all the circumstances this court concluded that the trial judge should have intervened and raised for the consideration of counsel for both the Crown and the accused the question of whether the evidence should have been excluded in the exercise of his discretion. This was because “there had been brought to his notice a problem which he could not then ignore” (at 12). As is apparent, the facts in Meier are far removed from those which obtain in the present case.
Section 137 is in the following terms “In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
The case against the appellant in terms of proof of his knowledge of the presence of the firearms was a circumstantial one. The discovery of the shoulder holster was capable of being regarded, along with the other evidence in the case, as bearing directly upon that issue and of thus being relevant to it. It was common ground that the shoulder holster belonged to the appellant. Given that the shoulder holster was discovered in the appellant’s bedroom in close proximity to where the various firearms were concealed, and given that it may have been inferred that it was capable of being used in connection in some way with any or all of those firearms, I am not persuaded that it has been demonstrated that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant. It was of course well open to the jury to accept the appellant’s explanation for having the shoulder holster in his possession or at least to conclude that it was not prepared to reject it. In any event a fair reading of the entire trial transcript does not incline me to the view that this issue assumed any real significance in the course of the trial. Indeed one of the police officers called by the Crown volunteered in cross-examination that he had seen, whilst shopping in Warringah Mall, similar items on sale for $12 - $14.
I am not of the view that there “was a real risk that the evidence [would have been] misused by the jury in some unfair way” see R v BD (1997) 94 A Crim R 131 at 139, 151.
I have therefore concluded that this is a case in which rule 4 should be applied. Accordingly leave to argue this ground of appeal should be refused.
2 His Honour erred in not giving proper directions to the jury in regard to the failure of the Crown to call evidence from police officers Cambell (sic) and Bucco
This ground of appeal was abandoned.
The proviso
The Crown contended that even if this Court considered that error had been demonstrated by the appellant, the appeal should nonetheless be dismissed on the ground that “no substantial miscarriage of justice” has occurred. Criminal Appeal Act 1912 (NSW) s 6(1). The relevant principles to be applied are well-established. See Wilde v R (1988) 164 CLR 365; R v Glennon (1993) 179 CLR 1. This was a formidable Crown case irrespective of the evidence about which there is now complaint. The firearms were all located in the appellant’s bedroom. The only other person who occupied it was the appellant’s girlfriend who occasionally slept there with the appellant. The appellant’s son also apparently had access to it. Four of the weapons were located in a case which the appellant conceded was his (in view of what was displayed on the sticker on the outside of the case he could hardly have done otherwise). The case in which the firearms were concealed was locked and the appellant told police that he did not have a key to it. Moreover the appellant’s response to the Crown case fell well short of compelling acceptance. Indeed having regard to his evidence (including his answers in cross-examination) it can be readily accepted that the jury would have rejected his version of events as being inherently implausible. Nor was Ms French a convincing witness. Furthermore on one issue she undermined an important part of the appellant’s case. She was asked in cross-examination why she had not taken the case which she knew to belong to the appellant to his room. She replied that she had put it in the kitchen because his door was locked, as was his practice when he was not there. This she agreed prevented other people from wandering into his room whenever he was not there.

In my view the appellant did not lose any chance of an acquittal that was fairly open to him because his conviction was almost inevitable. Accordingly, in my view, even if contrary to the conclusion which I have reached, the evidence of the discovery of the “shoulder holster” ought to have been excluded, this was a case in which the proviso should be applied.
3 The Sentence Appeal
No written submissions were filed in support of the application for leave to appeal. The ground of appeal however asserted that his Honour failed to have regard to the principle of totality in accumulating the sentences. It is unlikely in the extreme, in my view, that a judge of his Honour’s experience would have failed, in imposing sentence, to have had regard to the principle of totality. Nothing in his Honour’s approach to the sentencing task nor more importantly in the structure and effect of the sentences actually imposed lends support to such a proposition.
In oral submissions, counsel for the applicant submitted that his Honour ought not to have imposed a cumulative sentence. In my view it was clearly open to the sentencing judge to have made the sentence for the drug matter cumulative upon the firearms offences. Indeed it would have been surprising if he had not because it was a separate and distinct offence.
In my view the application for leave to appeal against sentence must fail.
Accordingly the orders which I propose are as follows:
1             Appeal against conviction dismissed.
2             Leave to appeal granted.
3             Appeal against sentence dismissed.
STEIN JA I agree with Justice Buddin.
O'KEEFE J: The holster of the appellant, found as it was in the bedroom of the appellant, was relevant to the issues in the trial. The case in which the firearms, the subject of the charge, were found was labelled by the appellant and locked. Those items were part of a series of circumstances from which the jury could properly determine the guilt of the appellant.
The evidence concerning the holster was, in my opinion, no less relevant and no more prejudicial than the evidence of the existence and ownership of the case and of the contents of the case, which were clearly unobjectionable.
Like all elements of a Crown case the evidence concerning the holster had an element of prejudice in it. However no matter of unfair prejudice has been pointed out which would convince me that s 137 ought to have been applied to prevent the admission into evidence of the holster.
I agree with the orders proposed by Buddin J and his reasons therefore.
STEIN JA: The orders of the Court will be that the appeal against conviction is dismissed, leave is granted to appeal against sentence but the appeal against the sentence is dismissed.

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LAST UPDATED: 25/03/2002