Finch v R [2016] NSWCCA 133

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Finch v R [2016] NSWCCA 133 Hearing dates: 2 May 2016 Date of orders: 13 July 2016 Decision date: 13 July 2016 Before: Payne JA at [1]; McCallum J at [235]; Davies J at [236] Decision: 1) Leave to appeal granted on Grounds 1-10 under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW);

2) Leave to appeal refused on Grounds 1, 2, 3, 4 and 5 under r 4 of the Criminal Appeal Rules;

3) Grounds 6-10 of the Notice of Appeal dismissed;

4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:

a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and

b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter. Catchwords: CRIMINAL LAW – appeal – conviction – deemed supply of prohibited drugs pursuant to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether evidence concerning drugs not the subject of the charges should have been admitted – whether evidence of police officer as to method of consumption of LSD in cardboard form should have been admitted – whether misdirection that the cardboard and liquid containing LSD should be included in the overall weight of the LSD pursuant to s 4 of the Act – whether primary judge erred in failing to direct the jury to determine whether appellant was in possession of drugs found in different locations or packages separately – whether primary judge erred in not leaving to the jury alternative charges – whether appellant was unable to receive a fair trial without Crown witness and informant being called to give evidence – whether verdict unreasonable or unsupported by the evidence – whether defence counsel at trial incompetent – forensic decisions of counsel Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4 Criminal Code (Cth), s 312.1 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, Schedule 1 Evidence Act 1995 (NSW), ss 55, 78, 79, 137, 144 Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 Alkhair v R [2016] NSWCCA 4 Alliston v R [2011] NSWCCA 281; 217 A Crim R 323 Director of Public Prosecutions v Brooks [1974] AC 862 Dyers v The Queen [2002] HCA 45; 210 CLR 285 Finch v R [2014] NSWCCA 278 He Kaw Teh v R (1985) 157 CLR 523 James v The Queen [2014] HCA 6; 253 CLR 475 Krishna v DPP [2007] NSWCCA 318; 178 A Crim R 220 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Morris v The Queen (1987) 163 CLR 454 Pratten v R [2014] NSWCCA 117 R v Apostilides [1984] HCA 38; 154 CLR 563 R v Birks (1990) 19 NSWLR 677 R v Carey (1990) 20 NSWLR 292 R v Dunn (1986) 32 A Crim R 203 R v Lau (1998) 105 A Crim R 167 R v R2 (1990) 19 NSWLR 513 R v SH [2014] NSWCCA 218; 88 NSWLR 1 Rasic v R [2009] NSWCCA 202 RWB v R [2010] NSWCCA 147; 202 A Crim R 209 Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132 SKA v The Queen [2011] HCA 13; 243 CLR 400 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 Category: Principal judgment Parties: Appellant: Stephen John Finch Respondent: Regina Representation: Counsel: Appellant: Self represented Crown: V Lydiard