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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Criminal Law - appeal against convictions - jury trial - appeal upheld - convictions and sentences quashed - new trial ordered in respect of count 1 - verdict of acquittal in respect of counts 2 and 3 - proceedings on count 4 permanently stayed.Criminal Law - indictment - improper joinder of counts - improper admission and use of evidence relating to the sum of money found - reasonable suspicion - principles - admissibility of indicia of drug trading found - admissibility of similar fact evidence - admissibility of "other occasion evidence" of supply of drugs - probative value.
Criminal Law - whether verdicts unsafe and unsatisfactory.
Criminal Law - incompetence of counsel - when conduct of case by defence counsel may lead to quashing of conviction - principles.
HEARING
CANBERRACounsel for the Appellant: Mr P Hastings
Instructing solicitors: Messrs Gilpin and Associates
Counsel for the Respondent: Mr K Crispin QC with
Ms P DeveauInstructing solicitors: Director of Public
Prosecutions
ORDER
The Court orders that -2. The three convictions and the sentences thereon be quashed.
3. That there be a new trial in respect of count 1.
4. There be a verdict of acquittal in respect of counts 2 and 3.
5. Further proceedings on count 4 be permanently stayed.Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
DECISION
Introduction2. By s.4(2) of the Poisons and Narcotics Drugs Ordinance, it was provided that a person who supplies a controlled substance to another person is guilty of an offence.
3. By s.164(2)(c) of the Drugs of Dependence Act, (which Act commenced on 15 March 1989) it is provided that a person shall not possess a drug of dependence for the purpose of, inter alia, supply to any person. Different penalties are prescribed for this offence by s.164(2), depending on whether the quantity of the drug is a commercial quantity, or a trafficable quantity. By s.169(1) of the Act, it is provided that a person shall not possess a drug of dependence.
4. The appellant pleaded not guilty to each of the charges but was convicted on the first, second and fourth charges and now appeals against these convictions.
Outline of the appellant's contentions on the appeal
5. On behalf of the appellant it is contended that the Crown case at the
trial was "inadequate from the outset". Particular reliance
is placed upon
the circumstances that the only evidence in relation to the first count of
possession was from an accomplice; and
that there was no corroboration. In
relation to the second and third counts, it is said that there was no evidence
to identify the
appellant as the possessor of the drugs; that there were
other occupants of the premises in which the drugs were seized; and that
the
amount of amphetamines seized were below the quantity sufficient for "deemed"
supply. Moreover, the argument runs, the inappropriate
joinder of counts in
the indictment, the admission of prejudicial inadmissible material concerning
alleged prior activities of the
appellant, and of his possession of certain
cash funds, an "inadequate" summing up and "incompetent" representation,
allowed the
Crown "to create the appearance of a general background of drug
dealing and consumption" that "filled the gaps" in the Crown case
and deprived
the appellant of a "genuine prospect" of an acquittal.
The course of the trial
6. In order to understand these arguments it is necessary to describe the
course of the trial in some detail.
(A) The Crown case
(a) The evidence of Mr. Robbie
In his evidence in chief, Mr. Robbie said that, in the previous year, he had
pleaded guilty to, and been convicted by the Supreme
Court of, a charge of
possession, on 15 January 1989, of methylamphetamine (a synonym for
methamphetamine) for the purpose of its
supply. He said that, at this time,
he was "in the habit of using amphetamine". He explained that, on 15 January
1989, the police
found eight small plastic bags containing this substance in
his flat.
7. Counsel for the prosecution examined Mr. Robbie as follows:
"Now, where did you get that amphetamine from?---Originally8. Mr. Robbie said that, on the occasion in question, he was given "a small package wrapped up in packaging tape". He said that he may have given the appellant some money, but could not remember it.
I got it from (the appellant)...(on Friday 13th January
1989).
Can you indicate the circumstances that led up to your
acquisition of that material from the accused?---I had
basically sort of normal procedures that I would ring him.
Well, can you recall - I'm just asking you what you can
recall of what you did on this particular occasion for the
moment?---Rang him up. I asked if he had anything for me.
He said, 'Yes.'
HIS HONOUR: Asked if he had any what?---If he had anything
for me. I never actually said what it was on the phone.
Arranged for a friend to drive me over to his place at
Richardson. I was dropped off down the road. I walked up;
went in the house; got the stuff and then left. Met at a
pre-arranged spot, and in the car went back to the flat."
9. Mr. Robbie went on to say that he had known the appellant since 1983 and had been to his house at 5 Wentcher Place, Richardson "possibly five or six times".
10. The following evidence was then sought to be led:
"Now, what was the purpose of your - if there was a single11. The trial Judge ruled that this evidence was not admissible on the first count, but was admissible on the second and third counts.
one - of your visits to the accused's premises prior to the
visit that you've told us about on 13 January 1989?---The
majority of the time it was for the purpose of purchasing
amphetamines.
HIS HONOUR: Just a moment, I do not think you can ask him
his purpose on prior occasions. This is just a mental
element on his part as I understand.
(Crown counsel): Yes, I take your Honour's point. I
withdraw that question.
Had there been occasions prior to the occasion you've
already told us about, when you'd acquired amphetamines -
sorry, I withdraw that - when you'd acquired white power
from the accused?---Yes, I had.
(Counsel for the appellant): I object, your Honour."
12. Mr. Robbie gave evidence that, on at least 20 occasions over a period of approximately 12 months, he had received from the appellant, in "self-sealing" bags approximately four by six inches in dimensions, amphetamine in the form of "a white powdery or crystalline substance".
13. Mr. Robbie went on to give the following evidence:
"(Counsel for the prosecution): Now, in relation to the14. In cross-examination, it was suggested to Mr. Robbie that, on 13 January 1989, he went to the appellant's home to negotiate the sale of a motor cycle. He said:
substance that was found by police in this flat on 15
January 1989; I think you said that you placed the white
powder found by police in the eight or so bags that were
found in your - in the flat?---Yes, that's right.
Did those eight bags contain all the white powder that you
received from the accused?---No, they didn't.
I think you've already told us that you used about 1 gram of
it?---I had, initially.
Was there any other white power received from the accused on
the last occasion - if I can put it that way - apart from
the amount of it that you used and the amount that the
police found?---Yes, about half of it had gone, or maybe a
bit over half.
And where had it gone?---I had used - of the portion that
was gone, I probably used about half of it myself and I had
sold the rest.
And do you recall the amount that you received from the
accused---Half an ounce.
And were any arrangements made with the accused in relation
to any consideration received, or to be received, in
relation to the handing over of that substance to you by the
accused?---Yes, I had to find $700 for it.
$700. Can you recall whether in fact you gave him any money
at all on the occasion when you received that white powder?-
--I'm afraid I can't, at this stage."
"I remember organising him to buy a motor cycle, yes.Later, Mr. Robbie said (in cross-examination):
Whether it was on that day I cannot recall at this stage.
(Counsel for the appellant): So, it could have been 13
January?---It may have been.
Does it help if I tell you that the Friday the 13th was 13
January - black Friday - is that as you - - -?---Probably.
It's what most people call Friday, the 13th.
But that doesn't help?---No.
So, it's possible you were there on that date?---There's a
good chance of it, yes. Like I said, I remember being there
on that Friday to purchase half an ounce of speed, or
amphetamine.
But you're not certain about introducing somebody to sell a
motor bike - - -?---I remember introducing an acquaintance
who was selling a Triumph to Mick; and Mick subsequently
did buy the bike. But whether it was on that day, I cannot
recall."
"(Counsel for the appellant): The evidence you have givenMr. Robbie was cross-examined about the figure of $700 as follows:
that on Friday, the 13th, you were at Michael Guerin's home
in Richardson and you were there to purchase drugs?---Yes.
And you say to the proposition I put to you that you were
there for the purpose of the bike sale; you say that is
incorrect?---I do not recall that being the circumstances.
Whether I combined the two functions on the Friday, I cannot
recall. I may well have.
You may well have?---Yes, but I don't recall doing it.
Because there is some things that you just can't recall?---
Yes, you know, minor details.
Yes, such as this vehicle you said you got a lift - your
evidence was that you got a lift to Richardson - this is the
day, the 13th, when you say that you went out to purchase
the drugs; is that your evidence?---Yes, that's what I recall."
"(Counsel for the appellant): So you've got 14 grams of15. It was put to Mr. Robbie, and he agreed, that the "resealable" bags of the kind used to obtain the drugs from the appellant were also used when Mr. Robbie purchased parts for his motor bike from the appellant.
this powder?---Yes.
Which you say you purchased?---Yes.
But you can't recall whether you paid any money?---After
this amount of time, no. I may have, I may not have, I
cannot remember.
But you mentioned you can recall the figure of 700?---Yes,
that was the set price for half - or 14 grams. That's how
much I normally paid for 14 grams.
Yes, but you've got a clear recollection that 700 was the
figure?---Yes.
Have you got any recollection if at that time in January
1989 you were in fact owing money to Mr Guerin in respect of
parts for a motorbike?---Yes, I did.
You remember owing the money for the bike parts?---Yes.
How much?---I couldn't say at the moment. It was I think
around $300 or $400. I'm pretty sure - I knew it wasn't a
great deal but it was a few hundred dollars.
Would you tell the court what type of parts you bought to
incur that debt?---I can't recollect now at the moment what
the parts were. I bought I think a number of chromed
replacement parts for the bike to dress it up, to make it
look better, and I think I bought some mechanical parts for
it as well.
Yes. You just can't recall exactly?---I can't remember the
exact specifics of what parts they were.
Can I suggest to you that this was an ongoing relationship
in terms of your interest in the bike, that you would be
either purchasing items from Mr Guerin for your bike, is
that so?---Yes.
Or, as you've told us, you would - on at least one occasion
you've mentioned, you introduced people to him to sell bikes
to him?---I did that once."
16. In re-examination, Mr. Robbie gave the following evidence:
"(Crown counsel): Now, you've told us that you couldn't17. Mr. Robbie was later recalled for further cross-examination.
recall whether you paid any money on the occasion on 13
January when you received the amphetamine. Had there been
any other occasion, when amphetamines had been received from
the accused, when money had not passed hands?---Yes, there
had been a number of occasions.
And was there any arrangement in place in relation to that?-
--Yes. I - as I sold the smaller quantities of speed I
would - when I had maybe $400, $500 together, I'd arrange to
give it to him."
18. Mr. Robbie was then asked by counsel for the appellant about his previous
conviction by the Supreme Court. Counsel sought to
ask Mr. Robbie about the
sentence but Crown counsel objected as follows:
"(Counsel for the appellant): What was the sentence of this19. Counsel for the appellant then put the following to Mr. Robbie:
court?---That sentence of this court - - -
(Crown counsel) I object to that, your Honour.
HIS HONOUR: Why do you need to know that....? Why is the
jury assisted by knowing what the sentence was?
(Counsel for the appellant):Perhaps if I could - - -
HIS HONOUR: The important thing is that he was sentenced
and therefore any proceedings in relation to him have
concluded. It is relevant for the jury to know that. If
they thought there were any charges hanging over his head it
might affect the weight of his evidence. But we know now -
the jury knows now that he was convicted and sentenced. Why
should they know any more about it?
(Counsel for the appellant): Your Honour, what I was
proposing, to lay the ground for, is - and it is a question
of fact - the sentence. Perhaps if I could defer that
question, if I might? Perhaps if I might proceed on another
line?
HIS HONOUR: Yes, certainly."
"(Counsel for the appellant): Mr. Robbie - can you recall20. Counsel for the appellant proceeded to cross-examine Mr. Robbie about the statement he made to Constable Kinloch, suggesting that Mr. Robbie's evidence that the appellant supplied drugs to him was "a figment of (his) imagination."
Constable Kinloch, he was the arresting officer?---Yes, he
was.
And you had conversations with him, and you were interviewed
by him?---Yes, I was.
Do you have any recollection of it being said to you by
Constable Kinloch that if you were to assist the police in
their inquiries, that that could be to your benefit?---
Constable Kinloch said something about that to me, but it
was more in relation to telling them about myself, what they
wanted - what they were asking me, and not to give them a
hard time over questions they were asking about my matters
with the drugs I had, that things wouldn't be, you know, it
would look better for me, in my own stuff, if I assisted the
police with what I did, and nothing in relation to any other
matter, just my own matters.
When you say, that means, do I take it, your own welfare?---
My own welfare, my own - that when I appeared in court that
if I had been co-operative with the police over my arrest,
as in regards to the drugs I was found in possession of, you
know, it would go better for me if I was co-operative with
the police, you know, that I didn't cause them a lot of
trouble over trying to drag everything out of me about my
own possession. That was the only thing that was ever said
to me about things going easy.
Not in relation to - - -? ---Any other matter, no.
Your selling of amphetamines?---Only my own personal
selling, no one else's."
21. Counsel then sought to ask again what sentence had been imposed by the Supreme Court. The Crown maintained the objection.
22. (In the absence of the jury, reference was made to the sentence, being two years' imprisonment, suspended upon Mr. Robbie's entry into a recognisance of $1,000 to be of good behaviour and to accept adult supervision of the Corrective Services Department and, in addition, to perform 160 hours of community service within 12 months.)
23. The trial Judge indicated, (in my view, correctly), that he would not
allow evidence of the terms of the sentence to be tendered
in the presence of
the jury, in the absence of -
"...a suggestion that somehow or other the sentence has24. There was no such suggestion. Counsel for the appellant later put the following to Mr. Robbie:
encouraged (Mr. Robbie) to come to court and give false
evidence, or...has induced him to try to lay the blame on
somebody else or to assist the police by uncovering the name
of somebody who has supplied him..."
"And then I finally suggest to you that, at no time in the25. Counsel for the Crown re-examined as follows:
12 months prior to that day, that is, January 1989, at no
time prior to that did Mr Guerin ever supply you with
amphetamine?---I would disagree with that, strongly."
"And do you recall the occasion - prior to the picking up of(b) The evidence of Constable Kinloch
amphetamines on or about 13 January - do you recall the
occasion prior to that when you picked up amphetamines from
the accused?---Yes, it was Christmas Day.
And what year?---1988.
And how many occasions did you pick up amphetamines from the
accused after that?---It would only have been the once.")
27. In cross-examination, Constable Kinloch was asked about Mr. Robbie's
sentence as follows:
"(Counsel for the appellant): And are you able to tell us28. Counsel for the appellant asked Constable Kinloch about his interview with Mr. Robbie, and the subsequent charges brought against Mr. Robbie, as follows:
the sentence of the court?---I can't accurately the
sentence, no.
I don't press it, your Honour.
HIS HONOUR: You haven't got much to press.
(Counsel for the appellant): I beg your pardon?
HIS HONOUR: You haven't got much to press.
(Counsel for the appellant): No, well, I withdraw the
question, your Honour."
(Counsel for the appellant): And during the course of your(c) The evidence of Constable McCarthy
interview with Mr Robbie, is it your recollection that he
told you he had recently acquired a much larger amount of
powder than he had on him at the time of your arrest?---He
said that the quantity that we had recovered was less than
he had purchased, yes.
Did he mention a figure to you of the weight, or the amount
of the powder that he previously had; that is, shortly
before his arrest?---The only amount that he mentioned was
the fact that - of a certain amount that he purchased, the
remaining was the items that we'd seized.
...
...So, not in relation to the recently acquired powder; but
he'd mentioned that he had in the past sold?---He had in the
past sold. And he did say that his intention with the
substance that we seized was to use some for his own use,
and sell the rest.
And, constable, were any charges preferred against him in
respect of that admission?---He was charged with possess
schedule 8 substance for supply, yes.
For supply?---Yes.
And that's one of those charges that you - - -?---One of
the three charges, yes.
And was that - that charge related to his admission? Perhaps
I put that question to you before. But just rephrasing
that; do you say that one of the charges that you preferred
against him was in respect of his admission for the sale?---
That's correct, yes."
30. In cross-examination, Constable McCarthy said that no drugs were found on the premises.
(d) The evidence of Constable Wood
31. In his evidence in chief, Constable Wood said that he participated in the
search on 3 February 1989. He gave the following evidence
of a conversation
with the appellant after Constable McCarthy had found the bank notes in the
bedroom:
"Well, can you give us that conversation please?---32. Constable Wood also gave evidence that $400 was "found" in the appellant's wallet and $500 in a bank passbook. Constable Wood went on to give the following evidence:
'Constable McCarthy has just located a large quantity of
Australian bank notes under the mattress in your bedroom.
What can you tell me about this?' He said, 'Proceeds of a
car sale.' I said, 'How much is there?' He said, 'I don't
know. 25, 26, I don't know'. I said, 'When did you sell
the vehicle?' He said, 'About two weeks ago.' I said,
'What type of vehicle did you sell?' He said, 'An old
Holden. Something I bought out of the paper.' I said, 'Who
did you buy it from?' He said, 'I don't know. I saw it in
the paper, I rang him up, and he came over. He signed the
rego papers over, and then I sold it again.' I said, 'Who
did you sell it to?' He said, 'I don't know.'
...
At any rate, as that counting procedure took place, I think
there was some more conversation?---I said, 'How much did
you pay for the vehicle?' He said, '2000.' I said, 'How
much did you sell it for?' He said '26 and a half, I
think.' I said, 'What model and make was it?' He said,
''71 Holden.' I said, 'How many days did you have the
vehicle in your possession?' He said, 'Three or four days.'
I said, 'How did you manage to sell the vehicle?' He said,
'I told a few people, word of mouth, and then someone rang
me up and said, 'We're interested in buying it.' I said,
'How did they pay for the vehicle?' He said, 'Cash.' I
said, 'Did you give them a receipt or bill of sale?' He
said, 'No, I just gave them the rego papers.'"
"Can you give us that conversation with the assistance of33. Later, Constable Wood gave this evidence of a conversation with the appellant:
your statement, please?---I said, 'Mr. Guerin, the police
have located some surgical gloves in your bedroom. What can
you tell me about them?' He said, 'I bought them for my
wife to do the washing up but she wouldn't wear them so I
threw them in the cupboard.' I said, 'Police have also
located a large number of resealable plastic bags in your
bedroom. What can you tell me about them?' He said, 'My
wife puts jellybeans in them for the kids.'
Now did Ms Sykes say something at this time?---Mrs Sykes was
there and she said, 'I put rings in them for the shop.' I
said, 'Police have also located a further large amount of
resealable plastic bags in your kitchen cupboard. What can
you tell me about them?' The same as the others; for
putting bits and pieces in them.'"
"I see here on the kitchen bench a scanner. What can you34. Constable Wood also gave evidence that a set of scales was found on the premises.
tell me about it?---It is something I bought a long time
ago.
I also notice it is on the police channel number 4, why is
that?---I don't know what channel it is on.
What do you use it for?---Taxis or anything else I can get
on it."
35. Constable Wood also gave evidence in chief of a second search of the premises occupied by the appellant on 24 May 1989, when a plastic bag containing amphetamine powder was found in the lining of an above ground swimming pool in the back yard of the premises.
36. In cross-examination, Constable Wood agreed that no drugs were found on
the premises in the search carried out in February 1989.
He gave the following
further evidence in cross-examination concerning the sum of $2,815 found under
the bed in February 1989:
"(Counsel for the appellant): And do you agree with me that37. (On 29 May 1990, Mr. M. Ward, Magistrate, ruled that there was no case for the appellant to answer and dismissed an information under s.527A(1) of the Crimes Act 1990 (ACT). Under that provision, a person who has any money in his custody being money that is reasonably suspected of having been stolen or otherwise unlawfully obtained is guilty of an offence. It will be necessary to refer later to the significance of the dismissal of the charge for present purposes.)
that money was, in fact, after it had been taken by the
police during the course of the search, returned to Mr
Guerin?---Yes, I gave it back to him at Mitchell, then I
went to his house again and got it back again.
Well, perhaps we will just take that one step: so he
surrendered the funds to you whilst you were at Mitchell?---
No. When we did the warrant in the morning, I took all the
money; we had the money in our possession. We went to
Mitchell, we searched his premises at Mitchell, we talked to
each other in relation to the money, there were no drugs
seized. Mr. Guerin paid some outstanding warrants and I
gave him all the money back.
That took place at Mitchell?---He signed for the money and
he was given the money back. I then returned to the city
police station and made inquiries with the senior police
officials and the Department of Public Prosecutions and was
given certain advice from those people. I then went back
out to Mr Guerin's house at Richardson, spoke to him, and he
gave me the money back again.
And then after that had taken place, would you agree with me
the end result was that the money was returned to Mr
Guerin?---After the commital hearing, the money was again
returned to Mr Guerin, that's correct.
Well, is it not the case that the money was reasonably
suspected of it being unlawfully obtained, then a charge
would have been made and following the dismissal of that
charge, the money was returned?---Yes, a charge was made:
it was a summons in relation to unlawful possession that
went for committal hearing and the money was returned to
him.
So it was all returned to Mr Guerin?---That's correct."
(e) The evidence of Sergeant Madden
38. In his evidence in chief, Sergeant Madden said that, in the second search
of the appellant's premises, he found a small quantity
of powder, later
identified as cocaine, in a dart flight in a leather wallet. He also located
another leather wallet containing
$610 in Australian currency in various
notes.
(f) The evidence of Kimberly Skinner
39. Ms. Skinner, who was called by the Crown, gave evidence in chief that, in
May 1989, she was living at 5 Wentcher Place, Richardson.
She was then the
girlfriend of Jason Guerin, the son of the appellant. She said that the
substance found in the lining of the pool
was not hers and that she had not
seen anybody living in the house use any white powder.
40. In cross-examination, Ms. Skinner said that there was a room in a garden shed in the yard of the premises that was occupied by Robert Sykes.
(g) The evidence of Deborah May Sykes
41. Ms. Sykes, the sister of Robert Sykes, who was called by the Crown, gave
evidence in chief that in May 1989 she was living with
the appellant at the
premises in Richardson. She said that the substance found in the lining of
the pool was not hers.
42. In cross-examination, she said that the scales seized by the police were not used by the appellant and were "just an ornament".
(B) The case for the defence
(a) The evidence of the appellant
43. The appellant's evidence was that he met Mr. Robbie in 1982 or 1983
through a motor cycle lobby group. The appellant then carried
on business as
a dealer in motor cycles. Mr. Robbie bought parts from the appellant at his
shop from time to time. Mr. Robbie visited
the appellant at his home on only
two occasions: first, in December 1988, when they discussed the possible sale
and purchase of
a motor cycle then located in Cootamundra; secondly, on 13
February 1989, when Mr. Robbie delivered the motor cycle to the appellant
in
return for the price of $1,200 which he then paid to Mr. Robbie.
44. The appellant denied that he had ever supplied drugs to Mr. Robbie.
45. The appellant said that the scales seized by the police were ornamental only.
46. The resealable plastic bags were mainly used in the appellant's shop to store, inter alia, small gaskets or washers. They were also used to hold jewellery. They were never used to store drugs.
47. The gloves that were seized were never used to handle drugs. They were purchased to be used by Ms. Sykes "around the house" but she "wasn't overly impressed" with them, so she didn't use them.
48. In cross-examination, the appellant said that he had kept more than $4,000 under the mattress but had probably used some of it to buy "food or something", so that $2,815 remained at the time the police searched the house on 3 February 1989. He said that he had sold an old Holden motor vehicle about two weeks before.
49. The appellant gave the following evidence concerning the sums of money
"found" in the search in February 1989:
"(Counsel for the Crown): Well, why did you have $400 in(b) The evidence of Barbara Joy Langshaw
your wallet and $2800 under your bed?---Well, as I explained
to Detective - Mr Woods at the time that money had been in
the wallet for something like five or six months. I was
pulled up on Belconnen Way one day - Ginninderra Drive one
day on my bike and was asked to go down to the Belconnen
Police Station and was told I had two commitment warrants
for $400 which had to be paid in seven days which I had to
go in and pay them, otherwise I'd get a commitment warrant
for my arrest. So I put $400 in the back of my wallet and
said, 'Right, well, when they pull me up to lock me up for
these warrants I've got the money to pay for them.' I
wasn't going in to pay them.
And there was another $500 in an ANZ bank book?---I don't
remember why that was in there. Could have been any reason.
Was it your bank book?---I'd imagine so, yes."
(c) The evidence of Dr Willow
51. Dr Willow gave evidence as to the effects of amphetamines on the human
mind:
"The effects on the human mind can be put into two(d) The evidence of Tracy Collette Guerin
categories, which essentially relate to the dose given.
This is assuming that the compound is administered to a
person with no previous major psychiatric history. I am
making that assumption. If the drug is given in the range
of between 5 and 10 milligrams, up to two or three times a
day, the drug produces a sense of well-being, known as
euphoria. A person has an increased level of awareness, if
you like; feels very confident; often becomes quite
gregarious in one's speech; more talkative than normal, as
assessed by other observers. The effects - depending on
whether the drug is taken orally or intravenously - the
effects come on within - if it's taken intravenously, almost
instantaneously; orally, on an empty stomach, typically
within half an hour. The effects of the drug persist
anywhere from six to 12 hours. So, they're the effects of
what we would call a small dose - a conservative dose. If
that dose is increased from 5 or 10 milligrams to, let's say
50 milligrams and above, taken two or three times a day, one
develops a tolerance to - so-called tolerance to the effects
- to some of the effects of the drug. In other words, the
so-called pleasure that one attains from taking a lower
dose, one requires more and more drug to obtain the same
effect. In addition, what frequently is encountered
clinically is that the euphoriant effects which are
associated with the lower dose of the drug change somewhat,
and people are liable to, what is known as a toxic
psychosis, which is associated with the drug; and which in
many - well, in nearly every facet - is clinically
indistinguishable from the disease known as paranoid
schizophrenia.
(D) The address to the jury by counsel for the appellant
53. Counsel for the appellant said that his case was one of denial. Specific
reliance was placed upon the evidence of Ms. Langshaw
and the expert opinion
of Dr. Willow which, it was contended, should take into account in addressing
the weight to be given to the
evidence of Mr. Robbie.
54. With respect to the discovery of drugs in the pool, counsel said:
"...I asked you when you were considering these charges55. As to the money found under the bed, counsel said:
against my client, would you recall the description and the
location of that pool. I asked you to consider the
accessibility of that pool. I asked you to consider the
evidence of Debbie Sykes and Kimberley Skinner about
prowlers shortly before that time."
"You heard about the money, and I am speaking of the56. Counsel contended that the appellant had satisfactorily explained the position with respect to the gloves, the scales, the police scanner and the plastic bags.
quantity of money under the bed, in excess of $2000. That
money was found and of course Mr Guerin alleges that he told
the police where to look for that. The money was
subsequently returned to Mr Guerin. It was taken back by
the police and then there is evidence that it was finally
returned to Mr Guerin."
(E) The address by Crown counsel
57. Counsel for the Crown said that the jury would only find the appellant
guilty on the first count if they found Mr. Robbie to
be a truthful and
reliable witness. As to Dr. Willow's evidence, counsel said:
"One thing that Dr Willow did not say was that, in his58. Counsel also relied on the alleged circumstantial evidence consisting of the items found on the premises.
opinion, the things that this man said were delusions in
relation to the identification of Mr Guerin as the supplier.
Really, it is a matter for you as to what you think of Mr
Robbie. There is one obvious matter that you are going to
have to consider - or I suggest to you that you should
consider. Quite obviously, in 1988 he was both a user and
seller of amphetamine. He was a drug dealer. Now, it is
hardly a matter that reflects positively on his character,
is it, and it is a matter for you the extent to which that
affects your capacity to accept him as a witness of truth.
I suggest to you really that that is what this case and your
assessment of him is really concerned with - whether he is
telling you the truth, or whether he is lying to you."
59. With respect to the money "found" by the police, counsel said:
"Now, then we have all this money. Now, before I talk about(F) The summing up
the money I will say some fairly obvious things you might
think. Once again, if you are dealing in illicit substances
that necessarily involves you dealing in cash, does not it?
I mean, cash does not tell any tales. As I said to you
before, people involved in these sorts of activities carry
on in secret to minimise the prospect of detection. It is a
matter of ordinary commonsense, surely. You are not going
to find bankcards, American Express, those sorts of things,
on offer when people are involved in dealing in
amphetamines, are you?
So if someone is a drug dealer what would you expect to find
at his place of business? And what do we find here? On 3
February we find thousands of dollars hidden under his
mattress, between his mattress and the base of his bed;
$2815 and I think there was another $900 in cash in the
house. This is a man on sickness benefits and he has given
you an account of his finances; it is a matter for you.
You might think he is an extraordinarily good manager of
money or you might think that what Mr Robbie tells you is in
fact the truth and this man has been accepting $700 every
week or fortnight from him for a long period of time and
that is how he is able to pay his very considerable mortgage
on his sickness benefits. Once again, it is just another
circumstance built on top of all of the others which, in my
submission, supports the testimony of Mr Robbie as being a
person who is telling the truth.
"In this case it may be of importance to consider theHis Honour first turned to the case for the prosecution.
capacity of the witness to remember the events and to give
an account of them because there is an allegation from the
defence side in this case that the prosecution witness, Mr
Robbie, whom you might think is an important witness, may
have been suffering from a condition called toxic-psychosis,
which gave rise to a delusion on his part, in relation to
what you might think are very important questions in the
case. Now, as I say, those are all matters for you.
Obviously, it is up to you to decide which witnesses you
accept and which you reject or, perhaps more particularly,
what part of the evidence of any witness you accept and what
part you reject."
(a) The prosecution case
61. In dealing with the first count, his Honour said:
"Now, basic to this charge is the evidence, of course, ofThe trial Judge went on to say:
Luke Robbie himself, and I should tell you how you should go
about approaching the evidence of Mr Robbie because, if what
Mr Robbie says is correct, it means that an offence was
committed not only by the accused, but also by Mr Robbie.
Indeed Mr Robbie has told you that he himself pleaded guilty
to a number of charges and was sentenced in relation to the
very methamphetamine that was found in a towel rack, and a
post-pack in his premises and I think, you know, in a post
office box out at Belconnen."
"The law says the juries must (be) warned about how theyLater, his Honour said:
consider the evidence of a person who, on his own count, is
an accomplice, and it arises in this way that a person who
is charged with a criminal offence may find it convenient to
seek to place the blame, or part of the blame, on somebody
else. The courts have been faced with those situations for
centuries, and this sort of cautious approach to the
evidence of accomplices is very deeply ingrained in our
system."
"Obviously, in many situations where an offence is62. Turning to the material which was said to be corroborative of Mr Robbie's evidence, his Honour said:
committed, the best person to give evidence about it is
somebody who committed it in the company of the accused
person. You might think, and it is entirely a matter for
yourselves here, that in this particular case in relation to
the first count, where there is a charge of somebody
supplying something to somebody else, you could not get
better evidence in a way than from the person who was
supplied. But although that approach may appeal to you, I
must tell you that, as a matter of law, you should take into
account the danger of convicting on the evidence of Mr
Robbie, unless you find it to be corroborated. You may,
nevertheless, decide that bearing that danger in mind, you
find the offence proved but, before you go that far, you
must bear that danger in mind."
"You remember that Mr Robbie gave evidence that he had known63. Turning to the second and third counts, the Judge said that the Crown's case relied on circumstantial evidence which his Honour then described. He went on to say:
the accused for some time and on 13 January 1989, he went to
the accused's house out at Richardson and he purchased, I
think, it was said to be half an ounce. He said, I think,
that there was a price of $700 but he did not pay it there
and then and it was expected, apparently, that payment would
be made in due course. Now, later on, a couple of days
later, you recall there was a police raid - that word used
again - a police raid on the flat that Mr Robbie was
occupying. I think it was in Turner. There was found in
that flat five bags of amphetamine or methamphetamine or
what turned out, you might think, to be methamphetamine.
There was also found, in a Postpak somewhere else in the
premises; and I am not sure exactly where it was and I do
not think there was any evidence about where it was but in a
Postpak there were three similar bags of what was later
analysed and found to be methamphetamine.
Now, you may think, ladies and gentlemen, that that is
supportive, generally, of the story that Mr Robbie tells.
It is entirely a matter for you. I offer the comment, which
you are free to accept or reject, that whilst it does
support Mr Robbie's story that somebody supplied him with
methamphetamine shortly before 15 January 1989, of itself,
it does not support the proposition that it was the accused
who supplied it to him. But you might think that it makes
the story of Mr Robbie overall more credible and if you
think that and you think that the evidence of Mr Robbie is
supported in some material way by that other evidence, that
is entirely a matter for you."
"You will have heard, of course, that there was a brother ofLater his Honour said:
Ms Sykes living in a shed behind the garage. His name was
Robert Sykes. He was not there on the night in question,
but according to the evidence you might think that he had
some sort of a place of abode in that shed and he was coming
and going over a period of time prior to this night the
powder was found in the swimming pool lining. There were
other people living there. There was a 17 1/2 year old son of
the accused; there was a baby, and you have heard that
nobody knows where Mr Sykes is at the present time.
"... you may think that there is something in the argument64. The Judge referred to Mr Robbie's evidence as follows:
that, if you take it in conjunction with the rest of the
evidence, it assists the prosecution case and that is, that
there were bags found - these little plastic resealable
bags. They were found on the night in question, and there
was also a sum of cash - I think some $600 - found there on
the night in question."
