Strachan v R

[2017] NSWCCA 322

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Strachan v R [2017] NSWCCA 322

Hearing dates:

27 November 2017

Decision date:

15 December 2017

Before:

Basten JA at [1];
Bellew J at [48];
Hamill J at [49]

Decision:

(1)   Refuse leave to appeal with respect to grounds 2, 3 and 4.

 

(2)   Grant leave to appeal in respect of ground 1.

 (3)   Dismiss the appeal.

Catchwords:

CRIME – appeal – application for leave to appeal against conviction – charge of possession of unregistered and prohibited firearms under Firearms Act 1996 (NSW) – whether errors in admitting evidence at trial – whether errors in trial judge’s directions to the jury

 

CRIMINAL PROCEDURE – jury directions – leave to appeal against trial judge’s directions required under Criminal Appeal Rules (NSW), r 4 – whether error in directions regarding jury’s consideration of sworn evidence of accused – whether error in directions regarding potential lies told by accused under oath

 

CRIMINAL PROCEDURE – video of search – failure to edit out inadmissible evidence – whether replay stopped before prejudice realised – whether jury should have been discharged

EVIDENCE – admissibility – relevance of machine gun construction manual found in premises of co-accused to firearm possession offences – whether “tendency evidence” under Evidence Act 1995 (NSW), s 97

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules, r 4
Evidence Act 1995 (NSW), ss 55, 97, 101
Firearms Act 1996 (NSW), s 4A

Cases Cited:

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Elomar v R [2014] NSWCCA 303
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50
Hughes v The Queen [2017] HCA 20; 344 ALR 187
R v Cooper (1849) 3 Cox CC 547
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category:

Principal judgment

Parties:

Scott Alexander Strachan (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms S Kluss (Applicant)
Ms B Baker (Respondent)

  Solicitors:
SJT Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/146018; 2014/31758

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 November 2016

Before:

Williams SC DCJ

File Number(s):

2015/146018; 2014/31758

Judgment

1. BASTEN JA: On 31 January 2014 police executed a search warrant at the home of the applicant, Scott Alexander Strachan, in Glenmore Park. In the garage of the house, police located a “Dynaweld” box containing guns and ammunition wrapped in plastic. On 30 May 2016 the applicant and two co-accused, Lance Murdoch and Murdoch’s mother, Sharon Evans, were charged with offences under the Firearms Act 1996 (NSW). A single joint count charged Murdoch and Strachan with possessing more than three unregistered firearms, of which at least one was a prohibited firearm or pistol, which they were not licensed to possess. (Ms Evans was charged with separate possession offences under the Firearms Act.)

2. Each pleaded not guilty. On 14 June 2016 a jury returned verdicts of guilty with respect to the applicant and his co-accused. The applicant was convicted and sentenced on 18 November 2016. Judge Williams SC imposed an aggregate sentence with respect to this offence (and other offences) involving imprisonment for a term of 4 years 6 months with a non-parole period of 3 years and 3 months which will expire on 14 August 2018.

3. On 22 September 2017 the applicant lodged an application for leave to appeal with respect to his conviction only. The notice of appeal contained four grounds, namely that the trial judge erred:

1. in admitting the “machine gun manual” evidence;

2. in not discharging the jury upon the jury being shown a video depicting the locating of a taser and cross-bow that had previously been ruled as inadmissible;

3. in not directing the jury as to the way that they would receive the sworn evidence of Mr Strachan, and

4. in directing the jury on the issue of lies.

4. Some further description of the evidence and the course of the trial is required in order to explain the proposed grounds of appeal.

Factual and procedural background

5. The case against the applicant alleged that he was in possession of four firearms, two of which he had received in mid-November 2013 from Mr Murdoch’s mother, Ms Evans, being a Winchester rifle and a Fabram shotgun. The other two weapons were pistols. (No point was taken in this Court or at the trial that although there was only one charge, only two of the four guns in respect of which Murdoch was charged were the same as the four guns in respect of which Strachan was charged.)

6. Mr Strachan worked for a business known as Dynaweld Industrial Supplies. (The corporate name is frequently and incorrectly identified as “Dynaworld” in the court papers.) The box in which the firearms were found had Dynaweld printed on the outside. The applicant’s fingerprints were found on tape on the outside of the box and on a plastic bag inside the box which contained the firearms.

7. At the trial, there was no dispute that the weapons were in the garage; the applicant’s defence was that he did not know they were there. His explanation in his evidence was that about seven people had their possessions in his garage [1] and he identified a number of people who had helped him move in. [2] (It was unclear whether any of them lived in the house.) He said that he had sorted people’s possessions in the garage. [3] Some of the boxes had markings to identify who owned them, but the box with the guns did not. In cross-examination he was asked how his fingerprint had got onto the plastic bag inside the box and he said, “I have no idea.” [4] He was adamant that he did not know how the box with the firearms came to be in his garage and denied that he had looked inside at any stage to see what the contents were.

   1.    Tcpt, p 358(27).

   2.    Tcpt, p 357(30).

   3.    Tcpt, p 358(35).

   4.    Tcpt, p 368(14)-(31).

8. A witness known as AB gave evidence that at some point between May and August 2013 Murdoch had given him a sports bag containing two handguns, a sawn-off shotgun, a rifle in pieces and ammunition. Murdoch was arrested on another charge in October 2013 and remained in custody thereafter. AB later arranged for the shotgun and the rifle and ammunition to be returned to Ms Evans. The transfer was undertaken by Roy, a friend of Evans.

9. Telephone calls from the prison by Murdoch to his mother between 3 and 6 November 2013 included guarded exchanges in which Evans told Murdoch that AB had arranged to deliver something, to which Murdoch responded “I know what he’s given you”, and asked what his mother was going to do with it. A few days later Murdoch asked if she had “heard from Scotty”, which she had not. Murdoch then said, “Well, you know those things that got dropped off the other day … I’m probably gonna have to give one of them to Scotty ‘cause one of them is his anyway.”

10. On 16 November Murdoch spoke to Strachan, asking if he remembered “that thing I’ve got of yours”, and instructing the applicant to grab it from his mother. On 17 November Murdoch confirmed with Evans that Strachan had only taken one thing. Two days later Murdoch asked again, “Did Scott only take his one”, to which his mother replied, “He took the whole bag…. He said ‘I’ll look after it.’” There were several further conversations, including more than one on 20 January 2014, which got progressively more explicit, as Murdoch appeared to become concerned about the fate of the things delivered to his mother. One conversation on 20 January terminated with the following exchange: [5]

“Evans: So you’re, you’re, you’re saying there should have been four?

Murdoch: Yeah, the big ones and two small ones.”

5.    Tcpt, 07/06/16, p 317(5).

11. In the course of a lengthy telephone conversation on 28 January 2014 Murdoch became agitated with his mother as to the fate of the “things” they were talking about. In recounting a conversation the following exchange took place: [6]

    6.    Tcpt, p 317(27)-(36).

“Evans: … Roy just said, … you know, … Lance said there should’ve been four ….

Murdoch: Yeah.

Evans: And that, and yeah.

Murdoch: So Scotty must have ‘em.

Evans: Well, I don’t think so. I don’t know. I don’t think so.

Murdoch: Er?

Evans: I’ve asked and he says no …

…

Evans: Even Roy reckons he’s seen there was only two.”

Evans then complained for a while about her role as intermediary and the conversation continued: [7]

“Murdoch: What, you said to him that there’s only those ones, there’s no hand ones?

Evans: I asked him how many.

…

Murdoch: And what did he say?

Evans: The two. He goes … my one and the fucking, my one--.”

7.    Tcpt, pp 318(44)-319(1).

12. When Murdoch was arrested on 14 October 2013, in relation to a murder which had been committed two days earlier, a search warrant was executed at his home in Villawood where he lived with his mother. An item located during the search was a printed manual containing instructions for building a 9mm machine gun. The manual had been printed on one side of recycled paper which had Dynaweld material on the other side. Fingerprints of both the applicant and Mr Murdoch were found on various pages of the manual. The applicant did not deny in his evidence that the paper came from him, but said that he used to take paper from work for recycling and give it to friends.

Issues on appeal

(a)   admissibility – machine gun manual

13. There was a challenge at the trial by counsel for the applicant to the tender of the machine gun manual discovered at Murdoch’s home. The document was admitted; that ruling is the subject of the first ground of appeal.

14. In most cases involving challenges to the admissibility of evidence it is helpful to commence with a consideration of why the evidence is relevant in the proceeding; that is, how, if accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue, for the purposes of s 55(1) of the Evidence Act 1995 (NSW). Sometimes that will depend upon how one characterises the particular evidence. In the present case, the mere fact that the manual was found in Mr Murdoch’s home had no relevance to any aspect of the case against the applicant. Its relevance derived from the further fact that the applicant’s fingerprints were found on several pages of the manual. From that it could be inferred that, contrary to his denials, the applicant was aware of the content of the manual and had an interest in its content. It was not suggested that either Murdoch or the applicant had manufactured, or intended to manufacture, a 9mm machine gun.

15. The second step in the analysis of probative value is to determine whether an established interest in a machine gun could rationally affect the jury’s assessment of whether the applicant knew of the guns which were in fact in his garage.

16. The prosecution case was, in effect, that a person on whose premises guns are found is significantly more likely to know about the guns if he or she is a person with a specific interest in firearms than would otherwise be the case. In other words, the jury could rationally accept the plausibility of a denial by an occupier of premises that he had any knowledge of firearms found on the premises if the jury were satisfied that he had no interest in firearms.

17. In many cases the plausibility of such a denial might turn less upon the interests of the occupier than on the physical layout of the premises and the likelihood that some other person might have access to the premises. However, in the present case, there was evidence to suggest that a number of people had access to the applicant’s garage.

18. The defence case with respect to the manual was that the content of the manual was far removed from an interest in the firearms in the garage. None of those weapons was a machine gun, nor did a manual for manufacturing a machine gun have any relevance to the possession of the firearms in the garage.

19. The matter raised by the defence, and relied on in this Court, was no doubt a relevant consideration to be weighed in the balance, but was by no means a determinative factor. One of the weapons found on the applicant’s premises was a Winchester rifle; if the manual had provided specific information as to the maintenance and repair of a Winchester rifle, no doubt the inference which the prosecution sought to rely on would have been far stronger. However, the inference relied upon was at a higher level of generality, being restricted to an interest in firearms. That interest could rationally affect the jury’s assessment of whether the applicant was to be believed in his denials of knowledge of the presence of the guns in his garage.

20. Although not pressed on the appeal, an issue was raised before the trial judge as to whether the evidence constituted “tendency evidence” for the purposes of s 97 of the Evidence Act. For reasons which will be addressed shortly, s 97 was not engaged. However, an analysis of tendency evidence of relevance to the question of probative value is to be found in the recent judgment of the High Court in Hughes v The Queen [8] where the joint reasons of Kiefel CJ, Bell, Keane and Edelman JJ explained:[9]

“Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.”

8. [2017] HCA 20; 344 ALR 187.

9. Hughes at [39].

21. The foregoing analysis has much in common with the determination of relevance because, pursuant to s 97(1), a court considering the admissibility of tendency evidence must assess whether it has “significant probative value.” However, this evidence was not tendency evidence. While it is true that tendency evidence is broadly defined (partly in terms which are circular) as evidence of a tendency that a person has, in order to prove that a person has acted in a particular way, or has a particular state of mind, it is not to be construed in the broadest sense available from the literal meaning of the words of the provision. The reference to proof of a particular state of mind does not mean that all evidence of character or conduct on a different occasion which goes to demonstrate a state of mind, including knowledge, of an accused is tendency evidence. Rather, the term “tendency” suggests a pattern of behaviour. The circumstances in Hughes (and many other cases) involved an apparent sexual attraction of the accused to young children. As the joint reasons noted, “[a]n adult’s sexual interest in young children is a particular state of mind.”[10] A state of mind being demonstrated by a pattern of behaviour and, once established, allowing some prediction to be made as to the likelihood of future similar conduct occurring is something to which a psychologist or psychiatrist might apply a label, such as paraphilia or paedophilia.

