Regina v Bentley

[2003] NSWCCA 360

CITATION:	REGINA v. BENTLEY [2003] NSWCCA 360
HEARING DATE(S):	Wednesday 5 November 2003
JUDGMENT DATE:	9 December 2003
JUDGMENT OF:	Barr J at 1; Greg James J at 2; Howie J at 101
DECISION:	Leave to appeal granted; appeal dismissed.
CATCHWORDS:	Criminal law - appeal - conviction and sentence - whether failure to withdraw a direction might have affected the jury deliberations - whether an alternative count should have been left to the jury - whether a basis for sentence to be reduced as having to be served in onerous circumstances.
LEGISLATION CITED:	Drug (Misuse & Trafficking) Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Ita [2003] NSWCCA 174 Sanderson (NSWCCA, unreported 18 July 1994) Totten [2003] NSWCCA 207
PARTIES :	REGINA v. BENTLEY, Paul Christopher
FILE NUMBER(S):	CCA No. 60273 of 2003
COUNSEL:	Crown: P. Miller App: C.B. Craigie, SC./P. Pearsall
SOLICITORS:	Crown: C.K. Smith App: R. Cummins

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/51/0204
LOWER COURT JUDICIAL OFFICER :	Ducker, DCJ.

No. 60273 of 2003

BARR, J.
GREG JAMES, J.
HOWIE, J.

TUESDAY 9 DECEMBER 2003

REGINA v. PAUL CHRISTOPHER BENTLEY

Judgment

1 BARR, J: I agree with Greg James, J.

2 GREG JAMES, J: Paul Christopher Bentley appeals against his conviction following a trial before Ducker, DCJ. and a jury in the District Court of New South Wales at Lismore. He also seeks leave to appeal against sentence. His conviction was for the offence provided for by s.25A of the Drug (Misuse & Trafficking Act) 1985 of supply prohibited drugs on an ongoing basis. The drug in question was heroin. It was alleged he had supplied a police undercover operative with 0.27 grams of the drug on 14 September 2000, 0.38 grams on 15 September 2000 and 0.25 on 16 September 2000, on each occasion receiving payment of $120.00. That is to say, it was alleged that he had supplied in a space of three days in a total of three sales an amount of 0.9 grams for the total sum of $360.00.

3 The first two supplies were said to have occurred inside premises at 42 Ballina Street, Lismore, the third supply immediately outside those premises.

4 It was the case for the appellant at the trial that no such supplies occurred, notwithstanding an attempt or attempts by the police undercover operative at those premises on at least one occasion, probably 16 September 2000 or 18 September 2000, to procure a supply to her. This was a case the jury obviously rejected. That case was supported by the assertion that the evidence of that operative and such evidence as supported her accounts of the supplies were fabricated.

5 The maximum penalty prescribed by that Act for that offence is 3,500 penalty units or imprisonment for 20 years, or both. The appellant was sentenced by his Honour to imprisonment for three years to commence on 20 March 2002 and to expire on 19 March 2005, with a non-parole period of 27 months, to commence on 20 March 2002 and to expiring on 19 June 2004.

6 Following his arrest, the applicant had been detained in custody from 21 September 2000 until 15 February 2001. On 26 November 2001, the appellant had pleaded guilty at the Lismore District Court and was apparently again remanded in custody, in which custody he remained until 27 February 2002 when leave was granted to him to withdraw his plea of guilty. Thereafter he remained on bail until 22 November 2002 when he was found guilty and remanded in custody.

7 The trial judge had fixed the commencement date for the sentences bearing in mind these broken periods of custody and had taken those periods of custody into account when fixing the length of the sentence and non-parole period.

The statute

8 Section 25A(1) of the Drug (Misuse & Trafficking) Act 1985 provides as follows:-

“(1) A person who supplies, on three or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence.”

9 By subsection (3) it is provided that the jury must be satisfied unanimously of each of the same three occasions of supply. Subsection (4) provides for an alternative verdict as follows:-

“If, on the trial of a person for an offence under this section, the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of commission of the offence under this section, committed a relevant supply offence, the jury may acquit the person of the offence charged and find the person guilty of the relevant supply offence, and the person is liable to punishment accordingly.”

The grounds of appeal

10 At the hearing, only one of the originally asserted grounds of appeal was relied upon in respect of the appeal against conviction. That ground was:-

“4. His Honour erred in that the terms of his direction to the jury that they could not return alternative verdicts caused a miscarriage of justice.”

11 The application for leave to appeal against sentence is based on a ground asserting that the penalty was too severe and some other sentence was warranted.

The written submissions

12 In the written submissions filed on behalf of the applicant, it was contended that the trial judge had erred in giving a direction to the jury explaining the basis upon which he had withdrawn from their consideration the alternative verdict. It was contended, in those submissions, that what was said to the jury “could only have been understood by the jury to mean that they could only reach a verdict by being satisfied that the appellant had carried out all supplies or not being satisfied that he had carried out any of them”. The vice, so it was submitted, of what was said by the trial judge lay in the jury in the context of what had been said concerning the alternative verdict gaining an understanding that they could not acquit the appellant of the charge of ongoing supply unless they were satisfied that he had not carried out any of the supplies. It was orally submitted that the vice included that the jury might have understood from the direction that the appellant could still be found guilty of the offence even if the jury were not satisfied beyond reasonable doubt of any one or more of the supplies. It was submitted that the evidence was significantly different in respect of one of the three supplies charged, probably that of 16 September. It was submitted that the defence position consistently embraced the defence counsel joining in the Crown Prosecutor’s application to have the alternative verdict withdrawn, but not thereby accepting that there was no rational basis to distinguish between the incidents.

13 On behalf of the Crown it was submitted that there was no reason to read into what the trial judge had said that any such understanding might have been communicated to the jury such as to cast any doubt upon the other directions the trial judge had given concerning the necessity for the jury to be satisfied of all three supplies. Further it was submitted, there was no basis of any rational kind upon which the jury would regard the evidence of the undercover operative on any of the three events to be any more or less reliable or unreliable than on the others.

14 On sentence, the written submissions contended that the trial judge had erred in imposing a sentence so severe having regard to the applicant having to serve part of his sentence in protection; that having regard to the total amount of drugs sold and the total amount paid for them, the sentence exceeded that which was appropriate and that his Honour had erred in failing to find the existence of special circumstances.

The oral submissions

15 In oral submissions on the conviction before us, it was contended for the first time that the trial judge had erred in withdrawing the alternative verdict from the jury. It was contended that the alternative verdict should have been left to the jury as a matter of law; it was contended that a miscarriage had arisen by reason of that verdict having been withdrawn from the jury.

