Re Ronald Joseph Dominguez v R [1985] FCA 459 (6 December 1985)

FEDERAL COURT OF AUSTRALIA

Re: RONALD JOSEPH DOMINGUEZ
And: THE QUEEN
No. ACT G67 of 1985
Appeal against conviction after trial - Summing-up - Unsworn statement -
Confession - Appeal against sentence - Cumulative sentences

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
Sheppard J.
Miles J.

CATCHWORDS

Appeal against conviction after trial on two counts of supplying heroin and one count of being in possession of heroin for purpose of supply.

Summing-up - No need for explanation of defence case to be in a single self-contained whole.

Unsworn statement - Limitation on trial judge's power to comment.

Confession - Standard of proof.

Appeal against sentence - Possession of mixture containing 5.37 grams of pure heroin - Prior sales of same mixture - 3 years imprisonment concurrent for supply and 6 years cumulative for possession for supply with non parole period of 4 years 8 months not manifestly excessive.

Cumulative sentences - Power to impose.

Poisons and Narcotic Drugs Ordinance 1978, s.4

Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory ss.444, 447

Evidence Ordinance 1971, s.74

Crimes Act 1914, s.19

Interpretation Ordinance 1967

Interpretation (Amendment) Ordinance 1985

Interpretation (Amendment) Ordinance (No. 2) 1985

HEARING

CANBERRA
6:12:1985

ORDER

The appeal against conviction be dismissed.

The appeal against sentence be dismissed.

DECISION

Ronald Joseph Dominguez was charged on indictment on two counts of supplying a controlled substance, namely heroin, to a person whose name is unknown and on a third count of having a controlled substance, namely heroin, in his possession for the purpose of supplying that substance to another person or to other persons. These are offences under s.4 of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory.

2. After a lengthy trial in the Supreme Court of the Australian Capital Territory he was convicted on all counts and sentenced. The sentences imposed were three years imprisonment on the first count, three years imprisonment on the second count concurrently with the sentence imposed on the first count, and six years imprisonment on the third count cumulative on the sentence imposed on the first count. A non parole period of four years and eight months was fixed. The periods already spent in custody were taken into account. He appeals against the convictions and against the severity of the sentences. The grounds of the appeal against conviction as they were eventually argued are that the learned trial Judge in his summing-up failed to adequately put the defence case, misdirected the jury on the appellant's unsworn statement and misdirected the jury on the standard of proof relating to certain confessional evidence.

3. The evidence in the Crown case came mainly from Det. Sgt. Bruce Wayne Lewis, then the Officer-in-charge of the Drug Squad, Australian Federal Police, and Constable Rodney Peter West, also a member of the Drug Squad. Their evidence was as follows. On Sunday, 23 December 1984 at about 5.50 p.m. they went with other members of the police force to 14 Lawley Place, Deakin in execution of a search warrant. They there saw the appellant. When the appellant was asked whether there were any drugs on the premises he replied, "You might as well have these, you will find them anyway". He then took from a pocket of his shorts five silver foil packages (referred to in evidence as "foils") and handed them to Sgt. Lewis. Sgt. Lewis asked "What is in the packages?" and the appellant replied "Heroin". Sgt. Lewis said, "Who owns it?" and the appellant replied, "I do". The appellant denied that there were any other drugs on the premises and stated that another man, who had nothing to do with drugs, also lived in the house. A search of the premises ensued and in the backyard under some dead leaves the police discovered a plastic bag containing another eighteen foils. Sgt. Lewis broke one of them open and found it to contain a white powder. Sgt. Lewis questioned the appellant as to the eighteen foils and the appellant said, "Yes, its heroin". Sgt. Lewis asked, "Who owns it?". The appellant replied, "Me".

4. A further search of the yard disclosed a sum of $4050 in eight separate rolls of fifty dollar notes in a stone retaining wall. The following conversation then occurred between Sgt. Lewis and the appellant:

'I said, "Ron, detectives have just located a

quantity of money in the rear yard" and I showed
him the plastic bag which I had taken from the
rear yard containing the eight bundles of
Australian notes. I said "Can you tell me who
owns it?". He said "I do". I said "Where did it
come from?". He said "Selling heroin". I said
"What did you intend to do with the other heroin
that was located in the rear yard?". He said "I
was going to sell some and use the rest". I said
"Where did you sell it from?". He said "From
here".'

5. The appellant was found to have $595 in cash on his person. A further sum of $350 was found in cash on a shelf in the kitchen. Also in the kitchen were found a quantity of small plastic bags, a set of scales, a roll of aluminium foil and a quantity of glucose powder. During the search the appellant requested to speak to Sgt. Lewis privately and accompanied him into a bedroom where he asked, "Can we do a deal?". Sgt. Lewis replied that there would be no deals done. There was a similar conversation at the remand centre on 21 January 1985.

6. The appellant was then accompanied to the office of the Criminal Investigation Branch where, according to the Crown evidence, a conversation took place which was recorded on a typewriter. After the conversation concluded, the appellant signed a record of that conversation. The record of interview was admitted into evidence. It was objected to upon the ground that the participation of the appellant in the interview, and his signature to the record, were not obtained voluntarily. Alternatively, it was submitted that the record should be excluded from evidence on discretionary grounds. The decision of the learned trial Judge to admit the record of interview into evidence is not the subject of any ground of appeal.

