Tennant v R

[2006] NSWCCA 208

CITATION:	Tennant v Regina [2006] NSWCCA 208
HEARING DATE(S):	24 May 2006
JUDGMENT DATE:	10 July 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 2; Hoeben J at 64
DECISION:	Appeal against conviction dismissed
CATCHWORDS:	Criminal law - counsels' addresses - defence counsel addressing first - separation of jury during retirement - no miscarriage of justice
LEGISLATION CITED:	Drug Misuse and Trafficking Act Jury Act
CASES CITED:	R v Locchi (1991) 22 NSWLR 309
PARTIES:	Donna Maree Tennant Regina
FILE NUMBER(S):	CCA 2006/80
COUNSEL:	P. E. Barrett - Crown R. Cavanagh - Appellant
SOLICITORS:	S. Kavanagh - Crown Nicholas Moier & Assoc. - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0528
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	10 February 2005

2006/80 CCAP

McCLELLAN CJ at CL
JAMES J
HOEBEN J

10 July 2006

Donna Maree TENNANT v REGINA

Judgment

1 McCLELLAN CJ at CL I agree with James J.

2 JAMES J: Donna Maree Tennant appealed against her conviction after a trial in the District Court, on a charge that between 1 July 1999 and 24 September 2001 she knowingly took part in the supply of not less than a large commercial quantity of a prohibited drug, methylamphetamine, an offence under s 25(2) of the Drug Misuse and Trafficking Act. She did not apply for leave to appeal against the sentence of imprisonment which was imposed on her, following her conviction.

The Crown case at the Trial

3 The Crown case at the trial was that the appellant had knowingly taken part in the supply of not less than a large commercial quantity of methylamphetamine by knowingly taking part in acquisitions of quantities of the drug, totalling more than the large commercial quantity of one kilogram, by her de facto husband Brett Harrison from a man named Richard Walsh and Walsh’s de facto wife Melinda Love, which were then used by Harrison in making supplies to his customers. An alternative Crown case, in the event of the Crown being unable to prove that the appellant had knowingly taken part in the supply of not less than a large commercial quantity of the drug, was that the appellant had knowingly taken part in the supply of some lesser quantity of the drug.

4 The principal Crown witness at the trial was Melinda Love, who had been granted immunity from prosecution by the Attorney-General.

5 Ms Love gave evidence of contacts between herself and Harrison and the appellant in connection with the supply of drugs. On the first occasion on which she had gone to Harrison’s and the appellant’s house to supply Harrison with drugs the appellant had been present. Subsequently, Ms Love had received telephone calls from the appellant, as well as from Harrison, which Ms Love said were disguised requests to be supplied with drugs. On some occasions the appellant had come to Ms Love’s house and collected drugs. On some occasions when Ms Love had delivered drugs to Harrison and the appellant’s house, she had given the drugs to the appellant.

6 Ms Love also gave evidence that drugs were supplied to Harrison on credit and that she had had some face to face conversations with Harrison about receiving payment, at which the appellant had usually been present. Ms Love had usually received payment for supplies of drugs from Harrison but on some occasions she had received payment from the appellant.

7 Ms Love said that on one occasion she had supplied drugs directly to a woman named Kim Rolla, who was usually a customer of Harrison. Ms Love said that she had gone to Harrison and the appellant’s house and had had a conversation with both of them, in which she had asked whether it was all right, if, on this one occasion, she supplied drugs directly to Ms Rolla.

8 Ms Love gave evidence that on one occasion she had picked up a pound of amphetamine which was being supplied to Walsh but which had been delivered to Harrison and the appellant’s house. Both Harrison and the appellant had been present in the house when Ms Love picked up the pound of amphetamine.

9 A number of telephone conversations to which Ms Love and the appellant or Harrison or both of them had been parties had been lawfully intercepted and recorded and recordings of the conversations were admitted into evidence. In these conversations there were no explicit references to drugs. However, Ms Love gave evidence in which she said that some of what was said in the telephone conversations contained disguised references to drugs, including the appellant saying that she was going to come to Ms Love’s house to pick up drugs, that she had money with which to pay for drugs which had previously been supplied and that Harrison would be coming to Ms Love’s house to pick up drugs and the appellant asking Ms Love when Ms Love would be making a delivery of drugs.

10 Fairly brief evidence was also given in the Crown case by a man named Paul Chapman and his wife Anne Chapman. When Mr Chapman had been sentenced for a number of criminal offences, he had received a discount because of the assistance he had provided to law enforcement authorities, including information about the drug dealing activities of Walsh and Ms Love. Mrs Chapman had been granted an immunity from prosecution.

11 Mr Chapman gave evidence that he had made deliveries of drugs on behalf of Richard Walsh, including deliveries to Harrison. The appellant had been present when he had made most of the deliveries to Harrison.

12 Mrs Chapman gave evidence that she had been employed as a cleaner at Walsh and Love’s house, that she had become trusted by them and that she had observed drug transactions taking place at the house. Mrs Chapman said that Harrison had come to the house a number of times and when he had left the house he had been carrying a package of drugs. Mrs Chapman gave evidence that on one occasion she had gone to Harrison and the appellant’s house. At the house she had seen the appellant and Ms Love sitting together at a table, with a package on the table of the kind which Ms Love used for packaging drugs.

The Defence case at the Trial

13 The appellant did not give evidence at the trial.

14 Two witnesses were called in the defence case at the trial. Kim Rolla gave evidence that she had never purchased drugs from Ms Love, Harrison or the appellant. Barbara McLean, the appellant’s married daughter, gave evidence that she had never seen her mother or Harrison involved in drugs.

Grounds of Appeal

15 The appellant relied on five grounds of appeal against conviction namely:-

1. The trial miscarried by reason of trial procedures not being followed in relation to the order of addresses of Counsel.

2. The trial miscarried by reason of trial procedures not being followed in relation to Counsel for the defence being directed to address the jury on an alternative charge.

3. The trial miscarried by reason of the jury being separated during deliberations.

4. The trial miscarried by reason of comments made by the Crown Prosecutor in his opening address to the jury.

5. The verdict of guilty constituted a miscarriage of justice in that the jury ought in all the circumstances to have entertained a reasonable doubt.

16 In oral submissions on the hearing of the appeal counsel for the appellant said that grounds 1, 3 and 5 were the principal grounds of appeal and made a concession that neither ground 2 nor ground 4 by itself would be a sufficient ground of appeal.

17 I will deal with the grounds of appeal in order.

1. The trial miscarried by reason of trial procedures not being followed in relation to the order of addresses of Counsel .

18 After counsel for the appellant at the trial (Mr O’Sullivan) had closed the defence case at the trial and the trial judge had ascertained from the Crown Prosecutor that there was no Crown case in reply, the trial transcript records the following:-

“HIS HONOUR: Well, members of the jury, you have heard all the evidence that you are going to hear in this case. What remains is that Mr O’Sullivan will now address you. After he is finished, Mr Crown will address you. After he is finished, I will sum up the case to you, and at that stage you will retire to consider your verdict”.

19 The trial judge then reminded the jury of their obligation to decide the case on the evidence they had heard in the trial.

20 The trial transcript continued:-

“Now Mr O’Sullivan do you want to address now, are you in a position to address now?
O’SULLIVAN: I am in a position.
HIS HONOUR: How long will you be?
O’SULLIVAN: I will say less than half an hour, your Honour.
HIS HONOUR; Members of the jury, why don’t we listen to Mr O’Sullivan, then you can go and have your morning tea, then you can come back and hear the Crown. How long do you think your address will be?
CROWN PROSECUTOR: Half an hour, three quarters of an hour.
HIS HONOUR: Make sure we finish the addresses before lunch, rather than go on and on. We will try and make sure we finish the addresses before lunch”.

21 Counsel for the appellant at the trial then proceeded to address the jury.

22 After counsel for the appellant had concluded his address, the transcript records:-

“HIS HONOUR: Mr O’Sullivan, do you want to say anything to the jury about the alternative count the Crown has told both you and I it intends to rely on?
O’SULLIVAN: Ladies and gentlemen, if you are not satisfied beyond reasonable doubt that the accused knowingly took part in supplying a large commercial quantity of prohibited drug, it will be available to you to find her – I should go back a bit – but you are satisfied that the accused knowingly took part in the supplying a prohibited drug, that is, on taking away that element of a large commercial quantity, then you may find the accused not guilty of the large commercial quantity – knowingly take part in the supply large commercial quantity but guilty of knowingly take part in the supplying amphetamine”.