"Now you remember Mr Robbie said that he had purchased65. Next his Honour referred to the police search on 3 February as follows:
amphetamine - methamphetamine - from the accused on several
occasions. He said that he had done so on at least 20
occasions over a period of 12 months. Now, as I have said,
you must approach the evidence of Mr Robbie, in any event,
with caution because if he says what he says is true, he is
an accomplice in any event.
In addition to that, ladies and gentlemen, I ... warn you
that the evidence of Mr Robbie can only go to establish the
purpose for which the accused had the amphetamine in his
possession, if he did in fact have it in his possession.
The fact that Mr Robbie might have bought amphetamine, or a
similar substance from the accused, regularly or frequently
over a period of time before 24 May, of course shows that
such substances were in the accused's possession at the time
of purchase, but it does not go to show that there was any
such substance in the possession of the accused on 24 May.
The 24 May you are concerned about, not what happened on
previous occasions but, if you did find established beyond
reasonable doubt that the accused had amphetamine in his
possession on 24 May, you could look at the evidence of Mr
Robbie to consider the further question of the purpose for
which the accused had the drug in his possession. And if
you found established that there had been a supply to Mr
Robbie on several occasions over a period in the past, that
might assist you more comfortably to come to the conclusion
that you are satisfied beyond reasonable doubt that the
purpose for which the accused had the amphetamine in his
possession on 24 May was for the supply to other persons.
As I say ladies and gentlemen, approach the evidence of Mr
Robbie, in any event, with caution for the reason I have
already given, but remember it can only go to this question
of purpose, and further, beyond that, what Mr Robbie has
said about what happened over that period of time; that
there were regular purchases by him and therefore regular
offences on the part of the accused in supplying him, is an
allegation of other criminal offences."
"No drugs found on that occasion, but what was found were66. As to the fourth count, the Judge said:
some scales, so-called surgical gloves, some more of these
ubiquitous resealable plastic bags, and a larger sum of
money, $2815 when it was all counted correctly. The
prosecution says all that is consistent with the accused
being, in effect, a drug dealer who had these items all in
his possession for the purpose of facilitating the supply of
amphetamine."
"The prosecution case is simply that that bedroom was(b) The defence case
occupied by the accused and Debbie Sykes. Debbie Sykes has
given evidence that she had nothing to do with the cocaine.
She did not know anything about it or the foil. There is
evidence from the accused himself, of course, that he owned
the wallet and there were his dart flights. Of course he,
himself, denies that he knows anything about the cocaine;
denies that he put it in the wallet; denies that it was ever
in his possession. And, as I have already said, it is
necessary as part of the prosecution for it to be proved,
for a person to be in possession of something the person has
to know that it is in his custody or control."
"He says, and it is the defence case, that in relation to68. The Judge outlined Dr Willow's opinion evidence and then referred to the evidence of Mr Langshaw.
the first count, he on no occasion, at any time supplied any
drug of any type to Mr Robbie. That is his case. He, of
course, is not required and may not be in a position to give
an explanation about why Mr Robbie would give evidence to
the contrary, but it is part of his case, as I understand
it, not that Mr Robbie is lying - that he has come here out
of vindictiveness to the accused or for any other ulterior
motive - because, as I understand it - the defence case, is
that Mr Robbie is mistaken about his allegation that he
obtained amphetamine from the accused at any time and that
allegation is supported in the defence case by the evidence
of Dr Willow."
69. As regards the second and third counts, his Honour said that the
appellant denied any knowledge of the packages in the pool liner
and added:
"Now, he did not offer any precise explanation of how it(G) Supplementary directions given by the trial Judge
might have been there but his case is, or would be, that
somebody else must have put it there without his knowledge.
And again, you will recall there is evidence that other
people lived in the house and so forth."
"Do you remember when I outlined the prosecution case toThe grounds of appeal
you, I broke up the evidence relating to each particular
count. I told you what the evidence was and what the
prosecution case was in relation to the first count and then
I moved on to the other counts. Now, what I do not think I
said to you expressly and what I do say to you expressly now
is that you must not take into account, on any particular
charge, evidence which is relevant only to another charge.
It is logical enough to say that but it is a proposition
that you have to bear strictly in mind.
It is important in a case like this, particularly where you
have heard evidence from a witness that he was involved in a
number of transactions with the accused on previous
occasions which are not subject of any of these charges.
When Mr Robbie said he purchased amphetamines from Mr Guerin
on several previous occasions, that is a matter which is
admissible but I instruct you, it is admissible only for the
purpose of showing the purpose for which Mr Guerin had
amphetamine in his possession on 24 may 1989. It is
relevant only in relation to the second count. It is not
relevant to any other count and so you must not take it or
give it any regard, in relation to any of other charges.
Furthermore, the fact that you may decide that the accused
is guilty on one charge does not, by itself of course, mean
that the accused is guilty on any other or he is more likely
to be guilty. In other words, you must not approach the
case in this way because there is a mass of evidence against
the accused about what happened on various occasions, you
therefore come to some sort of conclusion that, in general
terms, he is a drug dealer and therefore, is more likely to
be guilty of any one or more of these charges."
72. These points were not, however, taken at the trial. Yet, as Gibbs C.J. observed in De Jesus v R [1986] HCA 65; (1986) 68 ALR 1 at 5, that it is not necessarily fatal on an appeal, although the position would be different if counsel had deliberately refrained at the trial from submitting that the joinder were impermissible, in order to gain some tactical advantage. (See also per Mason and Deane JJ. at 10-11.)
73. The general principles in this area were stated by Brennan and Dawson JJ.
in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 as follows (at 298):
"The prosecution joined the three counts in one indictmentSee also Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 369.
in pursuance of s. 567(2) of The Criminal Code (Q.) which
authorizes, inter alia, a joinder of counts when the
offences charged are part of a series of offences of the
same or similar character. It does not necessarily follow
that, because counts are properly joined in one indictment,
the trial on each count should not be severed from the
others. If the evidence admissible on each count is not
admissible on the other counts and there is a consequent
risk of impermissible prejudice to an accused in the conduct
of a single trial on all counts - and there usually is such
a risk in sexual cases - separate trials should be ordered:
De Jesus v The Queen."
74. Was the evidence on each count admissible on the other counts? On behalf of the appellant, it is said that it was not and that it should have been treated as impermissible "similar fact" material.
75. In Reg. v Makin (1893) 14 LR (NSW) 1, Windeyer J. said (at 18):
"... you can give evidence of the commission of another76. In Harrimann v The Queen [1989] HCA 50; (1989) 167 CLR 590, the accused was charged with being knowingly concerned in the importation of heroin. It was held that evidence of the accused's prior involvement in the sale of heroin was admissible.
crime when the evidence concerning the other crime is either
a part of the res gestae in the case before the Court, or
where the evidence about it is so connected with the
prisoner which is the subject of the trial."
77. McHugh J., after referring to Makin, said (at 628):
"Even though evidence reveals other criminal conduct on the78. Brennan J. said (at 594):
part of the accused, it will be admissible if it is
'evidence of facts forming part of the same transaction as
that under inquiry' (i.e. part of the res gestae)...
Moreover, evidence of collateral facts tending to prove the
facts in issue (i.e. circumstantial evidence) is also
frequently admissible even though the evidence reveals other
criminal conduct of the accused. However, the cases draw a
distinction between evidence, disclosing other criminal
conduct, which is part of the transaction or res gestae and
circumstantial evidence, disclosing other criminal conduct,
which tends to prove a fact in issue. As will appear, the
admissibility of circumstantial evidence, revealing other
criminal conduct, is subject to special rules."
"If, as a matter of human experience, the evidence tends to79. In my opinion, the evidence of Mr Robbie that the appellant had sold drugs to him from time to time was arguably probative of the facts in issue on each of the other counts. It would follow that prima facie, this was admissible material on each count. But I need not express a concluded view on this point. In my opinion, the admission of the evidence was not impermissibly prejudicial or unfair to the appellant in any event. As has been seen, the trial Judge directed the jury not to take into account evidence which was not relevant to the particular charge under consideration. His Honour also warned the jury of the inherent risks involved in relying upon the uncorroborated evidence of Mr Robbie. It follows, in my opinion, that there was no miscarriage of justice by reason of the joinder of the counts or by virtue of their being dealt with in a single trial.
establish the offence charged or a fact in issue otherwise
than by showing merely the commission of another offence or
a propensity to commit an offence, the evidence is
admissible. I would therefore respectfully agree with
McHugh J. that evidence of events which are part of the res
gestae is admissible - and will usually be admitted - even
if that evidence reveals the commission of an
offence other than the offence charged. But, for my part, I
do not find the classification of evidence revealing the
commission of another offence as 'circumstantial' to be
helpful in ascertaining the criterion of its admissibility.