    10. Hughes at [32].

22. Having a particular state of mind or knowledge does not necessarily demonstrate a tendency to commit criminal acts. The point of distinction has long been understood. In R v Cooper, [11] the English Court of Criminal Appeal stated:

“Suppose a charge against a man that he had attempted to procure abortion: the same medicine might be administered with that intention or without it. If it could be proved that he had often given that medicine before, and that he knew that abortion had always followed, surely that would be evidence against him.”

In the present case, once it was established that the firearms were located in the applicant’s garage, in a box containing his fingerprints, the evidence that he had an interest in firearms generally tended to establish that his denial of knowledge of the contents of the box was implausible.

11.    (1849) 3 Cox CC 547 at 549-550.

23. Apart from challenging the relevance of the evidence, the applicant further asserted that the evidence should have been excluded by the Court pursuant to s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice. Although not in identical terms, s 101(2) of the Evidence Act imposes a similar exclusionary principle with respect to tendency evidence. In Hughes, the joint reasons stated, with respect to such prejudice:[12]

“The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.”

12. Hughes at [17].

24. The manual purported to explain how to construct a 9mm submachine gun using components available from “most good trade plumbing outlets” (apparently in the UK). Counsel submitted to the trial judge that being in possession of a firearm which had been manufactured and disassembled, but which could be put back together, was “quite a different proposition to setting out to manufacture a machine gun.” [13] However, as the prosecutor noted, there was no suggestion (or evidence on which to base such a suggestion) that they had the equipment or ability to manufacture a machine gun, nor that they intended to do so.

    13.    Tcpt, 31/05/16, pp 100-101.

25. There was evidence that each man had possession of four firearms, including in total two larger weapons and four handguns, together with ammunition. The very real and immediate threat posed by possession of fully manufactured and effective weapons was unavoidable, given the elements of the offence, and did not constitute prejudice. Nevertheless, the effect of the existence of the weapons would have overwhelmed any indirect and implicit threat derived from the presence of a manual to manufacture a small submachine gun, with nothing more immediate than an interest in that subject.

26. The trial judge was correct to accept that the machine gun manual was relevant, given the issues in the case; he was also correct to reject the proposition that the probative value was outweighed by unfair prejudice, of the kind discussed above, given the circumstances of the case.

27. The challenge to the admissibility of the manual must be rejected.

(b)   video-recorded search of applicant’s premises

28. In the course of searching the applicant’s garage, the police discovered a taser and a cross-bow. The trial judge had ruled that these items were inadmissible. Nevertheless, the applicant asserted that the jury had been shown a video “depicting the locating of a taser and cross-bow”. It was submitted on appeal, though not at trial, that the judge should have discharged the jury in that circumstance. If error had been demonstrated, a serious issue would arise as to the operation of r 4 of the Criminal Appeal Rules. However, error was not demonstrated and the point went nowhere.

28. After the judge had ruled that evidence could not be given of the finding of the taser and the cross-bow, the video-recording of the search was meant to have been edited to exclude that portion of the search. However, as the video was being played to the jury, the prosecutor stopped the tape when it reached the portion which should have been edited, being concerned that the editing had not taken place or had been insufficient. What occurred was recorded in the following exchange in the absence of the jury: [14]

    14.    Tcpt, 02/06/16, pp 184-185.

“CROWN PROSECUTOR: I don’t think there's been any harm done so far but I caught sight of the taser in the box. Just--

HIS HONOUR: Did anyone else see it? Who knows what a taser looks like?

…

CROWN PROSECUTOR: But that's only 'cause I know what it is because I see it come out later … and I'm not happy with it. I mean, I want to assure myself that that's as far as it goes. I don’t want the video to be played any further until I'm satisfied that it's not going to make an appearance.

HIS HONOUR: Well where is it, can you just show me?

CROWN PROSECUTOR: We can take it back to that point, your Honour.

…

[Video played to Court]

HIS HONOUR: Well there's nothing that says ‘taser’ written, is there?

