O'Meara v R [2006] NSWCCA 131 | Case summary

O'Meara v R [2006] NSWCCA 131 | Case summary | Zoe

CATCHWORDS: appeal against conviction - charge of cultivate no less than commercial quantity of cannabis - two charges of unauthorised possession of firearm - appellant unrepresented at trial and on appeal - application for stay of proceedings - appellant unrepresented and indigent - application refused - appellant refused leave to appeal - grounds of appeal - appeal against refusal of stay - pre-trial voir dire - pre-trial procedures - - whether court should have held inquiry into appellant's fitness to be tried - appellant's medical fitness to continue with trial - appellant complains of voir dire being held in absence of jury - items taken from appellant's home in execution of two search warrants - bail conditions - evidence of identification of appellant - evidence alleged to have been illegally or improperly obtained - seizure of items in execution of search warrant - trespass to property - validity of search warrant - validity of certificate of identification of cannabis plants - evidence that shotgun was previously stolen - evidence of appellant's possession of police badge - evidence before jury in error - irregularity - no consequences - no miscarriage of justice - whether evidence illegally or improperly obtained - no such evidence - juror ineligibility - ground abandoned - alleged improper relationship between members of jury and members of prosecution team - no impropriety established - ground abandoned - execution of bench warrants during course of trial - alleged by appellant to have been observed by some jury members - ground abandoned - double jeopardy - certificate of dismissal of count of goods in custody - amendment of indictment - power to grant leave to amend indictment - separate trial of counts - abuse of process - official amnesty with respect to possession of firearms - firearms legislation repealed and replaced by time of trial - effect of repeal - prerepeal operation preserved by s30 Limitation Act 1987 - asserted bias of trial judge - post conviction remarks - no bias or reasonable apprehension of bias established - complaint about summing up - directions with respect to failure of accused person to give evidence - directions with respect to failure to call a witness - directions concerning firearms amnesty - verdict asserted to be unsafe and unsatisfactory - whether jury properly sworn - validity of indictment - whether appellant charged on indictment with offences that could only be prosecuted summarily - whether appellant initially charged under Firearms Act 1996 or Firearms Act 1989 - application for leave to appeal against sentence - comparable offender - whether irrelevant or unsubstantiated circumstances taken into account on sentencing - whether prior convictions wrongly taken into account - no error - appeal against conviction dismissed - leave granted to appeal against sentences - each appeal dismissed

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Count 3: unauthorised possession of a firearm (a 12 gauge Mossberg repeating shotgun), also contrary to s5(a) of the Firearms Act. 3 The first charge carries a maximum penalty of imprisonment for 15 years; the first firearms charge carries a maximum penalty of imprisonment for 10 years; the second of imprisonment for five years. (The differential between the statutory maximum in relation to the firearms offences occurs because the section provides for different penalties, dependent upon whether the unauthorised firearm was or was not proven to be a pistol.) 4 Each offence was alleged to have been committed on (or, in the case of the drug offence, about) 15 February 1997, at Tahmoor. 5 The trial commenced on 19 April 2003, before Graham DCJ and a jury. It continued, over almost nine weeks, until the jury returned verdicts of guilty on each count on 18 June 2003. 6 Pre-trial procedures, which became very long and involved, and involving the admissibility of various aspects of the prosecution's proposed evidence, commenced on the day initially fixed for the commencement of the trial, 19 March 2003, a Wednesday. They proceeded thereafter over the next four complete weeks. Evidence was given by at least five police officers, in the case of one, Detective Grant, on four different days. Evidence was also given by the appellant, over three days. Previously, the appellant had also sought a stay of proceedings on the indictment. 7 On 18 March Graham DCJ delivered a lengthy judgment in relation to the stay application. He identified four different bases for the stay then sought. Relevantly, it seems, the appellant sought a stay because of what he contended was the improper conduct of committal proceedings; because he was unrepresented and indigent; because he was hampered in his preparation for the trial by reason of restrictive bail conditions; and because, by reason of events subsequent to his being charged, he had lost material necessary for his defence. 8 His Honour rejected all the appellant's contentions, and dismissed the notice of motion, giving several reasons. One of these was that, so far as the appellant complained that loss of material deprived him of a potential alibi defence, no notice of alibi had been given; that evidence was given in the proceedings on the notice of motion, and, it was common ground, the appellant was able to download onto a floppy disc the materials he requested (although it might be that that attempt was unsuccessful). 9 On 21 July 2003, pursuant to s5F(3) of the Criminal Appeal Act 1912, the appellant sought leave to appeal to this Court against the refusal of the stay. Since, by that time, the trial had run to a conclusion and the appellant had been convicted, the Court as then constituted refused the leave sought. Essentially, the Court held that, the trial having concluded, there was nothing of substance left to stay and that the application was misconceived. That ruling does not stand as an impediment in the way of the appellant now raising the same grounds and the same arguments in challenging Graham DCJ's refusal to stay the trial. Indeed, Tobias JA, who delivered a judgment adopted by the other members of the Court, expressly noted that the appellant, in an appeal against conviction, would be able to agitate the matters the subject of that application. On this appeal the appellant specifically relied upon the written submissions he had provided to this Court on that occasion. He further relied upon an affidavit which he had put before the District Court in support of his application for a permanent stay. 10 On 1 August 2003 Graham DCJ sentenced the appellant. On the second count (unauthorised possession of the pistol) he imposed a fixed term of imprisonment for 18 months, commencing on 18 June 2003; on the third count (unauthorised possession of the Mossberg) he imposed a wholly concurrent sentence of imprisonment for 12 months; on the first count (the drug offence) he imposed a partially cumulative sentence of imprisonment for two and a half years with a non-parole period of 19 months, commencing on 18 June 2004. The effective sentence was therefore one of imprisonment for three years and six months with a non-parole period of two years and seven months.

[15]

the Crown case 11 At the outset it may be observed that the Crown case was extraordinarily strong. It was quite straightforward and may be stated with relative brevity. It was that, on 15 February 1997, a police helicopter en route to the Thirlmere area flew over a property at Tahmoor that belonged to the appellant. A police officer on board recognised a large number of plants on the property as cannabis. Police on board the helicopter completed their Thirlmere operation and returned to Tahmoor. They guided other police, in ground vehicles, to the property. There they conducted a search. Eventually they located the appellant, in the roof cavity of a garage. He explained his presence in the roof cavity by saying that he had a rat problem. One police officer, Senior Constable Gomes, recognised the appellant as a man he had earlier seen from the air while the helicopter was circling overhead. The appellant was searched, arrested and taken to the Picton Police Station. When asked about the cannabis, he said that there was a very simple explanation, but he declined at that time to say what it was. He said again that he had been in the roof looking for rats. 12 Later, a search warrant was executed on the property. In two greenhouses, in garden beds and in the garage, a large number of cannabis plants, in varying stages of cultivation, were found. In all there were 598 plants. Some had white plastic labels, with handwritten markings on them. An irrigation system, with a timer, was set up in one greenhouse. In the garage an elaborate hydroponic growing system was established. In an office in the main house (of two houses on the property) was a box containing 46 computer discs, and four books on the subject of hydroponic gardening and cannabis cultivation. 13 Parked in the garage was a Ford Falcon, in the spare wheel of which was found a fully loaded .22 Jennings brand silver and black handgun, several boxes of .22 ammunition, a holster, and a bottle of gun oil. The firearm was the subject of Count 2. 14 In one of the bedrooms was a vinyl gun bag, containing a fully-loaded Mossberg pump-action shotgun (the subject of Count 3), together with an ammunition belt containing 18 rounds of ammunition. Several boxes of unused shotgun cartridges were found under the bed. The appellant gave no evidence in the trial. 15 That is, for present purposes, a sufficient outline of the Crown case. It will be necessary, in dealing with the grounds of appeal advanced, to refer to some additional evidence and also to some factual matters concerning the history of the proceedings.

