Re Nezvat Asanovic v R [1992] FCA 11 (17 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: NEZVAT ASANOVIC
And: THE QUEEN
No. ACT G44 of 1990
FED No. 52
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.

CATCHWORDS

Criminal Law - appeal against conviction - possession of heroin for purpose of supply - verdict unsafe or unsatisfactory - verdict and conviction set aside - verdict of not guilty entered - role of Appellate Court.

Courtney-Smith (No. 2) (1990) 48 A Crim R 49 H (1990) 49 A Crim R 396

Chamberlain v The Queen (No. 2) [1984] HCA 7; (1983) 153 CLR 521

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Chidiac v The Queen [1991] HCA 4; (1990-1) 171 CLR 432

HEARING

CANBERRA
17:1:1992

ORDER

1. The appeal be allowed.

2. The verdict and conviction be set aside and in lieu thereof a verdict of not guilty be entered.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Appeal against conviction by verdict before the Supreme Court of the Australian Capital Territory on a count of having possession of heroin for the purpose of supply.

2. One of the grounds of appeal is that the verdict was unsafe or unsatisfactory. It is convenient to deal first with that ground. A house on a suburban block of land known as 11 Julius Street, Pearce was under observation by police in the late afternoon of 30 November 1988. The appellant was in the house on the block with Anne Butler, the householder, and several others. After 5 p.m. the appellant came out of the house by the back door and walked a short distance to the vicinity of a pile of firewood which lay close to a paling boundary fence of the land. A very short time later the appellant returned to the back door through which he re-entered the house. While he was in the back yard he was carrying "a small tomahawk-type axe" in his right hand. So much was common ground at the trial, as was the fact that the area on which the pile of firewood stood was not approached by any person after the appellant went there until a number of policemen entered the house at about 5.30 p.m. and found the appellant and others there. A search of the area revealed a package of heroin concealed in the ground near the firewood. The critical issue at the trial was whether on the occasion when the appellant walked with the tomahawk to that area he had placed the package of heroin where it was found. There was no evidence to justify a conclusion that the appellant had possession of the heroin at any other time. The evidence relevant to that issue may be shortly stated.

3. Ian Alan Arthur was at the relevant time a Detective Senior Constable of police crouching on the adjoining block of land (known as 13 Julius Street) behind and very close to the paling boundary fence. He was a few feet from where the package of heroin was later found and about 10 metres from the back door through which the appellant left and then re-entered the house. At the trial Arthur swore that he heard the back door open and then saw the appellant walking in the back yard; that his line of vision was through a space in the fence; that the appellant walked to a position no more than four feet from himself, they being on either side of the fence; that the appellant was carrying the tomahawk in his right hand and in his left hand a small object which the witness could not further describe; that the appellant crouched and made a sweeping motion with his right arm towards the ground, which was struck by the tomahawk, and moved his left hand, but the witness could say nothing further about that movement; that the appellant then stood up and walked to the back door through which he passed into the house; that the package of heroin, which weighed about 30 grams, was found in "a very small hole" in the ground, covered by some of the wood in the pile of firewood, in "exactly the same spot that I observed the accused go to from the other side of the fence". Another policeman, Detective Sergeant Lines, swore that from a position on the land known as 13 Julius Street he observed the appellant walk through the back door into the back yard, that the appellant disappeared from his view and very shortly afterwards come again into his view and re-entered the house by the door; that he observed nothing in either of the appellant's hands, being able to see only "the top half of" the appellant; and that he heard no sounds. A third policeman, Detective Constable Overland, swore that from a position on the land known as 13 Julius Street he observed the appellant walk from the back door into the back yard with a tomahawk in his right hand and with his left hand clenched, but that the witness could not see anything in that left hand; that the appellant disappeared from his view; that the witness heard, when he was a distance from the appellant which he believed to be about 15 metres, a sound like the sound of an axe striking the ground; that he was sure that the sound was not that of an axe hitting wood; and that the appellant reappeared and walked back into the house through the back door. Police entered the house shortly after the appellant's return to the house from the back yard and in answer to a question put to him by police the appellant said that he had not been in the back yard. The appellant's unsworn statement at the trial was in these terms:
"Ladies and gentlemen, I am not guilty of these charges. I came down

here with my former girlfriend. When we got to Anne Butler's place, the
the police arrived and they thought that I had done something, and I
panicked then, I was scared, and I did tell them a lie about me being in
the back yard, but I did not put nothing down. Anne Butler gave me the
axe to get some wood for the barbecue, and I just returned back, I did
not put nothing there, I am not guilty, thank you."