CROWN PROSECUTOR: No, no, no. And—

HIS HONOUR: Well what is it? Just show me the size of the object, I can’t - you gentlemen may be unduly sensitive.

[Video played to Court]

HIS HONOUR: Pause it when you see it. Where is it?

CROWN PROSECUTOR: It's not - we can just see it as a black square at the top of the box.

HIS HONOUR: Just pause it there, please. Well you were zooming in on it but that wasn’t zoomed in on when it was showed to the jury, was it?

CROWN PROSECUTOR: No—

[Counsel for Evans]: Yes it was.

[Counsel for Strachan]: It was.

CROWN PROSECUTOR: It - yes. But at the moment it's meaningless. But I just want to be absolutely satisfied that it doesn’t come out …

…

STITZ [Counsel for Strachan] Your Honour, I’ll have to share some fault there too. In the ordinary course of events I would have wanted to triple check it before it was played. That didn’t occur because of the way things have occurred here.

HIS HONOUR: Well it sounds like you'll have the afternoon to check it.

STITZ: Yes.”

30. A fair reading of the transcript does not indicate that anything was revealed to the jury which would have been understood by them and which was prejudicial material. No counsel sought to stop the tape: it was the prosecutor who stopped the tape. No counsel suggested that anything had been shown which was recognisable as a taser. The judge expressed his view that nothing recognisable as a taser had been revealed. No one contradicted him.

31. The fact that no application was made to discharge the jury, nor any directions sought, is entirely consistent with the inference that no prejudicial material was revealed. The ground is not made out.

(c)   direction as to the sworn evidence of the applicant

32. There was no dispute that the firearms had been found in the garage of premises occupied by the applicant. The offence being one of possession, the prosecution was entitled to rely on the provisions of s 4A of the Firearms Act, dealing with the meaning of “possession” of a firearm:

4A   Meaning of “possession” of a firearm—proof of possession

(1)   Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a)   the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b)   the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c)   on the evidence before it, the person was not in possession of the firearm.

(2)   In this section, premises means any place, vehicle, vessel or aircraft.

33. To avoid the effect of the statutory definition, the applicant bore the onus of satisfying the Court, on the balance of probabilities, that he “did not know and could not reasonably be expected to have known” that the firearm was on the premises, within s 4A(1)(b). He gave evidence that he did not know what was in the box which in fact contained the firearms and explained how he had come to organise the boxes in the garage. He also gave evidence that he had not opened the box or examined its contents.

34. Early in the summing up the trial judge gave the jury a standard direction with respect to the burden of the Crown to prove every element of each count beyond a reasonable doubt. [15] He then stated: [16]

“The fact that Mr Strachan has given evidence before you does not alter the overall burden of proof beyond a reasonable doubt. However, given the way that the case has been put by Mr Strachan through Mr Stitz, his counsel, it is accepted that he has to satisfy you on the balance of probabilities that he did not know and he could not reasonably be expected to have known that firearms were on his premises.

In short, as you have heard, Mr Strachan acknowledges that firearms were found on his premises but he says he did not know they were there and he could not reasonably be expected to have known that. Running that defence means that he has the obligation to satisfy you on the balance of probabilities, not beyond reasonable doubt, and as Mr Stitz quite correctly put to you the standard of proof beyond reasonable doubt is a very high one whereas the standard of proof on the balance of probabilities is more a matter of weighing the evidence and all you have to do is find that Mr Strachan’s version is more probable than not.”

15.    Tcpt, Summing-up, 09/06/16, p 4, par 10.

16.    Summing-up, p 4-5, pars 11-12.

35. There was no complaint about this direction. However, the applicant contended that it was necessary for the judge to give some further direction, to the effect that his evidence should be treated no differently from that of any other witness. The precise terminology was not identified.