Whatever the classification of the evidence, its
admissibility depends on its satisfaction of the criterion
that its probative force clearly transcends its merely
prejudicial effect: ... I would regard the distinction
between res gestae evidence and circumstantial evidence as
illustrative of the differing application of a single
criterion rather than as a ground for applying different
criteria of admissibility or invoking different approaches
to the exercise of the judicial discretion. If this view
departs from that of McHugh J., the departure is more in the
realm of theory than of practice."
(2) Admissibility of evidence of money found
80. As has been noted, evidence was led by the prosecution, through Constable
Wood, that the appellant had been summarily charged
under s. 527A(1) of the
Crimes Act and that the charge had been dismissed. However, no specific
objection was made at the trial
in the present matter to the admissibility of
the evidence as to the finding of any of the money located during the searches
of the
appellant's premises.
81. The summary proceedings, in which Constable Wood was the informant, were dealt with by Mr M. Ward, in the Magistrates Court of the Australian Capital Territory on 29 May 1990. Mr. Ward dismissed the information, upholding a submission that there was no case to answer.
82. In his reasons, the learned magistrate said that in respect of the sum of
$2,815 (and also the sum of $900 found on the appellant
himself, concerning
which no evidence was led at the trial in the present matter):
"Constable Wood who was in charge of the raid gave the money83. Mr Ward went on to say, in respect of the sum of $610 located in the policy search in May 1989:
back to the defendant. Some time later, acting on legal
advice he sought out the defendant again and asked for and
got back the cash money. The defendant is now charged with
unlawful possession of that money. On that charge there is
other relevant evidence. Luke Robby said that the defendant
was a drug dealer from whom he had purchased drugs regularly
over the previous 12 months. On 13 January 1989 he had
purchased 14 grams or 1/2 ounce of methyl amphetamine from
the defendant on credit.
On the day of the raid, the day on which the $3715 had been
found, the defendant was unemployed. He had been unemployed
for 10 years. Despite the unemployment he had purchased a
house at Richardson by deposit on loan from the Civic
Advance Bank. The loan was obtained by falsely pretending
he was employed and by presenting a forged certificate from
his alleged employer. There was no direct evidence from the
relevant police officers, or indeed, anyone else as to what,
if any, thoughts they had concerning the $3715 or any part
of it."
"Again the defendant is charged with unlawful possession of84. After analysing the authorities in this area, Mr Ward said:
the $610. The only other relevant (fact) is (that) the
defendant remained unemployed between the two raids in
February 1989 and May 1989. Again, none of the relevant
police officers, nor indeed, any other person deposed to any
particular belief concerning the $610. ... Mr de Crepigny
for the prosecution argued it was unnecessary for the
prosecution to lead evidence of the suspicion of the police
or any other person concerning the goods or money in a case
of this nature.
He argued that the only suspicion which is relevant is the
suspicion of the magistrate concerning the goods or money at
the end of the prosecution case."
"There are very good reasons why it ought to be someone else85. Later the learned magistrate said:
other than the court to do the suspecting. It ill behoves a
court to guess or suspect. A court acts on evidence and
makes findings and in the second place it may well be that a
court is not in full possession of all the facts relevant to
the formation of the suspicion or to the reasonableness
thereof. ...
There is good reason for requiring him - that
is, the informant
to pledge his oath upon the subject. The fact
he has not done so may create a doubt about his
being fully able to do so.
There is nothing in the facts of these cases which would
enable the court to be satisfied beyond reasonable doubt of
the suspicion in either case. With regard to the $3700 odd,
the relevant policeman gave the money back to the defendant
which says something, surely, about the state of his
suspicion. There was nothing particularly remarkable or
compelling about the possession of the $610 and I could not,
in the absence of evidence from the informant or somebody
else infer that any suspicion they might have held was held
on reasonable grounds."
"No such process was issued here the defendant having beenWhat is the significance of this dismissal for present purposes?
arrested without warrant on different charges. Whilst it is
possible to infer that the informant suspected that the
defendant had committed the offences in question, I doubt
that as a matter of law, without more, I could accept the
mere laying of the information as evidence capable of
amounting to proof beyond reasonable doubt of that
suspicion.
Certainly, none of the other cases which have foundered upon
this particular rock of thought to have ... translated the
significance of the laying of information. And I rule that
in these particular cases there is no case to answer and the
information should be dismissed."
87. Mason J., referring to Sambasivam v Public Prosecutor, Federation of
Malaya (1950) AC 458 and Garrett v The Queen [1977] HCA 67; (1979) 139 CLR 437, said (at
396):
"Both these decisions establish, quite independently of the88. Mason J. went on to say (at 397):
doctrine of issue estoppel, that the principle of res
judicata as applied in criminal proceedings will preclude
the Crown from challenging the effect of a previous
acquittal, not merely in proceedings for the same or a
substantially similar offence, but also for proceedings for
a different offence when evidence of the transaction the
subject of the acquittal is sought to be relied upon. In
its application in this fashion res judicata gives
expression to the notion that once a person is acquitted of
an offence, the acquittal must be recognized fully and
without qualification for all purposes in criminal
proceedings."
"Compliance with the principle of res judicata does not in89. See also Arnold v National Westminster Bank PLC (1991) 2 AC 93 at 108-9.
my view necessarily entail the exclusion at a subsequent
trial of relevant evidence which might on its face, if
unexplained, tend to suggest that the accused was guilty of
an offence of which he has already been acquitted.
Sambasivam...did not go so far, leaving unresolved the
question whether the statement should have been rejected in
its entirety in that case. The ground of that decision
implicitly acknowledged that the requirements of res
judicata may be satisfied in an appropriate case by the
admission of evidence of this kind accompanied by a precise
instruction to the jury that the prior acquittal cannot be
challenged and that the evidence, for what it may be worth,
is to be understood in this light.
There are some cases, and the present is one of them, in
which the exclusion of a part of the testimony of a material
witness in deference to the principle of res judicata would
render the balance of the witness' testimony so incomplete
and artificial as to provoke dangerous speculation on the
part of the jury. In such circumstances, provided that it
works no injustice to the accused, it is preferable that the
evidence of the witness should be led and precise
instructions should be given to the jury as to the use to
which that evidence can be put. In this case the adoption
of this course will in all probability advantage the accused
because it tends to suggest that the testimony of the
witness to the extent to which it was relied on by the Crown
to support an earlier charge may have been found to be
unacceptable. At the same time the Crown is not precluded
from leading evidence which is relevant to the offence
charged."
90. It follows, in my view, that the res judicata principle precluded the Crown from challenging the effect of the dismissal by Mr Ward of the earlier summary proceedings. As has been seen, those proceedings were dismissed on the technical ground that there was no direct evidence from the police officers, or any other person, that they held the belief, or suspected, on reasonable grounds, that the money had been unlawfully obtained. The trial Judge did not give any specific direction on the point, but, as has been noted, the Crown led evidence through Constable Wood first, that the money had been returned and, secondly, that the charges had been dismissed by the Magistrates Court. No attempt was made by the prosecution to explain to the jury that the dismissal of the information had been ordered on a technical ground. In those circumstances, in my view, it was not unfair to the appellant for the trial Judge not to give the direction as to the process of reasoning employed by Mr Ward in upholding the submission of no case to answer. If anything, the jury would have been left with the impression that the proceedings had been dismissed on the merits and this impression would not have been prejudicial to the appellant. The jury had already been told that the money had been returned to the appellant. In these circumstances it is unlikely, in my opinion, that in determining guilt, the jury would have given the evidence with respect to the seizing of the money any real weight. In my view, no further direction from the trial Judge was called for.
(3) Was the verdict on Count 1 unsafe and unsatisfactory?
91. I agree with von Doussa J., for the reasons he gives, that the verdict
was neither unsafe nor unsatisfactory.
(4) Was the verdict on Count 2 unsafe and unsatisfactory?
92. On behalf of the appellant, it is submitted that the prosecution failed
to negative the possibility that other occupants of the
premises may have been
the possessor of the drugs. Reliance is placed upon the decision in
Filippetti (1978) 13 A Crim R 335 and upon the reasoning of Hunt J. in Dib and
Dib (1992) 52 A Crim R 64 at 69 and 72.