16 As will be seen, both parties sought the withdrawal of the verdict and the defence had, at all times, opposed the alternative verdict being left. The submission now made on appeal by counsel, who did not appear at the trial or draw the written submissions or draw the grounds of appeal, is entirely inconsistent with the stance taken by counsel who had the responsibility for taking those steps. Had it been perceived that the alternative verdict had any practical basis and because of that practical basis should have been left, it would have been possible for that matter to have been drawn to the trial judge’s attention. It was not. Not even at the time of the jury’s question (to which I will later refer). The defence position was consistent that the alternative verdict should not be left. Consistently, the trial counsel sought to take advantage of the absence of the alternative verdict to achieve an acquittal for his client. It should be noted that prior to the hearing before this jury, an earlier listing of the matter had, by reason of various complaints made by defence counsel, resulted in the matter going over and a lengthy voir dire. Specific directions were given by the District Court judge then presiding requiring the defence to give notice of all issues. There was no suggestion notwithstanding this that the alternative verdict might be available. Indeed, even after the trial judge had determined to put it, counsel chose not to address on it.

17 I see no basis upon which new counsel in these circumstances should be permitted to raise this matter for the first time in oral submissions in this court, nor do I see, as will appear, any prospect of any prejudice, much less miscarriage, arising from the asserted failure to leave the verdict to the jury.

18 In my view, Rule 4 applies. This is a case unlike that to which reference was made by Ipp, JA. at paragraph 97 in his discussion in Regina v. Ita [2003] NSWCCA 174 of the application of Rule 4 and the principles underlying it, in that, there was here an explanation for the omission to `raise the perceived difficulties with the trial judge. That explanation lay in counsel not wanting the alternative verdict to be left. What explanation was raised with the trial judge concerning the terms of the direction withdrawing the alternative verdict, will appear. Other than in respect of that observation, I consider Ipp, JA.’s remarks at paragraph 97, “it is disturbing that so often no account is taken of the clear warnings that have been given by this court. It is not unusual for appellants, without making any application for leave under Rule 4, to proceed blithely to argue grounds that should have been raised by counsel at trial but were not”, entirely apposite to what has occurred.

19 I have regard to Ipp, JA.’s extensive analysis of the application of Rule 4 and its underlying principles to cases such as this and have concluded that the views of Gleeson, CJ. in Regina v. Sanderson (NSWCCA, unreported 18 July 1994) that, “It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred” are directly applicable to this argument. I see nothing that would take this matter outside the ordinary case. I would refuse leave under Rule 4 to put forward this submission.

20 The appeal against conviction necessitates I review closely the proceedings at trial since the ground asserted relies on some considerable history.

The Crown case

21 It was the Crown case that the undercover police operative “Julie” had, on 14 September 2000, after attending a briefing with various police officers including Detective Manitta and Parmenter, attended 42 Ballina Street, Lismore taking with her the sum of $300. She went to those premises at 2.45 pm and was met by a woman KP. Following a brief conversation with her, KP left her and then returned later, taking the undercover operative with her into a bedroom in the premises. There, she met the appellant and was introduced to him by KP. At that point, she said:-

“Hi, Paul. I hope you can help me out, I’m after a quarter, there’s the money to cover it.”

22 She placed $150 on the bed. The appellant got up, put on his boots and said, “it’s $120”. He provided here with a white coloured rock substance cut in her presence from a greater quantity of that substance and placed by him on a piece of white backed gold foil. He gave her some change and said, “you can come back any time, but just don’t tell anyone about me, don’t tell them you’ve seen me or anything about me”. He was wearing a black fitted t-shirt, black jeans and black boots.

23 The undercover operative went back to her car and handed over at another location in Lismore the foil package with the rock substance and the remaining $180 to various police including Detectives Manitta, Parmenter and others. Upon analysis, the white coloured rock substance was identified as .27 grams of heroin.

24 On 15 September 2000, she attended another briefing with those detectives and was handed $240. About midday, she went back to 42 Ballina Street, saw the woman KP, they had a brief conversation, KP said to the appellant, “Paul, Julie want to see you”. The appellant replied, “Yeah, come in Julie”. Julie saw he was lying on a mattress on the floor next to the main bed. He told her he was in pain due to some broken bones that he had received as a result of a car accident. She asked if she could buy another quarter. He removed a Rothmans cigarette packet and a Stanley type knife from the same dressing table on which he had cut the white coloured rock substance on the previous occasion, removed a foil package and chipped away at a small rock substance, placing a smaller rock on a piece of white backed gold foil and giving it to Julie. She paid him the $120 and put the foil package in her purse. They had a further conversation in which he told her he would soon be going to Sydney to get some more and that he wouldn’t be away for more than about 36 hours. She asked about the prospects of buying half a gram instead of a quarter and he handed her a business card from inside his mobile phone which had the words “0415 MUDSKA” written on it. He told her this was his phone number. She left and handed over the foil package with the rock substance and the balance of the money to the detectives. Upon analysis the rock material was shown to be heroin.

25 On 16 September 2000 she attended a meeting with the same police officers and was handed $300. About 11.00 am that day, she saw the appellant walking through an undercover carpark in the Lismore Square in Lismore. He was wearing a black t-shirt, a deep aqua-green coloured long sleeved shirt, black jeans and black boots. At about 12.30 that afternoon, Julie made a telephone call to the number on the card the appellant had given her. A male answered and said he was Paul. She asked if she could meet him and “get the same” off him. He asked if she wanted another quarter and she said yes. They agreed to meet at “Farmer Charlie’s” in about 10 to 15 minutes. She spoke with the detectives and walked toward Farmer Charlie’s fruit shop at about 12.53 pm. When about 40 to 50 metres away from Farmer Charlie’s fruit shop she saw the appellant. He was wearing the same clothes as he was wearing earlier that day and was standing out the front of the shop. He turned and walked quickly down a lane and out of sight. She spoke to the detectives again and at 1.25 pm rang again the phone number on the card that the appellant gave to her. She said, “Paul, it’s Julie, what happened, didn’t you see me?”. They had a conversation about missing each other. He told her to come over to the house. She asked for him to meet her outside as she was running late. At 1.36 pm, she drove to 42 Ballina Street and stopped outside. She phoned the number again and said, “Hello Paul”. She told him she was right out the front and he said he’d be out in a minute. He came out, walked down the driveway to the front of the premises and came over to her car. He sat in the seat on the front passenger side, took out a Rothman cigarette packet and placed it on the console of the car. She handed him $120. He was wearing a black fitted t-shirt, black jeans and black boots.

26 Julie drove to her briefing location and after looking and seeing the cigarette packet containing a foil wrapped piece of off-white rock substance, she handed it to Detective Parmenter. On analysis that material was later shown to be .25 grams of heroin.

27 On 18 September 2000, there was a further attempt by Julie to participate in a sale. When she attempted to call the appellant’s mobile phone was turned off. She went to 42 Ballina Street, was shown in by KP who said to Paul, “Paul, Julie’s here”. She saw the appellant playing a Sony Playstation and there were other young males in the room with him. They had a conversation and Julie said she was hoping to get a quarter. He told her that he didn’t have any at all but was going to Sydney that evening, being away for about 24 hours and would call her when he got back. She thereafter left the house.

28 On 20 September 2000, she phoned the mobile number and was told by him that he was still in Sydney. He said to just keep ringing him and he’d tell her where he was.

29 On 21 September 2000, she rang that number again. The appellant answered and Julie said, “Hello Paul, it’s Julie”. She sought to meet him at Farmer Charlie’s. She said she wanted to buy a quarter. This conversation was their last contact.

30 At about 12.25 on 21 September 2000, Detectives Temby and Ruskin arrested the appellant whom they had observed come from the rear of the carpark at Farmer Charlie’s Fruit Barn and walk along McLelland Lane. Detective Temby and other police searched the premises at 42 Ballina Street where they found an orange coloured handled Stanley type knife, purple Ruby Esq. business cards with 0415 MUDSKA written on the back and three pieces of gold foil paper with white backing in a green Cobra backpack. The search was videoed.

31 An analyst’s certificate identified traces of heroin on the blade of the Stanley knife.

32 Telstra records confirmed several calls made from Julie’s phone to the mobile number the appellant provided. The timing of those calls was consistent with Julie’s evidence.

33 KP gave evidence of the use of the premises 42 Ballina Street, Lismore by the appellant and his having brought with him to the premises a green backpack. He had said to her that he was going to Sydney to buy some heroin and he would be away one or two nights. She confirmed the evidence the undercover operative Julie had given of the first purchase and of Julie arriving at the house and going into it when the appellant was home either the next day or the day after. She further gave evidence that on the day of his arrest the appellant had arrived back from Sydney and while they were having a conversation his phone rang. He had said to her that Julie had just rung and he was going to meet her at Farmer Charlies.

34 Detective Colaco had given evidence of the money supplied to Julie and the money returned. He gave evidence corroborating Julie having walked up the stairs of the premises at 42 Ballina Street and being admitted to those premises at 2.45 pm on 14 September 2000. He gave evidence of her walking out at 2.55 pm and handing over the gold coloured piece of foil containing the rock substance at 3.00 pm at the briefing location. On 15 September 2000, he said he had handed Julie $240, again he saw her walk in the front door at 42 Ballina Street, saw her leave at about 12.09 pm. Again, he gave evidence confirming that she had handed over a gold coloured foil which contained the light rock substance together with a multi-coloured business card and had returned the balance of the money supplied.

35 On 16 September 2000, he gave evidence of his handing Julie $300 and of her walking west along Conway Street at Lismore, returning at about 1.45 pm to hand to Detective Parmenter a gold coloured foil with a rock like substance in it together with the balance of the money supplied of some $180.

36 Detectives Parmenter and Manitta gave evidence corroborating to a limited extent that of the undercover operative. Their evidence was of particular significance on the third supply, where each claimed to have observed the applicant entering the car occupied by the police undercover operative outside the premises at 42 Ballina Street and remaining there with her for a short time. Their evidence was the subject of some attack on the basis that it was not open to them to have observed from the positions in which they said they were, the applicant such as to enable a proper identification of him, or indeed in the case of one of the police officers, to have observed the events to which he had referred at all.

37 It was put to KP that she had fabricated her account of the dealing between the appellant and Julie and her credibility was attacked on the ground that she had received a letter of support or comfort from the police for use at her sentencing for the purpose of her receiving a more lenient penalty in respect of offences of malicious damage and assault.

38 It was put to the undercover operative that no such events as she had referred to by way of supplies had happened, although it was put that she had attempted to procure supplies from the appellant to her at least on an occasion on which he was playing a computer game at the house, but that he had refused. The matter was left with her on the basis that no supplies had been made by him to her, as she had alleged, and that her evidence was false and fabricated.

The appellant’s case

39 The appellant gave evidence at the trial denying supplying heroin or agreeing to supply heroin to Julie or anyone else on any occasion or at any time. He asserted he owned Stanley knives but did not own the orange handled one and had not had gold foil pieces in his backpack. He asserted he did not tell KP he was going to Sydney to buy heroin; did not tell Julie he was driving to Sydney because he was incapable of driving due to an injured right arm which had been severely broken in a motor accident and was very weak. He denied ever speaking in telephone calls to anyone about drugs and asserted he had only met Julie on one occasion, that being the day that Julie spoke to the appellant at 42 Ballina Street when he was playing the video game. He said that that day she sought to be supplied with drugs. He did not discuss that with her. He contended that he was set up by the police and the events as alleged by the Crown were fictitious, none of the supplies ever happened. He admitted the use of the phone number 0415 MUDSKA and having the business card, but this was in respect of a business he conducted selling vinyl record albums.

The addresses

40 In his address, defence counsel sought to cast doubt on the evidence of the operative, and, in particular, made reference to a number of matters which it was said showed that the police investigation had not merely been incompetent, but were missing important matters which one would have expected to be present if fabrication had not occurred. These included the lack of evidence confirming surveillance of the applicant by photograph or video, the loss of audio recordings, the lack of fingerprints, the lack of wire recording evidencing the conversations between the undercover operative and the appellant. Reference was made to inconsistencies between the evidence of Detectives Parmenter and Manitta as to the colour of the shirt it was said that the applicant was wearing on 16 September. It was submitted to the jury:-

“If there are things there that in the evidence as a totality create in you a sense of doubt or reasonable doubt, then I ask you to give the accused the benefit of any reasonable doubt that is generated by these problems with the Crown’s evidence.”
…
“It didn’t happen they way those police officers are saying it happened.”

41 Later, he said, “something’s fishy in the State of Denmark”.

42 These submissions not only reflected the cross-examination by defence counsel of the Crown witnesses, but also questions raised by the jury during the evidence of the accused. Whilst the accused was under cross-examination, a note marked MFI 27 had been received by the trial judge from the jury requesting all evidence tendered be supplied to the jury during the lunch recess. In addition, the note referred to the jury’s intention to supply the trial judge with a list of questions “generated by the jury” after lunch. Following the luncheon adjournment, the following appears in the transcript as recording a discussion between his Honour and counsel:-

“HIS HONOUR: This is what the jury have to say. “As this seems a rather big case to bring undercover people from Sydney, you’d have thought they would have done everything by the book and used all means they could to catch the accused, wouldn’t you. So why didn’t Julie have a wire on, why the police didn’t take pictures each time when he got into the car. Why he wasn’t arrested there and then on the third occasion, there was plenty of police watching on the third occasion, there was plenty of police watching him. Why wasn’t the money taken to check the numbers. Why wasn’t the Stanley knife fingerprinted, you’d thought it would be more incriminating evidence as it had powder on it, than the cig packet. Why didn’t they keep the cig packet, really it was the only bit of visual evidence and definitely why the whole house wasn’t searched. I would have, wouldn’t you”. Well there’s really no comment I can make about those matters. It’s really a matter for address I would think. It’s a rather interesting question, the answer as to that first matter. Whether that’s a question of law or a question of fact.”