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(I have treated this ground as ground 18.) 21 In very lengthy and detailed written submissions supporting these additional grounds, and supplementing the written submissions previously made, the appellant raised a number of specific factual matters, some of which have become the subject of evidence. It will be convenient to deal with the evidence in the context of disposing of each of the individual grounds of appeal advanced. * * * 22 The appeal was first fixed for hearing in this Court on 14 September 2004. It seems, from the transcript of the proceedings on that day, that the appellant sought to raise grounds additional to those initially pleaded, and that these involved factual allegations of which the Crown had not had prior notice. As a consequence the appeal was stood out of the list on that day, to be re-listed. I infer that the appellant's supplementary written submissions, which are dated 6 October 2004, came about as a result of that adjournment. 23 The appellant presented a massive amount of written material to the Court; he called oral evidence on a number of issues. He made extensive and detailed oral submissions. While it is necessary to recognise the appellant's unrepresented status, and thereby to make considerable allowances, it is also appropriate to record that much of the material was presented in a diffuse, rambling, convoluted, and, in some cases, positively misleading, way. The Court made strenuous efforts, and allowed an extraordinary amount of time, for the appellant to make out his case. Notwithstanding that, there remain some areas of the appellant's argument that are simply incomprehensible. There were occasions on which the appellant changed his ground, apparently in order to avoid the consequences (that were plainly apparent to him) of legitimate responses to some of the propositions he put. There were many assertions of fact unsupported by any evidence. At times the submissions were hyperbolic. The manner in which the appellant presented his case has made it quite impossible to maintain any order in these proceedings. In many respects the connection between the facts or arguments put in support of specified grounds of appeal were tenuous, at best.

[25]

3.2 A 'Dietrich Stay' was wrongly refused. 3.2.1 On 19 March 2003 the prosecution presented fresh Charges ... 3.3 New charges were laid, an adjournment sought, and refused to enable the appellant to meet the charges. 3.3.1 On 19 March 2003 new charges were laid removing time being of the essence ... 3.4 An adjournment was wrongly refused which deprived the appellant access to material of substantial assistance ... 3.5 The appellants bail conditions prevented his re finding material which would be of material assistance. ... 3.6 The Trial Judge erred at law by not conducting an inquiry under the Mental Health (Criminal Procedure) Act. ... 3.7 The Trial Judge erred at law in allowing preliminary questions not caught by s189(2) of the Evidence Act 1985 to be heard in the absence of the Jury and/or The trial Judge erred at law in allowing material evidence to be heard in the absence of the jury. ... 3.8 The Trial Judge erred at law by hearing the preliminary questions referred to at 3.7.1 and 3.7.2 in the absence of the Jury, without considering the imperative questions required under [s]189(5). ... 3.9 The appellant was too ill to properly conduct his Trial at the critical stage. ..." 26 I have attempted to distil the multifarious complaints made by the appellant. So far as I can establish, the issues that arise under the arguments advanced in support of the ground that the trial was unfair are the following which I will treat as sub-grounds of the appeal: (i) that certain pre-trial procedures were unlawful; (ii) that, in accordance with the principles stated by the High Court in Dietrich v The Queen [1992] HCA 57; 177 CLR 292, a stay of the trial ought to have been granted unless and until the appellant was granted legal aid; (iii) that an amendment to the indictment caused irreparable prejudice to the appellant; and that, when the amendment was permitted, an application for adjournment was wrongfully refused; (iv) that on or about 12 May, the trial judge ought to have stopped the trial and conducted an inquiry under the Mental Health (Criminal Proceedings) Act 1990; (v) that police had executed a search warrant on the appellant's home on 23 September 1999, and had removed a computer containing material essential to his defence; (vi) that, on 26 February 2003, a computer belonging to the appellant and containing material relevant to the preparation of his defence was seized by an officer of the Australian Federal Police; (vii) that the conditions imposed upon the appellant in respect of a grant of bail unduly hampered him in the preparation of his defence; (viii) that, during the course of the trial, the appellant was medically assessed as unfit to continue to defend himself; 27 I shall deal with these as best I can, on the basis of the material put before the court by the appellant. As I have already indicated, it was never easy, and sometimes impossible, to keep track of the appellant's submissions.

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(i) unlawful pre-trial procedures: (ii) the Dietrich application: 28 These sub-grounds appear to have a common foundation. They may (I think) accurately be characterised as an appeal against Graham DCJ's refusal of the stay. 29 The appellant's written submissions on this were not easy to follow. He adopted evidentiary and argumentative material that he had put before Graham DCJ and before this Court in his application for leave to appeal. He submitted as follows: "3.1 The processes preceding the Trial were unlawful. The appellant relies upon the written submissions made to this Court in CCA NO: 60122/03 heard 21 July 2003." He made reference to what he called "Annexure B" which appears to be written submissions prepared for the purposes of his application for leave to appeal to this Court following the refusal of a stay in the District Court, and to which more detailed reference will be made below. In those submissions the appellant argued that he had been unfairly denied a fair chance of acquittal in the pre-trial procedures and that a permanent stay ought to have been granted, or alternatively, the matter remitted to the Local Court to be heard according to law. By notice of motion filed in the District Court, the copy of which presented to this Court is undated, the appellant sought orders as follows: "1. An order that the presentation of a fresh indictment (requiring the applicant to meet a new case) on the first day of the applicant's trial is an abuse of process. 2. An order that the indictment be permanently stayed. 3. An order that the indictment is defective. 4. An order that the indictment be quashed. 5. An order that consequent to the failure of the respondent to present a valid indictment the jurisdiction of the District Court has not been validly ignited. 6. An order that the proceedings have not been validly commenced. 7. An order that the respondent is not competent to prosecute the proceeding. 8. An order that the respondent is not competent to invoke the jurisdiction of this court. 9. Such further or other orders as this honourable court deems appropriate." 30 The first matter relied upon by the appellant in support of his application for a stay concerned the conduct of the committal proceedings preceding the trial. I take it that this is what he was referring to in the ground numbered 3.1, when he asserted that the processes preceding the trial were unlawful. In this material, in turn, he referred to affidavit evidence in the District Court. So far as I can discern, however, there is nothing in that affidavit that calls in question the propriety of the committal proceedings. However, the matter was clearly raised before Graham DCJ and dealt with at length by his Honour. His Honour appears to have accepted that there was a "material irregularity" in the conduct of the committal proceedings in that provisions of the Justices Act 1902 (now repealed) particularly concerned with the manner in which an unrepresented defendant is treated did not appear to have been complied with. However, after an exhaustive analysis of the transcript of the committal proceedings, he held that the appellant had not established that the irregularity created any likelihood of unfairness in the trial. In this, in my opinion, he was plainly correct. There is no substance in this complaint.