23 This passage in the trial transcript is also relevant to the second ground of appeal.

24 After a short adjournment the Crown Prosecutor made a closing address to the jury.

25 After the Crown Prosecutor had concluded his address the trial judge released the jury until the following day. It was anticipated that after the lunch adjournment the trial judge and counsel would discuss matters relevant to the trial judge’s summing-up.

26 When the court reconvened after the lunch adjournment, in the absence of the jury, the Crown Prosecutor drew the trial judge’s attention to the mistake which had been made in the order of the closing addresses. The trial transcript records:-

“CROWN PROSECUTOR: Reluctant as I am to raise it, regarding the order of addresses, I assumed that whilst I was on holidays things must have altered but I went to s 160.
HIS HONOUR: I don’t know why I did that.
CROWN PROSECUTOR: Perhaps do you think your Honour it might be rectified if my friend was given the opportunity to present another address?
HIS HONOUR: I am surprised neither of you raised it with me because clearly it was a mistake on my part. Mr. O’Sullivan? It’s my mistake.

O’SULLIVAN: Your Honour, I don’t seek a reply. I said what I had to say in the closing address but perhaps your Honour--
HIS HONOUR: I’ve made the mistake in calling on you first, I can’t explain it, apart from the fact I have just come back from holidays myself. It is for you Mr O’Sullivan as to whether there should be any consequences of that mistake.
O’SULLIVAN: What I would ask your Honour is to inform the jury that it is usual for the Crown to address first, however, I do not seek to readdress, I simply just wish for the jury to be advised that I may have been taken a little off guard. But your Honour is quite right, perhaps I should have said something immediately.
HIS HONOUR: Well it would have been so simple to clear it up. That’s all you want?
O’SULLIVAN: Yes, I don’t seek to reply.
HIS HONOUR: I will tell the jury that you may have been surprised by being called on first because usually you would be going second and that may explain why you appeared a little off guard.
O’SULLIVAN: Yes, thank you, your Honour.
HIS HONOUR: I just can’t believe I did it.
O’SULLIVAN: While I am on my feet, your Honour also invited me to comment to the jury in relation to the alternative verdict. I thought about it over lunch, I suspect the purpose of your Honour’s comment was for me to make submissions along the lines of submitting to the jury that they ought not find her guilty of the alternative.
HIS HONOUR: I thought that you would be saying something like, members of the jury, if from my submissions you are satisfied that she was involved in some way, you would nevertheless not be satisfied that she was guilty in relation to a whole kilo. Tactically sometimes that is not a good idea, some counsel think it is a bad idea, that’s why I was asking you whether you wanted to say something. Do you want to?
O’SULLIVAN: It’s just I formed the view at the time that your Honour was seeking for me to instruct the jury on issues of law.
HIS HONOUR: No, all I was asking, I wanted to make sure you hadn’t overlooked something, that’s all I was doing”.

27 On the following day, before the trial judge commenced his summing-up, the trial judge gave counsel for the appellant at the trial a further opportunity to say something further to the jury. The trial transcript records:-

“HIS HONOUR: Mr O’Sullivan you’ve had the opportunity overnight to think again about the consequences of me calling on you first rather than second, have you changed your mind, do you want to say anything further to the jury?
O’SULLIVAN: No your Honour, no.
HIS HONOUR: There’s nothing the Crown raised in his address that you want to respond to?
O’SULLIVAN: No your Honour.
HIS HONOUR: All I can do is apologise yet again for that slip.
O’SULLIVAN: Yes, no problem”.

