Regan v R

[2019] NSWCCA 6

Court of Criminal Appeal (NSW)|2018-08-22|Before: Bathurst CJ, Hoeben CJ, Price J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-08-22

Before

Bathurst CJ, Hoeben CJ, Price J

Catchwords

(2014) 316 ALR 206 Lane v The Queen [2018] HCA 28
(2018) 92 ALJR 689 The Queen v Klamo (2008) 18 VR 644
[2008] VSCA 75 The Queen v Walsh [2002] VSCA 98

Source

Original judgment source is linked above.

Catchwords

(2014) 316 ALR 206 Lane v The Queen [2018] HCA 28(2018) 92 ALJR 689 The Queen v Klamo (2008) 18 VR 644[2008] VSCA 75 The Queen v Walsh [2002] VSCA 98

Judgment (10 paragraphs)

[1]

Judgment

BATHURST CJ: The appellant Scott Edward Regan (the appellant) was charged on indictment for the following offences: "SCOTT EDWARD REGAN 1 On 29 October 2014, at Bathurst in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine. S 25(1) Drug Misuse and Trafficking Act 1985 Law part code 3181 AND the Director of Public Prosecutions FURTHER CHARGES that SCOTT EDWARD REGAN 2 On 29 October 2014, at Bathurst in the State of New South Wales, did supply a prohibited drug, namely, methylamphetamine. S 25(1) Drug Misuse and Trafficking Act 1985 Law part code 16960."
In relation to Count 1 of the indictment, the Crown relied on the fact that at the time of the execution of a search warrant at the appellant's business premises, a total of 162.5 grams of methylamphetamine was located in four different places, as follows: Count 1:

28.6 grams in a re-sealable bag found above a cross-beam in the warehouse secreted in a light fitting wrapped in a grey plastic bag,
31.8 grams found in a bag on a shelf in the office,
96.5 grams found in a resealable bag under a loose tile in the reception area (also a set of small digital scales),
6.5 grams distributed among five small resealable bags also found under the loose tile in the reception area.

Count 2 related to the discovery of 3.84 grams of methylamphetamine located behind the driver's door window switch of the Toyota Hilux that the applicant drove.
In bringing the charges against the appellant, the Crown relied upon the extended definition of supply in s 3 of the Drug Misuse and Trafficking Act 1985 (NSW) as including possession for supply and the deeming provision in s 29 which provides that a person who has in possession an amount of a prohibited drug of not less than the traffickable quantity should be deemed to have the prohibited drug in his or her possession for supply (subject to various exceptions). The trafficable quantity of methylamphetamine is 3 grams, so each separate quantity of drugs found on the premises fell within the deeming provision.
The appellant was tried before a jury and convicted on both counts on 18 August 2018. On the same day, he was sentenced on Count 1 to a term of imprisonment of 4 years with a non-parole period of 3 years and on Count 2 to a term of imprisonment of 1 year to be served concurrently with the sentence on Count 1.
The appellant appealed against his conviction and sought leave to appeal against his sentence. The only relevant grounds of appeal for present purposes are Grounds 1 and 3 of the appeal against his conviction, which are in the following terms: "1. A miscarriage of justice was caused as a result of the trial judge's: a. Intervention during the evidence of Mr Hailstone; b. Decision to ask the jury whether any of their number knew Mrs Rosemary Hailstone; c. Statement that the witness would have to stop giving evidence if his wife was known to the jury; d. Refusal to ask the jury whether they could still bring an impartial verdict; e. Failure to provide the jury with an explanation about why Mr Hailstone had not continued to give evidence. … 3. The trial judge's directions about proof of the possession of the prohibited drugs occasioned a miscarriage of justice."
The appeal was heard on 22 August 2018. On that date, the Court indicated that it had come to the view that Ground 1 of the grounds of appeal had been made out and in those circumstances, allowed the appeal, quashed the conviction and ordered that there be a new trial. The Court also indicated that as the matter was of some importance, it would express its conclusions on Ground 3. These are my reasons for joining in the orders made on 22 August 2018.

