R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59

R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59

The trial miscarried because the jury was not adequately assisted to address the key question of whether the vehicles seen belonged to the appellants, which was critical to linking appellants to multiple cannabis cultivation sites. The summing up failed to put important defence evidence to the jury and misdirected on other issues. However, the evidence beyond doubt supported simple cultivation on Site 1. The court therefore substituted verdicts of guilty for the alternative, less serious count for each appellant and adjusted their sentences accordingly.

Parties
Appellant: Andrew John Whalen; Appellant: Brett J. Willer; Respondent: Regina
Jurisdiction
Australia
Judgment Date
13 March 2003
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in District Court
Outcome
Appeal allowed in part; convictions for counts 1 and 3 quashed; verdicts of guilty substituted for alternative, lesser offence (count 2); sentences varied as set out below.
Legal Topics
Appeal, Miscarriage of Justice, Summing Up, Evidence – Identification, Cultivation of Prohibited Plants, Possession and Supply of Cannabis, Directions to Jury
Criminal Law Appeal Miscarriage of Justice Summing Up Evidence – Identification Cultivation of Prohibited Plants Possession and Supply of Cannabis Directions to Jury

Case Brief

Summary, issues, holding and outcome

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Parties

Andrew John Whalen

Appellant

Brett J. Willer

Appellant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence in District Court

Legal Issues

  1. 1 Whether the identification evidence relating to a vehicle was properly handled and fair to the accused
  2. 2 Whether the summing up by the trial judge correctly put the defence case to the jury
  3. 3 Whether the directions to the jury regarding the drawing of inferences, alternative verdicts and consciousness of guilt were adequate

Ratio Decidendi

The trial miscarried because the jury was not adequately assisted to address the key question of whether the vehicles seen belonged to the appellants, which was critical to linking appellants to multiple cannabis cultivation sites. The summing up failed to put important defence evidence to the jury and misdirected on other issues. However, the evidence beyond doubt supported simple cultivation on Site 1. The court therefore substituted verdicts of guilty for the alternative, less serious count for each appellant and adjusted their sentences accordingly.

Court Disposition

Appeal allowed in part; convictions for counts 1 and 3 quashed; verdicts of guilty substituted for alternative, lesser offence (count 2); sentences varied as set out below.

Orders

  • With respect to each appellant, verdict of guilty on count 2 substituted for the verdict of guilty on counts 1 and 3, and for avoidance of uncertainty the verdict of guilty on counts 1 and 3 quashed and a verdict of acquittal entered on those counts.
  • Appellant Whalen sentenced to imprisonment for two years three months commencing 1 March 2002 and expiring 31 May 2004, with a non-parole period of eighteen months expiring 31 August 2003, and the Court directs his release on parole on 31 August 2003.