Perhaps because the appellant had not acknowledged, before trial, that his statement to the police that he had not gone into the yard was false, Anne Butler, the householder of 11 Julius Street, was called by the Crown as a witness. She gave this evidence in chief:

"Did you go into the kitchen at any stage after you had brought the
accused back to your house?---Yes.
Was that for the purpose of making a cup of coffee?---Yes.
At that time did the accused go somewhere, did he leave the house?---He
never - he was not feeling very well and we were going to have a quick
tea, like a barbie, and I had big logs to go on my wood fire in the
govie house I had, and so I asked him would he chop me a few bits to get
barbie going, a portable barbie, and he was not feeling well, said he
was going out for some fresh air, so I gave him a small axe and asked
him to chop me some splinters of wood.
And did you see where he went?---To the wood heap.
And was he there for long?---No, because I yelled straight back out, I
said, `No, don't worry about it', because his girlfriend said, `We've
got to get back to Sydney' - they had forgotten something - so I
virtually said straight away, `No, don't worry about it. We'll grab
McDonalds' and he came straight back in."
"Did you keep an eye on him when he went outside? Did you watch him?---
I was holding my - you see, I had a Great Dane puppy. He just was
getting over ...... I nearly lost him. He had just come out of hospital
and he was in the laundry because he was not allowed outside and when I
gave Pete the axe to do the wood I had to hold the dog, you see, or he
would have got out, so I was there the whole time. I was at the back
door holding the dog."

We were informed by counsel that "govie" means "government".

4. No witness was called by counsel for the appellant, nor any exhibit tendered. The deposition of the evidence, given at a preliminary examination before a magistrate, of a policewoman who was overseas at the time of the trial was read to prove that no identifiable finger print was found on the package of heroin. Cross-examination by counsel for the appellant was recorded in the deposition thus:

"Constable, I suppose one can be unable to find fingerprints on an
object which somebody has handled for a variety of reason?---Yes, that
is correct.
In some cases, they may have been smudged when they see there is a
fingerprint of sorts there, they would be unable to group it because of
the blur in it, would that be right?---Yes, that is correct.
On other occasions it might have been wiped off and I suppose they
deteriorate just by fluxion of time, do they?---Yes, that is correct.
And usually, over what sort of period would fingerprints deteriorate?---
Well, it depends on circumstances, various circumstances, for example,
environmental conditions and several reasons. It depends on where they
are placed as to where they might be covered up by either other people's
fingerprints or wiped up, that sort of thing.
Right. Assuming something had been handled and then covered up by wood,
or something like that: would one expect the fingerprints to be retained
for a few days unless they had been wiped off?---Once again, that
depends on the environmental conditions, perhaps if it rained or
whatever, then there may not be any fingerprints.
Yes. Assuming the weather to be fine and conditions to be fairly
normal, but assuming it was covered by something else, in the normal
course of events, you would expect the fingerprints to remain, would you
not, on the surface like plastic for at least a few days?---They should,
yes, possible."

Re-examination elicited the following:

"But they may not necessarily remain?---No."

5. Anne Butler gave evidence, under cross-examination by counsel for the appellant, that she had been addicted to heroin at a time she did not specify before 30 November 1988; that on 30 November 1988 she was "on a methadone programme"; that until a time that was "about a month" or "a couple of weeks" before 30 November 1988 friends of hers who were using and dealing in heroin had been staying with her at 11 Julius Street; that when she arrived at her house with the appellant and his girl friend on the afternoon of 30 November 1988 two men, whom she named, were in the house, without her permission, whom she asked to leave because they used and dealt in heroin; that she had met the appellant and his girl friend at Canberra airport by arrangement, the latter two having travelled that afternoon by air from Sydney. The appellant was said to be a friend of Anne Butler. The two men who were asked to leave the house apparently complied with the request, for there was no reference in the evidence to any man, except the appellant, in the house when the police entered the house.