7. According to the record of interview, the appellant confirmed what he had told the police earlier on the day in question. On being shown the scales, the aluminium foil, the plastic bags and the packet of glucose, he stated that they were all used in connection with the preparation of heroin. The appellant stated that he had bought one ounce of heroin in Canberra the previous Thursday or Friday from a person whom he knew only as Paul, and that it was obtained on credit and that it was worth $1600. The record of interview continued with the following questions and answers:

'Q.38 "What did you intend to do with the
heroin?"

A. "It was for sale to support my own habit."

Q.39 "How was the heroin packaged when you first
got it?"

A. "It was in one plastic bag."

Q.40 "Who made it up into the small foil deals?"

A. "I did."

Q.41 "How many small silver foils did you make
up?"

A. "I made 38 up out of the ounce."

Q.42 "How much of that did you intend to use?"

A. "About a third to a half."

Q.43 "What did you intend to do with the rest of
the heroin?"

A. "Sell it."

Q.44 "How much were you selling the heroin for?"

A. "$350 a deal."

8. The appellant then stated that he was a heroin addict using two and a half to three grams a day. He said that he had last used heroin that afternoon at about 3 o'clock, that he was not feeling any effect of that heroin at the time of questioning, that he clearly understood the questions being asked and had no difficulty in answering them. He declined the services of a doctor. He was then shown the cash found in the backyard and acknowledged that it was his. The record of interview continued:

'Q.54 "Where did you get this money from?"

A. "From selling heroin."

Q.55 "Over what period of time did it take you
to collect this amount of money?"

A. "Three or four days."

Q.56 "How many different people did you sell
heroin to in that three or four days?"

A. "About half a dozen."

Q.57 "Is the three or four day period you
referred to starting from last Friday?"

A. "Yes."'

9. The accused was then shown the $950 found in the wallet in the kitchen and after acknowledging that it was his, stated that $350 was from selling heroin and the rest was "from work".

10. Finally, in the record of interview the appellant acknowledged that a number of syringes and spoons with a white substance adhering to them located by the police on the premises were his.

11. The recorded interview commenced at 8.03 p.m. and concluded at 10.01 p.m. During that time the appellant was said not to have displayed symptoms of withdrawal from heroin. The signature of the appellant was witnessed by Sgt. Lewis and Constable West. No senior officer was invited to participate in it or check it with the appellant.

12. Evidence was also given in the Crown case by three more police officers. Constable Thrift gave evidence of locating the glucose powder, plastic bags and the aluminium foil. Constable Moses gave evidence of the conversations at the house between Det. Sgt. Lewis and the appellant and said that he could not see any outward sign that the appellant was affected by a narcotic drug. He had some years experience as an agent with the Federal Bureau of Narcotics. Constable van Akker gave evidence of finding the bank notes in the retaining wall in the rear yard.

13. Scientific evidence was given by Mr. Peter Gary Smith, an analyst who received the five foils and the eighteen foils and subjected their contents to analysis. The contents of the five foils were 3.46 grams in mass, containing .99 of a gram of pure heroin. The contents of the eighteen foils were 14.81 grams in mass, containing 4.38 grams of pure heroin. The total mass of pure heroin was 5.37 grams. Apart from the heroin content the powder was made up of glucose. Mr. Smith formed the view that the chemical composition of the two lots of powder was such that it was likely that they came from the same stock.

14. Dr David Neal McGrath gave evidence in the Crown case that he examined the appellant at the city watch-house at the request of the police in order to see whether the appellant needed any treatment. The examination took place at about 4.10 a.m. on 24 December 1984. Dr McGrath formed the view that the appellant was suffering mild narcotic withdrawal. His experience of such matters was limited; he had not had previous direct experience of a patient with narcotic withdrawal and he consulted a textbook after his visit to make his assessment.

15. The appellant made a statement and called some evidence. His statement was lengthy and it is more convenient to summarise it than to set it out in full. In his statement he admitted that he was in possession of the five foils of heroin at the time of the police visit and said that he had purchased that heroin that morning because he intended to fly to Wingham the following day to spend Christmas with his parents. He said that he was a heroin addict and had had his last dose of heroin at about 3 o'clock that afternoon. He said that the police stripped him of his clothing and handcuffed him to a chair in his house. He began to feel the onset of withdrawal symptoms. He admitted that he said to Sgt. Lewis in the bedroom, "Can we make a deal?" and that when the sergeant declined he was taken back to the loungeroom and there was then produced a bag with a number of silver foils in it. He was questioned as to the ownership and replied "I don't know". Sgt. Lewis responded, "Well, you're going to wear them anyway". He went on to say that he was taken to the police station and was told that a record of interview would take place to which he replied, "No, I don't want any part in it".

