Vacic v R [2011] NSWCCA 159

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vacic v R [2011] NSWCCA 159 Hearing dates: 1 December 2010 Decision date: 07 February 2011 Before: James J at 1, Hislop J at 2, Price J at 25 Decision: Appeal dismissed. Cases Cited: King v R [2008] NSWCCA 101; (2008) 184 A Crim R 304 Category: Principal judgment Parties: Danny Slobodan Vacic v Regina Representation: C. Heazlewood (Appellant) N. Norman (Crown) Scott Hall-Johnston (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2008/1737 Decision under appeal Date of Decision: 2010-06-09 00:00:00 Before: Conlon DCJ File Number(s): 2008/1737

Judgment 1JAMES J: I agree with Hislop J. 2HISLOP J : On 31 May 2007 adjoining premises at Coniston were searched by police. In one of the premises (No 14) the police discovered a hydroponic cultivation set-up involving some 69 cannabis plants. They also discovered approximately 7 kilograms of cannabis drying in a upstairs bedroom. No 14 was owned by the appellant as were the adjoining premises, 1/12 and 2/12. The appellant and his wife lived in 2/12, 1/12 and 14 were unoccupied. 3As a result of the search, the appellant was charged as follows: "Count 1 For that he on 31 May 2007 at Coniston in the State of New South Wales did knowingly take part in the cultivation of prohibited plant, namely 69 cannabis plants, by enhanced indoor means, being a number not less than the commercial quantity applicable to that plant. Count 2 For that he on 31 May 2007 at Coniston in the State of New South Wales did supply prohibited drug, namely cannabis." 4Initially the appellant pleaded guilty to those charges. However, he gave evidence on sentence traversing his pleas, which he was then permitted to withdraw. 5The appellant was arraigned before judge and jury on 31 May 2010. He entered pleas of not guilty. He represented himself at the trial. He had some pro bono assistance in respect of his defence. 6The appellant did not give evidence at the trial. An edited version of the evidence he had given in the discontinued sentence proceedings wherein he advanced a defence of duress was tendered by the Crown. His wife and ex-wife were called to give evidence in his case. 7The appellant's case on duress was that around June/July 2006 he was confronted in his own home by three men who threatened him with a gun and ordered him to do what he was told, that he was to allow these persons to cultivate cannabis at No 14, and he was to assist them in this regard. 8The crucial issue at trial was whether the appellant had been involved in the offences whilst acting under duress. The appellant submitted that he was not guilty of either offence because the Crown had not established beyond reasonable doubt that the offences were not committed as a result of duress which caused him to act as he did. 9The jury returned a verdict of guilty on each count. 10The appellant was sentenced to a non parole period of nine months imprisonment with a balance of term of two years imprisonment on the first count and a fixed term of six months imprisonment on the second count. The sentences were to be served concurrently. They commenced on 16 June 2010. 11The appellant has appealed against conviction. The grounds of appeal are: "1. The evidence relating to the financial affairs of the appellant should not have been admitted into evidence. 2. His Honour erred in his direction to the jury about the appellant's financial affairs by simply saying to have regard to it, without identifying how or in relation to which charge. 3. His Honour erred by failing to direct the jury at all in relation to the way in which the evidence of the appellant's financial affairs could be used to rebut the defence of duress. 4. The evidence on to the purchase of various properties by the appellant should not have been admitted into evidence. 5. The evidence, having been admitted, required a special direction as to how the jury should deal with it in relation to one or both of the charges, and there was none." 12The Crown case, seeking to negative duress, was circumstantial in its nature. It relied, inter alia, upon the following evidence: (a) the Coniston premises were purchased in March 2004; (b) hydroponic equipment was found during the search of 2/12. That equipment was very similar to equipment located at No 14; (c) the appellant's fingerprints were found on transformers inside No 14. The appellant's DNA was on overalls found inside No 14; (d) a supplier's price list for hydroponic equipment dated November 2004 was found in No 2/12; (e) a receipt paid by the appellant for hydroponic equipment purchased in 1 October 2004 was found in No 14; (f) banking records for the period March 2006 to 31 May 2007 showed that in that period the appellant deposited a total in excess of $250,000 into his bank account. The deposits were largely in cash. The appellant was not employed during that period; (g) the appellant purchased six properties during the period 2004 to May 2007 and maintained mortgages on those properties during that time; (h) lies and inconsistencies on the part of the appellant and his witnesses. 13The Crown, in addressing the jury, concluded: "So when you take into account all those matters, I suggest the conclusion is compelling, ladies and gentlemen, that this cannabis operation on the accused's property at Coniston was the accused's operation which he more than likely started, you might think, not long after he bought the house in 2004. The whole story about it starting in 2006 when these people came knocking on his door is nothing more than a story that is made up, I suggest, in order to try and avoid punishment. You can be satisfied of that, ladies and gentlemen, beyond reasonable doubt. That's the Crown's main submission."