43 Thereafter, the appropriate response to the jury’s questions was discussed with counsel. After that discussion, his Honour concluded that the appropriate course to be taken was for a copy of the questions to be made for each counsel to permit them to address on those matters consistently with the evidence. His Honour said:-

“I don’t want to buy into this. Much of this is (sic) matters that the jury ought to discuss amongst themselves and work out.”

44 After some further discussion with counsel for the accused concerning his interpretation of a portion of the jury’s questions, his Honour said:-

“HIS HONOUR: Well you can make your address to the jury and the Crown can make theirs, it’s a question – you’ll have to be very careful as to make your address within the ambit of the evidence or does either counsel want me to respond to any of these matters now, and if so, what direction is it suggested ought to be given. I think it may be better to finish the cross-examination of the witness before we deal further with this matter and then consider the situation.”

45 On resumption before the jury, his Honour directed them as follows:-

“Members of the jury, I have the note that has been sent. It seems to have been written by one juror. I don’t know who, but I don’t need to know who. A number of the matters that are discussed there, seem to me to be more matters for the jury to apply their own experience and commonsense about. Some of the matters may perhaps be such as I, in due course, may be able to give you some assistance, but I am very reluctant to enter into questions of disputed fact which are for you to decide. See my role here is to be the judge of the law. I can tell you what the law is, in due course, and I can perhaps refer you to what evidence there is or is not about some of the factual matters that you’ve raised. It may even be that I can give you some directions with regard to some of the things that are referred to in this note. But for the moment we’re going to go on with the evidence and we will give this a little bit more thought a little later on.”

46 Following the conclusion of the evidence of the accused, the Crown case was re-opened by leave. Detective Temby was called and gave evidence of the location of a wallet containing money on the accused when he was arrested at the intersection of Conway Street and McClelland Lane, Lismore. He gave evidence that the money found on the accused was not money which had been provided to the undercover operative and of which the serial numbers had been kept. A copy of the transcript of the video search was provided to the jury. Following some preliminary remarks by his Honour, both counsel then addressed without any further discussion of the matters raised in the jury’s question.

47 Early in the address of the defence counsel, the following passage is recorded as setting out what he had said to the jury concerning what he described as three discrete actual handings over of a prohibited drug:-

“Now, it is not your immediate role to look into these three incidents, as it were, separately. Your function in the context of this indictment is to ask yourselves, are you satisfied beyond reasonable doubt that the three took place – three or more, but in the context of this case – the three took place to satisfy one of the essential elements in the indictment. If, for example, you were only satisfied that one or two incidents of supply took place and it fell short of the three, well the necessary elements of this indictment would not have been made out. And I would ask you not to speculate in relation to any criminal proceedings that might stand outside this trial. I am only addressing you on the evidence in this trial brought forward pursuant to the indictment in this trial and I do sincerely ask you not to venture outside those parameters. So if, for example, you thought there might be one or two supplies but not three – never mind for the purpose of this trial any legal consequences of being satisfied beyond reasonable doubt of only one or only two. To find the accused guilty for this indictment it must be proved beyond reasonable doubt that he supplied at least three times. That’s what we have to focus on and that’s what I’m endeavouring to focus my submissions, my address to you on and that’s what I urge you to focus on in your deliberations. Were there three or more, but in the context of this trial, were there three and were they on the days specifically stated in the evidence by undercover operative Julie.”

48 Later, counsel put to the jury:-

“Now, is it possible – this is a theory that I advance for your consideration – if you have some reasonable doubt about whether there was a supply on 16 September, which is one of the element – it’s one of the necessary elements in the context of this case, is it possible that, having got in twice on the 14th and 15th, they failed to clinch the necessary evidence on the 16th, and that is why the undercover people set up the operation on the 18th. The 18th was to be the clincher. The 18th was to be the day that they had him on tape with the surveillance, with the video trained on the front door of 42 Ballina Street. And the whole purpose of the 18th was to get the third supply because the 16th hadn’t happened. And the whole purpose of going to the relatively elaborate procedure of setting up a surveillance camera was because that was going to be the big day.
Now, true it is, that if a person supplied three times they commit the offence that the accused is indicted with if they supply four times, but to what purpose …”

49 Counsel then turned to addressing matters which he contended showed a weakness in the evidence of the supply on 16 September, in particular, the absence of video evidence, supporting his assertion that that evidence was weak by an assertion that the purpose of the undercover operative attending the applicant’s premises on 18 September was to obtain the evidence she had not obtained on 16 September. He concluded this aspect of these submissions this way:-

“Now the accused isn’t saying this. I’m submitting it to you as an interpretation of the evidence. The accused is saying he didn’t supply on any occasion. And when you consider the evidence of a witness, be it the accused or anyone else, you may accept all or part of the evidence of that witness. You may find some parts reliable, reject other parts. And because I have no way of knowing the course of your deliberations, ladies and gentlemen, I make these submissions based on an interpretation of the evidence, not based on the evidence of the accused. But getting back to this fundamental principle. The Crown on the totality of the evidence must prove its case beyond reasonable doubt.”

50 As matters stood at the close of the evidence and prior to counsels’ addresses, the only practical issue was whether Julie was to be believed as to all three sales to the extent that the jury accepted her evidence in the teeth of the accused’s denials as establishing the offence charged beyond reasonable doubt.

51 Counsel, at this point, appeared to be raising matters asserted to go to the witness’ credibility on the third supply, so that her account, at least as to that supply, would not be accepted beyond reasonable doubt. The submission is also capable as being understood as reflecting on the witness’ credit generally.

52 Defence counsel’s address was interrupted by the evening adjournment, but prior to the court adjourning, in the absence of the jury, his Honour ascertained from defence counsel that at no stage was it suggested that there was an alibi or partial alibi in respect of any of the meetings alleged to have taken place between the accused and Julie.

53 The following morning, the trial judge again sought from defence counsel a succinct statement of the nature of his client’s defence. He was informed that the assertions that his client had met with Julie on 14, 15 and 16 September were total fabrications. It was at that point, referring to the matter that defence counsel had raised in his address, that the possibility of an alternative verdict was first raised. Defence counsel submitted that it should not be put to the jury “it should be all or nothing”. His Honour enquired why “when you yourself have raised that issue”. His Honour referred to there being a “statutory defence” to cover exactly that situation where the jury are not satisfied beyond reasonable doubt that three supplies took place but are satisfied that one or two did.

54 The Crown sought that such a direction be given, since the matter had been raised by defence counsel and particularly when the defence case was that the appellant hadn’t supplied anything. His Honour made it clear that if the alternative verdict was put to the jury he would make it clear that it was not the Crown’s essential position and was not the accused’s position, that it was just something that was put to them and raised by the defence as a possibility, although contrary to the accused’s own evidence. His Honour appears to have understood the submissions as referring, at least, to the possibility the jury would not relate the challenge to the witness’ credibility to more then the third supply.