6. No police witness was asked whether he had heard a human voice calling out immediately before the appellant returned to the house. After Anne Butler gave evidence that she had called out to the appellant no application was made to recall any police witness. When Anne Butler completed her evidence the Crown case was not closed. The transcript of counsel's final addresses to the jury was not before this court. In his charge to the jury the learned trial judge is recorded as having said:

".... and the evidence of Mrs. Butler. You may find that evidence
curious in some ways, members of the jury. As I say, as far as either
side is concerned, both the prosecution and the defence rely on it to
some extent. They ask you to accept part of it and reject part of it -
each asking you to accept a different part and reject a different part.
It's up to you how you approach it.
She was a lady who had been a drug addict, she said, and I think it may
be fair to say that that doesn't mean that you have to reject her
evidence. You may think that it requires to be weighed up carefully in
the circumstances. It's all a matter for you."

7. Satisfaction beyond reasonable doubt, by inference from the circumstances proved by the police witnesses (including the appellant's false denial of having been in the back yard), that the appellant carried the package from the house to the place where it was shortly afterwards found, would have to be reached after consideration of two other sets of circumstances. First, the unlikelihood of a package of heroin being in a suburban back yard is sensibly diminished by the uncontradicted evidence that these premises were frequented by persons who used and dealt in heroin, and were occupied by a person who had used heroin. Second, the evidence of Anne Butler affords an explanation, consistent with the appellant's innocence of the charge, of his journey to and from the pile of firewood with a tomahawk in his hand, and of his striking down with the tomahawk once, and of the brevity of his stay near the pile of firewood. If her evidence that she called out to the appellant from the back door was false, it is not easy to understand why evidence was not adduced from Detective Senior Constable Arthur, either in chief or on recall after she had testified, that he did not hear her. He was no more than two yards further than the appellant from the back door. The evidence Mrs. Butler gave, both that which corroborated the police evidence of what they saw the appellant do and that which afforded an innocent explanation of what they saw him do, was not tested by cross-examination: her answers to all questions put to her were simply accepted by both counsel while she was in the witness box. There is no hint in the transcript of her evidence or of the trial judge's charge to the jury that her demeanour gave cause to doubt her testimony. The observation by the trial judge - "You may find that evidence curious in some ways" - is not explained by anything else his Honour said. Of course her situation as a professed friend of the appellant and as a user of heroin on whose premises heroin has been found by police naturally attracts a critical consideration of her evidence and reflection upon the motives she might have had to help the appellant escape conviction. But her evidence was not of anything inherently improbable, not was it contradicted by any other evidence. It was not necessarily inconsistent with a conclusion of the appellant's guilt, but if it was true satisfaction beyond reasonable doubt of the appellant's guilt could not in my opinion be reasonably attained. And the jury could not in my opinion have reasonably thought the probability so low that her evidence was true as to admit of reasonable satisfaction of the appellant's guilt to the standard required by the criminal law. It was not in my opinion open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant carried the package to the place where it was found. The ground that the verdict was unsafe or unsatisfactory having been established, the appeal should be allowed, the verdict and judgment set aside and a verdict of not guilty entered.

8. The other grounds of appeal assert misdirection in the course of the learned trial judge's charge to the jury. At the beginning of the charge his Honour was expatiating upon the jury's function of finding facts. After dealing with the process of evaluating witnesses and their evidence his Honour said:

"Now, in addition to what the witnesses have said about what they saw
and heard directly you are, of course, also required in this particular
case to draw inferences and, in particular, to draw the inference that
it was the accused who placed the package of heroin that was found by
the police on the day in question and, indeed, to draw the inference
that, although neither of the police officers says that he saw the
accused place that item on the ground, or in the ground, at the time he
was in the vicinity of the wood heap, nevertheless you would draw the
inference from all the surrounding circumstances that, from the time he
passed out of the direct view of the police officers until he came back
into that direct view again, the accused used the opportunity during
those few seconds to place that package where it was subsequently found.
Now, as I say, the drawing of such inferences in this case is a very
important aspect of it and you are the judges of the facts. You
exercise your common sense, your sense of fairness and justice and you
have to make those conclusions, whether or not such inferences can be
drawn. Let me just give you an example of an inference from another set
of circumstances in case you're not exactly sure what I mean."