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the Court must (except as provided by this section), as soon as practicable after ... the question is raised, ... conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith." 41 In support of the proposition contained in 3.6.3, the appellant cited "Terrence Tier v the DPP". This was a reference to the decision of this Court in R v Tier [2001] NSWCCA 53; 121 A Crim R 509. 42 There the appellant, whose trial had commenced six weeks earlier, failed to appear on one day. He had been admitted to the psychiatric unit of a public hospital. A psychiatric report provided a provisional diagnosis of major depression over the preceding two months. The diagnosis was confirmed by that appellant's treating psychiatrist two days later. The psychiatrist stated that the appellant was unfit to undergo the rigours of a trial at that time. 43 An application made on that appellant's behalf for a hearing, under the Mental Health (Criminal Procedure) Act was rejected, the judge stating that he did not believe it had been made in good faith. 44 The proceedings in that case had had a lengthy history. 45 As to the application in Tier, Kirby J, with whom Grove J expressly agreed, and with whom Sheller JA also agreed, although giving his own statement of reasons, said: "71 The exception provided by s10(2) recognises that an inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s10(2)) for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the court that the question has not been raised in good faith (s10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process. ... Conversely, where there is a real and substantial question, good faith will be presumed. 72 Section 10, therefore, suggests a sequence of questions. Usually, an accused person will be represented (s12(1)). Where an accused's representative raises a question concerning the unfitness of the accused, the trial judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie, an obligation on the trial judge to halt the trial, and to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial judge to seek an elaboration upon the matters giving rise to the concern ... Where that elaboration demonstrates a real and substantial question, good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the court may impute an absence of good faith, and decline to conduct an inquiry (s10(2))." The Court found error in the approach there taken by the trial judge, allowed the appeal, quashed the conviction and ordered a new trial. 46 Although the present appellant has provided extensive affidavit evidence in relation to some of his grounds of appeal, he has not provided any additional evidence in support of this aspect of the appeal. The relevant facts must be drawn from the record of the trial. To deal with the matters raised requires something of an excursion that may, initially, appear to be of dubious relevance. 47 As I have set out above, the trial itself was preceded by many days of preliminary hearings, including extensive examination of various witnesses on the voir dire. The appellant was arraigned in the presence of the jury panel on 19 April 2003. On Thursday 8 May it became apparent that the appellant had failed to appear, as he was required to do, in the Newcastle Local Court in relation to other charges. As a result a number of bench warrants were issued for his arrest. The transcript records considerable discussion about accommodating the appellant's need to attend at the Newcastle Court. The trial was adjourned until the following Monday, 12 May. Arrangements were made for the bench warrants to be executed in a public street not far from the Downing Centre Court where the trial was being conducted. 48 When the trial resumed on Monday 12 May the appellant sought an adjournment for a week. He made lengthy and diverse complaints about his treatment over the weekend. After execution of the bench warrants he was kept in custody, according to the appellant, until about midday on the Friday (9 May). Eventually, he was pressed to state with particularity the basis for his adjournment application. He said that it was to seek medical attention. The transcript records him saying: "Your Honour I have a distinct feeling that at the moment following that, I; (i) would require normal medical attention and my fitness to be tried without specialist treatment might be in doubt, and I seek an adjournment to clarify that issue. Quite simply my body hasn't recovered from this. It is just jumping. I could not possibly follow the proceedings." 49 In response to a question from the trial judge he said that he had not had any opportunity to obtain a medical certificate but he wished to consult his family doctor. He said he could not concentrate. 50 The judge and the Crown Prosecutor cooperated in providing the appellant with an opportunity to consult a medical practitioner. Indeed the judge even arranged for his staff to provide the appellant with the telephone numbers of nearby medical practices. 51 Later in the day the appellant returned to court with a medical certificate stating that he was suffering from hypertension and was unfit to participate in the trial until the following Thursday (Voir Dire Exhibit 2). The judge accordingly adjourned the trial until Thursday 15 May. 52 On 15 May the appellant presented a further medical certificate, this time from his own general practitioner who was said to practise in the Nelson Bay area, where the appellant lived. This certificate stated that the appellant was: "... suffering a medical condition such that his mental state precludes his attendance at court from today." The general practitioner said that the appellant was: "... suffering symptoms of depression and anxiety - specifically he complained of mental clouding, agitation, poor sleep, early morning waking, fatigue." The certificate went on to say that the appellant was to undergo specialist examination on the following Tuesday. The trial judge regarded that certificate as inadequate and allowed the appellant a short additional adjournment to enable him to contact his general practitioner and supplement the certificate. That was done, by a further certificate, transmitted to the court by facsimile. The general practitioner said that the appellant was suffering symptoms of depression and anxiety. The appellant sought a further adjournment pending specialist advice and opinion.

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I am puzzled by the content of 3.8.1. 57 S189 of the Evidence Act is concerned with proceedings on a voir dire. It may, as a preliminary matter, be observed that it is rare to find complaints to the effect that evidence is heard, or argument is taken, in the absence of the jury; it is impossible to see how proceeding in the absence of the jury could in any way have affected the outcome in such a way as to constitute a miscarriage of justice. However, the appellant appears to complain that the jury was kept in the dark in respect of some relevant evidence and/or argument. 58 By s189(1) determination of certain identified questions (such as the admission of evidence) is defined as "a preliminary question". By s189(2), where there is a jury, preliminary questions as to the admission of evidence, or evidence to which s138 applies, or the admission of such evidence, is to be heard and determined in the absence of the jury. By subs(4), where there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders. Subs(5) prescribes matters the court is to take into account in deciding whether to make an order under subs(4). 59 The appellant complains in two respects about evidence taken in the absence of the jury. Each of these concerns the removal of items from his home, pursuant to the execution of two separate search warrants, firstly on 23 September 1999. The appellant's complaint is that, if the jury had heard that evidence, it could have assisted their understanding as to his limited ability to present defence material. In answer to that it need only be said that it was always open to the appellant to have that evidence adduced in the presence of the jury if it suited him to do so - he could have done so either through cross-examination of the relevant witnesses (and making arrangements for the Crown to call any witnesses who it did not otherwise intend to call), or by giving evidence himself, or calling a family member with relevant knowledge to give as evidence. 60 The second aspect of the complaint is as to evidence of the alleged removal of the appellant's computer and its contents on 26 February 2003. Again, the appellant complains that this could have assisted the jury's understanding. The same response may be made. Indeed, Detective Sergeant Grant, who led the search of the appellant's home in September 1999, gave evidence in the trial and was cross-examined on this subject matter by the appellant. 61 To the extent that the evidence was relevant, it was open to the appellant to adduce it from Detective Grant in cross-examination; if he did not do so, he can hardly complain that the evidence was not before the jury by reason of its having initially been given only on a voir dire proceeding. 62 The Australian Federal Police Officer involved in the events of 26 February 2003 was not called to give evidence; however, the appellant has made himself very well aware of his rights in respect of a criminal trial and could have but, (this Court was told) did not, request that he be made available for cross-examination. 63 Again, the appellant cannot now complain that that material was not before the jury. 64 I am, in any event, quite satisfied that this submission is entirely misconceived. So far as I can make out, the complaint made by the appellant is that evidence was taken and argument conducted in the absence of the jury; and that this evidence might have revealed to the jury matters relevant to its consideration of the charges. 65 It was entirely appropriate for the judge to conduct the voir dire into preliminary questions in the absence of the jury. As I have mentioned, anything that was appropriate to be put before the jury could also have been put before the jury in the trial proper. That was a matter for the appellant. There is no substance to these complaints

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(viii) the appellant's medical fitness to continue the trial: 69 Another matter advanced by the appellant in support of the first ground is that he was too ill properly to conduct his trial "at the critical stage". 70 In support of this, the appellant submitted: "3.91. (sic) During the course of the trial the appellant contracted a severe (sic) The Appellant could barely talk, walk or think. The appellants illness was apparent to the court who adjourned for the purpose of a doctors opinion to be obtained. The doctor found that the appellant was unfit to attend trial for five days. The Trial Judge refused to adjourn the trial and forced the appellant to continue. 3.9.2 For want of a more appropriate term, the appellant submits the above action clearly illustrates the cowardly, biased conduct of the unfair trial." 71 Again, no additional evidence was put before this Court in respect of this aspect of the appeal. It must be determined upon the trial record. 72 At the commencement of proceedings on Monday 2 June, the 42nd day of the trial (including the preliminary and voir dire proceedings), the appellant made a further application for the purpose of seeking medical attention. He said that he was having difficulty talking, and that, in the condition he found himself, he had no hope of following the proceedings. 73 The Crown Prosecutor acknowledged that the appellant's voice was "not in its usual condition". Graham DCJ allowed a short adjournment for the appellant to obtain medical advice. On resumption the appellant presented a medical certificate (Voir Dire Exhibit 8). The certificate, from a city practitioner, stated that the appellant was suffering "palpitation with high pulse rate, state of anxiety and stress" and was "unable to attend work/school" until 6 June. The appellant accordingly sought an adjournment. His application for adjournment was refused. Graham DCJ expressed some scepticism about the bona fides of the appellant's complaints. He was fully justified in so doing. He observed that on the previous occasion that the appellant had sought adjournment on medical grounds, he had provided one medical certificate diagnosing hypertension, followed by another diagnosing a "mental condition". He observed that, when the trial resumed before the jury, the appellant appeared to recover his capacity. He noted that the doctor who provided the most recent certificate had not turned his attention to the critical question which was whether the appellant was able to attend to his trial. 74 The question of whether an application ought to be granted or not is essentially a discretionary matter for the trial judge, to be determined in accordance with established principles: see House v The King [1936] HCA 40; 55 CLR 499. Many factors are relevant to the determination, including the convenience of the jury, the stage to which the trial has progressed, and any relevant matters of history. 75 In my opinion Graham DCJ was well within his rights to take the course he did. The transcript does not provide any ex post facto support for the appellant's contentions. 76 There is no substance in this aspect of the appeal. 77 Other matters appear to have been put before Graham DCJ in support of the appellant's application for a stay of the proceedings. These include the effect of restrictive bail conditions, which the appellant categorised as "house arrest"; and the effects of loss of documents on his capacity to prepare for trial. It is apparent from the materials that the appellant was, on or about 23 September 1999, arrested by Australian Federal Police and charged with four offences against s29D of the Crimes Act 1914 (Cth); and it appears that, some time in or about February 2003 a search warrant was executed resulting in the seizure by Australian Federal Police of the appellant's computer. 78 All of these matters were dealt with comprehensively by Graham DCJ. I can see no error in the manner in which his Honour approached the question; and, indeed, the appellant has not identified any specific or general error in the approach taken by his Honour. 79 Ground 3, that the trial was unfair, should be rejected.