55 The defence address then continued. The submission was put to the jury that the accused was saying he was framed, not once but three times; that he did not supply heroin to Julie on 14, 15 or 16 September; that these events were fictitious, they didn’t happen and they had been created; that for whatever reason before Julie went up and went to that front door on 14 September, they (the police) had decided to pick on him.

56 It was submitted to the jury that the case against the accused in respect of the supply on 16 September was weaker than the case on the other occasions, but that as to each and every one of the supplies, they were denied and that the jury should find there was a reasonable doubt in respect of each particular matter. In summary, it was said:-

“What I am submitting to you is that in a combined way they’re all so eager to say it was the accused, they’re all so vigilant to say ‘yes it’s the accused’, to identify the accused, that they’re jumping to conclusions, at best, and making up evidence at worst, because you can see by looking at the photographs just what sort of obscured view Officer Parmenter would have had.
And then to make matters worse, if Office Manitta is telling the truth, unless Parmenter could see through a house, it’s all quite impossible for Officer Parmenter to see that car at all, because it’s parked 20 to 30 metres up the street, which puts the undercover operative’s car 70 to 80 metres away from where Manitta was parked in an easterly direction in Ballina Street. So there he is, supposedly out in the open and no pictures and it’s not as if there weren’t police around on that day.”

57 Toward the conclusion of his address, counsel put the following to the jury:-

“Now, as I’ve indicated to you, you can accept all of what the accused has said, you can accept part of it, you can accept all of what Julie has said, you can accept part of it, you can accept all of what Temby or Miss Puckeridge or any of the witnesses has said, all or part, but that’s all part of the process which I alluded to earlier. At the end of the day, once the process reaches its climax, the essential question is are you satisfied beyond reasonable doubt as to three acts of supply, to find the accused guilty in respect of this indictment?
I say this with the greatest respect to you, ladies and gentlemen, I am not privy to the way you will approach your deliberations, and I don’t know how long your deliberations will take, and if anything I have said to you has struck a resonance with you, then please keep it with you in the course of discussion amongst yourselves. And if you think of something yourself that I haven’t even mentioned, in favour of the accused, please keep that with you in the course of your deliberations. I have no way of knowing whether you would find the incident of the 14th happened, or the 15th happened, or the 16th happened, but to be convicted on this indictment, subject to anything his Honour may say to you by way of directions of law, to be convicted of this indictment you have to be satisfied beyond reasonable doubt of 14, 15 and 16. For this indictment, as I’m holding up my copy to you, it has to be 14 and 15 and 16.”

58 He concluded his submissions referring to the questions raised in the note from the jury and expressing the hope that he had covered those things. He said:-

“But at the end of all your deliberations, subject to directions of law that his Honour will give you, are you satisfied beyond reasonable doubt that there were three supplies, 14, 15 and 16, the answer has to be ‘no’, and then the accused would be entitled to a verdict of not guilty.”

59 Other than as I have set out, at no point in his address did counsel make submissions as to the alternative verdict or seek any further ruling on it from the trial judge. He opposed the judge leaving it to the jury, but if it was to be left, at that point he was apparently content to have it put forward as a theoretical possibility, without particular elaboration, not advanced by either the prosecution or the defence.

The summing-up

60 Prior to commencing his summing up, the trial judge invited submissions on what directions should be given. Defence counsel submitted that no alibi direction should be given “because the accused, whilst he said he wasn’t there, he’s never asserted definitely where he [was]”. He made no further submission to the trial judge concerning the alternative verdict.

61 In his summing up, the trial judge directed the jury

“The real issue here is whether or not the crime, that is the three supplies of the drug heroin which are alleged did occur.”

62 That is, whether the accused, on all the three occasions charged, had supplied the drug. His Honour expressed it this way:-

“Put more simply, you have to be satisfied beyond reasonable doubt that on those dates the accused handed over heroin to the undercover operative using the pseudonym Julie and that he received money for doing so.”

63 He directed the jury that the three occasions charged and all three of them had to be proved beyond reasonable doubt and that the accused’s defence is that there were no such occasions. In respect of the alternative count, his Honour directed the jury as follows:-

“However, there has been introduced into the case, by the submissions that have been made on behalf of the accused, the suggestion that if you were to accept for example that there was a supply on the 14th and another on the 15th, but not on the 16th, then the verdict you must return would be ‘not guilty’. That is not the entire story, because the fact is that if the jury were to come to that view, then there would be open to the jury an alternative, and that is a verdict that the accused was not guilty of the charge, but guilty of supplying the drug heroin for financial or material reward on each of 14 September 2000 and 15 September 2000. I will say a little bit more about that immediately before you retire to consider your verdict, indeed I will formulate a written direction which you can take into the jury room with you.
I must emphasis however that it is neither the case for the prosecution, nor is it the case for the accused, that on two only occasions did the accused supply the prohibited drug for payment. The prosecution case is quite clearly that ‘Julie’ obtained drugs from the accused on three separate occasions, 14, 15 an 16 September 2000. The case for the accused appears to be that not only did he not supply the drugs, he never even met the undercover agent ‘Julie’. His case is that these allegations are a complete and utter fabrication, that he did not meet her at the premises at 42 Ballina Street, Lismore on 14 and 15 September, nor did he go to her car when it was parked in front of the building in Ballina Street (the Bruxner Highway) on the 16th. That it is all totally untrue, what the prosecution alleges. The suggestion being that when he was interviewed he was not even shown the photograph of the undercover operative, but that, for some reason, he was shown a photograph of somebody else, somebody called ‘Dodi’ he thought. Those, as I understand it, are the positions taken by the respective sides. It is not a case where the accused is saying that he did have some association with ‘Julie’. It is not the case where he is saying that ‘Julie’ tried to get him to supply drugs and he would not. His defence is that nothing like that happened, that at no time, as I understand it, did he ever speak to ‘Julie’ or knowingly speak to ‘Julie’ over the telephone and that he simply had nothing to do with her. The accused has said that with regard to some of those occasions, that he does not remember those occasions, but if they did take place, then he certainly never discussed drugs with her.”

64 Later, in the summing up, his Honour particularly directed the jury’s attention to the evidence of the undercover operative having directed the jury that the evidence of KP should be scrutinised very carefully indeed by the jury and indicating to them that they might well think that her evidence was not such as they should accept unless it was corroborated by other evidence. In that regard, his Honour referred to the evidence of Julie and then turned to what he saw as the essence of the Crown case. He said:-

“But the prosecution case stands or falls on whether, at the end of the day, you are satisfied, beyond a reasonable doubt, that Julie told the truth and that what she said about the accused supplying that drug on those three days was true. If you accept that view beyond reasonable doubt, the appropriate verdict would be guilty. If you have any reasonable doubt about the guilt of the accused, the appropriate verdict would be not guilty. I would suggest to you that since it is the same witness, the credibility of the same witness as regards each of the three alleged supplies, that you might find it very hard to come to a view that on some of these occasions heroin was supplied, but on others it was not. I have told you that there is an alternative verdict, only because it was raised by the defence. This scenario which is neither the case for the accused, nor the case for the Crown, that you could be satisfied that there were two supplies, but not three.
I cannot, to be frank with you, see any proper basis for you coming to that view of the facts, but it is a matter for you. I am not suggesting you cannot do it, but I would suggest that it is very, very hard to see any logical reason why you would. That you either believe ‘Julie’ absolutely as to what she said, that is, believe her beyond reasonable doubt, or you do not. If you do, then the appropriate verdict would be guilty. If you do not, the appropriate verdict would be not guilty. I would suggest to you that you will not fiddle around with the alternative verdict.”

