Fenech v R [2019] NSWCCA 95

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fenech v R [2019] NSWCCA 95 Hearing dates: 13 June 2018 Date of orders: 13 June 2018 Decision date: 07 May 2019 Before: Meagher JA, Bellew and Fagan JJ at [1] Decision: 1. Appeal allowed 2. Conviction and sentence imposed in the District Court quashed. 3. Order that there be a new trial in the District Court. Catchwords: CRIME – conviction appeal – jury misconduct – where jury members made inquiries about trial matters and failed to disclose conduct – no question of principle Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 24 Jury Act 1997 (NSW), s 68C Category: Principal judgment Parties: Nicholas Fenech (Appellant) Regina (Respondent) Representation: Counsel: L Brasch (Appellant) N Adams (Respondent)

Solicitors: Criminal Law Centre (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/280017 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 July 2016 Before: Colefax SC DCJ File Number(s): 2013/280017

Judgment 1. THE COURT: On 13 June 2018, the Court made the following orders in this appeal: 1. The appeal against the conviction is allowed. 2. Order that the appellant's conviction on 13 July 2016 of the offence of manufacture a prohibited drug, methylamphetamine of a quantity not less than a large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and the sentence for that offence, be quashed. 3. Order that there be a new trial of that charge. 4. Reserve the Court's reasons for the making of those orders. 1. What follows, rather belatedly, are the Court's short reasons for making those orders. 2. On 17 July 2016, the appellant, Mr Fenech, was found guilty of an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act. The jury trial resulting in that verdict was conducted before Colefax DCJ. On 30 September 2016, his Honour sentenced the appellant to a term of imprisonment of 4 years and 6 months. 3. The appellant appealed against his conviction on the ground of jury misconduct, both in members of the jury making inquiries about trial matters contrary to Jury Act 1997 (NSW), s 68C, and in their failing when questioned to disclose that conduct to the Court. 4. The Crown is satisfied that the relevant misconduct occurred and that as a result the trial process was flawed in a fundamental respect. For that reason, the Crown accepts that there was a miscarriage of justice requiring that there be a new trial. 5. Having read the submissions of the parties, the Court was satisfied that the appeal against conviction should be allowed, the conviction quashed and a new trial ordered.