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(a) seizure of plants; (b) trespass to property; (c) the invalidity of a search warrant; (d) a certificate issued under s43 of the Drug Misuse and Trafficking Act; (e) identification evidence given by Mr Zuchetti; (f) evidence that the shotgun found in the appellant's possession was stolen; (g) evidence that a NSW Police badge had been found in the appellant's possessions. 85 Each of these matters appears to be advanced as evidence that should have been excluded by reason of the provisions of s138 of the Evidence Act. By subs(1) of that section, evidence that was obtained improperly or in contravention of an Australian law or in consequence of such impropriety or contravention is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the particular evidence in question was obtained. Subs(3) prescribes (non-exhaustively) the matters that the court must take into account in determining whether to admit the evidence. 86 On 14 and 15 April Graham DCJ delivered a judgment which extends to 160 pages of transcript. This is principally concerned with the issues that arose concerning s138 of the Evidence Act. His Honour correctly recognised that the onus of establishing that evidence obtained improperly or illegally ought to be admitted lies upon the Crown. The Crown discharges the onus by establishing that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the particular evidence under consideration has been obtained. His Honour also carefully directed himself as to the provisions of subs(3), and the factors there catalogued as pertaining to the decision. 87 Under s138 two separate questions arise. The first is whether the evidence was obtained improperly, illegally, or in consequence of impropriety or illegality; the second, which arises only where that is answered in the affirmative, is whether, having regard to the nature of the impropriety or illegality, the desirability of admitting the evidence outweighs the undesirability of admitting evidence so obtained. 88 In respect of some of the items on the appellant's list, it appears that his challenge is to a finding that the evidence was not obtained improperly or illegally. Such a determination may involve a question of fact, a question of law, or a question of mixed fact and law. In other items of evidence, where his Honour has found impropriety or illegality, the challenge is to his determination to admit the evidence. In order to succeed in an appellate challenge to such a determination, it is necessary for the appellant to show that, on the principles stated in House v The King that the evaluation was not reasonably open to Graham DCJ, or that he proceeded on a wrong principle. 89 I turn now to attempt to set out what it is that the appellant appears to challenge. The first task is to identify which, if any, of the evidence in question was improperly or illegally obtained. 90 Evidence was given that the search warrant was issued at 4.45 pm. 91 In his very lengthy judgment Graham DCJ recounted the evidence given on the voir dire. He accepted that, prior to the issue of the search warrant, a good deal of activity had taken place. This included fairly extensive aerial surveillance of the property followed by entry onto the property by police officers, and, after some searching, the arrest of the appellant.

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(c) search warrant: 101 The next complaint made by the appellant is that Graham DCJ was in error at law in finding that the search warrant was invalid only because it did not state the offence to which it related. The appellant made a number of other challenges to the legality of the search warrant. Many of these were plainly misconceived. For example, the appellant argued that the warrant could only be issued to the Director General of the Department of Agriculture and Fisheries. This came about, it seems, because the appellant assumed that the warrant was issued under s38 of the Drug Misuse and Trafficking Act. That section does, it is true, authorise the issue of a warrant authorising the Director General to exercise certain identified powers for the purpose of destroying any prohibited plants on the premises the subject of the search warrant, and preventing any regrowth of those plants. 102 However, the warrant that was issued to Detective Grant was issued under Part 2 of the Search Warrants Act 1985 (as it applied - now repealed). That legislation contains no such limitations. 103 That the appellant recognised this is clear, because he argued that the Drug Misuse and Trafficking Act postdates the Search Warrants Act and therefore that its provisions take precedence over those of the Search Warrants Act. This, he said, was the result of a rule he called "the rule of last resort". Any such rule applies only where there is an inconsistency between two statutory provisions such that the two cannot sit together. There is no such inconsistency between s38 of the Drug Misuse and Trafficking Act and Part 2 of the Search Warrants Act. 104 In any event, by s39 of the Drug Misuse and Trafficking Act any cannabis plant (or other identified items) in the possession of any person may be seized by any member of the police force. Again, the appellant recognised the difficulty this section posed for his argument. He sought to avoid its consequences by further arguing that s39 has no application because the plants were not "in the possession of any person". 105 This argument does not appear to have been put before Graham DCJ. If it were, he plainly rejected it. He was correct to do so. This Court should also reject the argument. The cannabis plants found on the appellant's property were plainly in the possession of the owner or occupant of that property. For the purpose of the present argument it does not matter whether that person was the appellant or was some other person, whether known or not. 106 I perceive no invalidity of the search warrant other than that identified by Graham DCJ. For the reasons given by Graham DCJ it was appropriate, notwithstanding the (technical) invalidity of the warrant, to admit the evidence obtained as a result of its execution.

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(d) certificate under s43 of the Drug Misuse and Trafficking Act: 107 It is not easy to follow the appellant's argument in relation to the s43 certificate, nor, indeed, the response made on behalf of the Crown. Both parties submit, for different reasons, that his Honour erred in his approach to this matter. But the Crown, however, further submits that the appellant benefited from his Honour's erroneous approach. 108 S43 appears in the Drug Misuse and Trafficking Act under the heading "Certificate evidence". It relevantly provides, in subs(1), that an analyst may give a certificate of the result of the analysis of "any plant or substance" submitted for analysis; in subs(2) that the production of a certificate, in any legal proceedings under that Act, purporting to be signed by an analyst, shall be prima facie evidence of the identity of the plant or substance, of the quantity or mass of the plant or substance and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to sign the certificate; by subs(4) that, in any legal proceedings under the Act, production of a certificate, purporting to be signed by an appointed person (that is, a person appointed under subs(5), which subsection enables the Director General of the Department of Agriculture and Fisheries to appoint a person to give certificates for the purposes of the section), is, like the certificate of an analyst, prima facie evidence of the identity and/ or quantity or mass of the plant analysed without proof of the signature or appointment of the person appearing to have signed the certificate. Subs(4) is subject to the proviso that it applies only if the plant identified is cannabis plant or cannabis leaf. 109 The s43 certificate which was admitted into evidence identified Pablo Vazquez as a regulatory officer who was an appointed person. Mr Vazquez certified that he had analysed 598 plants and that they were all cannabis plants, botanically known as cannabis sativa. The certificate therefore met the requirements of s43(4). At the relevant time the Drug Misuse and Trafficking Act contained a definition of "cannabis plant" in the following terms: "... any growing plant of the genus Cannabis." 110 The objection that was taken by the appellant on the voir dire appears to have been entirely different to the point he now seeks to make. A second certificate under s43 certified that the drugs the subject of the certificate had been destroyed. The appellant appears to have argued in the District Court that this destruction deprived him of an opportunity to test the identification of the plants the subject of Mr Vazquez's analysis. As Graham DCJ correctly pointed out, there was no evidence that, even if this was so, any evidence had been obtained as a result of the destruction, and, therefore, even if that destruction could be shown to have been contrary to law, this argument did not raise a s138 issue.

