R. v. BOYD [2000] NSWCCA 110

New South Wales Court of Criminal Appeal

CITATION : R. v. BOYD [2000] NSWCCA 110 FILE NUMBER(S) : CCA 60736/98 HEARING DATE(S) : 24 March 2000 JUDGMENT DATE : 10 August 2000

PARTIES : Regina (Respondent) Gregory Stuart Boyd (Appellant) JUDGMENT OF : Powell JA at 1; Hulme J at 40; Dowd J at 45

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC92/31/0553 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : M.C. Marien (Respondent) G.P. Craddock (Appellant) SOLICITORS : S.E. O'Connor, Solicitor for Public Prosecutions (Respondent) T.A. Murphy, Legal Aid Commission (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Plea of guilty - Appeal - Setting aside conviction on appeal after plea of guilty DECISION : Leave to appeal granted.; Appeal Dismissed.; Conviction and sentence confirmed.

IN THE COURT OF CRIMINAL APPEAL

CCA 60736/98 DC 92/31/0553

POWELL JA HULME J DOWD J

10 August 2000

R. v. BOYD

JUDGMENT 1 POWELL JA: On 30 May 1994, the Appellant was arraigned before McGuire DCJ in the District Court at Gosford on a charge that, on 23 June 1992, at Long Jetty, New South Wales, he did supply a prohibited drug namely heroin (Drug Misuse and Trafficking Act 1985 s. 25(1)) - reduced to its essentials, the case which the Crown set out to prove was that on 23 June 1992, when searched by Det. Ison, who was accompanied by Det. Richardson, the Appellant was found to have in the left pocket of his jeans a number of small resealable plastic bags containing white powder, which powder, when analysed, was found to contain heroin, the total weight of the powder being 5.81 grams, that being both a trafficable quantity and an indictable quantity. To that charge the Appellant pleaded not guilty. 2 30 May 1994 was the second occasion on which the Appellant had been indicted on that charge. On 1 June 1993, the Appellant had been arraigned before Urquhart DCJ on that charge and, as in May 1994, had pleaded not guilty. Following that plea, the Appellant had been tried before Urquhart DCJ and a jury of 12, the trial proceeding into the fifth day when, the jury being unable to reach a verdict, they were discharged. 3 At the time of the Appellant's trial in 1993, he was represented by Mr. G. V. Bellamy, then a solicitor of this Court of some 21 years standing and, as I am led to believe, a solicitor of some experience with criminal law and practice. 4 In an Affidavit sworn by him and tendered on the hearing of this appeal, Mr. Bellamy deposed that the Appellant's instructions to him throughout the trial before Urquhart DCJ were that he had never been in possession of the heroin said to have been found in his possession and that the drugs had been planted on his person by the arresting police. 5 The transcript of the oral evidence given by Mr. Bellamy on the hearing of the appeal (T.10) records the following, the relevance of which will shortly appear: "Q. And, as I understand it, from what I have seen of the transcript or that part of it, Mr. Boyd's case before Judge Urquhart was he had been 'loaded up'? A. Yes. Q. Loaded up by Dets. Ison or Richardson? A. Yes I think it is. Q. Do you recall when you examined Mr. Boyd in chief in the trial before Judge Urquhart you obtained from him evidence that at the time when he was approached by Det. Ison and Det. Richardson there were a number of other patients around about to go into or having just come out of the methadone clinic? A. Yes. Q. Do you also recall that you sought from Mr. Boyd evidence as to his having spoken to those other people about giving evidence? A. Yes. Q. And were those people Mr. and Mrs. Laird,, Mr. McCorrester (sic) and the O'Sullivans? A. Yes, they sound familiar names. Q. Those are the people who gave evidence at the Royal Commission, were they? A. I wasn't aware this matter was before the Royal Commission until I spoke to counsel."