36. Whether the applicant would have been assisted by some direction to that effect is unclear. We are long past the stage when it was necessary to make clear to the jury the significance of a dock statement. There is a danger in seeking to equate witnesses when the effect of their evidence is not to be equated. Thus, speaking generally, if a prosecution witness gives the only evidence as to a particular element of an offence the critical question is whether the jury accepts that evidence beyond reasonable doubt. On the other hand, the evidence of the accused on the same matter will suffice if it raises a reasonable doubt. To suggest that questions of credibility will work in the same way with respect to both witnesses could be dangerous for the accused. The matter is further complicated where, on the critical issue, the accused bore a burden of proof and it could not fairly have been said that he did not have to give evidence because, in practical terms, he did.

37. In the absence of any suggestion as to what precisely may have given rise to a miscarriage, and without any suggestion as to what would have cured the problem, leave should be refused under r 4 with respect to ground 3.

(d)   directing the jury on the issue of lies

38. On appeal, counsel for the applicant dealt with the question of lies as part of the directions sought with respect to the applicant’s evidence. The issues were raised as discrete grounds, but ones which overlapped because both were directed to how to direct the jury with respect to the evidence of the accused.

39. In addition to the evidence given by the applicant with respect to his ignorance of what was in the box in his garage, he also gave evidence that he understood Mr Murdoch’s suggestion on the telephone that he collect his “thing” referred to a mobile telephone which he had left in Mr Murdoch’s house. The combination of the evidence given by AB as to the transfers of the guns, in combination with the telephone calls, rendered the applicant’s explanation inherently implausible.

40. The judge dealt late in the summing up (par 44) with various factors as to matters of reliability and prejudice. After dealing with the fact that Mr Murdoch was in custody at the time of the telephone calls, the judge continued:

“Can I deal finally today with Mr Strachan’s evidence? You have heard it suggested by the Crown in his address that Mr Strachan told lies in his evidence.

For example, when Mr Strachan gave evidence about the gun manual and the box with the fingerprints and the telephone call about the mobile phone. Whether Mr Strachan did, in fact, tell a lie or lies is a matter for you to decide. To decide that a lie or lies were told you must be satisfied that what Mr Strachan said was untrue and that at the time of saying so he knew that it was untrue because saying something that was untrue by mistake or out of confusion or forgetfulness is a not a lie. If you decide that Mr Strachan did tell lies, you cannot use that fact in support of a conclusion that he is guilty. A lie cannot prove his guilt by itself and nor can a lie be used in conjunction with the other evidence that the Crown relies on to prove Mr Strachan’s guilt.

The only use that you can make of the fact that Mr Strachan told a lie, if you come to that view, is in assessing his credibility. That is, if you are satisfied that he told lies in his evidence here then that may be considered by you as having a bearing on whether you believe the other things that he said to you in evidence.”

41. Finally, the judge summed up the defence case for the applicant noting that it was conceded that Mr Strachan leased the premises and that the guns were found there and thus that “two-thirds of the Crown case” had been proved beyond a reasonable doubt. [17] The central issue was whether the jury were satisfied as to his knowledge or what he could not reasonably have been expected to know.

    17.    Summing-up, 10/06/16, p 22, par 13.

42. In written submissions on the appeal, the applicant submitted that the judge should have “commented” on the fact that the applicant had given evidence and subjected himself to cross-examination, “particularly to tell the jury that his evidence had the same character as those other witnesses called in the trial and was a matter for them to assess according to the same standards.” It was submitted that that omission, coupled with the direction as to “lies”, “had the effect of subjecting a different characterisation of the accused’s evidence in the trial.”

43. That submission should not be accepted. First, the substance of the objection to the direction as to lies was unclear. There is no doubt that the prosecutor had submitted that the jury should reject the applicant’s evidence in particular respects, and that, once they had taken that step, there was no basis for them to be satisfied that the applicant did not know or could not reasonably be expected to have known that the firearms were in the garage.

44. The direction given was in accordance with Zoneff v The Queen. [18] The appropriateness of such a direction was discussed in the course of the trial and no exception to it was taken by counsel for the applicant.

    18. (2000) 200 CLR 234; [2000] HCA 28 at [23].

