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[2011] NSWCCA 159
Court of Criminal Appeal (NSW)
2010-12-01
James J, Hislop J, Price J
Original judgment source is linked above.
Judgment 1JAMES J: I agree with Hislop J. 2HISLOP J : On 31 May 2007 adjoining premises at Coniston were searched by police. In one of the premises (No 14) the police discovered a hydroponic cultivation set-up involving some 69 cannabis plants. They also discovered approximately 7 kilograms of cannabis drying in a upstairs bedroom. No 14 was owned by the appellant as were the adjoining premises, 1/12 and 2/12. The appellant and his wife lived in 2/12, 1/12 and 14 were unoccupied. 3As a result of the search, the appellant was charged as follows: "Count 1 For that he on 31 May 2007 at Coniston in the State of New South Wales did knowingly take part in the cultivation of prohibited plant, namely 69 cannabis plants, by enhanced indoor means, being a number not less than the commercial quantity applicable to that plant. Count 2 For that he on 31 May 2007 at Coniston in the State of New South Wales did supply prohibited drug, namely cannabis." 4Initially the appellant pleaded guilty to those charges. However, he gave evidence on sentence traversing his pleas, which he was then permitted to withdraw. 5The appellant was arraigned before judge and jury on 31 May 2010. He entered pleas of not guilty. He represented himself at the trial. He had some pro bono assistance in respect of his defence. 6The appellant did not give evidence at the trial. An edited version of the evidence he had given in the discontinued sentence proceedings wherein he advanced a defence of duress was tendered by the Crown. His wife and ex-wife were called to give evidence in his case. 7The appellant's case on duress was that around June/July 2006 he was confronted in his own home by three men who threatened him with a gun and ordered him to do what he was told, that he was to allow these persons to cultivate cannabis at No 14, and he was to assist them in this regard. 8The crucial issue at trial was whether the appellant had been involved in the offences whilst acting under duress. The appellant submitted that he was not guilty of either offence because the Crown had not established beyond reasonable doubt that the offences were not committed as a result of duress which caused him to act as he did. 9The jury returned a verdict of guilty on each count. 10The appellant was sentenced to a non parole period of nine months imprisonment with a balance of term of two years imprisonment on the first count and a fixed term of six months imprisonment on the second count. The sentences were to be served concurrently. They commenced on 16 June 2010. 11The appellant has appealed against conviction. The grounds of appeal are: "1. The evidence relating to the financial affairs of the appellant should not have been admitted into evidence. 2. His Honour erred in his direction to the jury about the appellant's financial affairs by simply saying to have regard to it, without identifying how or in relation to which charge. 3. His Honour erred by failing to direct the jury at all in relation to the way in which the evidence of the appellant's financial affairs could be used to rebut the defence of duress. 4. The evidence on to the purchase of various properties by the appellant should not have been admitted into evidence. 5. The evidence, having been admitted, required a special direction as to how the jury should deal with it in relation to one or both of the charges, and there was none." 12The Crown case, seeking to negative duress, was circumstantial in its nature. It relied, inter alia, upon the following evidence: (a) the Coniston premises were purchased in March 2004; (b) hydroponic equipment was found during the search of 2/12. That equipment was very similar to equipment located at No 14; (c) the appellant's fingerprints were found on transformers inside No 14. The appellant's DNA was on overalls found inside No 14; (d) a supplier's price list for hydroponic equipment dated November 2004 was found in No 2/12; (e) a receipt paid by the appellant for hydroponic equipment purchased in 1 October 2004 was found in No 14; (f) banking records for the period March 2006 to 31 May 2007 showed that in that period the appellant deposited a total in excess of $250,000 into his bank account. The deposits were largely in cash. The appellant was not employed during that period; (g) the appellant purchased six properties during the period 2004 to May 2007 and maintained mortgages on those properties during that time; (h) lies and inconsistencies on the part of the appellant and his witnesses. 13The Crown, in addressing the jury, concluded: "So when you take into account all those matters, I suggest the conclusion is compelling, ladies and gentlemen, that this cannabis operation on the accused's property at Coniston was the accused's operation which he more than likely started, you might think, not long after he bought the house in 2004. The whole story about it starting in 2006 when these people came knocking on his door is nothing more than a story that is made up, I suggest, in order to try and avoid punishment. You can be satisfied of that, ladies and gentlemen, beyond reasonable doubt. That's the Crown's main submission."