16. There was then a series of conversations between Sgt. Lewis and Constable West in which the appellant said that they concocted the record of interview. He said that he was asked certain questions and gave answers but could not remember the details except to the extent that the answers that he gave were not the answers recorded in the record of interview. He said that the withdrawal symptoms grew worse complained to the police officers and was told that they would get a doctor as soon as they were finished. He was asked whether he would sign the record of interview and refused. He claimed that he was then told by Sgt. Lewis that if he did sign it then he would be given something to make him better (which he took to be heroin); the police would not oppose bail and would give him back some of the money. He added that the police told him that if he signed the record they "would make it known in the court that I was not dealing to make profit, that I was dealing to support my addiction". He said that he signed the record of interview because of these factors together with the craving for heroin that he had developed. He said that he realised by the stage of the trial that signing the statement was irrational but would have signed anything to get heroin at that stage. He denied the alleged conversation at the remand centre. He concluded by telling the jury that he had made no admissions about supplying heroin, that he did not have a supplier in Sydney, that the eighteen foils were not his, that the money was not his and that he believed that they belonged to the man with whom he had been sharing the house and whom he had expected to give evidence on his behalf.

17. Dr W.P. Fitt gave evidence on behalf of the defence. He examined the appellant at the Belconnen Remand Centre on 24 December in the evening. His view was that the appellant was suffering symptoms of withdrawal from heroin. The brother of the appellant testified that he had spoken to the appellant and to Sgt. Lewis on the telephone at about 10 p.m. on the night of the arrest, and that Sgt. Lewis had said that the appellant was "coming down from a dose of heroin" and needed to be kept under observation. The brother saw the appellant the next morning at Court and in the cells where he was withdrawn and shivering. Evidence was given by nurses Lesley-Ann Fraser and Marion Watson to the effect that a person with heroin addiction such as that claimed by the appellant would be likely to suffer severe withdrawal symptoms about six hours subsequent to the last ingestion of the drug. It would be common for such a person to strongly crave the drug to the extent of going to irrational lengths for short-term gratification regardless of consequences.

18. The case for the prosecution and the case for the defence may then be seen in contrast. The appellant had been found in possession of five foils of heroin. This was undisputed. There was also found on his person a reasonably large sum of cash. There was found in and about the house which he shared with another man a further quantity of heroin, further large sums of cash and a collection of items which could be taken by the jury to constitute the means of preparing heroin for distribution to other persons. What was located in and about the premises was of itself equivocal insofar as all or any part of it could have belonged to the other man, and might have had nothing to do with the distribution of heroin. However the Crown relied on verbal admissions that all the heroin and the cash found belonged to the appellant, that he had sold some of the heroin previously purchased and intended to sell some of what remained. Further, the Crown relied upon the evidence contained in the record of interview: in particular the answers to questions 38 and 43 as to the intention of the appellant to sell the heroin that was in his possession at the time of his arrest, and the answers to questions 56 and 60 to support the actual sale alleged in the first and second counts in the indictment. Lastly, the Crown was entitled to rely upon the presumption under s.4(4) of the Ordinance that if the jury found that the appellant was in possession of the eighteen foils, then he was in possession of more than the traffickable quantity of the drug and presumed, unless he proved to the contrary on the balance of probabilities, to be in possession of the drug for the purpose of supply.

19. The case for the defence starts with the appellant's concession at the trial that he was a heroin addict and had the five foils in his possession at the time of arrest. Beyond that he denied possession of the further quantity of heroin and of the money found in the yard and claimed that the five foils were solely for his own use. He denied making the other verbal admissions mentioned above. He denied that the conversation recorded in the record of interview had taken place. He admitted signing the record of interview but asserted that he had done so only after promises made by the police and because his mind was overborne by the craving for heroin which he had developed as part of withdrawal from previous ingestion of the drug. As we understand the nature of the submissions put on behalf of the appellant he did not raise the issue that at any relevant time he was intoxicated by the direct influence of the drug.

20. The first ground of appeal with which we shall deal is that the learned trial Judge failed to put the defence case properly. Failure adequately to put the defence is a well recognized ground of appeal. The duty to secure for the accused a fair trial according to law involves an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part for the accused: Pemble v. The Queen [1971] HCA 20; (1971) 124 CLR 107 at p 117.

21. The appellant relied upon the decision of the New South Wales Court of Criminal Appeal in R v. Veverka (1978) 1 NSWLR 478. That was a case in which the accused was convicted of murder arising out of a shooting inside a car. He maintained in his statement to the jury that the shooting was accidental and that the rifle discharged without any intention in that regard on his part. The trial Judge in his summing-up had dealt with the Crown case as a clear and comprehensive narrative and in the course of so doing had mentioned particular answers made on behalf of the appellant to specific aspects of the Crown case. He did not adopt a similar method of presenting the evidentiary material when dealing with the appellant's case. In the judgment of Street C.J., with whom the other members of the Court agreed, the references made to the appellant's case during the canvassing of the Crown case would have been sufficient to raise the relevant considerations for determination by a trained intellect accustomed to adjudicating upon issues of fact, but the risk in following that course in a jury trial was that it gave rise to a challenge as to whether the jury was presented within the terms of the summing-up with a clearly defined account of the defence case. The unsworn statement in Veverka, some two pages in length in transcript and no "rambling irrelevancy", was not read to the jury nor paraphrased as an entirety. His Honour concluded at p.481:

"There is, of course, no absolute requirement that
an unsworn statement must be read to the jury in
the course of the summing-up although this is a
practice frequently adopted. What is relied upon
here is that there was neither a reading to the
jury of the unsworn statement nor a giving to the
jury of a comprehensive paraphrase of it, nor a
collection by his Honour into one identifiable
portion of the summing-up of the various lines of
evidence upon which the appellant relied as
constituting the entirety of his defence to the
charge brought against him.