65 His Honour also directed the jury;-

You must accept the directions of law which I have given you. The whole case you might think, gets down to a simple – more or less a simple proposition, although you may have to work your way through a fair bit of evidence – but at the end of the day, I simple terms, are you satisfied, beyond reasonable doubt, that ‘Julie’s’ version of how she was supplied with those drugs by the accused, is true. If the answer to that is ‘yes’, I suggest that the verdict must be guilty and if there is any reasonable doubt the verdict must be not guilty. The verdict must be the verdict of all 12 jurors.”

66 His Honour sought counsel’s assistance as to whether there should be any re-directions. Defence counsel said that he was concerned about the direction on the alternative verdict. The following passage occurred:-

“SEGAL: The directions in relation to the alternative verdicts. With respect your Honour, the jury is entitled to be given assistance as to how they might deal with alternate verdicts, because in effect it becomes consideration of three different counts and they would then need to be satisfied, beyond reasonable doubt, in respect of each particular count and one couldn’t have a jury agreeing on two counts --
HIS HONOUR; Why do you want that direction?
SEGAL: Unless they were the same two counts for example.”

67 It appears that here counsel was not referring to s.25A(3) which provides:-

“If, on the trial of a person for an offence under this section, more than three occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same three occasions in order to find the person guilty of the offence.”

68 He was referring to the necessity for the jury to be unanimous on each alternative verdict, as to each supply alleged, if the jury were minded to find any alternative verdict.

69 The trial judge then said:-

“Why do you want the jury – why do you want that direction. Why would you want that direction when what I have suggested to the jury is a straight out contest between what are fact – the respective cases for the parties, that is, believe ‘Julie’ beyond reasonable doubt, guilty, don’t, not guilty. Why would you want a situation where the jury is not satisfied of one, but then your client gets convicted of the other two. Now why would you want that situation, I would think it would be totally adverse to your own client’s interests.
SEGAL: A jury would be entitled, if they found a reasonable doubt as to one count, based on the credibility of ‘Julie’.
HIS HONOUR: And that’s all you need to have an acquittal, a straight out acquittal.
SEGAL: They’d be entitled to take that doubt into account in considering either of the other two matters, in considering her credibility.
HIS HONOUR: Well I virtually said that, that it is – her credibility is the critical thing and I can’t see any logical basis for them finding him guilty on two, but not on the third.
SEGAL: If they thought he had set him up on the 16th, that adverse finding of credit should flow through to their deliberations in respect of the 14th and the 15th.
HIS HONOUR; That is not – no, no, it’s totally academic anyway I think, on reflection about the whole thing. I mean it’s something – I frankly don’t know why you raised it in the first place.
SEGAL: Well I saw it as a flaw in the sum of the prosecution evidence.
HIS HONOUR: Well it was a flaw which would entitle your client – if they had any reasonable doubt about the whole three or at least about any one of the three, he would have been entitled to an outright acquittal. But in the present state of things what you are asking me to do is to give the jury a direction which is neither in accordance with the evidence of the witness ‘Julie’, nor in accordance with your own client’s case, with the result – the possible result that if the jury had a reasonable doubt about the third occasions on the 16th then on the direction that I have given them, he will get an outright acquittal. On the direction that you are asking me to give the jury, he is in danger of being convicted of two counts. Now why on earth would you want that.
SEGAL: Well you Honour has not said that if they find a reasonable doubt as to her – in relation to one incident, that may be taken into account in their consideration of her credibility in the other incidents.
HIS HONOUR: I told them that I can see no scenario in which they could logically come to that view. I have directed the jury that if the witness is found to be untruthful in one respect, then they are entitled to question the reliability of her evidence in other respects.
SEGAL: Your Honour it’s a situation that’s arisen in --
HIS HONOUR: What it – about all that it might do is introduce a compromise.
SEGAL: Well subsection (4) of s.25A creates this possibility for alternate verdicts.
HIS HONOUR: Well I am not going to change the direction that I gave and I cannot understand why you persist in trying to persuade me to do something which will lead to your client being convicted – or could lead to your client getting convicted of two offences of supplying a drug and that in a situation, where as things are, if the jury have a reasonable doubt about one, he gets acquitted, full stop.
SEGAL: Your Honour, I don’t wish the accused to be convicted of anything, but if he’s convicted of 25A, carries a penalty of 20 years, if he is convicted of those other two, they’re less than the small amount, which prosecuted, otherwise would be done in the Local Court and there’s even Criminal Procedure Act, s.36 back-up charges of summary supply sitting in the Local Court as part of the earlier procedures in the matter.
HIS HONOUR: No, in my opinion all that it is likely to do is either have your client convicted of two offences, for which he would have to be sentenced and spend time in prison before the Court of Criminal Appeal could hear the matter, because the Court of Criminal Appeal does not grant pail (sic) pending appeal except in the most exceptional circumstances, when he can get a straight out acquittal. The other side of it is that the proposition that had been put up is, in effect, like – the only thing is, it could have the mischievous effect of having the jury seize upon a compromise in the jury room. No, I will not alter that.”

70 Defence counsel appeared to be seeking a direction or mounting an argument to be put to the jury that if the jury were not satisfied beyond reasonable doubt of any one or more of the supplies they must acquit of the ongoing supply charge, must acquit of the alternative verdict on the supply on which they held a doubt and should carry that doubt forward to their consideration of the remaining alternative verdicts. The submission seemed to accept that a doubt as to one supply meant a doubt as to all, ie., “all or nothing”.