His Honour then expounded the essential elements of inferential reasoning to the finding of a fact not the subject of direct perception by any witness, using apt examples unrelated to the facts of the case being tried. It was submitted that his Honour's use of the verb "required" would, or alternatively might, have given the jury to understand that he was directing them to draw inferences adverse to the accused. Whatever momentary difficulty the word may have caused a juror, the learned trial judge's lucid explanation of the part which the drawing of inferences would play in their deliberations must in my opinion have quite dispelled the difficulty.

9. It was submitted that the trial judge had failed to make clear to the jury the legal requirement that conclusions of fact from which the verdict of guilty is inferred be established beyond reasonable doubt. In my opinion that was made clear.

10. The following part of the charge was said to include misdirection:

"There are a number of matters of law that I will now refer to, members
of the jury. They're fairly simple and I don't think they'll require a
great deal of explanation but it is essential that you bear them in mind
and it's essential that I explain them to you. The first few principles
relate to all criminal trials in our system. Counsel have already
mentioned them but I must mention them again. The accused is entitled
to be presumed innocent until such time as he is found guilty, if, in
fact, he is found guilty. As one of the counsel said, the accused is
entitled to that protection of the law, as all people are, but the
presumption of innocence only arises at the commencement of the trial.
It's not something that applies outside the criminal justice sphere and
it's a doctrine that we have built into our criminal justice system
which is closely connected with the other 2 principles which I would
mention."

The "2 principles" to which his Honour then referred were the onus of proof and the criminal standard of proof. It was said that the statements that the presumption of innocence only arises at the commencement of the trial and exists only within "the criminal justice sphere" were erroneous. I do not accept the submission. The statements are in my opinion not unhelpful means of dispelling any mistaken impression which the phrase "presumption of innocence" might induce that jurors are required to suppose the accused to be a person free of all criminal impulses or tendencies. The presumption is not about the psychological constitution of the particular accused the jury has in charge and the learned trial judge's statements are apt, in my opinion, to dispel any notion that it is.

11. There were other criticisms of the charge, but none in my opinion of any substance.

I have had the advantage of reading in draft the judgment of Jenkinson J. As he has extensively referred to the evidence relating to the appellant's movements in the back-yard of the premises at 13 Julius Street, there is no need to repeat any of that evidence except to the extent to which it is necessary to explain why I feel compelled to arrive at an opposite conclusion to that reached by the learned presiding Judge.

2. However, the first area of the evidence to which I turn is that dealing with the appellant's explanation for being in Canberra on the day on which he was arrested. The answers that he gave to the police on that subject were most confusing. He told Det. Sgt. Lines that he and his girlfriend had travelled to Canberra to visit Anne (the witness Anne Butler). Initially, he said that they would be staying overnight, returning by plane to Sydney the next day; within less than an hour he changed that story, telling Det. Sgt. Drennan that they had intended to return that night. But on each occasion he was unable to explain how he and his girlfriend would be able to pay for the return plane tickets. He admitted to the police that he was unemployed and that he had borrowed the money from his mother to purchase two single airline tickets from Sydney to Canberra. He had $90 on his person when searched but that would not have paid for one return ticket to Sydney. (There was evidence that, at that stage, the price of a single Canberra/Sydney ticket was about $100).

3. Later that evening, when further questioned by the police he claimed, for the first time, that he had planned to return to Sydney with Anne Butler in her car. It was also at about this time that he made some vague reference to the subject of abortion as the reason for him being with his girlfriend in Canberra. He also said in this interview that he had bought the Sydney/Canberra plane tickets in a false name. When asked to explain why this was necessary his implausible answer was:

"I did not want no-one to know where we were...
Because of her Mum and my Mum."

4. No matter how one views the appellant's explanations, they are found wanting. An unemployed man, who has to borrow at least $200 and possibly $290 from his mother to fly to Canberra, would not have incurred that expense only to pay a social visit to a friend; he would have had a quite compelling reason for incurring such expenditure. It would not have helped the appellant in the eyes of the jury that he was unable to offer any reasonable explanation to the interviewing police officers. This is not to say that there was any obligation on the appellant to give any explanation. But he chose to answer questions that were asked of him and the jury was entitled to make its assessment of the answers that he gave. The poor quality of his answers might well have made the Crown's proposition quite appealing in the eyes of the jury: he had flown to Canberra to sell heroin to his contacts. That explains the use of a false name, the quickness of the trip, the ultimate source of funds to pay for the return plane tickets and that is the reason why he was unable to give a coherent and plausible explanation for his presence in Canberra.