[2]

The case at trial

Because of the nature of the grounds of appeal it is not necessary to deal with the evidence led at the trial in any detail. The drugs that were the subject of the two counts were found on the execution of a search warrant on 29 October 2014 at the business premises of the appellant, situated in Bathurst.
The first item seized during the execution of the search warrant was a grey coloured shopping bag which contained a dismantled spotlight and a smaller plastic bag which contained what was later analysed to be 28.6 grams of methylamphetamine. This item was found on a horizontal crossbeam near the large roller door at the entrance to the premises. The bag was reached by using a ladder that was on the premises.
At the time the first item containing the 28.6 grams of methylamphetamine was seized, the search warrant camera was not operating. However, shortly after, the police seized a CCTV security hard drive which recorded the police officer using the ladder to retrieve the bag on 29 October 2014, but also it was alleged, showed the applicant using a ladder to place the plastic bag on the beam at 8.50pm on 27 October 2014.
The search continued and the other drugs were found at the various locations in the premises which I have set out at [2] above.
The Crown's case was circumstantial. The Crown summarised its case in its written submissions on appeal in the following terms: "The Crown case against the applicant was circumstantial. The only drugs that could be linked directly to the applicant were the drugs found on the beam and those found in the vehicle. No one other than the applicant appeared to have widespread access to both the business premises and the vehicle. All the drugs however were similar in terms of appearance, purity and origin. The Crown relied upon the unlikelihood that someone else could have placed the drugs on the beam in the applicant's premises or that the person who placed the drugs in the vehicle was a different person to the person who placed the drugs around the applicant's premises. In terms of other people having access to the applicant's premises, the Crown submitted that the fact that the drugs were found in several locations and the fact that it would be difficult for that person to gain access to those drugs on the applicant's premises without the applicant knowing or finding out, are factors that point to the applicant as being the person who placed the drugs on the premises. The Crown submitted that the applicant was in the business of supplying methylamphetamine from the business and that he was weighing the drugs into different bags for the purpose of supplying it to other persons. The Crown case was that the only rational inference in the circumstances is that in respect to count 1, the applicant was in possession of all of the drugs on the premises and in respect to count 2, that he was in possession of the drugs in the vehicle."
The appellant described the Crown case as having "its problems" and noted that "there was no forensic evidence linking the appellant to any of the drugs located and the business premises were accessed by a number of other people, some of whom the police had never contacted". He noted that the bag containing 28.6 grams of methylamphetamine was located on the beam when the search warrant camera was not operating, and no photograph was taken of the bag in situ. He pointed to the fact that "there were no other indicia of drug dealing by the appellant: nothing incriminating at his home, no unexplained wealth, nothing other than the drugs themselves at his workplace and in the utility, and no evidence in the form of police surveillance to establish he had been selling drugs". It was also common ground that the appellant was a person of previous good character.

[3]

