R v SLATTERY [2002] NSWCCA 145

New South Wales Court of Criminal Appeal

CITATION : R v SLATTERY [2002] NSWCCA 145 FILE NUMBER(S) : CCA 60702/98 HEARING DATE(S) : 1 March 2002 JUDGMENT DATE : 1 May 2002

PARTIES : Appellant: Carl Rodney Slattery Respondent: Crown JUDGMENT OF : Sheller JA at 1; Grove J at 33; Simpson J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0526 LOWER COURT JUDICIAL Knight DCJ OFFICER :

COUNSEL : Appellant: In person Respondent: P Barrett SOLICITORS : Appellant: In person Respondent: CATCHWORDS : CRIMINAL LAW - Drug Misuse and Trafficking Act 1985, s23(2)(a) - directions to jury - "reasonable explanation" consistent with innocence - fabrication of evidence - memory loss Drug Misuse and Trafficking Act 1985 LEGISLATION CITED : De Facto Relationships Act 1984 Felon (Civil Proceedings) 1981 R v Oliverio Court of Criminal Appeal, 30 August 1989, (unreported) CASES CITED: Shepherd v The Queen (1990) 170 CLR 573 Peacock v R (1911) 13 CLR 619 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60702/98

SHELLER JA GROVE J SIMPSON J

REGINA v Carl Rodney SLATTERY The appellant was found guilty by a jury of knowingly taking part in the cultivation of cannabis plants, contrary to s23(2)(a) of the Drug Misuse and Trafficking Act 1985. He was sentenced to a minimum term of one year, ten months and five days imprisonment. The appellant appealed against both his conviction and sentence. It was argued that the appellant provided assistance and/or supplies to unknown persons, with the knowledge that such equipment and supplies would be used in the furtherance of the cultivation of cannabis. The Crown's case at trial was based on the evidence given by police officers as to the existence of the crop site, the statements made by the appellant's former de facto partner and circumstantial evidence. The appellant alleged that the trial Judge had erred with respect to the directions which had been given to the jury regarding the requisite knowledge of the accused as to the actual cultivation of the cannabis plants. Further, it was claimed that the trial Judge failed adequately to direct the jury that an alternative explanation for the circumstantial evidence must be excluded. The appellant also relied on medical evidence in order to argue that his defence had been impaired at trial because of profound memory loss. Claims that the evidence of the appellant's former de facto partner and certain police officers was fabricated were also advanced on appeal. HELD (per Sheller JA, Grove J and Simpson J concurring) 1. An analysis of the trial Judge's summing up did not support a finding that his directions cast the onus on the appellant to point to a reasonable explanation consistent with his innocence. There is a fine distinction to be drawn between not finding an accused guilty if there is a reasonable explanation which is consistent with his innocence and not finding the accused guilty unless there is no reasonable explanation which is consistent with innocence. 2. The appellant's claims about his memory loss were inconsistent with much of the evidence which he gave in chief and under cross-examination at trial. The arguments raised about the credibility of the evidence of his former de facto partner were adequately addressed by the trial Judge in his directions to the jury. The claims of fabrication of evidence and profound memory loss were both dealt with at first instance. 3. The appellant's challenge to the sentence imposed by his Honour failed. His claim that the trial Judge did not take into account time served on remand was irrelevant as that time was served in relation to another offence. ORDERS Appeal dismissed