28 Virtually at the beginning of the summing-up the trial judge referred to the mistake which had occurred in the order of the addresses. His Honour said:-

“Before I actually begin my summing-up I should tell you something. You will recall when you were first empanelled as jurors and I was making some opening remarks to you, I said that I was capable of making mistakes. Well that has proved to be accurate because I have made a mistake in this trial and I want to tell you about it.
You will recall that after the evidence finished I called upon Mr O’Sullivan to address you before I called upon the Crown Prosecutor to address you and that was wrong. You should have heard the addresses the other way round, the Crown should have gone first and Mr O’Sullivan should have gone second. So no doubt Mr O’Sullivan was quite surprised to be called on to address you first when he would usually be going second and that may explain why he may have appeared a little off-guard and you must also remember this, if the order of addresses had been as it was supposed to be, Mr O’Sullivan might have been able to deal with some of the arguments of the Crown Prosecutor in more detail. For example, having heard the Crown Prosecutor’s address Mr O’Sullivan may have been able to deal more effectively with those arguments that the Crown Prosecutor put. So please bear in mind that through no fault of his own Mr O’Sullivan may have been operating at a disadvantage.
Now of course we are not really concerned about Mr O’Sullivan’s feelings here, we are more concerned with his client and what I am really talking to you about is the possibility that Mr O’Sullivan has been less able to present the accused’s case than he might otherwise have been. So having got that out of the way, having made the confession to you and explained possible consequences of the mistake I made, let me move on to the summing-up”.

29 There is no doubt that the trial judge erred in calling upon counsel for the appellant at the trial to deliver the first closing address. Section 160(1) of the Criminal Procedure Act provides:-

“(1) An accused person or his or her counsel may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury ”.

30 On this appeal it was submitted by counsel for the appellant that the correct order of closing addresses is so fundamental to a fair trial that an error in the order of the addresses deprives an accused person of a fair trial and is incapable of being cured.

31 I accept that the order of addresses is important, but, in the circumstances of the present trial, I do not consider that the error in the order of the addresses gave rise to any miscarriage of justice or prevented the appellant’s trial from being a fair trial. The circumstances of the present trial included:-

(i) The trial judge’s error was inadvertent.

(ii) Counsel for the appellant at the trial, in answer to a question asked by the trial judge, said that he was in a position to address immediately and made no complaint about being called on to address.

(iii) Counsel for the appellant at the trial delivered a coherent and obviously well prepared address.

(iv) The Crown Prosecutor then delivered his address, still without either counsel taking any point about the order of the addresses. The Crown Prosecutor delivered an address of a kind he might well have delivered, if he had addressed first. In his address the Crown Prosecutor did not seek to respond to points made in counsel for the appellant’s address.

(v) When the error was drawn to the trial judge’s attention, counsel for the appellant at the trial was offered an opportunity to make a further address. Counsel for the appellant at the trial said that he did not seek a further address and that he had said what he had to say in the address he had already given.

(vi) On the following day, before the trial judge commenced his summing-up, the trial judge gave counsel for the appellant a further opportunity to address the jury. This further opportunity was declined.

(vii) Counsel for the appellant had asked the trial judge to tell the jury in the summing-up that the Crown should have addressed first, that counsel for the appellant did not seek a further address but that counsel for the appellant had been taken a little off guard by the trial judge calling upon him to address first. The trial judge complied with this request in his summing-up.

32 It is an important circumstance that counsel for the appellant at the trial was offered the opportunity of making a further address after the Crown address, so that any further address by him would have been the last address heard by the jury.

33 I would reject the first ground of appeal.

2. The trial miscarried by reason of trial procedures not being followed in relation to Counsel for the defence being directed to address the jury on an alternative charge .

34 I have already referred to the passage in the trial transcript where the trial judge, after counsel for the appellant at the trial had concluded his address, asked counsel whether he wanted to say anything about the alternative charge and to the later passage in the trial transcript where the trial judge and counsel for the appellant referred to the question asked by his Honour.

35 As counsel for the appellant should not have been asked to make the first address, the trial judge should not have asked this question. However, I have already held, in rejecting the first ground of appeal, that the trial judge’s error in calling upon counsel for the appellant to make the first closing address did not deprive the appellant of a fair trial or give rise to any miscarriage of justice.