Ground 1

At the conclusion of the Crown case, the applicant called a character witness, a Richard Hailstone. After Mr Hailstone had given some family history including the fact that his son had battled an addiction to drugs, Mr Hailstone was asked what his wife's career was and answered that she managed the Department of Family and Community Services "here in Bathurst".
Immediately after this question was answered, the judge directed the jury to wait outside and the following exchange took place: "Q. Mr Hailstone, did you say your wife is head of Department of Family Community services here in Bathurst? A. No, she has been. She retired last year. Q. What's her name? A. Rosemary. Q. That she practiced by her married name or another name? A. By her married name. Q. Does your son live in Bathurst? A. No, he does not. Q. Does your daughter live in Bathurst? A. Yes, she does. Q. Your daughter's name? A. Lubish. Q. That's her surname? A. Yes, married. Q. What's her first name? A. Kelly. Q. L-U-B-I-S-H? A. L-U-B-I-S-H, yes. HIS HONOUR: Shouldn't we have made an enquiry of the jury, Mr Kellaway, as to whether Mrs Hailstone was known to them? KELLAWAY: Yes, your Honour. I avoided mentioning the children's names for that reason - HIS HONOUR: But Mrs Hailstone may be known by reason of the office that she held. KELLAWAY: Yes. HIS HONOUR: In a relatively small community like that, the head of Family and Community Services might be well known. KELLAWAY: If your Honour pleases. HIS HONOUR: We won't be mentioning the name of the children, but I think Mrs Hailstone - I better find out if any of the jury know her. If the answer to that is yes, this witness will have to stop. Any more surprises like this, Mr Kellaway, to come? KELLAWAY: No, your Honour. I didn't anticipate that one, your Honour. I didn't mean it to be a surprise. HIS HONOUR: Will you turn it over in your mind for the other witnesses? KELLAWAY: Yes, your Honour."
The jury then returned and the trial judge gave the following direction: "HIS HONOUR: Members of the jury, you'll remember that some days ago I asked whether any of you knew - and I read out a list of names, one of them was Richard Hailstone. None of you knew that gentleman. Although Mr Hailstone's wife's name has not been mentioned, you now know that she was the head of the Department of Family and Community Services here in Bathurst. I can tell you that her name is Rosemary Hailstone. I'd like you to go outside, please, and to do what you've done before with your foreman, to give me a note - thank you, Mr Foreman, I know you're ahead of me as usual, but just one of two words, yes or no, whether any of you know Mrs Hailstone either personally or through the office that she has held but no longer occupies. Thank you."
Thereafter a note was delivered to the trial judge answering the question 'Yes'. The following exchange then occurred in the absence of the jury: "CROWN PROSECUTOR: Your Honour, my submission would be that the juror should be asked whether knowledge of the witness would in any way affect the decision that the juror might be called upon to make. HIS HONOUR: Well, I thought about doing that, but given the point at which the interruption came, the jury doesn't know the purpose of this witness' evidence. CROWN PROSECUTOR: No, that's so. HIS HONOUR: So is there any point doing that? I mean, if we got to the point where he had given evidence of whatever it was and his connection with Mr Regan and whatever the story about the son was to be, that might be one thing, but simply to have him - I'll let you take some instructions."
Thereafter counsel for the appellant sought an adjournment and the following exchange took place: 'KELLAWAY: Before your Honour adjourned, the learned Crown Prosecutor made a reference to whether further inquiry might need to be made of the jury, and I have now had the opportunity to take instructions from my client. It is of concern in the accused's case that a person who is the director of Family and Community Services could be associated with the accused in the sense that that person would be and was responsible for many years for decisions that involved the removal of children from families or from their places of residence. And it would be quite ready to conclude that such a decision wouldn't always be received with popular or a sense of kindness by the people affected by such decisions. It would be clear in my submission that Mr Hailstone was a person who was proposing to give evidence for the accused in that it was for his case, that is there would be ready inference that he was supportive of the accused in one way. Although we didn't get as far into the nature of his evidence, the jury might readily conclude that the accused would not be calling a witness who would be against him in this trial. There is a remedy that the accused would put to your Honour that is consistent with what happened in the case of Elomar and others. That was a situation - HIS HONOUR: A remedy for a situation that the accused has created. KELLAWAY: That is so, your Honour. That was the case in - HIS HONOUR: That is so. What is this proposed remedy in shorthand? KELLAWAY: That your Honour ask the jury that notwithstanding that one of their number knows - HIS HONOUR: One or more. KELLAWAY: One or more of their number knows or knows of Mrs Hailstone, that can they unanimously decide each decide that that fact would not bear upon their ability to bring an impartial verdict in the case against Mr Regan; that they be allowed to retire to consider that and then make their answer. HIS HONOUR: You want to interrogate the jury as opposed to directing them to put that fact out of their mind?"