It is not easy to resolve a submission of this
nature remote from the atmosphere of the trial,
and from the terms of addresses of counsel. It
is, however, clear from the authorities to which
reference has been made that a summing-up must
contain an adequate presentation of the defence
case to enable the jury, from the terms of the
summing-up itself to comprehend and understand
what the defence case is."

22. It is important to read this passage as a whole. It does not, in our view, give rise to the proposition stated in the headnote to Veverka that an accused person is entitled to have his case presented to the jury in the summing-up as an identifiable entirety to an extent equal to that employed in the presentation of the case for the Crown. It is obvious that in many cases the prosecution case may well be complex and require lengthy explanation whereas the defence case may be simple so that a concise explanation of it is neither inadequate nor unfair. Nor is it necessary in our view that the defence case should be put in a single and self-contained portion of the summing-up, although no doubt that course will often suggest itself to the trial judge as convenient and appropriate. The question in every case is whether the terms of the summing-up itself taken as a whole contain sufficient presentation of the defence case to enable the jury to understand what it is.

23. We turn now to examine the summing-up in question. The learned trial Judge did not read the unsworn statement of the accused to the jury in his summing-up. The course adopted by his Honour was similar to that adopted by the trial Judge in Veverka in that his Honour explained the nature of the Crown case in narrative fashion and in the course of so doing drew attention to the case for the accused as it arose in relation to each of the particular aspects of the Crown case. In our view no criticism can be made of this course. The statement occupies some seven pages or more of the transcript. It contains a number of irrelevant matters. It is not directed precisely to the various issues that are raised by each of the three charges on the indictment; we do not suggest that it should have been so precisely formulated, but clearly a simple reading of the statement was likely to be of less assistance to the jury than a paraphrase and explanation of what was contained in it.

24. It is not necessary to refer to each passage in the summing-up which raises aspects of the defence case. His Honour outlined in a joint fashion the nature of the Crown case and the evidence to support it in relation to the first two counts in the indictment and went on to deal with the third count at a later stage. He explained to the jury that the accused did not deny being in possession of five foils found on his person, admitted that he had tried to persuade the police to come to some arrangement about that but had done so simply on the basis that he realised that he was in trouble because he had been found in possession of some heroin. His Honour informed the jury that the accused denied the alleged verbal admissions at the house and asserted that the record of interview was a concoction. He went on to discuss in considerable detail the evidence relating to the record of interview, including the cross-examination of the police officers and including the evidence from the doctors and the two phychiatric nurses. In addition his Honour read to the jury certain passages from that part of the accused's statement which raises the question of his condition at the time of the interview and the reasons for his signing the record. The evidence of Mrs. Fraser and Miss Watson was not referred to in any detail but the jury was reminded by his Honour of the evidence that they had given "about the terrible feelings and cravings that drug addicts get".

25. His Honour then proceeded to direct the jury in relation to the third count in the indictment, the charge of having the heroin in possession for the purpose of supplying other persons. His Honour instructed the jury on the law and then outlined the Crown case on that count. He told the jury that it was undisputed that the five foils and the eighteen foils together contained 5.37 grams of heroin and that if the jury was satisfied as a matter of fact that the appellant was in possession of the eighteen foils as well as the five foils, then as a matter of law the appellant was deemed to have the heroin in his possession for the purpose of supply to other persons. His Honour pointed out to the jury that the accused had not raised the question of justifying his possession by way of claim of lawful authority. His Honour continued as follows:

"Indeed the accused said "I didn't possess the
eighteen foils". He denies possession. He does
not say "Well if they were in my possession I was
going to use them all myself" such as you do get
in cases like this."

26. His Honour concluded by instructing the jury as to the way in which they could approach the accused's unsworn statement, a subject to which we shall return shortly. The jury retired to consider their verdict, there was further discussion between counsel and the jury was called back and given a further instruction in terms that counsel for the accused had indicated were satisfactory. The further direction was in these terms:

"The accused's case is not that he did not sign
the record of interview, that his case is not that
he did not know that he was signing the record of
interview rather, it is his case that at the time
his state was so irrational, as a result of heroin
withdrawal, that he signed it for the reasons that
he explained."

27. It was also submitted on behalf of the appellant that the summing-up was deficient in that it made no reference to some inconsistencies in the evidence given by the police officers. However, the trial Judge was not obliged to put to the jury all the arguments that were or could be raised by counsel for the defence as to deficiencies in the Crown case. We take into account the fact that the trial Judge was not asked by counsel for the defence to put anything further to the jury on the defence case apart from the further direction which his Honour did in fact give and to which we have referred.

