New South Wales Court of Criminal Appeal CITATION : Regina v Maxwell John CHALMERS [2000] NSWCCA 206 FILE NUMBER(S) : CCA 60498/99 HEARING DATE(S) : 29/05/2000 JUDGMENT DATE : 29 May 2000 PARTIES : Regina Maxwell John CHALMERS JUDGMENT OF : Sully J at 1; Adams J at 26 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0246 LOWER COURT JUDICIAL Nader ADCJ OFFICER : COUNSEL : D. Frearson - Crown D. S. Fitzgibbon - Applicant SOLICITORS : S. E. O'Connor - Crown Woodgate Morgan - Applellant LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Criminal Appeal Act 1912 DECISION : Stood over generally with liberty to restore to list on seven days' notice in writing IN THE COURT OF CRIMINAL APPEAL 60498/99 SULLY J ADAMS J 29 May 2000 REGINA v Maxwell John CHALMERS JUDGMENT 1 SULLY J: This is an application by Mr Maxwell John Chalmers for leave to appeal against a sentence of imprisonment that was imposed upon him on 26 July 1999 and in an appropriately corrected form on 27 July 1999 by his Honour Nader ADCJ sitting in the District Court in Newcastle. 2 The applicant had pleaded guilty before his Honour to a charge of supply heroin, an offence contravening s 25(1) of the Drug Misuse and Trafficking Act 1985 and attracting upon conviction a statutory maximum penalty of imprisonment of 15 years and/or a fine of 2000 penalty units. 3 The sentence in fact imposed upon the applicant was one of imprisonment for a minimum term of three years and eight months with an accompanying additional term of one year and three months. 4 So far as concerns the relevant objective facts two bodies of material were placed finally before the learned primary Judge. One of those bodies of material was a statement of objective facts, which statement took the form of a written summary, that became Ex A in proceedings on sentence. 5 The facts thus summarised are set out verbatim on pp 1 and 2 of the remarks on sentence and it is not necessary now to repeat them in their fine detail. 6 The second body of material going to the objective facts of the case took the form of a version of facts put forward by the applicant, who gave evidence and whose evidence was supported, at least to some extent, by evidence given by his wife. 7 The essential features of the applicant's version of the objective facts are summarised as follows by his Honour at pp 6 and 7 of the remarks on sentence: "He claims that his wife's addiction has played a big part in these crimes. In fact I positively disbelieve the most incredible story that he gave me about his wife's involvement in this matter. It goes like this: My wife was seriously addicted and needed heroin. She had a supplier named Hoskins. Hoskins was an addict. Hoskins had a friend who wanted drugs but Hoskins did not want to admit to this friend that he was a supplier so he pretended as it were to his friend, that is Mr De Silva, that Mr Hoskins' supplier was the prisoner and Hoskins introduced the man that wanted the heroin, De Silva, to him. All this was done because the prisoner did not want to offend or displease Mr Hoskins who was supplying his wife with drugs. 8 The story really is in my view quite fantastic and, in the literal sense of the word, incredible. I do not believe it. I think it is nonsense and I think it is just a lie. In fact I am sure it is. I do not disbelieve that Mrs Chalmers was a drug addict but I think this man is simply using his wife's addiction as part of the building blocks of an excuse which he now makes to this Court. In any event, even if the story were true it would be hardly very mitigating in the circumstances." 9 The course of the proceedings before the learned primary Judge was, to say the least, disjointed and somewhat confusing. His Honour does not seem to have received from any quarter coherent and focused assistance of the kind to which he was undoubtedly entitled. In the result, as it seems to me, an unfortunate and undesirable confusion entered into his Honour's process of reasoning concerning matters which had, to say the least, the potential to bear significantly on the question, critically important to the exercise of the relevant sentencing discretion, whether the applicant's version of the relevant objective facts should be accepted in whole or in part. 10 His Honour very early in the remarks on sentence observed that he had found the applicant to be, as his Honour put it: "one of the most unconvincing witnesses I have ever listened to and I believe very little of what he said except where it is manifestly true. I believe his name; I believe that he is a diesel mechanic, or has been; but in relation to the rest of his evidence whilst I do not affirmatively disbelieve it I am unable to place enough reliance upon him to positively believe what he has said which is contentious". 11 A paragraph or so later his Honour observed that, as he understood the fact, it was not conceded by the Crown that the applicant had been introduced to the person with whom he had conducted the relevant dealing by a third party named Jimmy Hoskins. His Honour said: "So there may have been a Jimmy Hoskins, there may not have been a Jimmy Hoskins, I just cannot say." 12 His Honour then dealt with various other aspects of the proceedings; and came presently to the evaluation of the applicant in the terms which I have earlier quoted from pp 6 and 7 of his Honour's remarks on sentence. 13 His Honour continued thereafter to deal with certain other aspects of the proceedings before him; and was then interrupted by learned counsel for the applicant who pointed out that his Honour had been incorrect in his understanding concerning the existence of the man Hoskins. 14 There took place, as recorded on p 8 of the remarks on sentence, a three-way exchange between his Honour and learned counsel then appearing for the Crown and learned counsel for the applicant, which unfortunately did not lead to any, or any precise, re-evaluation by his Honour, or re-analysis by his Honour, or re-assessment by his Honour, of the earlier remarks, predicated as they plainly had been on an error of fact. 15 That unfortunate state of affairs was hardly assisted by the fact that, for reasons wholly unexplained, there was no cross-examination either of the applicant or of the applicant's wife. 16 It seems to me that the result of the proceedings, as I have summarised them, has been to bring about a state of affairs where it is a very real question. Whether the proceedings did not simply miscarry by reason of the applicant's not having had an opportunity to present his case fully; to have it tested properly; and to have it properly evaluated upon a correct understanding of the inferences properly available to be drawn from the facts as admitted or proved. 17 If that be a correct understanding of what happened in the Court below, then what can be done by this Court to rectify that state of affairs is very limited. The powers of this Court derive from the Criminal Appeal Act 1912. Relevantly, the powers of the Court are contained in s 6(3) and in s 12(2). On the view that I take, the powers which the Court has under s 6(3) are not, at least for the present, in point; for the question that has to be resolved is, not whether a sentence is more or less severe than the sentence passed is warranted in law and should have been passed, but the very different question, whether the sentence proceedings as such did not substantially miscarry by reason of the failure to conduct them properly and in a way giving proper natural justice to the applicant. 18 Section 12(2) does not seem to me to assist in such a situation. That power seems to me to be in the nature of an ancillary power available in procedural aid of a substantive power otherwise found in the Criminal Appeal Act. 19 In the view that I take of what has happened in the primary proceedings in the present case, I do not think s 12(2) provides a convenient method of dealing with the Court's present problem. 20 It is a question whether s 12(1) of the Criminal Appeal Act might be of any greater assistance. It is certainly expressed in very wide terms. It speaks, among other things, of a supplementary power in the Court to do "in relation to the proceedings of the Court" anything else which may for the time being be done by the Supreme Court on appeals or applications in civil matters. 21 I do not think, however, that those words, read fairly in the context of the entirety of s 12(1), will give this Court power in effect to extend prerogative relief in context of an application for leave to appeal against the severity of sentence. 22 My own view is that what ought to happen is that consideration should be given by those charged with the responsibility of representing and advising the applicant to the making of an application in the Court of Appeal for relief in the nature of prerogative relief concerning the proceedings before the learned primary Judge. 23 I express, of course, no view as to whether or not those proceedings, if taken, should have any particular result. That is not a matter, as I see it, for this Court. All that I am saying is that it seems to me that in the event that they happen, proceedings of that character would properly get before an appropriate Court an opportunity to review, and if thought proper to correct, any miscarriage in the Court below by reason of a failure in fact to do natural justice to the applicant. 24 I myself would favour, so far as concerns the present application, a simple order standing it over generally with liberty to restore it to the list upon seven days' notice in writing. That will afford the applicant an opportunity to get some advice as he may wish, to get such action as he may wish; and should he desire simply to restore the present application to the list in this Court, to take that action. In that latter regard it would be appropriate for the matter, if so dealt with, not to be treated as part-heard before the Bench as now particularly constituted. 25 I would, therefore, order simply that the present application be stood over generally with liberty to restore it to the list on seven days' notice in writing. 26 ADAMS J: I agree with the order proposed by the learned presiding judge and with his Honour's reasons. However, as at present advised I am uncertain whether, if it were appropriate, the Court of Criminal Appeal in considering leave to appeal against sentence, does not have power under s 12(1) of the Criminal Appeal Act 1912 to deal with the matter as on an appeal to the Court of Appeal providing, of course, proper amendments were made to the documents instigating the jurisdiction of the court. 27 But whether that is so or not, I do not think the power here relevant should be exercised by a court comprising two judges which is constituted under the arrangements which presently apply. If this were a Court of Criminal Appeal comprising three judges it may, perhaps, have been differently disposed of. 28 Either way it seems to me, if I may say so with respect, the mode of disposal of this appeal is correctly provided for in the orders proposed by the learned presiding judge. 29 SULLY J: The orders of the court will be, then, as I have announced them. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.