Counsel for the appellant then requested the trial judge to ask a question in similar terms to that asked of the jury in Elomar v The Queen [2014] NSWCCA 303; (2014) 316 ALR 206 at [304]. The trial judge then asked counsel for the appellant to read the question and the following exchange occurred: "KELLAWAY: 'Are you able to assure the Court that notwithstanding' - I would say in this case, 'that one or more of you know or know of Mrs Hailstone, that each of you is able to discharge his or her task as a juror in this trial impartially?' His Honour then said to the jury that it was a question to be asked of them individually and encouraged them that they could feel that they could give a genuine and honest answer. HIS HONOUR: So in that case did the 12 jurors individually answer? KELLAWAY: It was a single note saying yes or no. HIS HONOUR: What do you say about it, Mr Crown? I think this is not really within the ball park of Elomar, what happened in front of this jury. I thought it was rather innocuous. CROWN PROSECUTOR: It's vastly different than Elomar, your Honour. In this case it's simply a note from the jury saying that there is some knowledge of the wife of a witness. HIS HONOUR: What do you say about this interrogating of the jury then? CROWN PROSECUTOR: Your Honour, initially when your Honour asked me that question, I misunderstood what your Honour was saying and I thought your Honour was referring to this aspect and your Honour had formed a view that something should be done so far as discharging the jury's concern. I don't submit in this case that what has happened is a cause for the jury to be discharged. HIS HONOUR: No one is asking for a discharge at this point. CROWN PROSECUTOR: Well, I'm certainly not, your Honour. HIS HONOUR: No. Mr Kellaway isn't either. CROWN PROSECUTOR: The question really is whether what has happened is such that it required the jury to divulge whether the fact that they have a passing knowledge or some knowledge of the wife of a witness would affect the jury's verdict, and I think it's a long bow to say that the Court could come to that conclusion. HIS HONOUR: Yes. I must say, I don't see the need for it myself. So does the Crown say the question should not be asked of the jury? CROWN PROSECUTOR: Well, your Honour, on reflection, yes. HIS HONOUR: Does it come to that? CROWN PROSECUTOR: Yes."
The trial judge then delivered a judgment on the issue in which he gave reasons for declining to ask the question of the jury. The judge made the following remarks: "The first witness called in the defence case was Mr Richard Hailstone. A point was reached in his evidence-in-chief where his wife's occupation was revealed to the jury. As at that point, nothing further had been revealed of the nature and kind of the evidence that Mr Hailstone was to give. The jury do not know whether his evidence was to be character evidence or whether it was to go to something else associated with the trial. Not for the first time during the course of this trial, it was necessary for me to ask the jury to go outside in order that an inquiry might be made as to whether or not a person who is referred to in the evidence was known to any juror. All of these inquiries of the jury should have been made before the jury was selected from the jury panel in waiting. The jury returned a note (which is MFI 35) which indicated that at least one of the jurors either knew, or knew of, the witness's wife. Counsel for the accused submits that a question in the nature of the Elomar question should be asked of this jury because, in a smallish rural community, it may be that the person (or persons) on the jury who knew, or know of, Mrs Hailstone may have an adverse view of the organisation for which she previously worked (the Department of Family and Community Services), and that, in some way, that would rebound against Mr Regan. In my view, that is a very long bow to draw and I do not propose to either ask the question or indeed even give a direction to the jury addressing the issue."
Mr Hailstone did not return to the witness box. There was no consideration given as to whether this was the appropriate course. Rather, it seemed to be simply accepted by both parties and the trial judge that this was appropriate. There were then two further character witnesses called on behalf of the appellant and thereafter the defence case was closed.
On the following day counsel for the appellant apologised to the trial judge for what occurred. He made the following remarks: "KELLAWAY: The first is by way of courtesy to your Honour in terms of the evidence of the witness Mr Hailstone. Your Honour, my instructing solicitor was the person who took the brief from him and the brief included mention of the career of his wife but not what that career actually was. It was a mistake by me as counsel to ask that open question when the answer to it was not in my instructions. Your Honour, that was the error that I made. That was the first matter."