5. Perhaps the matter of gravest concern is the appellant's deliberate lies about his presence in the backyard. Initially he was searched and then questioned briefly by Det. Sgt. Lines; this concluded at 5.56 p.m. A second, longer interview was conducted an hour or so later by Det. Sgt. Drennan and Det. West; this took place inside the house and before the appellant was aware that the police had discovered any suspicious substance in the backyard. The third and final interview of the appellant was conducted by Det. Sgt. Drennan in an interview room at City Police Station commencing at 9.20 p.m. that evening.

6. In the second interview, before the heroin had been found (and so before any specific allegations on the subject of drugs was put to him) the appellant was asked:-

"Q.
Why were you in (the) rear yard early this
afternoon.
A.
I was not in the yard. I swear.
Q.
Mr. Asanovic, other detectives saw you in the yard just
before the police came into the house. What were you doing?
A.
I swear to you I was not in the yard."

7. The appellant's use, in two consecutive answers, of the idiom, "I swear", emphasises the insistence with which the appellant answered apparently innocent questions about an apparently innocent movement. It also emphasises the importance that he attached to the questions. In his unsworn statement he admitted that he had lied to the police about his presence in the backyard. He said that "the police arrived and they thought that I had done something, and I panicked then, I was scared..."

8. In the third and final interview he maintained the same deliberate lie. He specifically denied going outside the house and going into the backyard.

9. The learned trial Judge carefully explained to the jury how they should go about assessing the appellant's admission that he had lied to the police when he said that he had not been in the backyard that afternoon. That topic has been the subject of recent comment by the New South Wales Court of Criminal Appeal in Courtney-Smith (No.2) (1990) 48 A Crim R 49:

"The obligation to give directions on the
significance of lies arises frequently in
criminal trials. It is not in doubt. The need
for care arises from the fact that people,
unexpectedly facing criminal investigation and
possible charges, may sometimes tell lies out of
panic or fear. They may become confused. They
may have an innocent reason for lying, such as a
desire to protect others close to them, or
aspects of their lives which, although
embarrassing, are irrelevant to the charge under
investigation. Considerations such as this have
caused the courts to require a degree of care in
the instruction to be given to a jury on this
issue. Thus in Buck (1982) 8 A Crim R 208 at
214, Burt C.J. acknowledged that, to be relevant
and corroborative of involvement in the specific
criminal charge before the court, the jury must
be told that:
'...(T)he lie must be deliberate, it must relate
to a material issue, the motive for the lie must
be a realisation of guilt and a fear of truth
and the lie must be established as such by
evidence independent of the witness to be
corroborated or by admission made by the
accused.'
This principle was accepted by this Court in
Sutton (1986) 5 NSWLR 697. The Court held that
the evidence of false statements made by an
accused person was not admissible for the
purpose of inferring a consciousness of guilt
unless the statements related to a material
issue." (p.62)

10. The subject of "materiality" was re-emphasised by a differently constituted court a month or two later in H (1990) 49 A Crim R 396 when Clarke J.A. said:

"Even assuming that they were properly described
as lies there are difficulties in understanding
how it could be said that they related to
material matters or, more importantly, were
capable of demonstrating a consciousness of
guilt." (p.402)

11. Although he did not choose to use the exact words "material issue" or "material matters", there can be no doubt that his Honour forcefully brought home to the jury the only correct way in which they could use those lies. He said:

"The prosecution relies also on the fact that
the accused concedes that he lied when he told
the police that he was never in the backyard at
any time. Now, I must tell you how you should
approach this question of any lie told on the
part of the accused.
The fact that a person has told a lie does not
prove that that person has committed a crime.
People tell lies for all sorts of reasons and in
all sorts of circumstances. The accused has
told you in his statement today that he panicked
on the day in question and you've heard the
arguments by counsel for the defence about why
he might have done so. Let me tell you that if
you are attracted to take into account in
support of the prosecution case the fact that
the accused lied about whether he was in the
back yard, you should bear this in mind.
You should only take the lie of the accused into
account to support the prosecution case if you
are satisfied of 2 things - satisfied beyond
reasonable doubt. The first is that the lie was
told, and the second is that the lie displays a
consciousness of guilt on the part of the
accused that he committed the crime charged."