71 The Crown Prosecutor submitted:-

“CROWN PROSECUTOR: Thank you and your Honour in relation to the alternative verdict, if it is still the wish of the defence that that be – that the jury be reminded of that, I mean on reflection if I’d thought about this a bit more, I would not have suggested to your Honour that it was appropriate to give, indeed I think submit – the circumstances of this case, it’s not appropriate. For the reasons that your Honour has raised with my learned friend. I suggested that your Honour should give the jury the alternative, because it had been raised and therefore the Crown could be disadvantaged.
HIS HONOUR: I have told the what the --
CROWN PROSECUTOR: I appreciate that you have and --
HIS HONOUR: I’ll tell them what it is.
CROWN PROSECUTOR: Well there’s no need for in my submission, because your Honour has already told them that they have to be satisfied beyond reasonable doubt as to each of the supplies on the 14th, 15th and 16th and unless they are so satisfied, they cannot find him guilty of either one or two of those three. There’s no need for your Honour to say any more – indeed the less said about it, with great respect, the better.
HIS HONOUR: But are you saying I should give them that direction.
CROWN PROSECUTOR: You Honour has given it already.
HIS HONOUR: Yes and you are saying I should not say --
CROWN PROSECUTOR: Well I think the less said about the alternative verdict now the better, because your Honour was really forced into a corner to give it, given the submissions that were made to the jury and your Honour will recall that my learned friend was submitting to the jury, waving the indictment saying ‘you can’t find him guilty on this indictment of this charge, unless you’re satisfied, beyond reasonable doubt as to each and every one of them’ and then he put the theory. My theory is, there were two supplies then not one on 16th, the 18th came unstuck.
HIS HONOUR: It could have been.
CROWN PROSECUTOR: And so that’s why it works a disadvantage to the Crown that if there’s somebody on the jury, for some reason that accepted that argument that they might have followed it. The problem is your Honour at the end of the day if the jury come back and say, ‘guilty of two actual supplies’, well the verdict’s not going to stand.
HIS HONOUR: Well, it’s no good for anybody.
CROWN PROSECUTOR: No good for anybody, no good for the Crown it’s not good --
HIS HONOUR: The accused, despite the fact that I regard it as an inconsistent verdict, I do not have the power to not sentence him. I have to sentence him, so he would be sentenced and supplying heroin on two occasions, that is prison material of course. They way I have put it, it is to his advantage.
CROWN PROSECUTOR: Indeed your Honour.
HIS HONOUR: Except if he wants a compromise verdict.
CROWN PROSECUTOR: In my submission your Honour should just withdraw it from the jury tomorrow, because this is creating a situation, the making of my friend that will possibly have the potential of creating a verdict that is unsustainable and which will result in a new trial and this is, as your Honour has correctly with respect, said to the jury, a case that either they accept the Crown case or they don’t and to accept the Crown case they need to be satisfied, beyond reasonable doubt, as to the three supplies. Now if they’re not satisfied --
HIS HONOUR: And in turn that means they have got to believe ‘Julie’.
CROWN PROSECUTOR: And all – of course – all the other evidence.
HIS HONOUR: As corroborated in other aspects.
CROWN PROSECUTOR: They have to accept the Crown case which is built around ‘Julie’. I don’t necessarily join with your Honour’s description that the case stands or falls on her evidence, obviously she’s a very important witness.
HIS HONOUR: If they do not accept her – but – all of the other evidence supports her.
CROWN PROSECUTOR: Correct your Honour. I would ask your Honour to give it some thought overnight and perhaps hear us again in the morning. It’s a quarter past five your Honour and the mind is not working as clearly as it perhaps should or could.”

72 The following morning, Mr. Segal submitted:-

“Your Honour, the defence didn’t ask for the alternate verdicts to be left with the jury and I would apply to your Honour to withdraw that direction.”

73 Thus, at this point, a direction had been given by the trial judge, of his own motion, opposed by the defence but supported by the Crown, provoked by observations of defence counsel which were ambiguous, and which it was now sought by both parties should be withdrawn. Up to this point, the only prejudice to the accused was that to which his Honour had referred, ie., a possible liability to be convicted of other offences rather than acquitted outright of the offence charged. No-one suggested the alternative verdict was not legally available or could not be left as having been raised too late or that the accused might not have been able to deal with the issues raised by it without unfairness.

74 However, later, Mr. Segal submitted:-

‘It must be something we missed your Honour. Can I just, with earnest and respect for your Honour, that you protect the accused’s position with the withdrawal of the alternate verdict direction, seek that the trial be discontinued and the jury be discharged because of the --
HIS HONOUR: For what reasons.
SEGAL: -- irredeemable prejudice by reason of such directions as your Honour’s having given, been given and withdrawn. Your Honour would appreciate I do this to protect the position of the accused.
HIS HONOUR: I would have though it was to his advantage, but that will go down on the transcript.”

75 No particular reference was made to any particular prejudice said to be occasioned by the giving and withdrawal of the direction.

76 Following that exchange, his Honour gave the jury the following directions:-

“I have been asked to correct a couple of things, but before I do that I can tell you that and direct you that the only two verdicts open to you are ‘guilty’ or ‘not guilty’. Forget all about any question of alternative verdicts. There is no rational basis upon which an alternative verdict could be found, therefore I am withdrawing that possibility from you and the verdict simply has to be one of two: ‘guilty’ or ‘not guilty’.”

The application for re-directions

77 After the jury retired to consider its verdict, Mr. Segal raised the matter again, seeking a re-direction as to his Honour’s observation that “there is no rational basis” upon which the jury could have found an alternative verdict. He said, “That’s what I seek to be re-directed”. He submitted that there was a rational basis for an alternative verdict but the trial judge declined to give the jury any further direction. He said:-

“SEGAL: That there’s no rational basis upon which they could’ve found an alternative verdict. That’s what I seek to be re-directed.
HIS HONOUR: I told you exactly that.
SEGAL: The defence is submitting that there is a rational basis for it.
HIS HONOUR: Well noted, but I don’t propose to give the jury any such direction. It is really something that in my view would’ve been much better not brought into the case at all, where the case is that he had no dealings – his case is he had no dealings whatever with the undercover police officer and you’re asking the jury to consider that other situation. The battle lines are clearly drawn in the case and the matter for decision is equally clear and that is, are the jury satisfied beyond reasonable doubt that on the three occasions specified, the accused supplied the undercover again, using the name Julie, with heroin, for financial reward. And that’s it, I don’t propose to change my directions Mr. Segal.”

78 Although it is difficult to be sure about this, it seems counsel’s complaint was about the terms of the direction withdrawing the alternative verdict from the jury, not that verdict being withdrawn from their consideration. The assertion was that the jury should be told that there was a rational basis for the alternative verdict and it does not appear that counsel also sought that the alternative verdict be left. Such a direction would have been illogical. Perhaps what was sought was that the jury be directed that they were to ignore the statement that there was no rational basis for the verdict. Such a direction would present its own problems. In any event, the prospect of the alternative verdict in his Honour’s view should the jury have acted in accordance with the directions given to them in the summing up, was nil. That is to say, the jury either accepted beyond reasonable doubt the whole of Julie’s evidence as to the three supplies, or acquitted the accused.

79 Prior to his Honour seeking re-directions, his Honour had reiterated to the jury that the defence suggestion was that the Crown case was completely fabricated from start to finish and that there was nothing, no dealing whatever, between Julie and the accused. No further application for discharge was made in consequence of the judge’s reference to the lack of a rational basis for the alternative verdict. Nor did counsel seek that the prospect of finding an alternative verdict be left to the jury merely that there be a re-direction on whether there was no “rational basis” Counsel was not seeking the alternative verdict be available. He was seeking that his argument that the evidence of one or more supplies might be seen as weaker than that of the others and hence if there was a reasonable doubt of one, that applied to all.