Admission of evidence (Grounds 1 and 4) 14The Crown initially proposed to rely only upon banking records from March 2006 to May 2007. However, the appellant, in opening his case to the jury, indicated that as to funds, he would have to go back a little further. This caused the Crown to raise with his Honour (the appellant being unrepresented) the question of whether it was necessary for the Crown to tender earlier banking records. The following exchange then ensued: "[TRIAL ADVOCATE]: ...For one thing if Mr Vacic is not going to be dealing with matters - financial matters before 2006 then the other materials are probably irrelevant and shouldn't be presented to the jury. HIS HONOUR: All right well what is your intention in relation to the financial position, Mr Vacic. The Crown was going to introduce some documents attempting to detail your financial position going back to 2006. Are you going to be talking to the jury about matters before 2006? ACCUSED: Yes sir. HIS HONOUR: So in that case Mr Crown you will probably have to lengthen it to 2004. [TRIAL ADVOCATE]: Yes, I'll do that." The appellant did not object to the tender of the records from the end of 2003 to May 2007. This was an informed decision. The appellant later objected to the tender of banking records from 2001 to 2002. 15The appellant's primary submission was that the evidence as to the depositing of sums of money in the bank account was inadmissible as it was not relevant to the issue of duress. Counsel for the appellant did not seek to differentiate between the bank records and the evidence as to the purchase of properties. 16The bank records for the period March 2006 to May 2007 showed the receipt by the appellant, in total, of a substantial sum of money over the period when he was not employed. It was accepted that most of the deposits were in cash. 17In my opinion, it was open for the jury in the circumstances of this case to conclude that the bank records from March 2006 to May 2007 showed the receipt of profits by the appellant from the cultivation of cannabis at No 14 and that the receipt of profits from that cultivation by the appellant was incompatible with the appellant's case that the cultivation was being carried out by or on behalf of those who allegedly had subjected him to duress. 18Accordingly, the evidence of the bank records for the period March 2006 to May 2007 was relevant and admissible. The records for the period from the end of 2003 to March 2006 were admitted in the circumstances previously outlined. They, in my opinion, were admissible. The appellant did not object to the tender of the documents and sought at the trial to rely upon material relating to his financial position. 19As earlier observed, the Crown in final submissions submitted the jury may consider it was more than likely that the cultivation at No 14 started not long after the appellant bought the house in 2004, well before the alleged duress. The appellant submitted there was not a scintilla of evidence that demonstrated there had been an ongoing cultivation for any period of time. I do not agree. There was evidence the premises were purchased in 2004, the plants were of differing maturity and the harvested leaf indicated there was an ongoing cultivation. There were receipts going back to 2004 for hydroponic material and a price list which were found in the appellant's home office. 20The appellant submitted that the evidence was used by the Crown as tendency or coincidence evidence and that no regard was had to the statutory constraints upon such use. It was submitted in written submissions that the evidence was used as indicating the appellant had a tendency to cultivate cannabis which became a reality for some years prior to his arrest. In oral submissions it was contended "It's a tendency that he had over a period of years, three years, to cultivate, produce a crop, harvest it and sell it." In my opinion, this submission is misconceived. The Crown case was that the appellant cultivated cannabis at No 14 for a period of time and there was evidence that period of time may extend back to 2004. This was not a case of tendency evidence. 21In my opinion, the evidence as to the banking records and property transactions was relevant and was properly admitted as part of the circumstantial case against the appellant in rebuttal of the allegation of duress.
His Honour's direction to the jury (Grounds 2, 3 and 5) 22The appellant submitted that if the evidence of financial matters was admissible to rebut duress, it required a clear and specific direction to the jury as to how that evidence should be dealt with. There was no such direction. 23His Honour directed the jury as to circumstantial evidence and as to questions relevant for the jury to consider when determining the question of duress. His Honour reminded the jury that the appellant's case was that he had always been involved in legitimate work to make a living and not drugs and that the Crown, by reference, inter alia, to the bank records, had submitted that the jury should be satisfied there was no truth in the allegation of duress. The issue was a simple one. No special directions were required - King v R [2008] NSWCCA 101; (2008) 184 A Crim R 304 at [80].
Conclusion 24In my opinion, no error has been demonstrated. There has been no miscarriage of justice. The appeal should be dismissed. 25PRICE J: I agree with Hislop J.
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Vacic
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