28. Taking the summing-up as a whole, we are not convinced that his Honour failed to make clear to the jury the nature of the attack made on the Crown case on behalf of the appellant nor the positive defence raised by him in answer to the Crown case. In our view there was no danger that the jury would have been left in any doubt that the accused alleged that the heroin found in his backyard together with the money there was not his and that the foils found in his possession were for his own use, that he denied the verbal admissions alleged, that he denied that the record of interview took place and that he explained his signing the record of interview by reference to his craving for heroin.

29. This ground of appeal fails.

30. The next ground of appeal is that the learned trial Judge misdirected the jury on how they should assess the appellant's unsworn statement. What his Honour said is as follows.

"The law requires you to take that statement into
account together with all the other evidence. But
it is obvious to you that there are certain
infirmities in him taking that course. He suffers
certain defects in the way he presents to you by
having taken that course.

What he said to you is not, itself, evidence in
the same sense as evidence given from the witness
box on oath, and it is not subject in any way as
was the evidence of the Crown witnesses to the
test of cross-examination."

31. With the possible exception of one feature with which we shall shortly deal, this direction was in accordance with the long-standing practice in the Territory. The nature of the unsworn statement of an accused person in a criminal trial in the Australian Capital Territory was the subject of a very comphrehensive judgment of Smithers J. (with whom Bowen C.J. and Fisher J. agreed on the point) in the appeal of Peter David Sorgenfrie (1981) 3 A.C.R. 404. In the light of that judgment it may be thought that there is little that we could add on the subject. However in deference to the research and industry of counsel for the appellant we think it desirable to deal expressly with the submissions that were made. We start with the proposition that the prohibition of comment on the part of the trial Judge on the accused's failure to give evidence now contained in s.407 of the New South Wales Crimes Act does not apply in the Australian Capital Territory. In the Territory the legislative provision is contained in s.74 of the Evidence Ordinance 1971 which provides as follows:

74.(1) On the trial of an indictable offence, the
failure of the person charged or his spouse to
give evidence shall not be made the subject of
comment by counsel for the Crown.

(2) Where -

(a) two or more persons are being tried together
for an indictable offence; and

(b) comment is made by or on behalf of any of
those persons on the failure of any of those
persons or of the spouse of any of those
persons to give evidence,

the judge may make such observations to the jury
in regard to the comment or the failure to give
evidence as he thinks fit."

32. When s.74 of the Evidence Ordinance 1971 was enacted, s.407 of the Crimes Act of New South Wales in its application to the Australian Capital Territory which had hitherto been in force in the Territory was repealed. It was submitted on behalf of the appellant that subs.(2) of s.74 of the Evidence Ordinance 1971 acknowledges that there are limits on what comment a judge may make upon the failure of an accused person to give evidence and that in order to ascertain what those limits are it is necessary to look at the state of the law in New South Wales as it stood before the enactment of the provision that became s.407 of the Crimes Act in that State. In this regard the appellant relied upon the decision of the Privy Council in Kops v. The Queen (1894) AC 650. That case was decided on appeal from the Supreme Court of New South Wales where it had been held that it was within the province of the trial Judge to comment upon the accused's failure to give evidence. In dismissing the petition for leave to appeal their Lordships said at p. 653:

"The learned Judges did not lay down - it was not
within the scope of the case necessary to lay down
any general rule as to such comments. There may
no doubt be cases in which it would not be
expedient, or calculated to further the ends of
justice, which undoubtedly regards the interests
of the prisoner as much as the interests of the
Crown, to call attention to the fact that the
prisoner has not tendered himself as a witness, it
being open to him either to tender himself, or
not, as he pleases. But on the other hand there
are cases in which it appears to the Lordships
that such comment may be both legitimate and
necessary."

33. In the light of that passage it was submitted on behalf of the appellant that in telling the jury that the accused suffered "certain defects" by having made an unsworn statement, the learned trial Judge was going beyond the bounds of legitimate comment.

34. In Sorgenfrie the nature of the direction required on the unsworn statement was described by Smithers J. at pp.20-21 as follows:

"Having regard to the foregoing it is my opinion
that in the trial in the Australian Capital
Territory of the offences for which the appellant
was tried it was necessary that the jury should be
directed that statements of fact in the
appellant's unsworn statement, were to be
considered as evidence of the facts stated and
given such weight, alongside the other evidence,
as the jury might, in all the circumstances and
having regard to its inherent "infirmities",
consider it to be entitled. Whether any such
statement would be believed would of course depend
on whether it was in itself regarded as credible
by the jury, and whether although otherwise
credible it might be contradicted by other
evidence more credible. But the evaluation of the
credibility of what was said in the unsworn
statement, inherently in itself, or in competition
with other evidence supporting a contrary
inference or fact, would be for the jury. But
nevertheless in some circumstances a jury acting
properly and sensibly might believe the unsworn
statement of the prisoner rather than the sworn
evidence of some other witness. It is always
possible that the truth may be spoken from the
dock and falsehoods from the witness-box."

