New South Wales Court of Criminal Appeal CITATION : R v Chapman [2002] NSWCCA 105 FILE NUMBER(S) : CCA 60254/01 HEARING DATE(S) : 04/12/01 JUDGMENT DATE : 12 April 2002 PARTIES : Regina Louise Jane Chapman JUDGMENT OF : Stein JA at 1; Hidden J at 2; Howie J at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0278 LOWER COURT JUDICIAL Puckeridge DCJ OFFICER : COUNSEL : SJ Odgers SC - Appellant WG Dawe QC - Crown SOLICITORS : DJ Humphreys - Appellant SE O'Connor - Crown CATCHWORDS : Criminal law: Appeal against conviction - wrongful rejection of evidence going to accused's good character - omission to lead other evidence of good character - whether miscarriage of justice. LEGISLATION CITED : Drug Misuse & Trafficking Act 1985 Evidence Act 1995 CASES CITED: Mraz v The Queen (1955) 93 CLR 493 @ 514. DECISION : Appeal allowed. IN THE COURT OF CRIMINAL APPEAL 60254/2001 STEIN JA HIDDEN J HOWIE J Friday, 12 April, 2002 REGINA v Louise Jane CHAPMAN Judgment 1 STEIN JA: I agree with Hidden J. 2 HIDDEN J: The appellant, Louise Jane Chapman, was tried by judge alone in the Armidale District Court upon an indictment containing two counts: firstly, deemed supply of methylamphetamine (s 25(1) and s 29 of the Drug Misuse and Trafficking Act) and, secondly, supplying amphetamine on an ongoing basis during the first fortnight of October 1999 (s 25A(1) of the Act). The learned trial judge acquitted her of the first count but found her guilty of the second. He sentenced her to imprisonment for eighteen months, to date from 23 March 2001, with a non parole period of eight months. That non parole period had expired at the time this appeal came on for hearing. She appeals against conviction only. Before us, both parties were represented by counsel other than those who had appeared at the trial. The trial 3 There was direct evidence of the second count in the testimony of Dean McDonald. He said that the appellant supplied him with amphetamine at her home on nine or ten occasions in the first half of October 1999. For the most part he paid cash but towards the end of that period he bought the drug on credit, owing the appellant about $200. 4 Mr McDonald was living at the time with Monique Martijn. She gave evidence that on 15 October 1999 the appellant came to their home, looking for Mr McDonald and saying that he owed her money. Mr McDonald was not there at the time. According to Ms Martijn, the appellant went to his room, took some items belonging to him, and left the house. Ms Martijn later observed that Mr McDonald's filofax was missing, although she did not see the appellant take it. In the small hours of the following morning, she said, two men carrying baseball bats came to the house, also looking for Mr McDonald. 5 According to Mr McDonald, these events persuaded him to go to the police, to whom he revealed his amphetamine use and claimed that the appellant had been his supplier. On 17 October 1999 police executed a search warrant at the appellant's home, where they found Mr McDonald's filofax. It was the Crown case that the appellant told police that the filofax was hers. Also found in the appellant's bedroom was a wooden box which contained a number of items, including a quantity of white powder in a plastic resealable bag. Mr McDonald gave evidence that, when the appellant supplied him with amphetamine, she obtained it from an old tobacco tin kept in a wooden box in her bedroom. 6 The white powder was found upon analysis to contain methylamphetamine, and it was the subject of the first charge (deemed supply). Also found were syringes, swabs, plastic resealable bags, a calculator and two sets of scales. 7 Mr McDonald also gave evidence that he had been introduced to the appellant as a supplier by a mutual friend of theirs, Kelly Brown. Ms Brown was called in the defence case to deny this, and it was something that occurred in the course of her evidence which gives rise to the first ground of appeal. To this I shall return. 8 The appellant gave evidence, denying that she sold amphetamine to Mr McDonald or, indeed, to anyone. She said that she had met Mr McDonald through Ms Brown, but the introduction had not been for the purpose of her supplying him with drugs. She agreed that she had gone to his home on 15 October 1999, but she said that it was for the purpose of recovering money which Mr McDonald owed to her boyfriend, Douglas Knight, for computer games. She denied taking anything from the house, and could not explain how Mr McDonald's filofax came to be in her bedroom. 9 She had driven to Mr McDonald's home on that occasion in the company of Douglas Knight and another young man, Samuel Zeller. Both of them gave evidence which supported her account of the reason for the visit. 10 The appellant admitted having been a heavy user of amphetamine at the relevant time. She was a university student, working part time and doing her best to raise two children. She said that she was trying "to be superwoman", and started using the drug in 1999 to help her stay awake and cope with her various commitments. By August of that year, she said, her drug use was out of control. To reduce the expense of it, she would buy it in bulk and divide it into daily doses. This was her explanation for her possession of articles such as scales and plastic bags, commonly associated with the supply of drugs. 11 As I have said, his Honour acquitted the appellant of the first count. His reasons for doing so are not relevant for present purposes. It is sufficient to say that he was satisfied on the balance of probabilities that she was in possession of the drug found by the police for her own use, rather than for supply. 