36 It was submitted by counsel for the appellant on this appeal that the trial judge’s question and counsel for the appellant at the trial’s brief further address might have been confusing to the jury and might have been regarded by the jury as an admission on the part of the appellant that the appellant had knowingly taken part in the supply of drugs, even if the amount supplied had been less than a large commercial quantity.

37 I do not consider that there is any force in these submissions. Furthermore, although counsel for the appellant at the trial might have been under some misunderstanding about what the trial judge was asking him, what counsel told the jury was appropriate to a closing address.

38 I would reject this ground of appeal.

3. The trial miscarried by reason of the jury being separated during deliberations

39 After concluding his summing-up, the trial judge directed the jury to retire and consider their verdict. Subsequently, the court reconvened, in the absence of the jury. The trial transcript continues as follows:-

“HIS HONOUR: I have brought you back because I want to tell you about something that happened that should not have happened and invite your submissions as to what the consequences of that should be. Let me tell you what happened.
After I left the Bench my associate was some time in returning to chambers. When she did, she explained to me that the reason she was delayed was that she was waiting for the sheriff’s officer to come and collect the exhibits and take the exhibits out to the jury room. When the sheriff’s officer came back, my associate told me that she was told by the sheriff’s officer that the reason he was so long was that he had taken two of the jurors out to have a cigarette. That means the jury separated. Under section 54 of the Jury Act the jury is only allowed to separate after they retire to consider their verdict, if the court so orders. What has happened is that section 54 has been breached. The jury has separated and two jurors went to have a cigarette while the remaining ten jurors stayed in the jury room. I can tell you that, had a request been made to me that the jurors separate at this stage for the purpose of having a cigarette, I suspect I would have allowed that to happen in any case. I certainly would have sought your submissions and it may be that, if you thought otherwise, I would have not permitted it to happen. Now that is what has happened. The first part of what I said I would do. The second part is to invite your submissions as to what you consider the consequences should be. If you want time to think or discuss, feel free.
O’SULLIVAN: Your Honour, I would ask that there be no consequences.
HIS HONOUR: Right. I was going to say one other thing, I did recall telling the jury at one stage that they were not to discuss this case, unless all twelve of them were present at the same time. I anticipate, therefore, that, whilst the two jurors were having a smoke, the other ten did not discuss the case and nor did the two who were having the cigarette. Mr O’Sullivan, Mr Crown?
CROWN PROSECUTOR: No, I would agree with what my friend suggests, your Honour. You have told the jury on a number of occasions not to discuss, unless all twelve of them are there,
HIS HONOUR: Well, we will continue on. The only issue will come up, if in the event your client is convicted, Mr O’Sullivan, no doubt someone looking at this in the future will decide whether it is a fundamental breach of the Jury Act for that to have happened, but, as I can see if, it has happened, there is nothing I can do to retrospectively comply with section 54.
O’SULLIVAN: I am just wondering whether a message can be sent to the jury that, if another occasion arises while they are deliberating--
HIS HONOUR: No, message will be sent to the sheriff’s officer that this is not to happen again. I am surprised it happened, frankly, but as events have shown, I am not perfect either. I will adjourn”.

40 Section 54(1) of the Jury Act provides, so far as is relevant, that:-

“A jury in criminal proceedings
…..
(b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict”.

41 It was submitted by counsel for the appellant on this appeal that what had happened amounted, as the trial judge had accepted, to a separation of the jury after they had retired to consider their verdict and that no order, express or implied, had been made by the trial judge permitting such a separation.

42 It can be accepted that no order, express or implied, was made by the trial judge permitting the jury to separate. However, it is by no means clear to me that what happened should be regarded as having amounted to a separation of the jury within s 54 of the Jury Act. A strict interpretation of the word “separate” in s 54 of the Jury Act would be liable to lead to absurd consequences. In any retirement of a jury which lasts for any length of time, it is inevitable that individual jurors will become temporarily separated from their fellow jurors, for example while they are using bathroom facilities outside the jury room. It is not to be supposed that all such separations are contraventions of s 54 of the Jury Act, in the absence of the trial judge making an order permitting the separation to occur. I doubt whether the taking by a sheriff’s officer of those members of a jury who are smokers to a place, apart from the other jurors, where they can have a cigarette, should be regarded as a separation of the jury for the purposes of s 54 of the Jury Act.