93. The present question is whether, as contended on behalf of the appellant,
the Judge failed to direct the jury that the Crown
had to eliminate any
reasonable possibility that the drugs found in the liner of the pool had been
within the possession of persons
other than the appellant. In this
connection, his Honour said:
"As far as the second and third counts are concerned, the94. However, in his introductory remarks, the Judge had previously said the following:
accused says that he has no knowledge of the packages being
in the pool liner. He has maintained that at all times to
the police and he maintained it to you in his sworn evidence
and a number of alternative explanations are offered to you
on behalf of the accused as to how those items, those
packages, of powder which turned out to be amphetamine came
to be in the pool liner. One explanation, of course, is the
prosecution explanation that the accused was responsible for
having it there and he knew it was there.
The defence case is that there are other possibilities. Any
one of which is a reasonable possibility and being a
reasonable possibility would leave you in doubt as to the
prosecution allegations. One of those possibilities is, of
course, that Mr Robert Sykes, who can no longer be located
and who was living in the shed, could have put it there.
Other possibilities are that prowlers were around the area
at the time and you have heard the evidence from the two
young women about their fears of prowlers and their hearing
of noises out in the area of the backyard and the sauna
room..."
"... the accused having been charged with a criminal offence95. In my opinion, the comments later made by his Honour concerning the second and third counts should be read in the context and against the background, of his earlier explanation that the Crown had the burden of proving, beyond reasonable doubt, each essential element of the offence charged. In particular, his Honour's later remarks should not be read as suggesting any reversal of the onus of proof. Rather those comments should be seen in their context, that is, as a summary of the respective cases made by the parties on the facts.
is nevertheless, entitled to the protection of what we call
the presumption of innocence. That is to say that, from the
moment the trial commences, he is to be presumed innocent
until such time as there is a finding that a charge or
charges have been proved against him, if there is such a
finding.
It also means that because the accused is presumed innocent,
he does not have to prove anything.
Allied with that principle is the next one. Given that the
accused is presumed innocent, how is that presumption
removed? Who has the task of removing it? The answer is
simple. It is the prosecution who is responsible for having
us all assembled here today and over the last few days. The
prosecution has brought the case against the accused. The
prosecution has the job ahead of it of proving what it has
set out to do. The prosecution, lawyers say, bears the onus
of proof or the burden of proof.
The third principle is this: given that it is the
prosecution that has the onus of proof, how far does the
prosecution have to go before that onus is discharged. What
does the prosecution have to do before it is entitled to say
that the accused is liable to be convicted. The answer to
that is this: the prosecution must prove the essential
elements of the charge against the accused, beyond
reasonable doubt."
96. Moreover, his Honour had previously explained the concept of possession
in some detail. He had said:
"I will tell you what the elements are in relation to theThe Judge then went on to say:
second count. I repeat: they are that the accused on 24 May
1989 did possess a drug of dependence, namely amphetamine
for the purpose of supply to another person and the first
element in that charge - and it is a crucial one - is that
the accused possessed the item in question. The concept of
possession is central to the charge and you must be careful
to consider what I say about this idea of possession. On
the whole, I suppose, it is an idea that is well understood
in the community but it does have a particular legal - there
are particular legal parameters in relation to this idea of
possession.
The person, in law, is said to possess something if it is
under his or her control or in his or her custody. So, that
if I pick up this cheap government issued pen; it is in my
fingers; I have referred to it; I know its in my fingers;
its under my control. It must be therefore in my
possession. I said that I know it is in my possession
because that is an essential element in this legal concept
of possession. A person cannot be said to be in possession
of something unless he or she is aware that it is under his
or her control or in his or her custody."
"Now, in this case, of course, in relation to the second and97. In my view, when the summing up is read as a whole, there was no error of law in the directions given in respect of counts 2 and 3; nor were the remarks made in that connection unfair to the appellant. It follows, in my opinion, that the verdict on count 2 was neither unsafe nor unsatisfactory.
third count and also the fourth - to which I will come in a
moment - this question of knowledge is essential because of
the circumstances in which the items in the pool liner and
the item in the accused's darts wallet were found. That is
the concept of possession. Now, what has to be possessed,
what has to be the subject of possession in relation to the
second and third count is a drug of dependence, namely
amphetamine."
(5) Was the verdict on Count 4 unsafe or unsatisfactory?
98. In the light of the conclusions I have expressed on the general arguments
advanced on behalf of the appellant, it must follow
that I would not disturb
the conviction on this count.
(6) Alleged incompetence of counsel
99. On the view I have taken of the matter overall, this question does not
arise for decision.
Conclusion
100. In the result, I would dismiss the appeal.
VON DOUSSA J. This is an appeal against three convictions recorded against the appellant upon the verdicts of a jury. A summary of the charges in the indictment, and of the evidence led at the trial are set out in the judgment of Higgins J. which I have had the opportunity to read.
2. One ground of appeal strenuously argued on the appellant's behalf contends that a substantial miscarriage of justice was occasioned by the "flagrant incompetence of defence counsel". In substance, the contentions of counsel who appeared for the appellant before this Court assert that by reason of failures of defence counsel to object to the joinder of the four counts in the indictment, to object to the admission of evidence as to the finding of a substantial sum of cash, surgical gloves, scales and resealable plastic bags during a search of the appellant's home on 3 February 1989 and as to the finding of more cash during another search on 24 May 1989, and to seek additional directions to the jury from the trial Judge, in particular as to the use which might be made of this evidence, the appellant was denied a fair trial and a real chance of acquittal. The subject matter of these alleged failures on the part of counsel are separately pleaded as additional grounds of appeal, and there are other grounds of appeal also raised which are unrelated to the conduct of the trial by defence counsel. It is convenient to defer consideration of the complaints made about the quality of defence counsel's representation until last as the merits of those complaints are closely related to the merits of the other grounds of appeal.
Improper Joinder of Counts
3. This ground of appeal is based on the proposition that separate counts
should not be joined in one indictment where the evidence
on one count is
inadmissible on the other count or counts: De Jesus v The Queen [1986] HCA 65; (1986) 61
ALJR 1.
4. First, it is submitted that count 1 charging the supply of meth-amphetamine to another person, namely Luke Gerard Robbie, between 29 December 1988 and 16 January 1989 should not have been joined with counts 2, 3 and 4. Count 2 charged possession of amphetamine for the purpose of supply to another person. Count 3, as an alternative to count 2, charged possession of amphetamine. Count 4 charged possession of cocaine. The latter three counts all arose out of the discovery of amphetamine and cocaine at the appellant's home on 24 May 1989. Secondly, it is submitted that as the cocaine had no apparent nexus to the other charges count 4 should not have been joined, and moreover as the amount of cocaine was minute (18 miligrams) the joinder gave rise to a risk of prejudice by causing the jury to approach their decision on the basis that the appellant was a person with a pre-disposition to be involved with drugs and was thus more likely to be guilty.
5. On count 2 the Crown was required to prove both the possession of the amphetamine by the appellant on 24 May 1989, and that the purpose of that possession was for supply. The quantity of amphetamine in question was less than the prescribed trafficable quantity. The Crown sought to establish that purpose by inference from evidence that over a period of some months leading up to 13 January 1989 the appellant had regularly sold significant quantities of amphetamine to Robbie (who was addicted to the substance), and from the discovery in the appellant's home on 3 February 1989 of indicia of drug dealing - a large sum of cash, scales and surgical gloves. Evidence of possession of amphetamine for the purpose of supply some months before the alleged possession the subject of count 2 was probative of the purpose of possession of amphetamine by the appellant on the latter occasion: Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590.
6. Proof of the sales to Robbie lay solely in the oral evidence of Robbie, and included amongst the sales relied upon was the sale the subject of count 1. On the evidence as led at trial that sale was alleged to have taken place on 13 January 1989. In determining whether count 1 was properly joined with counts relating to the offences charged on 24 May 1989 it is not to the point that Robbie was an accomplice to the offence on 13 January 1989, and that his evidence identifying the appellant as his supplier lacked corroboration and may have been of questionable reliability. In my opinion count 1 was properly joined with count 2 as the evidence of prior sales of amphetamines to Robbie, including the sale on 13 January 1989 was admissible on count 2.
7. Count 3, being an alternative charge to count 2 was properly joined with counts 1 and 2.
8. In my opinion count 4 was also properly joined. The cocaine was found on the occasion of the same search on 24 May 1989 which revealed the amphetamine. The cocaine was found in the general area of the appellant's house where other articles were discovered, the presence of which were proved as part of the Crown case. The cocaine formed part of the res gestae.