12. Thus the strength of the Crown case can be summarised by referring first, to the appellant's presence in the backyard, secondly, to his deliberate lie about that presence and finally to his general unsatisfactory evidence about his reasons for being in Canberra.

13. The Full Court of the Federal Court, on appeal from the Supreme Court of a Territory, has the power and the duty to set aside the verdict of a jury in a case where it would be unsafe or dangerous to allow the verdict to stand: Chamberlain v The Queen (No.2) [1984] HCA 7; (1983) 153 CLR 521. That power may be exercised even though there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657. Dawson J. explained in Whitehorn's case that the question must be:

"... whether the appellate court thinks that
upon the whole of the evidence it was open to
the jury to be satisfied beyond reasonable doubt
that the accused was guilty." (p 686)

14. Those remarks, with which Gibbs C.J. and Brennan J. generally agreed, were reaffirmed in Chamberlain (p 532 per Gibbs C.J. and Mason J. and p 608 per Brennan J.) and in Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 472 per Deane, Toohey and Gaudron JJ. In Morris the task of the appellate court was explained by their Honours in their joint judgment in these terms:-

"... it is clear that the question whether a
verdict is unsafe or unsatisfactory involves a
Court of Criminal Appeal undertaking an
independent examination of the relevant evidence
to determine whether it was open to the jury to
be satisfied beyond reasonable doubt as to the
guilt of the accused." (p 473)

15. In Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 Brennan J. stated that he regarded these remarks as the "correct approach". However, he found himself unable to agree with "the broader approach" that had been expressed in the immediately preceding sentence in the joint judgment. That sentence was:-

"For our part, we would think that there might
be verdicts falling within the concept of
miscarriage of justice, as that expression is
used in the common criminal appeal provisions,
by reason of some defect or weakness of the
evidence even though on the evidence it was open
to the jury to be satisfied of guilt beyond
reasonable doubt, as, e.g., where there is some
feature of the evidence which raises a
substantial possibility that the jury may have
been mistaken or misled: see Davies and Cody v
The King [1937] HCA 27; (1937) 57 CLR 170 at p 180."
(pp 472-3)

16. Brennan J. in Carr's case thought that these remarks unnecessarily widen the test of "open to a jury to convict". He said:

"If... the appellate court concludes that 'it
was open to the jury to be satisfied beyond
reasonable doubt as to the guilt of the accused'
and there was no blemish in the conduct of the
trial, in my respectful view it would be wrong
for an appellate court to give effect to its
assessment of the evidence and to find some
fatal defect or weakness in the evidence when
the jury, acting reasonably, had found none."
(p 333)

17. Elsewhere, his Honour had said:

"... but the appellate court does not substitute
its assessment of the significance and weight of
the evidence for the assessment which the jury,
properly appreciating its function, was entitled
to make." (p 331)

18. The extent to which an appellate court may involve itself is still the subject of some debate in the High Court notwithstanding a further consideration of the subject in Chidiac v The Queen [1991] HCA 4; (1990-1) 171 CLR 432. However, I do not believe that the facts of this appeal warrant a further consideration of the authorities; on any view of the principles to be applied, I find myself wholly at ease with the verdict of the jury.

19. It was not said, nor indeed could it be said, that there was no evidence to support the verdict of guilty. But it was said that the verdict was "unreasonable and perverse" and that it was "against the weight of the evidence". Two broad propositions were advanced in support of this ground of appeal. The first was that there was no direct evidence of the appellant burying the heroin in the woodpile; an integral part of this proposition was the evidence that the house had regularly been used at different times by drug addicts. The second proposition related to Anne Butler's evidence that she asked the appellant to chop some wood but recalled him almost immediately upon his arrival at the woodheap.

20. I think that this second issue is capable of a quick resolution. Let it be assumed that Ms Butler asked the accused to chop some wood; her request therefore explains his presence at the woodheap. Let it also be assumed that she recalled him almost immediately and that he then returned to the house. Neither of those facts, that is, her request that he chop some wood and her recalling him to the house, in any way weakens the case for the Crown. It would merely mean that the appellant, whilst engaging in an innocent activity, used that opportunity to secrete away his packet of heroin.

21. None of the police officers who observed the appellant in the backyard gave evidence of seeing Ms Butler at the backdoor or hearing her call out to the appellant; each of them gave their evidence before Ms Butler and their attention was not directed to either of these subjects. It is possible that Ms Butler, a friend of the appellant, invented this piece of evidence; it is possible, albeit less likely, that although this fact was in her witness proof or deposition, the prosecutor (and also counsel for the defence) forgot, or thought it unnecessary, to question the police officers about their observations of Ms Butler. But in the final analysis, it does not matter. The integrity of the police officers was not challenged and the dominant question for the jury was whether the appellant had the heroin in his possession. Whether he went to the woodheap in part for an innocent purpose was only of incidental interest.

22. The claim that the premises had been used by other drug addicts was, of course, material that was properly put before the jury. But the jury would have been entitled to ask themselves is it likely that anyone might have departed those premises, having buried in the backyard a quantity of 29 grams comprising 10 grams of pure heroin. The likelihood of some unknown person burying such a valuable parcel and leaving it there could not be dismissed out of hand, but it diminishes rapidly as a likely scenario when (as it must be assumed) the evidence of the Det. Arthur was accepted by the jury. Having stated that the appellant was carrying some unspecified object in his left hand when he went to the woodheap, Det. Arthur said that as he observed the appellant return to the house "he did not appear to be carrying anything else in his left hand". To this piece of evidence must be added his evidence about the location of the heroin and the site of the hole in the ground:

"That is almost - is exactly the same spot that
I observed the accused go to from the other side
of the fence."

23. I do not have any feeling of disquiet about this ground of appeal. The appellant's presence at the woodheap, his carrying of some object in his left hand which did not appear to be there as he returned to the house, his use of the tomahawk and the finding of the heroin in exactly the same spot are compelling pieces of evidence strongly pointing to guilt. When to that there is added his blatant lies during the course of two interviews about his presence in the backyard and his generally unsatisfactory evidence about his reasons for being in Canberra that day, there was, in my respectful opinion, appropriate and adequate material to justify the jury's verdict of guilty; it cannot be said that the jury must have entertained a reasonable doubt as to the guilt of the accused.

24. For the reasons given by Jenkinson J. I do not consider that any of the other grounds of appeal have been made out.

25. I would therefore dismiss the appeal.

I agree with the orders proposed by Jenkinson J. and with the reasons stated by his Honour for making those orders.

2. However, I would add, with respect, a qualification concerning the learned trial judge's comments concerning the presumption of innocence.

3. It is true, of course, that the presumption of innocence becomes relevant only when proceedings are in progress seeking to persuade a jury, magistrate or judge that an accused person is guilty of an offence. It is, accordingly, correct to say of that presumption that it is not applicable, in a legal sense at least, outside the criminal justice system.

4. However, the statement made by the learned trial judge -

"...the presumption of innocence only arises at the
commencement of the trial..."

should not be construed as indicating that the presumption does not apply to the evidence relating to events preceding the trial. In other words, the presumption means that the evidence should be construed by the tribunal of fact consistently with the innocence of the accused unless no other inference than guilt is perceived as open. It does not single out the psychological make-up or lack of criminal propensity or other characteristics of a particular accused. There should, however, be an assumption in relation to the facts alleged of a prima facie inference of innocence. It would, however, be wrong to assume that a merely neutral assumption as to criminal propensity, as a psychological concept or otherwise, is called for.

5. The comment which followed in his Honour's summing up -

"It's not something that applies outside the
criminal justice sphere."

could be taken, as meaning that the presumption of innocence is a mere formality. It is not. Nor do I think his Honour intended it to be so taken or that the jury could have so understood it. It is a real requirement. It means that in construing the evidence the tribunal of fact considers not how the evidence can be construed as favouring the hypothesis that the accused is guilty as charged but rather how it can be construed as being consistent with the innocence of the accused.