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It may be accepted that the evidence given by Mr Zuchetti came within this definition. 115 By s114(2) visual identification adduced by the Crown is not admissible unless an identification parade that included the defendant was held before the identification was made, or it would not have been reasonable to have held such a parade, or the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant. 116 Subs(3) prescribes, non-exhaustively, the matters to be taken into account in determining whether it was reasonable to hold an identification parade. These include the kind and the gravity of the offence concerned; the importance of the evidence, and the practicality of holding an identification parade, having regard to any failure in cooperation by the defendant; the timing of the identification relevant to the commission of the offence; and the appropriateness of holding an identification parade having regard, inter alia, to the relationship, if any, between the defendant and the witness making the identification. 117 Evidence was given by Detective Sergeant Grant that he had not conducted an identification parade because he believed Mr Zuchetti knew the appellant well, and (by implication) an identification parade would have been superfluous. Graham DCJ accepted that, in the circumstances, an identification parade would have been pointless. He permitted the evidence to be given. 118 The evidence given by Mr Zuchetti was, essentially, the evidence of a neighbour of the conduct and activity of a person known to him. In my opinion the evidence was properly admitted. 119 By s116 of the Evidence Act, where identification evidence has been admitted, the judge is to inform the jury that there is a special need for caution before accepting identification evidence, and the reasons for the need for that caution, both generally and in the particular circumstances of the case. 120 The appellant complains that no appropriate warning was given. 121 The cross-examination directed by the appellant to Mr Zuchetti was wide-ranging and, so far as I can make out, largely irrelevant. For example, the following appears in cross-examination: "Q: Are you aware that the boundary fence was relocated? A: Part of the boundary fence was relocated. Q: Yes? A: Eventually. Q: I put it to you, the second time I met your father, was after I had taken my Case tractor (sic) onto your property, and pulled the corner-post onto our property; would you agree with that? A: I don't think you'd do that. Why would you go onto our property with your tractor? Q: Because your father had invited me to? A: You're telling me that. Q: That is why I'd go onto it. And I put it to you that after I pulled the corner post back onto our property - - A: But you've told me that you've come onto our property, and took a strainer post off our property, and pulled it back onto your property. That would be a part of our property, why would you do that? Q: It's not your property, it's your father's property? A: You don't know how much I own of that property. Q: Go and impress somebody else with that. What we're dealing with here, is the second time I met your father, and I pulled that strainer post back onto our property, and your father strode across - my son was standing behind me, probably 13, `14, 15 at the time, and your father threatened me, didn't he? A: I wasn't there. Q: Did he tell you that he threatened me? A: No, he never told me that. Q: Climbed on the fence, up over the barbed wire, and thought he'd do the biffo on me, didn't he. And I said to my son, 'Stand back'. He said, 'Why?' 'Because as soon as this silly old bastard steps a foot onto our ground, I'm going to deck him.' And your father did the dog, didn't he; he climbed back over the fence. Did he tell you about that? A But that doesn't seem right. Why didn't you deck him on our property; why would he go over onto your property? So I don't believe that story." 122 There was more cross-examination in the same vein. The challenge to Mr Zuchetti's evidence made by the appellant directly went to his honesty. Essentially, what the appellant was putting to Mr Zuchetti was that the two had never met. The issue for the jury to determine in respect of Mr Zuchetti's evidence was whether they accepted that he had met, and was able to recognise, the appellant or not. It did not concern the circumstances in which he was able to make observations of the appellant, such as to strengthen or weaken the evidence that he gave. 123 It did not require a warning to the jury under s116.

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The appellant added: "Also I strongly believe that one of the jurors, one of the three present on 1 August, was either a police officer - present or past - or very closely aligned to the prosecution." 138 He claimed to have asked the Sheriff to investigate this assertion but to have received no response. 139 The reference to 1 August was a reference to the date upon which Graham DCJ heard submissions as to sentence, and imposed the sentences that he did. 140 What occurred then was the subject of further, and discrete, complaint by the appellant, set out in an affidavit affirmed on 6 June 2004 but never framed as a specific ground of appeal. In his affidavit the appellant deposed that on the date of sentencing, and prior to the formal commencement of the proceedings, three female members of the jury attended and greeted the Crown Prosecutor and Detective Grant in a manner suggestive of an unduly, or improperly, close, familiar or friendly relationship. He also deposed that, during the course of the trial, he had "felt" that he recognised one of the jurors as a serving or former police officer. He said that he wrote to the Sheriff raising concerns about the trial jury, but had not had any response. 141 The appellant's son, Daniel O'Meara, filed an affidavit sworn 17 June 2004 in which he, up to a point, confirmed what the appellant had deposed about the events in the courtroom, and added that, as he and his mother left the courtroom, they found themselves among the group of former jurors, Detective Grant, the Crown Prosecutor and her assistant. He said that he overheard Detective Grant inviting the three women to join the rest of the group for a drink. At least one of the women rejected the offer. The appellant's wife provided an affidavit (and gave oral evidence) to similar effect. 142 On 27 August 2004 the Crown Prosecutor from the trial swore an affidavit in response to that of the appellant. She deposed that there was, on 1 August, some delay in the convening of the court and that during that time three female jurors entered the courtroom, as did Detective Grant. She said that she had some conversation with Detective Grant and the jurors but this was inconsequential and was not directed at the appellant or his family. She said that at no time did the jurors introduce themselves by name; and that she had never spoken to any of them before. She said that the three jurors appeared to know one another quite well. 143 The Crown Prosecutor denied that there had ever been any arrangement for Detective Grant, her instructing solicitor and herself to meet for a drink after court on the day of the sentence, and denied any discussion with the former jurors about socialising outside the court. She said that she and Detective Grant did join several other people (unidentified) for lunch at a nearby restaurant. 144 When the appeal was listed in this Court on 14 September 2004 a considerable amount of discussion took place about grounds of appeal recently raised by the appellant, of which the Crown had not had adequate notice. It became apparent that the appeal could not proceed on that day. Wood CJ at CL, presiding, stood the matter out of the list and directed that it be re-listed before the Registrar for directions. 145 His Honour requested the Sheriff: "... to investigate whether there was on the jury either a police officer or a member of the Correctional Service." 146 Following the adjournment of the appeal, when first listed, on 6 October 2004, the appellant filed supplementary submissions. These submissions, it may be observed, are even more difficult to follow than those earlier filed. However, for present purposes, it can be noted that, under ground 3, the appellant made the following assertions: "3.6.7 During the course of the trial, other matters involving myself were mentioned at Newcastle Local Court. His Honour refused me permission to attend the above court, which issued a warrant for my arrest, despite being informed that the trial was in progress. 3.6.8 During the course of the trial I was arrested and escorted outside to wait for a police escort vehicle. While waiting to be placed in the police van, jury members filed past and saw me under arrest. No doubt that explained to them better than the trial judge's untruths, my sudden absence from the trial. The above could only have prejudiced the jury and caused a more unfair trial than was already in progress." (I pause to observe that the factual assertions made by the appellant are not borne out by the transcript. It is apparent that the trial judge did not refuse the appellant the opportunity to attend the Newcastle Court; those matters were, in fact, listed on a day when the trial was not proceeding. When Graham DCJ learned of the issue of bench warrants he made arrangements for the appellant to be taken into custody in an uncontroversial and civilised way. However, the truth of the assertion is not presently in issue. I have already, in the context of considering sub-ground 3(iv) set out what, the transcript discloses, did occur.)

