New South Wales Court of Criminal Appeal CITATION : R v SEYMOUR [2001] NSWCCA 272 FILE NUMBER(S) : CCA 60582/2000 HEARING DATE(S) : 12 April 2001 JUDGMENT DATE : 12 April 2001 PARTIES : Regina John William Seymour JUDGMENT OF : Giles JA at 1; Studdert J at 2; Hulme J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1222 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : Crown: P Hock Appellant: SJ Odgers SC SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys DECISION : Appeal in part allowed; Conviction on second count quashed; Order that there be a new trial on that count; Otherwise appeal dismissed - 8 -IN THE COURT OF CRIMINAL APPEAL No: 60582 of 2000 GILES JA STUDDERT J HULME J 12 April 2001 REGINA -v- John William SEYMOUR JUDGMENT 1 GILES JA: I agree with Hulme J. 2 STUDDERT J: I agree with Hulme J. 3 HULME J: On 10 July 2000, this Appellant was indicted on 3 charges, viz:- 1. That he, on 1 December 1998 at Dharruk … did supply a prohibited drug - namely methylamphetamine, the quantity of which was not less than the commercial quantity for that drug 2. That he, between 6 October 1998 and 1 December 1998 at Dharruk … on not less than 3 occasions in a period of 30 consecutive days, did supply a prohibited drug - namely methylamphetamine 3. That he, on 1 December 1998 at Dharruk … did possess a firearm - namely a Beretta pistol, not being authorised to do so by licence or permit. 4 The jury were unable to agree on the first of these charges. On 24 July 2000, the Appellant was convicted of the second and third. On 11 August 2000 Judge Luland sentenced the Appellant to 5 years imprisonment commencing on 18 March 1999 with a non parole period of 3½ years on the second charge and a fixed term of 12 months imprisonment on the third charge. 5 On 12 April last the Appellant's appeal came before this Court. The Court ordered that the appeal against the conviction on the second count be upheld, that that conviction be quashed, that there be a new trial on that count but otherwise the appeal be dismissed. The Court said that it would published its reasons later. These are they. 6 The second charge was brought under s25A of the Drug (Misuse and Trafficking) Act which, so far as is relevant provides:- (1) Offence provision A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. (3) Jury must be satisfied as to same 3 occasions of supply If, on the trial of person for an offence under this section more than 3 occasions of supplying a prohibited drug are relied on as evidence of commission of the offence, all the members of the jury must be satisfied as to the same 3 occasions in order to find the person guilty of the offence. 7 In support of the charge the Crown relied, to quote his Honour in summing up, "heavily, if not almost exclusively" on the evidence of a Mr William Grumsen. There was some variation in Mr Gumsen's evidence but it was to the effect that the supply had occurred:- · On a Saturday 3 or 4 days before 1 December 1998. The previous Saturday was 28 November 1998) · During October, November, and · Once about a week or two before the Accused moved into premises where they were living. (The witness fixed or agreed with this being at or towards the end of September.) 8 Mr Grumsen's estimate, or figures with which he agreed, of the number of packets or occasions of supply varied between "six to eight. I'm not quite sure how many", "about eight", "once a week", never more frequently (than once a week), and not more than 11 purchases. 9 Another witness, a Mr Williams, on whom the Crown also relied, said that he moved into the premises in September and when he did the Appellant was living there. He also said that the Appellant supplied him on a few occasions and dealt to numerous people 24 hours a day, 7 days a week. The Appellant's case was that he had never supplied drugs to Mr Grumsen at all. 10 The matter was left to the jury on the basis of the matters referred to in the immediately preceding 2 paragraphs. Prior to the jury's verdict, no-one, judge nor counsel (who were different from those appearing in this Court) adverted to the requirement of sub-section 25A(3). When during the course of the sentencing proceedings his Honour did so, the Crown Prosecutor suggested the matter was academic because the jury would either have accepted or rejected the totality of Mr Grumsen's evidence on the topic. Defence counsel conceded that he was unaware of the requirement. 11 The failure to direct the jury in accordance with s25A(3) is the first ground of appeal, the Crown responding with the argument to which I have just referred. I have no difficulty with accepting the proposition that the jury could not rationally choose between the occasions which were the subject of Mr Grumsen's lower estimate of the number of times he was supplied. However the variation or imprecision in his testimony means that no assumption can be made that the jury accepted more than that evidence least favourable to the Crown. 12 That evidence was to the effect that he was supplied by the Appellant on 6 occasions in the period consisting of the last 2 weeks of September, October and November 1998. It is impossible to predicate how many of these occasions occurred in the period covered by the charge - a period of 56 days, or when they occurred. It is thus impossible to predicate beyond reasonable doubt that 3 of those occasions were within a period of 30 days. Of course, had the jury accepted the evidence that there was supply once a week, then clearly the requirements of the s25A(1) would have been established but that evidence conflicts with so much of the other evidence to which I have referred that one could not conclude that the jury should or must have accepted it. 13 However in the absence of more specificity as to the occasions of supply relied on than is apparent from the above, there is a more fundamental point. There was no identification of the 30 day period. Thus the charge encompasses the 30 day period from 6 October 1998 and the 30 day period concluding on 1 December and the other twenty-five or so 30 day periods commencing on the 7th and subsequent days of October. Absent further particularity, and there was none, there was a latent defect in the charge. 