12 His Honour recognised that Dean McDonald was the principal witness in the Crown case. He recognised the need for careful scrutiny of the evidence of Mr McDonald, which he found unsatisfactory in some respects. Equally, he questioned the reliability of Ms Martijn's recollection of the events of 15 October 1999. However, he considered the finding of the filofax to be "compelling evidence" in support of the account of both of them, and he found further support for the evidence of Mr McDonald in the finding of the wooden box. It was in the light of this corroborative material that his Honour found the second charge made out. The appeal 13 As I have said, Kelly Brown was called in the defence case to deny that she had introduced Mr McDonald to the appellant for the purpose of his being supplied with drugs. At the end of her examination in chief, defence counsel asked her what was her opinion of the appellant. That question was objected to. Asked how it was relevant, counsel said that it went to the appellant's character. The Crown prosecutor pressed his objection upon the basis that it went to credibility only and was prohibited by s 102 of the Evidence Act. His Honour rejected the evidence. 14 In an affidavit filed in this Court, trial counsel explained that he wished to lead from Ms Brown that, in the light of her association with the appellant, she did not believe that she was a person who would be involved in the supply of drugs. Whether or not it would have been admissible in precisely that form, it is clear that counsel sought to lead favourable evidence about the appellant's character in accordance with s 110 of the Evidence Act. The Crown prosecutor in this Court acknowledged as much and conceded that the question should have been allowed. (In fairness to his Honour and the Crown prosecutor at trial, it may be that they misunderstood what defence counsel was putting in argument because of something which occurred in the course of the evidence of an earlier witness. However, it is unnecessary to elaborate upon this.) 15 It is the rejection of this evidence which gives rise to the first ground of appeal. A second ground, added by leave at the hearing, asserts a miscarriage of justice resulting from the failure of trial counsel to adduce evidence that the appellant had no prior convictions. In his affidavit, counsel frankly acknowledged that his failure to do so was an oversight. 16 The Crown prosecutor in this Court, whilst acknowledging that the first ground of appeal was made out, made no concession about the second. His only submission was that, in the circumstances of the case, the absence of evidence of the appellant's good character occasioned no miscarriage of justice, so that the second ground was not made out and the proviso should be applied to the first. He argued that there was a strong Crown case, particularly in the light of the corroborative evidence to which I have referred, and that the effect of any character evidence would have been negated by the appellant's own admission of her drug abuse: an admission that, even though she had no criminal record, she had in fact been a persistent offender to that extent. 17 I can see the force of both those submissions, and it must be said that trial counsel's affidavit does not elaborate upon the nature of the character evidence which Ms Brown might have given. On the other hand, while it is true that the finding of the filofax and the wooden box added considerably to the strength of the Crown case, the evidence of Mr McDonald and Ms Martijn suffered from the deficiencies identified by his Honour and, in important respects, the appellant's account had the support of the evidence of Ms Brown and the two men who accompanied her to Mr McDonald's home on 15 October. In these circumstances, evidence of the appellant's good character may well have been of significance. 18 In argument upon the second ground of appeal, neither counsel dealt with the circumstances in which an omission by counsel at trial might amount to a miscarriage of justice and it is unnecessary to revisit that issue. Submissions centred in a practical way upon the question whether, as the result of the absence of evidence of good character generally, the appellant had lost a fair chance of acquittal: cf Mraz v The Queen (1955) 93 CLR 493, per Fullagar J at 514. In my view, this appellant did. As senior counsel appearing for her pointed out, there is a marked distinction between a user of drugs and a supplier of them (whilst acknowledging that many users are, by force of circumstances, also suppliers.) The appellant was almost forty one years old at the time of these events. In the light of the circumstances giving rise to her use of illicit drugs, evidence that she was otherwise of good character might have been sufficient to create a reasonable doubt about her guilt. 19 I would allow the appeal. The question of the consequential order which should be made has troubled me. Ordinarily, the appropriate course would be to order a new trial, given that there is a substantial case against the appellant. However, she has now served the whole of her non parole period and a little over two thirds of her head sentence. In those circumstances, I would propose that verdict and judgment of acquittal on the second count be entered. 20 HOWIE J: I agree with Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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