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147 When these submissions were received in the office of the DPP, the Solicitor for Public Prosecutions wrote to the Registrar of the Court of Criminal Appeal on 16 November 2004, drawing this latest allegation to his attention, referring to the earlier request to the Sheriff to investigate the allegation made concerning the jury, and suggesting consideration of whether this fresh allegation should be the subject of a further request to the Sheriff. The request was forwarded by the Registrar of this Court to the Sheriff. 148 In respect of each matter the Sheriff responded in terms that the members of this Court, as presently constituted, considered unsatisfactory. 149 The appeal first came on before the Court as presently constituted on 16 May 2005. At that time the appellant gave oral evidence, which consisted of cross-examination in relation to his affidavits. He provided details of the jurors who, according to him, had observed his arrest outside the court. He gave a detailed description of one of them. A number of other witnesses, including the appellant's wife and son, also gave evidence. 150 This Court made it clear that it took seriously the issues raised by the appellant and did not consider itself in a position to proceed to deal with those grounds in the absence of a satisfactory report from the Sheriff. When it was made plain to the appellant that this Court intended to take what steps were available to it to ensure that the issues raised were fully investigated the appellant promptly abandoned reliance on the grounds of appeal that raised issues concerning ineligibility of a juror, bias of members of the jury by association with representatives of the prosecution, and the execution of the bench warrants. 151 Although he said that this was because further investigation would necessarily entail further delay, I formed the opinion that the real reason was that the appellant well knew that a proper investigation would not support his claims. In any event, those grounds need not be further pursued. 152 That concludes the grounds of appeal originally filed. As I have indicated earlier, the appellant did file supplementary submissions but these went well beyond the matters that had been raised by him in his original grounds or his original submissions. He restated and expanded upon the grounds which I have already mentioned, having abandoned the grounds previously numbered 1 and 2. Under the heading "Index" he provided an additional list of matters which, presumably, he sought to advance as grounds of the appeal. These were expressed as:

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8: "double jeopardy" 155 The appellant presented no less than 14 pages of written submissions in relation to this "ground". It is fair to say that the submissions denote a level of utter confusion in his mind and not the slightest appreciation of the concepts of "double jeopardy", "duplicity", and "autrefois acquit". I will do my best to extract from his submissions what I think is the point he seeks to make. That will require a restatement of some factual material. 156 It will be remembered that the appellant was arrested on 15 February 1997, at the premises where the cannabis crop had been seen. He was taken to the Picton Police Station and there charged. The charges at that time only extended to charges of cultivation of not less than the commercial quantity of cannabis, and possession of not less than the commercial quantity of cannabis plants. No charges under the Firearms Act 1989 (or 1996) were then laid. The appellant was granted bail, subject to conditions, on that day, but it is not clear to me whether this bail was granted by police or by a court. In any event, the appellant then appeared before the Picton Local Court on 25 February 1997. At that time he faced six charges. These included the two drug charges already extant. He was also charged with an additional count of possession of a prohibited drug, this being an additional quantity of cannabis leaf located in a dog kennel in his home (an offence to be dealt with summarily). He was charged with two counts of possession of unauthorised firearms, these being the .22 calibre pistol the subject of the second count on the indictment, and a Mossberg pump action shotgun, the subject of the third count on the indictment. Finally, he was charged with one count of goods in custody. The facts sheets show that this count related to the Mossberg pump action shotgun which, the police then alleged, had been stolen in 1993. This last charge was withdrawn at committal. 157 On 29 April 2004 a certificate, pursuant to s205 of the Criminal Procedure Act 1986, issued out of the Picton Local Court. Ss205 to 208 provide as follows: " Order dismissing matter to be made

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205 (1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter. (2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor." " Effect of certificate that matter has been dismissed 206 A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person." " Dismissal of matter if matter withdrawn 208 If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned." 158 The certificate issued to the appellant shows that the offence in question was the offence of goods in custody, alleged to have been committed on 15 February 1997 at Tahmoor. Further particulars showed that the charge had been withdrawn. It is a fair inference that this is the goods in custody charge which was before that Court on 25 February 1997. 159 However, that does not assist to clarify the argument the appellant has presented. 160 The nub of his argument may be contained in the final two paragraphs of paragraph 8.1.5 of his supplementary submissions which I quote in full: "In the subject prosecution, only one 'FACTS SHEET' was ever produced, that of Det S/C Fryer, dated 25 February 1997. The 'facts' relating to the Goods in Custody charge, which was one of a number of joint charges was not severable from the 'FULL FACTS' in the 'FACTS SHEET' relied on by the prosecutor, nor was any attempt made to sever those facts. Consequently the dismissal of that matter rendered the 'matter' subject to the s206 bar, the 'matter' being the 'facts' supplied by the prosecution." 161 If I understand the appellant's argument correctly, it is that once he received the certificate of acquittal in relation to the goods in custody charge, because of the manner in which the facts had been presented to the Local Court, all other charges were encompassed in that certificate of acquittal. In the opening part of paragraph 8.1.5, he submitted: "The reasoning behind s206 is likely to be a deterrent to multiple unsustainable charges being laid against a citizen by an over zealous prosecutor, in effect, a requirement that charges are well thought out before being laid."

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He then went on to argue: "The statutory penalty to such a prosecutor is that withdrawal of unsustainable charges in the local court, bars further proceedings on the same matter. That is, the facts on which the unsustainable charge(s) was laid, are subject to the bar provided by s206 of the [Criminal Procedure Act]." 162 He went on to theorise that prosecutors, aware of this, divide a statement of facts into sections in order to preserve the distinction between the charges. 163 Merely to state the appellant's proposition is to demonstrate that it is fundamentally wrong. The certificate of acquittal, by s206, is a conclusive barrier to any further proceedings against the appellant in relation to a charge that, by having possession of the Mossberg, he was, on 15 February 1997, guilty of the offence of having in his possession goods that might reasonably be suspected of having been stolen or otherwise unlawfully obtained, such goods being the Mossberg shotgun. 164 The appellant appeared to appreciate the significance of the word "matter" in s206. However, he expressly sought to equate "same matter" with "same facts". That, in my opinion, is where his error lies. He further submitted that s208 provides support for his approach, arguing that that section supports a construction of "matter" as including a number of offences. He then made this rather puzzling submission: "It could not be the intention of the legislature to provide a bar forever in relation to an offence, say murder, in favour of an accused person following the withdrawal of a charge of murder in the Local Court. If that was so, a murder charge withdrawn, replaced by manslaughter, would forever immunise the accused against being tried for murder. It would be serial killer's delight in either of the Crown's positions, bearing in mind that the date is not an element of an offence. To suggest that that is the intention of the legislation is ridiculuous (sic)." 165 It seems, from this submission, that the appellant would construe s206 as a provision for the issue of a certificate of acquittal that precludes the future prosecution of a person for an offence of the same kind as that of which he/she has been acquitted, even where the facts alleged to constitute the commission of the further offence are entirely unrelated to the earlier offence. 166 There was much more in the appellant's submissions but it has no more merit than that which I have extracted. This ground of appeal should be rejected.

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By subs(3) amendment of an indictment includes the substitution of an indictment. 171 The indictment (in its original form) was presented no later than on the arraignment on 21 November 1997 and, in accordance with s20, the Crown needed either the consent of the appellant or the leave of the court before it could be amended or substituted. Consent was, not surprisingly, not forthcoming from the appellant. On 29 April 2003 Graham DCJ granted leave, giving extensive and comprehensive reasons. The appellant now challenges that decision. 172 One argument advanced by the appellant is based upon a false premise. The premise is that the only power to grant leave to amend an indictment is that contained in s21. That power, I accept, depends upon the court being of the opinion that the indictment is defective. Graham DCJ made no such finding in respect of the first indictment, and, so far as I can see, there would be no basis for such a finding. 173 However, in my opinion, the power to grant leave to amend conferred by s20 is independent of that conferred by s21, and is unfettered. It does not depend upon an opinion that the indictment is defective. The power conferred by s20 is, of course, to be exercised in accordance with the usual principles that apply to discretionary decisions but is not tied by any precondition such as is the power conferred by s21. 174 The appellant also argued that his Honour was in error in the manner in which he approached the question of amendment because he only considered injustice, and did not consider whether the original indictment was defective. 175 I would reject this argument. The judge correctly directed himself as to the issues that arose, and as to any prejudice that might be suffered by the appellant. The amendments were, in fact, quite minor. The appellant maintains that the amendment of the drug charge transformed a charge in which "time was of the essence" to a charge in which "time was not of the essence". That may or may not be so, but indictments are frequently amended, even during the course of a trial, to reflect the evidence given as to, for example, the dates on which offences are said to have been committed. Here, the Crown case was that the cultivation of the cannabis crop had been continuing over a period up to and including 15 February 1997. There was no reason why the appellant could not meet that case. 176 In my opinion his Honour correctly granted leave to the Crown to amend the indictment by substituting that on which the trial proceeded. This ground of appeal should be rejected.