43 Even if what happened in the present trial did amount to a separation of the jury and hence a contravention of s 54 of the Jury Act, I do not, for a combination of reasons, consider that it gave rise to a miscarriage of justice.

44 According to the trial judge’s statement of the information he had been given, a sheriff’s officer had accompanied the two jurors who had left the jury room to have a cigarette.

45 The jury had been directed not to discuss the case, unless all twelve of them were present, and the trial judge was entitled to proceed on the assumption that individual jurors had complied with this direction, so that neither the two jurors who were smokers nor the ten jurors who had remained in the jury room had discussed the case during the separation of the jury.

46 The trial judge thought that, if he had been asked to make an order permitting the separation of the jury so that the smokers among the jury could have a cigarette, he would, subject to any submissions he received from counsel, have made such an order.

47 Although the period during which the jury was separated does not clearly appear from the trial transcript, the verdict of guilty was not returned until some hours after the jury had been reunited.

48 Counsel for the appellant at the trial, after the trial judge had explained what had happened and had invited counsel to make submissions, submitted that there should be “no consequences” from what had happened.

49 I consider that the conclusions I have reached on this ground of appeal derive some support from the decision of this Court in R v Locchi (1991) 22 NSWLR 309. In Locchi one of the jurors was late in arriving at the court one morning during the retirement of the jury. The trial judge told the other eleven jurors who were at the court that they could discuss the case “provided that you do not come to any final conclusion, until you are all together as a full jury”. The Court of Criminal Appeal held that what had happened had not given rise to a miscarriage of justice.

50 I would reject this ground of appeal.

4. The trial miscarried by reason of comments made by the Crown Prosecutor in his opening address to the jury .

51 In the course of his opening address to the jury the Crown Prosecutor said that Ms Love would be giving evidence. The Crown Prosecutor said that Ms Love estimated that over the whole of the period of the charge she had sold approximately twenty-four pounds (10 kilograms) of methylamphetamine to Harrison.

52 It was submitted by counsel for the appellant on this appeal, and not disputed by the Crown, that, taking at its highest the evidence which had been adduced at the trial by the Crown, the total quantity of methylamphetamine sold by Ms Love to Harrison would have been no more than about 1.136 kilograms.

53 I do not consider that the failure by the Crown to prove what the Crown Prosecutor in his opening address said was an estimate by Ms Love gave rise to any miscarriage of justice. Immediately before the Crown Prosecutor commenced his opening address the trial judge gave the jury usual directions to the effect that what the Crown Prosecutor would say in his opening address was not itself evidence but merely “an idea of what the Crown expects the evidence to be” and that the jury had to decide the case according to the evidence it would hear.

54 I would reject this ground of appeal.

5. The verdict of guilty constituted a miscarriage of justice in that the jury ought in all the circumstances to have entertained a reasonable doubt

55 It was submitted by counsel for the appellant on this appeal that the Crown case at the trial had been based on the interpretation of telephone conversations by Ms Love, who was “a criminal”.

56 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant.

57 The jury had the advantage, denied to this Court, of seeing and hearing Ms Love give her evidence. The jury were able to listen to tape recordings of the telephone conversations and to assess Ms Love’s evidence about the conversations against what they heard when the recordings were played.

58 Ms Love’s evidence extended beyond evidence regarding the telephone conversations and included evidence about contacts between her and the appellant in circumstances incriminating the appellant.

59 It is true that Ms Love was criminally concerned in the supply of drugs. However, the trial judge gave the jury a strong warning about her evidence and no complaint was made on this appeal that the warning was in any way inadequate.

60 There was some evidence from Mr Chapman and Mrs Chapman which the jury could regard as further incriminating the appellant.

61 It was open to the jury to find that the total amount of methylamphetamine supplied during the period of the charge was not less than the large commercial quantity of one kilogram.

62 I would reject this ground of appeal.

63 Having rejected all of the grounds of appeal I consider that the appeal against conviction should be dismissed.

64 HOEBEN J: I agree with James J

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