35. On p.426 his Honour continued:

"The statement that the contents of an unsworn
statement is not evidence in the sense that
evidence on oath from the witness-box is evidence
is one that has been made to juries for many
years. But the sense in which the unsworn
statement, as evidence, differs from the sworn
statement made in the witness-box, as evidence, is
not that the former lacks probative value if
believed but that because of its infirmities
referred to above, its capacity to evoke belief
is, ex facie, less potent than if a statement is
made on oath in the witness-box."

36. The term "infirmities" seems to have been used for the first occasion on this subject by O'Connor J. in Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 at p 674 where his Honour said:

"Any statement of a prisoner not on oath carries
on the face of it certain infirmities. It has not
the sanction of an oath and the prisoner who makes
it is deeply interested in asserting his
innocence."

37. The use of the term "infirmities" in relation to the unsworn statement has subsequently been approved on many occasions, see e.g. R v. Simpson (1956) VLR 490. R. v. Simic (1979) VR 497 and in Sorgenfrie.

38. It is true that in telling the jury that the appellant "suffers certain defects in the way he presents to you by having taken that course" his Honour stepped outside what might be regarded as the traditional direction. Whether there is any real distinction between the term "infirmities" and the term "defects" is, we think, unnecessary for us to determine. We would think that what his Honour meant in the sentence under consideration is that the accused suffered certain disadvantages by adopting the course of making an unsworn statement. If the jury so understood what was put to them, then it could hardly be to the prejudice of the accused. On the other hand if the sentence under consideration is taken on its own it is arguable that the jury might have understood it to mean that the case for the accused was somehow deficient or lacking in strength. However, once the sentence is put in its context, and having regard to the summing-up as a whole, including the directions which his Honour properly gave on the onus and standard of proof, we do not think that his Honour's direction on the unsworn statement could have been understood by the jury in any way which went beyond a legitimate comment on the part of the learned trial Judge. In our view there was no miscarriage of justice occasioned by the direction, and the appeal on that ground must also fail.

39. The remaining ground of appeal against conviction is concerned with his Honour's directions as to the standard of proof in relation to the evidence of verbal admissions and record of interview. It was submitted, as we understand it, that the jury should have been instructed that if they were not satisfied beyond reasonable doubt that the accused had made the admissions alleged then they should acquit the accused.

40. The appellant relied upon certain passages in the judgments in Chamberlain v. The Queen (1984) 51 ALR 225. In particular reliance was placed on the following passage appearing in the judgment of Gibbs C.J. and Mason J. at p 237:

"It follows from what we have said that the jury
should decide whether they accept the evidence of
a particular fact, not by considering the evidence
directly relating to that fact in isolation, but
in the light of the whole evidence, and that they
can draw an inference of guilt from a combination
of facts, none of which viewed alone would support
that inference. Nevertheless the jury cannot view
a fact as a basis for an inference of guilt unless
at the end of the day they are satisfied of the
existence of that fact beyond reasonable doubt."

41. In similar vein Brennan J. said at page 21 that "the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt". Murphy J. said at page 66 that "the jury should not accept any fact for the purpose of inferring guilt unless in the light of all the evidence the existence of that fact is established beyond reasonable doubt", and further "that every crucial element be proved beyond reasonable doubt".

42. It is trite law that the prosecution is not required to prove every fact about which evidence is given beyond a reasonable doubt. It is in the end a jury question as to which of the facts alleged are "primary", "crucial" or "basic" for the purposes of inferring guilt. In Chamberlain Gibbs C.J. and Mason J. at p. 239 accepted as correct in principle a submission put in Moss v. Baines (1974) WAR 7 at p 11 that "every fact necessary to be proved to sustain proof beyond reasonable doubt of every element of the offence charged must itself be proved beyond reasonable doubt". Ultimately it is for the jury to decide which are the facts which are necessary to be proved to sustain proof to the requisite degree of every element of the offence charged. In certain situations no doubt the trial Judge can give the jury assistance in this respect. If for instance the only evidence against an accused person is his confession then it would follow that unless the confession was proved beyond a reasonable doubt guilt may not be inferred. It is however not correct to say that the jury must be instructed that every item of evidence that goes to prove the confession must itself be proved beyond reasonable doubt. Further, if there is evidence apart from the confession which inculpates such an accused, it is for the jury to decide whether in the light of all the evidence they consider the confession, or indeed any fact which the evidence tends to prove, as so crucial or basic that guilt cannot be inferred without proof of that crucial or basic fact to the degree of proof beyond reasonable doubt.

43. In the present case the jury had before it in addition to the evidence of the verbal admissions and the record of interview the undisputed evidence of the appellant's possession of the five foils together with the evidence of the finding of money and items which could have been used for the purposes of distribution in and about the premises. Being no doubt aware of the weak nature of the Crown case apart from the confessional material, the learned trial Judge mentioned the matter of the admissions on a number of occasions during the course of the summing-up.

44. Dealing generally with the evidence of the admissions his Honour said:

"The accused has made all sorts of admissions to
the police which are obviously inculpatory or
against his interests, if you are satisfied those
admissions were made you can act upon those
admissions against the accused, because as I say
people do not ordinarily say inculpatory things
unless they are true . . . so you are entitled to
use the admissions . . . which the Crown says the
accused made as evidence against him provided only
that you are satisfied that he did in fact make
them. Once you get to the stage where you think
he did make them then they are evidence against
him.