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29 (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) ... (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice." 180 At an early stage of the pre-trial proceedings a discussion took place about whether there should be separate trials of the charges. 181 On 28 April 2003, the transcript records (in the course of what appears to have been a somewhat unfocussed argument concerning the substitute or amended indictment, but in which the appellant raised the then s66 of the Criminal Procedure Act), Graham DCJ on two occasions referred to the appellant as having withdrawn an application for separate trials. On neither occasion did the appellant demur; indeed, on the first occasion he acknowledged that that application had been withdrawn, giving his reason for having done so. 182 Notwithstanding this, in the judgment delivered on 29 April 2003, Graham DCJ did deal with the issue of separate trials. He was not satisfied that this was a case in which separate trials were required. 183 Despite what might, at first blush, appear to be a prohibition upon the prosecution of more than three counts in a single indictment contained in s66, that is not the construction that has been placed upon the section, a version of which has been contained in criminal procedure legislation for many years. The section has been re-enacted or renumbered from time to time, but its terminology and substance have not changed. The section does not prevent the prosecution of more than three offences on a single indictment. 184 As long ago as 1972, in R v Hass (unreported on this point, 30 June 1972) this Court held that at common law it was permissible at common law for the Crown to proceed on more than three counts and that the then applicable version of s66 (in different terms, but to similar effect) did not override the common law. Of course, the appellant's point is not that the number of counts exceeds that permitted by s66 - it does not - but that the offences with which he was charged were not "of the same kind". That is immaterial, as Hass establishes that the common law concerning the joining of counts remains applicable and does not prevent to Crown proceeding as it did. As I have said, the legislature has altered or moved the provision on many occasions, always in the presumed knowledge of the ruling in Hass. It has not seen fit to override the effect of Hass. Hass must be taken to continue to be good law. 185 The three different offences with which the appellant was charged, on the Crown case, were sufficiently related to one another. The cannabis, and both of the firearms, were alleged to have been located on the same premises, premises occupied by the appellant. The jury would have been entitled to draw the inference, given the size of the cannabis plantation (and as the judge directed the jury), that the firearms were present by way of protection because of the criminal enterprise represented by the cannabis crop. 186 I see no error in the trial judge's refusal to separate the trial of any of the charges. I would reject ground 10.

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ground 11: 187 This ground is headed: "Amnesty and abuse of process." 188 Once again it is difficult to follow the argument presented by the appellant. However, it appears to be to the effect that, as at 15 February 1997, an official amnesty concerning the possession of firearms was in existence. This amnesty protected persons otherwise unlawfully in possession of firearms from prosecution in respect of that possession. 189 In a judgment dated 5 June 2003 Graham DCJ accepted that an amnesty was in force. The amnesty was created by Regulations 98 and 98A of Regulations made pursuant to the Firearms Act 1989, under which the appellant was charged. The relevant regulation (Regulation 98(1)) provided an exemption from any requirement of the Firearms Act to hold a licence or permit authorising possession of prohibited firearm. In his judgment Graham DCJ canvassed extensively the construction of the regulation and the question of where the onus of proof lay. The amnesty existed for the limited purposes only of surrendering the firearm to the Commissioner of Police, or to any police station or other place nominated by the Commissioner for the purpose, and for proceeding to a police station or other nominated place for that purpose. (It was the amnesty that existed for that limited purpose. His Honour appears to have been under the misapprehension that it was necessary to show that possession of the firearm was for that limited purpose only. Nothing turns upon this.) 190 It was unnecessary for Graham DCJ finally to decide the question of the onus of proof, because, as he correctly observed, no factual basis arose for considering whether the exemption applied to the appellant. His Honour was conscious that that situation might have changed if the appellant had given relevant evidence but he did not do so. There is no basis to this aspect of the appeal. 191 The appellant also raised another issue concerning the application of the Firearms Act 1989. That Act was repealed and replaced by the Firearms Act 1996, which came into effect on 1 July 1997. The appellant accordingly submitted that since the section under which he was charged was no longer in force, prosecution of him under that section could not proceed. He submitted: "The effect of repealing an act is that 'the act never existed' 'except for matters past and concluded'." 192 The complete answer to this submission is to be found in s30 of the Interpretation Act 1987 which preserves the operation of repealed legislation. The ground must be rejected.

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(a) directions in accordance with the decision of this Court in R v OGD (1997) 45 NSWLR 744; and of the High Court in Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 202 Each of these cases concerned the appropriate direction to be given where an accused person fails to give evidence. In OGD a series of general principles was extracted from the authorities by Gleeson CJ, with whom Grove J and Sperling J agreed. These were expressed as: "First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. ... Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown ... Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent." 203 In Azzopardi the High Court was concerned with the construction of s20(2) of the Evidence Act. The majority emphasised: "...that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case." 204 The appellant does not appear to me to complain of any infringement of the principles stated in Azzopardi. He does appear to complain of a failure to direct the jury in terms of OGD. The point he appears to make concerns a matter that has been alluded to much earlier in these reasons. He claims that the bulk of the documentary (and perhaps other) material was removed from him and has never been restored to him. In his submissions he stated: "The trial judge was aware that a stay on terms had been granted by Moore DCJ on 14 November 2000, and that the factual basis for that stay had never been challenged." This occurred during the course of the execution of a search warrant on his premises by agents of the Australian Federal Police in September 1999.

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ground 18: validity of indictment 220 Finally, in the course of the hearings (on the third day that this matter was before this Court) the appellant sought and was granted leave to add yet another ground of appeal to the effect that: "... the trial proceeded on an invalid indictment in that the appellant was charged and tried on indictment on offences required to be dealt with and that could only be dealt with summarily." 221 This ground was not the subject of any written submissions on the appellant's part. 222 Yet again, it is quite impossible to follow the argument the appellant advanced. The members of the Court went to inordinate lengths in an attempt to extract from the appellant the essence of his argument. The attempts were far from successful. So far as I can discern from what he said, his argument rested upon the assertion that, initially, the firearms charges had erroneously been brought under the Firearms Act 1996 rather than the applicable legislation which was the Firearms Act 1989. That this is incorrect is demonstrated conclusively by Local Court charge sheets annexed to an affidavit sworn by Ms Helen Langley, a solicitor employed in the Office of the Director of Public Prosecutions, who had been involved in the proceedings against the appellant. Each of the charge sheets specifically identifies the Firearms Act 1989 as the legislation under which the charge was brought. It may be that that is sufficient to dispose of this ground of the appeal. 223 As with so many other aspects of the appeal, the ground shifted from time to time as the appellant realised that he was unable satisfactorily to respond to questions or propositions put to him that contradicted his position. Included in his assertions was that an additional four charges had at some stage been laid, and that there was some devious conduct on the part of the Crown and/or the Local Court Magistrate. At one stage he contended that the Crown could prosecute the offences on indictment only if it made an election. In the course of putting that, he volunteered the following: "Bear in mind the Crown had - yes hidden the duplicated firearms charges from us ..."

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224 At another point, when pressed by one member of the Court concerning his claim that the charges had been laid under the 1996 Act, he is recorded as saying: "Well let us go to the - here we are, okay. I understand the difficulty that you're having in understanding that firearms charges under the 1996 Act were laid. You're probably labouring under the same difficulty in coming to the realisation that line charge number 97/43 is a fraudulent document. I laboured under that same difficulty despite my knowledge that having been charged with ten offences I laboured under that same difficulty for some years. It's only when I got my mind set to the point, and this came only very recently, that 97/43 might be fraudulent. Once I allowed my mind to think that the very next step was 97/43 must be fraudulent." (T 83) 225 So far as I could ascertain the appellant maintained that he had originally been charged under the 1996 Act, because a "Notice of Committal" (annexure C to the affidavit of Ms Langley) identified an offence in respect of which he had been committed for trial, as "possess proh. weapon". The point, as I understood it, was that the Firearms Act 1989 did not have (as did its successor, the Firearms Act 1996) a reference to, or definition of, a "prohibited weapon", and created no offence of having possession of a "prohibited weapon". That concept was new to the 1996 legislation. S5 of the Firearms Act 1989 merely prohibited possession (or use) of a firearm unless authorised to do so by a licence or permit. 226 I can think of a number of perfectly reasonable explanations for the Notice of Committal being expressed as it was. By the time the appellant went to committal, in 1997, the Firearms Act 1996 was in force. Its language would no doubt have become familiar to magistrates, and to the ancillary court staff who complete the documentation necessary to the legal process. The notation on the Notice of Committal does not pretend to be precise or formal; it is a simple, shorthand way for whoever completed the form to convey basic information to the District Court. It is no indication that the appellant was ever charged under the Firearms Act 1996. Even if he had been, it is a simple matter to amend the charge so that it is brought under the applicable legislation. 227 There was much more. It is apparent to me that the ground was based on at least one, and possibly two fundamental misconceptions of fact. Further analysis will not improve an argument that rests upon such an unstable foundation. I would reject this ground of appeal. 228 That disposes of all aspects of the conviction appeal. I would dismiss the appeal against the conviction on each count.