14 I do not suggest that if there is reasonably particularity of the occasions of supply relied upon, in all cases the Crown need also identify the 30 day period referred to in a charge under the section but it cannot proceed on a charge as vague as it did here. The circumstances are not appropriate for application of the proviso and it was thus the conviction on the second count had to be quashed. 15 The inconsistencies in the evidence as to the occasions of supply argue in favour of the view that the Court should not order a new trial. However, a consideration of transcript and the summing up suggest that at no time did anyone advert to the inconsistencies and in these circumstances, I am not prepared to conclude that the Prosecution case was such that the Crown should not have the opportunity of again proceeding against the Appellant. Subject to any exercise by the Director of Public Prosecutions of his discretion, there should be a new trial. 16 I turn to the appeal against the conviction on the third count. The only issue in controversy so far as this count was concerned was that of possession. The pistol, in a disassembled state was found by police on 1 December 1998 in a wardrobe of a bedroom and in a shopping bag which seems to have come from a clothing establishment called "Valley Girl". There was found with the pistol a laser firearm sight. There was evidence that the bedroom was occupied by the Appellant although there was other evidence that a female witness in the case used the room from time to time and seems to have slept in that room with the Appellant on occasions. She denied knowledge of the gun, as did the Appellant. In issue also was whether the bedroom was the Appellant's. 17 Other evidence bearing on the issue of the Appellant's possession came from a Mr Williams. It was to the effect that he had seen the Appellant with a pistol. He gave a description of the weapon which, while it contained some specificity, was not enough to provide accurate identification. He was then shown the weapon found by the police and, in response to a question whether he recognised it said that it was the gun he had seen. 18 There was no evidence of any out-of-court identification by Mr Williams and the jury were not given any warning concerning the dangers of the identification evidence of Mr Williams. No warning was sought. It has been submitted to this Court that a warning should have been given, reliance being placed on the decisions of R v Clout (1995) 41 NSWLR 312 and Lowe (1997) 98 A Crim R 300 at 314-8 19 There was also evidence not subject to challenge that in the same wardrobe in which they had found the pistol, the police also found a laser sight for a firearm. Mr Williams gave evidence that within a maximum of 2 days after the occasion of seeing the pistol he had also seen the Appellant with a laser sight. This was the subject of complaint at that time by the Appellant that he had to squeeze too hard to make the laser come on. The Appellant said that he was going out to buy another one and Mr Williams at some time saw a second. Mr Williams said that on another occasion he saw the Appellant playing with the gun and one of the sights. 20 In Lowe Hunt CJ at CL, with the concurrence of the other members of the Court said:- I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, objection identification is not a distinct category of evidence. 21 In this case, I do not see the evidence of Mr Williams as to the identity of the pistol as a significant part of proof of the Appellant's guilt on the third count. The issue was whether the Appellant had possession of a pistol on 1 December 1998. The pistol the subject of the charge was the one the police said that they found that day in the bedroom. Even had Mr Williams said that he could not identify the pistol he saw, there was a wealth of evidence to the effect indicated linking the Appellant with the weapon. 22 It must be acknowledged that his Honour in the course of his summing up said that the case in respect of this count relied entirely upon the evidence of Bradley Williams. With respect, this statement is clearly wrong. Indeed his Honour within a few lines went on to refer to the Crown's reliance on the presence of the weapon in the Appellant's bedroom. In any event, while the evidence of Mr Williams was very important his evidence was not confined to the identification of the weapon but to having seen the Appellant with not only a pistol but also with, and making remarks concerning, one or more laser sights, one of which, as has been said, was also found in the Appellant's bedroom. Laser sights are not items commonly to be found. 23 On behalf of the Appellant it was also submitted that the jury's inability to agree in respect of the first count showed that they were not disposed to conclude from the fact that items found were in the wardrobe that they were in the possession of the Appellant since the drugs the subject of the first charge were also found there. This argument should be rejected. For while such a conclusion is consistent with the jury's inability to agree, possession was not the only aspect of that charge which was in dispute. His Honour's summing up made it clear that there was also a question whether the Appellant's knowledge extended to knowing that the amount of the drug was as great as a commercial quantity. 24 Thus the challenge to conviction on the third count failed. ************************************************************** 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.