45. His Honour later said when outlining the Crown case:

"He made admissions not only at the house but also
in the record of interview and you know how hotly
that is contested in this case. It is possible,
of course, for you to find that he made admissions
at the house but did not make the admissions in
the record of interview. I mean, it is not
necessarily one in all in.

46. Later on his Honour continued:

"So the way you look at it is this; if you are
satisfied that he made the admissions in the
record of interview, then you must be satisfied
beyond reasonable doubt of the element of supply
in the first two counts, but you do not have to be
satisfied beyond doubt that he made the record of
interview. That is not the standard. It is not
the law that a jury should examine separately each
item of evidence adduced by the prosecution, apply
the onus of proof beyond reasonable doubt as to
that evidence, and reject it if you are not so
satisfied.

At the end of the day you must consider all the
evidence, and in doing so you may find that one
piece of evidence resolves any doubts that you
have about another. For example, considering the
evidence of one witness by itself you may doubt
whether it is completely truthful, but other
evidence may provide corroboration, and when you
consider the evidence as a whole you may decide
that the witness should be believed. You should
not look at the evidence of any one witness in
isolation, you should look at the whole case,
consider the accumulation of the evidence and
decide whether you are satisfied beyond reasonable
doubt of each of the elements which the Crown has
to prove.

Now, as I say, you do not have to be satisfied
beyond reasonable doubt that the record of
interview was made as the police say, and that the
confessions, the admissions, were made in it. But
you would have to be satisfied beyond reasonable
doubt of the elements of the offence, namely,
supply of a controlled substance, to wit, heroin,
to another person and it would seem to me that if
you do not think - if you are not satisfied that
the record of interview was compiled in the way
the police say, then there does not seem to be
sufficient evidence of the element of supply in
the first two charges for you to be satisfied
beyond reasonable doubt."

47. In concluding that part of his summing-up which was concerned with the first two counts, his Honour directed the jury as follows:

"If you do not think that the answers were given,
then, as I say, it seems to me that you could not
be satisfied beyond reasonable doubt about the
first two charges in the indictment because you
could not be satisfied beyond reasonable doubt
that the Crown had proved that he did in fact
supply in the previous few days to another
person."

48. Taking the summing-up as a whole, we think that these passages indicate that his Honour drew to the attention of the jury the importance of the confessional evidence particularly as it related to the two charges of supplying heroin. True it is that his Honour might have appropriately warned the jury of the dangers of taking into consideration in relation to the first two counts of supply the evidence which went more directly to the third count, the charge of having heroin in possession for the purpose of supply. The question for determination is whether, again reading the summing-up as a whole, the jury may have been left in a situation where they thought that they might properly convict the accused even though one or more of the necessary elements to prove each particular charge was established to a degree which fell short of being beyond reasonable doubt. We do not think that the jury was left in any such danger.

49. None of the grounds of appeal having been made out and it not otherwise appearing to us that a miscarriage of justice has occurred, the appeal against conviction must fail.

50. We turn now to the appeal against sentence.

51. By the jury's verdict the appellant was found to have been in possession of 18.6 grams of a mixture containing 5.37 grams of pure heroin. What was in his possession at the time of his arrest was what remained of what he had purchased some days previously. He intended to put about one third to one half of the amount purchased to his own use and to sell the rest. He had in fact sold some of the heroin in the packages that he had made up, and had in possession at the time of arrest a sum in excess of $4,000. He was himself a heroin addict, but that is an explanatory fact rather than a mitigating one.

52. The prisoner's antecedents are not such as to entitle him to any leniency. He is now 35 years old and has what his Honour described very correctly as a very bad criminal record. Between 1966 and 1970 he was convicted of numerous offences, mainly crimes of dishonesty. In 1972 he was convicted in the Supreme Court in Brisbane of armed robbery and was sentenced to six years hard labour. Unfortunately, it seems that whilst imprisoned in Queensland he was introduced to the use of heroin. After his release in 1978 he remained free of trouble for some three years, but in 1981 was again convicted of offences of dishonesty and in 1982 he was convicted for the first time of a drug related offence. There were a number of offences relating to cannabis over the ensuing two years and on 1 November 1983 he was sentenced in the District Court, Queanbeyan to three and a half years imprisonment for an offence of supplying Indian hemp, and a non-parole period of twelve months was fixed. He was released early in June 1984 and was on parole at the time of committing the offences under consideration. We have been told that parole has not yet been revoked by the authorities in New South Wales who are awaiting the outcome of the present appeal.

53. There was evidence before his Honour that the appellant had, whilst on bail awaiting the present charges, undergone treatment at a drug referral centre and had substantially embarked upon a changed lifestyle. His Honour, who heard evidence on this aspect, was not entirely convinced by it, and we are in no position to differ from his findings in that regard. The appellant himself gave evidence before his Honour as did Dr. Knox, a consultant psychiatrist. His Honour's conclusions were that there were some prospects of the appellant establishing a securer and stable life. Again we would not disturb those findings.