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ground 7: application for leave to appeal against sentence 229 Although the appellant gave evidence in the voir dire, he gave no evidence in the trial itself, and no evidence in the sentence proceedings following his conviction. Graham DCJ had available to him the appellant's criminal history, a pre-sentence report, and a psychiatric report prepared within the Corrections Health Service. From those materials the following emerged. The appellant was born on 3 February 1943. At the time of the offences he was less than two weeks short of his 54th birthday. His first recorded offence was in 1980 and was a conviction for manslaughter. For this he was sentenced to penal servitude for seven years, with a non-parole period of fourteen months. He unsuccessfully appealed against the conviction. Thereafter he was convicted of an offence of assault occasioning actual bodily harm, four offences of imposition on the Commonwealth, and offences of "intimidation/violence to unlawfully influence persons", but these last convictions were quashed on appeal. 230 All assessments of the appellant are that he is an intelligent man, although somewhat eccentric. (That, I might observe, was, in my opinion borne out in his conduct of the appeal.) He is married with two adult sons. The family is extremely close. (That, too, was borne out in the appeal proceedings. One son and the appellant's wife were both present, if not throughout, at least frequently, and both gave evidence in relation to one of the grounds of appeal. They were actively assisting the appellant in locating and marshalling his voluminous materials.) 231 The appellant left school at the age of 13 and attained no formal qualifications of any kind. He did, however, begin a furniture business and this expanded to, at one stage, include ownership of seven furniture stores. There appears to have been a downturn in fortunes, however, and these, or some of them, were sold at a loss. In 1997 he and wife and younger son entered into a franchised real estate business and began operating their own property agency in 2001. 232 The appellant is said not to be affected by mood anxiety or psychotic disorder, although the psychiatrist reported that there seemed to be "some antisocial and narcissistic aspects to his personality". To the psychiatrist the appellant described himself as "pedantic". The psychiatrist accepted that there had been two significant acts of self-harm. One of these occurred on the day the jury returned its verdicts of guilty. The appellant deliberately ingested insecticide. He told the Probation and Parole Service Officer who provided the pre-sentence report that he did this to make a "statement", which he accepted was a "high risk statement" as well as an attempt to abort the trial (which by that time had concluded). He acknowledged to that officer that the attempt at suicide was not genuine. That does not appear to accord with what he told the psychiatrist who considered that in committing that act, like the earlier one, the appellant appeared "to have lethal intent". The early attempt, in 2002, involved an overdose of Valium and other sleeping tablets taken in a car park near the court. 233 The psychiatrist had access to additional psychiatric information, which suggested assessments of the appellant as: "somewhat grandiose, over familiar, slightly thought disordered [having possibly] some mild cognitive impairment, secondary to his alcohol use." 234 One psychiatrist diagnosed a combination of personality disorder and alcohol abuse.

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the remarks on sentence 235 Graham DCJ dealt comprehensively with the facts of the case, which had emerged during the trial, and which had been found by the jury adversely to the appellant. He concluded that the purpose of the cannabis cultivation was commercial and intended "for the purpose of sale and/or profit". He noted that the quantity of cannabis plants involved was more than double the number required to constitute commercial cultivation for the purposes of the Drug Misuse and Trafficking Act. He considered that the possession of the firearms was associated with, and for the purposes of, the cannabis enterprise. He expressly rejected a suggestion made by the appellant to the psychiatrist that he had been looking after the firearms for a former prison associate; and he rejected another suggestion that they had been received by the appellant on the day they were discovered, and that his intention had been to hand them in under the firearms amnesty scheme that was then in force. 236 Although the appellant did not give evidence, he did, in submissions to the sentencing judge, make a lengthy statement concerning the conditions in which he was held in custody. One aspect of this was his exposure to the smoking of other prisoners. The appellant is asthmatic and it may be accepted that his asthma may be exacerbated by exposure to the smoke of other prisoners. Graham DCJ appears to have accepted as reasonably accurate the complaints made, and the description of conditions given by the appellant, but did not consider this as a factor which could be used to ameliorate the sentences. 237 He held that nothing had been established that would enable the court to extend any leniency towards the appellant. 238 By the time he was sentenced the appellant was 60 years of age. Graham DCJ considered the prospects of rehabilitation were not good and the need for sentences to contain a component for personal deterrence was reasonably strong. 239 He proceeded to impose the sentences I have already mentioned: that is, on the second count, a fixed term of imprisonment for eighteen months to commence on 18 June 2003; on the third, a fixed term of imprisonment for twelve months, to commence on 18 June 2003; on the first count (the drug charge), imprisonment for two years and six months to commence on 18 June 2004 and expire on 17 December 2006, with a non-parole period of nineteen months to expire on 17 January 2006. 240 The result was an overall head sentence of three and a half years with a non-parole period of two years and seven months. In doing this his Honour expressly intended to fix an overall term of imprisonment in accordance with the ratio between the head sentence and the non-parole period provided for by s44(2) of the Crimes (Sentencing Procedure) Act 1999 as it then applied. To do so, he varied the ratio in relation to the sentence for the drug charge.

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the appellant's submissions 241 The written submissions put forward by the appellant in support of the application for leave to appeal against the sentences were, by comparison with those advanced in support of the conviction appeal, fairly sketchy. He referred to some of the authorities put before Graham DCJ by the Crown. One of these was the decision of this Court in R v Francesco Barbara, unreported, 24 February 1997. He made particular reference to this case because, he said, that offender was the only one of those presented to Graham DCJ in the same age group as he. Mr Barbara was, in fact, at the time the matter was before this Court, 65 years of age. 242 It was, as it happens, Graham DCJ who had sentenced Mr Barbara. He sentenced him to imprisonment for two and a half years, but ordered that the sentence be served by way of periodic detention. Mr Barbara had pleaded guilty to an offence of the same nature as that of which the appellant was convicted, but involving not less than the large commercial quantity of plants, thereby carrying a maximum sentence of imprisonment for 20 years. In fact, there were 4,237 cannabis plants hidden in the roof cavity of Mr Barbara's property. 243 Mr Barbara had served a short period in custody prior to being released on bail, about two and a half weeks. The appellant sought to compare the two sentences specifically by reference to the number of plants, and submitted that his sentence was approximately 17 times Mr Barbara's. 244 That approach is, of course, inappropriate. But, in any event, a reading of the decision of this Court shows that the appellant can draw no comfort whatever from Mr Barbara's case. 245 Firstly, Mr Barbara pleaded guilty; secondly, he was a first offender and the court accepted that the offence was out of character. Most importantly, however, the matter before this Court was a Crown appeal against the asserted manifest inadequacy of the sentence. The Court in fact accepted that the sentence imposed was manifestly inadequate. It was only in the exercise of this Court's residual discretion to do so that the Court declined to interfere and impose a sentence of full-time custody. Three reasons were given. The first was the double jeopardy involved in a Crown appeal; the second was that Mr Barbara had served 20 weekends of his sentence, together with the two weeks' full-time pre-sentence custody; most importantly, medical evidence showed that his health had markedly deteriorated to a point that his general practitioner concluded that any term of imprisonment would be life-threatening. 246 The appellant then complained that: "Material not the subject of evidence or submission was taken into account at sentencing."

O'Meara v R

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