R v Macris [2004] NSWCCA 261

Reported Decision : 147 A Crim R 99

New South Wales Court of Criminal Appeal

CITATION : R v Macris [2004] NSWCCA 261 HEARING DATE(S) : 8 July 2004 JUDGMENT DATE : 3 August 2004

JUDGMENT OF : Studdert J at 1; Kirby J at 2; Hislop J at 3 DECISION : Appeal upheld; convictions and sentences quashed; new trial ordered.

LEGISLATION CITED : Evidence Act, ss 89, 137 Azzopardi v The Queen (2001) 205 CLR 50 CASES CITED : R v OGD (1997) 45 NSWLR 744 R v Naudi [1999] NSWCCA 259 R v Nguyen [2002] NSWCCA 342 PARTIES : Regina v John Macris FILE NUMBER(S) : CCA 60139/04 COUNSEL : D. Howard (Crown) P. Byrne SC (Appellant) SOLICITORS : S. Kavanagh (Crown) K. Kyriacou (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0127 FILE NUMBER(S) : LOWER COURT J.X. Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60139/04

STUDDERT J KIRBY J HISLOP J

Tuesday 3 August 2004 REGINA v John MACRIS Judgment 1 STUDDERT J: I agree with Hislop J. 2 KIRBY J: I agree with Hislop J. 3 HISLOP J: The appellant was convicted by a jury in respect of the following counts: Count 1: Supply prohibited drug (methylamphetamine) not less than commercial quantity contrary to Drug Misuse and Trafficking Act 1985 – s 25(2) - maximum penalty 20 years imprisonment and/or 3,500 units; Count 2: Supply prohibited drug (ephedrine) contrary to Drug Misuse and Trafficking Act 1985 – s 25(1) – maximum penalty 15 years imprisonment and/or 2,000 penalty units. 4 On the first count the appellant was sentenced to imprisonment for 3 years 4 months commencing on 18 November 2003 with a non-parole period of 2 years and 6 months. On the second count he was sentenced to a fixed term of 18 months commencing on 18 November 2003. Facts 5 On 26 March 2000, following information received from John Christopher, police executed a search warrant at the appellant's residence, a home unit in Surry Hills. The drugs, the subject of counts 1 and 2, were found by police during the execution of the search warrant at three different locations in the residence. In a cupboard under a stairwell, there was found a tin with the brand name "Versace" printed on it, which tin had been owned by the appellant for some time and had his fingerprints on it. Inside the tin were bags containing various coloured tablets, crystalline powder (the subject of the second count), plastic bags and a set of scales. In a drawer in some furniture in the dining room, the sum of $3,100 in cash together with 20 green tablets was found. In a bedside table in the bedroom upstairs, three blue tablets were found. All the tablets contained methylamphetamine. 6 The appellant, when initially asked by police, denied there were any drugs on the premises. He made no admissions in that regard. He did not give evidence. He called John Christopher as a witness. 7 Mr Christopher said in evidence that it was he who placed the items in the Versace tin and the drawer in the dining room. He did this because he had been arrested by police in relation to a fraud matter and he had believed at the time that it was the appellant who had provided the information to police which resulted in his arrest. He gave evidence that he had told the police that they would find drugs at the premises of the appellant and then went to the home of a known drug dealer where he obtained the drugs, plastic bags and scales which he then located in the two places where drugs were located in the downstairs area in the appellant's unit. He then joined police again when he attended with them at the appellant's premises and engaged in a form of mock arrest in which the police feigned a bit of a struggle with him before taking him away in handcuffs. 8 The only issue to be determined by the jury was whether the appellant had been proved, beyond reasonable doubt, to be in possession of the prohibited drugs as alleged. 9 The appellant appeals against the convictions. Three grounds of appeal are contained in the written Notice of Appeal. Leave to add a further ground of appeal in the following terms: