Scicluna v R (No. 2) [2007] NSWCCA 172

New South Wales Court of Criminal Appeal

CITATION: Scicluna v R (No. 2) [2007] NSWCCA 172

HEARING DATE(S): 06/10/2996

JUDGMENT DATE: 21 June 2007

JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 12; Howie J at 1

DECISION: Appeal against conviction on all counts is dismissed.

CATCHWORDS: Appeal - reopening appeal - failure by majority to deal with all grounds of appeal.

CASES CITED: Scicluna v R [2007] NSWCCA 120 R v Burrell [2007] NSWCCA 79

PARTIES: Stephen Joseph Scicluna v Regina

FILE NUMBER(S): CCA 2006/1559

COUNSEL: D.C. Frearson SC - Crown S.M. McNaughton - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1131

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 28/10/2005

IN THE COURT OF CRIMINAL APPEAL 2006/1559

McCLELLAN CJ AT CL ADAMS J HOWIE J

THURSDAY 21 JUNE 2007 Stephen Joseph SCICLUNA v R (No 2)

Judgment 1 McCLELLAN CJ at CL and HOWIE J: Judgment in this matter was given on 30 April last: see Scicluna v R [2007] NSWCCA 120. By majority the appeal was dismissed, Adams J dissenting. Unfortunately after judgment was delivered, we became aware that we had omitted to deal with one ground of appeal in relation to one of the counts of which the appellant had been convicted. The parties were advised that the Court intended to reopen the matter to deal with the remaining ground of appeal but that it did not require further submissions. 2 The jurisdiction of this Court to reopen an appeal notwithstanding that judgment has been delivered and orders made was extensively considered in R v Burrell [2007] NSWCCA 79. It is unnecessary to again review the relevant authorities and we have no doubt that this Court has power to ensure that the appeal is determined on its merits by a consideration of all grounds of appeal so that the matter is finally determined. 3 The facts can be stated shortly for present purposes. The applicant stood trial on four charges; three alleged his possession of, or involvement in the manufacture of, methylamphetamine ("the drug charges") and one alleged his possession of a prohibited weapon, being a hand held instrument for the administration of electric shocks ("the weapon charge"). The charges arose from a police search of the appellant's premises as a result of which methylamphetamine was found in the appellant's bedroom and, in a shed on the property, a disassembled laboratory for the making of methylamphetamine and an amount of precursor for that drug. The prohibited weapon was found in a drawer beside the appellant's bed. 4 After trial by jury the appellant was convicted of all four charges. 5 The grounds of appeal relied upon asserted that there were errors in the Judge's summing up relating to the drug charges and that each of the four convictions were unreasonable. In our judgment of 30 April 2007 we dealt with those grounds in respect of the three drug charges. We were of the view that there was no error in the summing up and that none of the three convictions was unreasonable. We were of the opinion that the appeal should be dismissed. 6 In his separate judgment Justice Adams dealt with each of the charges and all grounds of appeal. He was of the opinion that the convictions on Counts 1, 3 and 4 were unreasonable and he would have quashed the convictions on those counts and directed verdicts of acquittal. In other words he found that only the conviction for the possession of methylamphetamine was sustainable. 7 As we have noted the weapon charge related to an item found by police in an unlocked drawer beside the applicant's bed. The applicant was the owner of the property and was residing there at the time of the search. There was also present a woman friend of the appellant sleeping in bed with him but on the opposite side from the drawer in which the weapon was found. There was a rucksack on the applicant's side of the bed from which he obtained keys for the shed to give police. 8 We have already expressed the opinion that we would find beyond reasonable doubt that the applicant was in possession of the amphetamine in the jugs in the bedroom on the side of the bed on which he was sleeping. The applicant owned the premises and they were his place of residence. From what the accused said about his use of the shed for mechanical work that he had been carrying out, the jury were entitled to infer that he had been in occupation of the property for some period of time; see the judgment of Adams J of 30 April 2007 at [41]. The applicant gave no evidence at the trial and no explanation to police about the items found on his property. 9 In our opinion it was open to the jury to infer beyond reasonable doubt from all the circumstances that the weapon was in the possession of the appellant. This is notwithstanding that there was evidence that the female had a key to the house and some vague assertion by the appellant that other persons resided in the premises from time to time. Counsel for the appellant argued that there was the possibility that the weapon was in the possession of the woman found in bed with the appellant, or the occupant of the other bedroom or any other person who had stayed at the house. But it was open to the jury to reject that as a real possibility. If it is accepted, as we do, that the appellant was in possession of the drugs in the bedroom and had been involved in the manufacture of drugs in the shed, it is perhaps not surprising that he would have possession of a weapon for his protection near his bed. 10 In our opinion it is inconceivable that the appellant would be the occupant of a bedroom in his own home yet not be aware of the contents of a drawer beside the bed on the side on which he slept. We would not accept as a reasonable possibility that any other person was in possession of the weapon that was the subject of Count 4. 11 We confirm our view that the appeal against conviction on all counts should be dismissed. 12 ADAMS J: I dealt with this ground of appeal in my earlier judgment and have nothing to add. **********