[5]

The submissions

In his written submissions the appellant submitted that the intervention of the trial judge was "unnecessary". He submitted that "by sending the jury out and conducting a short voir dire, then both informing the jury of the full name and previous position of Mrs Hailstone, and then requiring that the jury provide a note as to whether Mrs Hailstone was known to any of them either personally or through her previous position", the trial judge "created an issue that would otherwise never have arisen". He submitted that by "refusing the application for a question to be posed of the jury as to their capacity to consider the evidence impartially, the trial judge created a situation that resulted in the appellant being deprived of powerful evidence as to his good character".
Senior counsel for the appellant accepted that there were two issues. The first was whether the trial judge had either expressly or impliedly directed that the witness could not be called if any of the jurors knew Mrs Hailstone, and the second was whether the acts of the trial judge, coupled with the concerns of trial counsel for the appellant, led to the course of not resuming the evidence of Mr Hailstone being taken. Senior counsel for the appellant noted, however, that there was no application for leave for the witness to withdraw.
Senior counsel for the appellant submitted that even if it could not be concluded that the judge did not expressly or impliedly direct the witness not be called, the manner in which he "mishandled" the matter led to that course being taken. Senior counsel for the appellant further submitted that Mr Horsburgh, the appellant and the appellant's counsel shared an understanding that Mr Hailstone did not continue to give evidence as a consequence of the trial judge's intervention, as set out in [14] of his affidavit.
The Crown noted that "the trial took place in the country area of Bathurst" and that it was "clear" that the trial judge was "at pains to ensure that no-one on the jury was familiar with any of the witnesses". He submitted that when a person's name was raised, the trial judge on a "number of occasions" "asked the jury to retire and indicate whether or not they were familiar with that particular person".
The Crown submitted that the statement complained of, "I better find out if any of the jury knows her. If the answer to that is 'Yes', this witness will have to stop", cannot be seen "in isolation". He submitted that there was "no application made by counsel for the applicant to continue with the witness".
The Crown submitted that the trial judge was justified in not asking the jury the question sought by trial counsel for the applicant, as the jury did not know what evidence the witness was going to give and it was a "long bow" to "assume that the jury might have been adverse to the appellant because it had been disclosed that his wife was an employee or a manager of the of the Department of Family and Community Services". He accepted that the trial judge "having raised it himself", "dismissed it", submitting that the highest he could put it was that it was "a decision in the atmosphere of the trial".

[6]

Consideration

I have set out what occurred at [14]-[20] above. After what, on one view, was a seemingly innocuous question by counsel for the appellant to Mr Hailstone, the trial judge in the absence of the jury made the inquiries to which I have referred to at [15] above. It was evident, at least at this stage of the proceedings, that the trial judge regarded the matter as one of some significance.
Further, during the course of the discussion which followed, the trial judge quite unequivocally stated that if any member of the jury knows Mrs Hailstone "this witness will have to stop". It is unclear what basis the trial judge had for making that comment.
The jury was then asked the question in [16] and it was answered in the affirmative. The trial judge then refused a request by the Crown to inquire whether the jury's knowledge of the witness (presumably intending to refer to the witness' wife) would affect their verdict although, stating in effect, that it may have to be done during the course of the witness' evidence.
The trial judge subsequently rejected an application by counsel for the appellant to ask a similar question.
Taken in context, it may be that the trial judge could not be said to have directed that Mr Hailstone's evidence not continue. This is because his remarks after the jury had answered "yes" were inconsistent with such a direction. Nevertheless, his initial comment "this witness will have to stop", followed by him raising the issue with the jury and then refusing to have the matter clarified, left the appellant in a position which was quite unfair.
The evidence of Mr Horsburgh was that he understood Mr Hailstone did not continue to give evidence as a result of the intervention and statement of the trial judge that if Mrs Hailstone was known to the jury, the evidence of Mr Hailstone would have to stop. It may be inferred from what occurred that the appellant and his counsel had the same understanding. There was no other reason for not proceeding with the evidence of a favourable character witness. The initial remark of the trial judge coupled with his refusal to clear up the matter by asking the jury whether their knowledge of Mrs Hailstone would affect their ability to consider the matter impartially, deprived the appellant of a fair trial.
For these reasons I joined in the orders made on 22 August 2018.

[7]

The relevant directions

The trial judge provided the jury with a question trail for use when deliberating. That question trail posed the following question (Question 3): "Are you satisfied beyond reasonable doubt that Scott Edward Regan possessed that substance? 'Possession' means that Scott Edward Regan intentionally had the substance in his physical custody or control to the exclusion of any other person; It is Scott Edward Regan's actual knowledge or intention which must be proved, not what some person in his position may have known or intended; Scott Edward Regan's knowledge or intention may be inferred from a consideration of all of the surrounding circumstances, if it is the only rational one in the circumstances - and is not based on speculation or suspicion."
The trial judge also gave the following oral directions: "Can I just expand upon count 1, question 3, which refers to 'substance'. You will note that I have not referred specifically to the bag found on the beam in the workshop, the bag on top of the bookshelves in the back office, the bag under the bark and tiles in the old hearth, or the five resealable bags found in the bark. The Crown does not have to prove beyond reasonable doubt that Mr Regan was in possession of any particular one of them, or in possession of all of them. The question really asks you 'Are you satisfied beyond reasonable doubt that Mr Regan was in possession, as I have defined it, of at least one of those individual finds of drugs?' - treating the five small bags in the bark as one find. In this regard, it is possible some of you might be so satisfied in relation to all of them. Some of you might not be satisfied in relation to all of them, but one or more of them. Even then, you might not all agree on the same one or more. That would not matter. You would answer the question 'yes'. Of course, if you were not satisfied beyond reasonable doubt in relation to any of the finds, you would answer 'no'."
The trial judge also gave the following general direction: "Whatever your verdicts are, you must all agree to it. If your verdict in relation to count 1 is not guilty or guilty, it must be unanimous. Some people think that if a jury cannot unanimously come to a verdict of guilty, that the automatic default position is not guilty. That is not correct. Either way, guilty or not guilty, it must be unanimous. This does not mean that all of you must agree for the same reasons. You might have different reasons for coming to the same results; that is not a problem. The ultimate result, that must be unanimous."

[9]

Consideration

The direction of the trial judge to which I have referred to at [40] clearly left it open to the jury to convict, even if they were not unanimously satisfied that the appellant was in possession of one particular package of drugs providing that each juror was satisfied that the appellant was in possession of at least one package, albeit that the packages in respect of which they were so satisfied were different. Such a direction was incorrect: see The Queen v Klamo; Lane v The Queen. The correct approach was set out in The Queen v Klamo where Maxwell P at [75] cited the following passage from The Queen v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 at 316 with approval: "In R v Walsh, Phillips and Buchanan JJA (with whom Ormiston JA agreed) concluded that the authorities dealing with jury unanimity disclosed two distinct types of case. In a case of the first type, alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts. In such a case, their Honours said: [T]here is no need for a direction on 'unanimity' about one or other or more of these bases, at least if they do not 'involve materially different issues or consequences'. The second type of case, their Honours said: Is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. [Emphasis added.]" The present case falls into the second category of cases referred to in that passage.
The Crown submitted that it was in fact relying on a single criminal enterprise involving proof that all the drugs found on the premises were in the possession of the appellant. That may be so, but that was not how the jury was directed. If that was the way the Crown had put its case, it would have been necessary to direct the jury that they had to be satisfied beyond reasonable doubt that all the packages of drugs were in the appellant's possession, rather than they had to be unanimously satisfied that at least one of them was.
For these reasons Ground 3 has been made out.
HOEBEN CJ at CL: I agree with the reasons given by the Chief Justice for allowing the appellant's appeal against conviction.
PRICE J: For the reasons enunciated by the Chief Justice in respect of Ground 1, I joined in the orders made by the Court on 23 August 2018. I am grateful for the Chief Justice's consideration of Ground 3 and agree with the Chief Justice's reasons that Ground 3 has been made out.

Regan v R

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Catchwords

Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (7)

Cited By (1)