80 It was in that context that the appeal was brought.

Appeal arguments

81 Two submissions were put on appeal. The first concerned the reference to “no rational basis”.

82 The significance for the ground of appeal concerning alternative verdicts of what went on in totality is, so it is submitted now, on appeal, that the jury would have understood from the previous day’s direction as to the availability of alternative verdicts, that they could have returned alternative verdicts if they were satisfied of one or two supplies but not of all, so that a lack of credit on one or two supplies would not have produced a complete acquittal. It was submitted that the later direction that there was no rational basis to found such an alternative verdict in that context could have been understood by the jury as an indication from the judge that the jury should accept the whole of the evidence unless they were minded to wholly reject it, so that they could reach a verdict of guilty by being satisfied that the appellant had carried out some, though not necessarily all, of the supplies and could only acquit if not satisfied that he had carried out any of them. I do not accept that what was said would have been so understood by the jury.

83 In my view, the introduction of the possibility of the alternative verdict into the case is to be regretted and reference to the lack of a rational basis for it was unfortunate, but again and again throughout the summing up, his Honour clearly directs the jury that it was necessary for the prosecution to prove beyond reasonable doubt all three of the supples alleged by the Crown, and for that purpose the case was entirely dependent on the evidence of the undercover operative, albeit, she was in respect of some matters to some extent, corroborated, particularly in relation to the sale on 14 September.

84 Counsels’ addresses were, except as I have set out, to the same effect. In this context, the jury had also been told a number of times that they could accept or reject all or part of Julie’s evidence. Rejection of any supply necessarily meant outright acquittal. So far as I can see, defence counsel never sought or supported the availability of the alternative verdict.

85 Although, as I have said, I found the entire discussion between counsel and his Honour concerning the alternative direction confusing, when I consider what was put to the jury in the whole of the summing up and addresses, I am unable to detect any legal error or prejudice to the accused arising from the reference to it or from the terms of the judge’s withdrawal of it from the jury’s consideration. I do not consider that there should have been any further discussion or elaboration on what the trial judge had said to the jury when withdrawing the prospect of the alternative verdict as anything further said was liable to produce confusion.

86 Further, I do not see there was any practical necessity for the alternative verdict or to further discuss with the jury the terms that the judge had used in withdrawing it, since I do not accept that, as it was submitted, the evidence of the incident of 16 September or any one of the supplies was substantially weaker than that of the others. I see no reason why the jury might have considered the credibility of Julie differed from occasion to occasion, although I accept the corroborating evidence differed. But such evidence as the jury accepted of any particular supply would inevitably have bolstered Julie’s credit generally and thus reflected upon the strength of the evidence of any other supply just as any doubt they may have had as to the reliability and truthfulness of her account as to any one supply would have undermined the reliability of the whole of her evidence.

87 In conclusion, I do not see any risk of a miscarriage arising from the alternative verdict being left or withdrawn nor that the refusal of the application for discharge, made as and when it was, occasions any disquiet.

88 In my view, there was a powerful, if not overwhelming, Crown case. Even though I consider the alternative verdict would have been better not left and the choice of words used in withdrawing it was unfortunate, I consider that there was no fundamental flaw in the trial, that the appellant lost no chance of an acquittal and that there was no risk of miscarriage arising from the terms used by his Honour when referring to the basis for the alternative verdict being withdrawn.

89 I conclude that the appeal against conviction must be dismissed.

90 I turn now to the application for leave to appeal against sentence.

91 His Honour, the learned trial judge, found in the appellant’s favour that he was himself addicted to the drug, being a single man, aged 35 with a limited prior criminal history with entries for minor dishonesty matters and possession of cannabis, who had not previously, except for a period of some 100 or so days been subjected to a substantial sentence of imprisonment for 118 in Queensland being subjected to a period of substantial imprisonment.

92 His Honour had regard to the applicant’s hospitalisation for serious medical conditions and, in particular, to the injury to his arm which had left him, in his view, vulnerable so that he had requested that he be confined on protection.

93 Trial counsel had specifically raised with his Honour that injury and his gaol regime contending “he doesn’t get into the sun or the library or the gym, has a limited access to education and can’t paint. He is an artist.”.

94 It was specifically put to the trial judge that special circumstances should be found in those circumstances and the non-parole period thereby shortened from that provided for by s.44 of the Crimes (Sentencing Procedure) Act 1999 in the absence of finding of special circumstances.

95 The ground of appeal in respect of the application for leave to appeal against sentence asserted that “the penalty is too severe and some other sentence is warranted”. Reference was made to the small amount of the drug and the limited value of the payment for it. In the context particularly of the applicant’s prior record, however, I am unable to see that the sentence is in error. The written submissions focused on the length of the non-parole period and his Honour’s asserted error in failing to find special circumstances. In particular, reference was made to the appellant serving part of his sentence in protection and to his Honour having failed to find special circumstances.

96 On the hearing of the appeal, by consent, the affidavit of Janet Elizabeth Bremner, solicitor, of 27 October 2003 was read as to the circumstances of the appellant’s confinement. That, because, there was before the trial judge a paucity of evidence as to the actual circumstances of that confinement but assertions made without evidentiary support as to it from the Bar table.

97 It was conceded by senior counsel for the appellant in the light of the whole of the material, and particularly a memorandum annexed to the affidavit of Janet Bremner that it could not be said that the applicant was significantly disadvantaged. The circumstances of his confinement included that he might associate with other inmates within a protected area, have access to services and programmes, had extended periods of time out of cells each day, have access to activities on a daily basis or as starting levels permit, and is not deprived of access to employment, educational courses, counselling or other facilities, albeit, there is some limited availability of appropriate employment.

98 The memorandum informed the court that his classification within the system would not be affected by his status. That information was not challenged before us. In regard to this submission, I should note that in a series of recent decisions referred to in Regina v. Totten [2003] NSWCCA 207, this court has emphasised the necessity for evidence to establish not only that a person might be confined in some specially designated custody, but to establish the circumstances of that custody and whether it really is or is not disadvantageous. Custody which is more onerous will be taken into account to determine the length of the sentence to be imposed and in determining whether there are special circumstances but that matter must be properly established.

99 In this case, it is clear that the trial judge had reference to that matter and to the other matters to which our attention has been drawn, both with reference to the length of the head sentence and also with reference to his considerations of whether or not he should find special circumstances. The categorising of those matters as special circumstances, however, was plainly a matter for him in the exercise of his discretion. Given that the submissions put below concerning disadvantageous circumstances could not be sustained on the evidence now before us and, having regard to the ambit of the discretion vested in the trial judge to decide whether a matter should in an individual case be categorised as special circumstances, a discretion which I am not persuaded here, miscarried. I see no basis upon which the appeal against sentence might succeed.

100 In my view, since there has been full argument, leave should be granted but the appeal dismissed.

101 HOWIE, J: I agree with the orders proposed by Greg James, J. and generally with his Honours reasons.

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Last Modified: 12/11/2003