54. A threshold submission on the question of sentence was that his Honour had no power to impose a cumulative sentence. This submission was, it seems, based on the misapprehension that the power to impose cumulative sentences for offences charged on the one indictment derives from s.444 of the Crimes Act of New South Wales as amended in its application to the Australian Capital Territory. The power to direct that sentences passed in respect of conviction on the same indictment of two or more offences should be served cumulatively is, however, to be found in s.447 of the Crimes Act which provides as follows:

"Where a person is, in any case, convicted on the
same indictment of two or more offences similarly
punishable, the Judge may, if he thinks fit, pass
sentence on the second and third counts
respectively for a term to commence at a future
day named by him, within, or at the expiration of,
the term of sentence passed on the last preceeding
count."

55. It is unnecessary to consider at length the provisions as to cumulative terms of imprisonment contained in s.19 of the Crimes Act 1914 to which reference was made in argument. That section is concerned with offences against the law of the Commonwealth. Whilst there has been doubt as to whether, for the purposes of the Commonwealth Crimes Act, an Ordinance of the Australian Capital Territory is a law of the Commonwealth (see Hayes v. The Queen [1967] HCA 29; (1967) 116 CLR 459, Spratt v. Hermes (1969) 114 CLR 227, Webster v. McIntosh (1980) 32 ALR 603, R v. Clark & Cleaver 5 ACTR 119) those doubts for the purposes of the present case have been removed by the provisions of the Interpretation (Amendment) Ordinance 1985 and the Interpretation (Amendment) Ordinance (No. 2) 1985. The effect of the 1985 Ordinances, which amend the Interpretation Ordinance 1967, is that s.19 of the Crimes Act 1914 is no longer to apply to an Ordinance as if an Ordinance were a law of the Commonwealth. The present case is concerned with offences under the Poisons and Narcotic Drugs Ordinance 1978 and accordingly the matter of accumulation of sentence is governed by the Crimes Act of New South Wales as amended in its application to the Australian Capital Territory, and in particular s.447.

56. It was submitted on behalf of the appellant that his Honour fell into error by failing to take into account that the offences were committed primarily for the purpose of the offender financing his own drug addiction rather than for a motive of commercial gain. It is however abundantly clear that his Honour gave full consideration to this aspect of the case. It was further submitted that as a matter of law his Honour fell into error by failing to recognise that the three offences formed in effect one transaction which required the imposition of concurrent and not cumulative sentences. Again however on the facts his Honour was perfectly justified in treating the two offences of previous supply as being separate from the offence of being in possession for the purposes of supply at the time of the subsequent raid and arrest. Ultimately, the only real question for determination by this Court on the question of sentence is whether the sentences imposed by his Honour were manifestly excessive. The question is, of course, not whether this Court or any member of it would have imposed a sentence or sentences different from that or those imposed by his Honour, but whether the sentences fall outside the range that might reasonably be imposed by a sentencing tribunal in all the facts and circumstances of the case. We were referred to the decision of this Court in the appeal of Bozo Jurkovic (1981) 6 A.C.R. 215. The facts of that case were different from those of the present. The offender there was convicted on one count of possessing heroin for the purpose of supply for which he was sentenced to five years imprisonment and on a second count of administering heroin to himself for which he was sentenced to imprisonment for one year to be served concurrently. A non parole period of two and a half years was fixed. The amount of heroin in possession in that case was .872 of a gram, contained in a mixture of sugar and heroin weighing .9 grams. There were other features of the case which went to mitigation and which are distinct from the facts of the present case. A Full Court reduced the sentence on the conviction for possessing heroin for the purpose of supply to four years and reduced the sentence for administering heroin to three months, substituting a non parole period of twenty-one months. Little however is to be gained from comparing the actual sentence in that case. We take note of the principles enunciated in the judgment of Fox J. at p. 220 to the effect that two factors are of importance; one is the amount of the drug in terms of pure heroin, the other is whether the supply was for straightout commercial profit or for financing the prisoner's own addiction. In the last mentioned type of case his Honour stated and we would agree that five years imprisonment is in general at or towards the top of the range if the amount involved is small. However, in the present case we do not think that the amount involved can be described as small. The amount found in the appellant's possession was more than twice as much as the prescribed traffickable quantity and the amount already sold by him yielded more than $4,000 in the proceeds of sale. We are of the view that these factors are sufficient to establish that there was a real element of sale for profit on the part of the appellant, and that whilst his part in the transactions could not be described as being "for straightout commercial profit" neither was it restricted to financing his own addiction.

57. We do not repeat what has been said many times in the past about the evils of the heroin trade nor about the need for sentences to reflect an element of general deterrence as well as the disfavour with which the general community regards the heroin trade and those who engage in it. In our view the head sentences were not manifestly excessive when viewed independently, nor was the total period of nine years imprisonment when viewed as a mark of the total criminality of the appellant's conduct. Paying due regard to his Honour's findings that the appellant is beginning to show some real insight into his behaviour and the need for reform, we do not think that the non parole period was manifestly excessive having regard to the need to fix a minimum term of incarceration which will properly reflect the seriousness with which the Court regards the offences. The appeal against sentence is dismissed.