45. In oral submissions in this Court, counsel appeared to deny the appropriateness of the direction “because there’s a question of the sufficiency and the cogency of the evidence”, which was not contradicted by other evidence called by the prosecutor. However, that was not true: the fact that the box was found in the applicant’s garage, which had been handled by the applicant and which contained a fingerprint on a plastic bag inside the box, was all potentially damning evidence against him. In combination with s 4A(1) it was more than sufficient to support a conviction. It is difficult to see what direction could have been given which would have assisted the applicant, in the event that the jury rejected his evidence.

46. This was a case in which there is no apparent miscarriage caused by the directions given and in which the assessment of what was required by counsel appearing for the applicant at trial would have been of critical importance, if there were some basis for seeking a further direction. The fact that counsel did not seek any further direction, in circumstances where it is not apparent what further direction would have assisted, requires that leave be refused under r 4 with respect to ground 4.

Conclusions

47. Leave should be refused with respect to grounds 2, 3 and 4 in the applicant’s notice of appeal. Ground 1 was reasonably arguable. It did not raise a question of law only, but there should be a grant of leave to appeal with respect to that ground pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Nevertheless, the appeal must be dismissed.

48. BELLEW J: I agree with Basten JA.

49. HAMILL J: I agree with the orders proposed by Basten JA and generally with his Honour’s reasons. I gratefully adopt his Honour’s review of the evidence and issues. I would only add the following observations.

50. In relation to ground 1, concerning the admissibility of the machine gun manual, the evidence was relevant because it was capable of rationally affecting the assessment of the probability that the applicant had knowledge of the guns found in his garage for the reasons identified by Basten JA in paragraphs [16] – [19] and [22]. The evidence was relevant in a similar way to the evidence tendered in cases such as Elomar v R [19] and Harriman v R. [20]

    19. Elomar v R [2014] NSWCCA 303 at [367].

    20. Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50.

51. I do not think it necessary to draw comparisons with the approach taken to tendency evidence sought to be admitted under s 97 Evidence Act. The evidence was not tendered as tendency evidence and the directions provided to the jury, in relation to which no complaint was made at trial or on appeal, ensured that the jury would not use the evidence to reason that the accused was more likely to be guilty because he had a tendency to possess firearms or to have a state of mind that made it more likely that he possessed the firearms. Any danger of unfair prejudice was slight and the trial Judge’s directions ensured that the evidence would not be misused or given greater weight than it deserved. It was merely one component of the prosecution’s circumstantial case and had a capacity, along with the other evidence, to establish that the accused was aware that the guns were present. More correctly, as Basten JA has put it and given the reverse onus on the issue, it had the capacity of undermining the applicant’s case that he did not know that the guns were there.

52. I agree with what Basten JA has written in relation to ground 2.

53. As to grounds 3 and 4, the kinds of instructions to the jury that were urged on the appeal may have been appropriate had counsel appearing at the trial sought such directions. However, no submission was made at the trial that such directions were desirable or required. In the atmosphere of the trial, counsel may sensibly have formed the view that no further directions as to the applicant’s evidence would be of any forensic assistance.

54. As to the directions on lies, the trial judge could have been criticised if he failed to direct the jury in accordance with the party’s joint position and the High Court’s decision in Zoneff v The Queen. [21] That is, his Honour (correctly) directed the jury that, if the jury found that the accused told lies about certain matters, the jury could only use such a finding as a matter going to the applicant’s credibility. His Honour (also correctly) accepted the joint submission of counsel appearing at the trial that no direction should be given as to the possible use of lies as demonstrating a consciousness of guilt. [22]

    21. Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [15], [59], [64], [74]

    22. Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.

55. It would have been open to the trial Judge to give further directions making it clear that the jury ought not to engage in circular reasoning in relation to those (alleged) lies that were little more than the applicant’s denial that he knew the guns were stored in the garage. However, in the circumstances of the case and in the absence of any complaint or application for redirection, no miscarriage of justice was occasioned by the failure to give further directions on the issue of lies.

56. Again, counsel may well have taken the forensic decision that further directions on the Crown’s assertion that the applicant told lies in his evidence may have harmed, rather than assisted, the applicant’s prospects in a difficult trial.

57. I agree with Basten JA that leave to appeal under these two grounds should be refused.

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Endnotes

Decision last updated: 15 December 2017