9. The joinder of the four counts however required clear direction from the trial judge to the jury as to the use which could be made of the evidence of Robbie so as to avoid improper use of that evidence on counts 2, 3 and 4, and about the evidence of the finding of cocaine to confine the use of that evidence to count 4. In my opinion appropriate directions were given to the jury, and no miscarriage of justice occurred by reason of the joinder or the failure of counsel for the appellant to seek an order for separate trials.
Improper admission and use of evidence relating to the sums of cash
10. Upon the search of the appellant's home on 3 February 1989 the sum of
$2,815 in notes was found under the appellant's mattress.
Upon the further
search of his home on 24 May 1989 the sum of $610 was found in a wallet in his
bedroom. Evidence of the finding
of these moneys was led at the trial.
Prosecuting counsel in his final address placed emphasis on the appellant's
possession of this
money. The appellant had been out of work for a long time.
He was receiving sickness benefits. Counsel argued that large sums of
money
along with scales, resealable plastic bags and surgical gloves indicated the
likelihood that the appellant was indeed dealing
in drugs.
11. The learned trial Judge reminded the jury of the items discovered by the police on 3 February 1989 when dealing with counts 2 and 3 and said "The prosecution says all that is consistent with the accused being, in effect, a drug dealer who had these items all in his possession for the purpose of facilitating the supply of amphetamine."
12. The appellant in his evidence endeavoured to explain his possession of the money as being the proceeds of the sale of a motor vehicle which he had bought from an unknown person and sold a few days later to another unknown person at considerable profit, and from the sale of motor bike parts. It is likely that the jury would have treated the appellant's explanation as improbable. The possession of the sums of cash found by the police is likely to have weighed heavily with the jury as evidence supporting the conclusion that the defendant was guilty of both counts 1 and 2.
13. Between the date of his arrest and the trial, the appellant was charged pursuant to s.527A of the Crimes Act 1900 (ACT) with the unlawful possession of the sums of money found on the occasions of the two police searches. The charges were laid by Gary James Wood, the detective who supervised the searches. After a hearing on the merits in the Australian Capital Territory Magistrates Court the presiding magistrate found that the appellant had no case to answer, and dismissed the charges.
14. At the trial of the appellant in the Supreme Court on the matters the
subject of this appeal, no objection was taken by defence
counsel to the
admission into evidence of the finding of the sums of cash. Detective Wood
gave evidence of the searches. He was
cross-examined as to the fate of the
money:
"And the money was subsequently found under the bed, the sum thatNothing further was said during the trial as to the outcome of the proceedings in the Magistrates Court. No point was raised by counsel with the trial Judge as to the significance of the dismissal of the charges.
you referred to - the exact amount, I just haven't got at the
moment - it is in excess of $2000?---$2815 under the bed.
And do you agree with me that that money was, in fact, after it
had been taken by the police during the course of the search,
returned to Mr Guerin?---Yes, I gave it back to him at Mitchell,
then I went to his house again and got it back again.
Well, perhaps we will just take that one step: so he surrendered
the funds to you whilst you were at Mitchell?---No. When we did
the warrant in the morning, I took all the money; we had the
money in our possession. We went to Mitchell, we searched his
premises at Mitchell, we talked to each other in relation to the
money, there were no drugs seized. Mr Guerin paid some
outstanding warrants and I gave him all the money back.
That took place at Mitchell?---He signed for the money and he was
given the money back. I then returned to the city police station
and made inquiries with the senior police officials and the
Department of Public Prosecutions and was given certain advice
from those people. I then went back out to Mr Guerin's house at
Richardson, spoke to him, and he gave me the money back again.
And then after that had taken place, would you agree with me the
end result was that the money was returned to Mr Guerin?---After
the committal hearing, the money was again returned to Mr Guerin,
that's correct.
Well, is it not the case that the money was reasonably suspected
of it being unlawfully obtained, then a charge would have been
made and following the dismissal of that charge, the money was
returned?---Yes, a charge was made: it was a summons in relation
to unlawful possession that went for committal hearing and the
money was returned to him.
So it was all returned to Mr Guerin?---That's correct."
15. The above passages from the cross-examination of Detective Wood did not plainly assert that the appellant had been charged with the unlawful possession of the sums of cash found in the course of the first search on 3 February 1989 and in the course of the second search on 24 May 1989, and that those charges had been dismissed. A reading of the transcript, the addresses of counsel, and the charge to the jury, leaves me with the impression that the trial judge did not appreciate that charges in relation to these moneys had concluded in the Magistrates Court with the acquittal of the appellant.
16. Before this Court counsel for the appellant contended that the principle of res judicata would have prevented the Crown from relying on the appellant's possession of the money as indicative of drug dealing had objection been made to the admission of evidence about it.
17. In criminal proceedings the doctrine of res judicata finds expression in the pleas of autrefois convict and autrefois acquit. The validity of the plea depends on the accused having previously been convicted or acquitted at an earlier trial of the offence charged on the later occasion. The plea of autrefois acquit can have no application in the present case as the counts in the indictment are markedly different from the earlier charges of unlawful possession of money.
18. However, even where a plea of autrefois acquit cannot be raised in bar to
a later charge, an acquittal upon an earlier charge
can have important
consequences on the course of evidence on a later charge. An accused is
entitled to the full benefit of the acquittal
which cannot be called into
question in later proceedings against the accused. In Sambasivam v Public
Prosecutor, Federation of
Malaya (1950) AC 458 at 479 Lord MacDermott said:
"The effect of a verdict of acquittal pronounced by a competentThe principle was succinctly stated by Gibbs J. in The Queen v Storey and Another [1978] HCA 39; (1978) 140 CLR 364 at 387:
court on a lawful charge and after a lawful trial is not
completely stated by saying that the person acquitted cannot be
tried again for the same offence. To that it must be added that
the verdict is binding and conclusive in all subsequent
proceedings between the parties to the adjudication. The maxim
'res judicata pro veritate accipiter' is no less applicable to
criminal than to civil proceedings. Here, the appellant having
been acquitted at the first trial on the charge of having
ammunition in his possession, the prosecution was bound to accept
the correctness of that verdict and was precluded from taking any
step to challenge it at the second trial."
"...the Crown cannot challenge an acquittal, and the accused is toSee also Barwick C.J. at 372, Mason J. at 400, Jacobs J. at 407 and Aickin J. at 415.
be taken as entirely innocent of the offence of which he was
previously acquitted..."
19. The principle is not based strictly on the doctrine of issue estoppel. It is not confined to proceedings where there is an identify of interest in the parties cf; Ramsay v Pigram [1968] HCA 34; (1967-1968) 118 CLR 271. Rather it is based on the principle against double jeopardy. In my opinion the principle had application to the trial of the appellant in the Supreme Court even though in the proceedings in the Magistrates Court the complainant was Detective Wood, and in the Supreme Court the indictment was presented by the Director of Public Prosecutions in the name of the Crown.
20. Before this Court counsel for the respondent contended that the principle recognised in The Queen v Storey had no application as the presiding magistrate, in dismissing the unlawful possession charges proceeded, on an erroneous view of the law. The learned magistrate held that it was a necessary element of the offences charged that the arresting police officer held a reasonable suspicion that the goods in the possession of the defendant were stolen or otherwise unlawfully obtained. The prosecution had led no evidence to this effect but argued that the charge was proved if the magistrate trying the charge held that suspicion. Absent evidence of a reasonable suspicion entertained by the relevant police officer the magistrate held that there was no case to answer, and the charges were dismissed. The complainant did not appeal against the dismissals.
21. The dismissal of the charges of unlawful possession stand as acquittals. Before the Supreme Court the appellant was entitled to maintain that he was entirely innocent of possessing sums of money on 3 February 1989 and 24 May 1989 reasonably suspected of being unlawfully obtained. In the circumstances of this case the only ground for such a suspicion could have been that the moneys were the proceeds of drug dealing.
22. Unless an acquittal by a court of competent jurisdiction is set aside on appeal it is not open to the Crown in subsequent proceedings to go behind the acquittal and argue that it was entered because of a mistaken view of the law, or the facts. The finality of the acquittal is well illustrated by G (an infant) v Coltart (1967) 1 QB 432 where, in the first of two related larceny charges the prosecutor announced that no evidence would be tendered (as a material witness was overseas) and in error allowed the charge to be dismissed before the trial of the other charge. It was held that on the later trial of the other charge it was not open to the prosecutor to assert that the items of property the subject of the dismissed charge had been taken by the defendant with a dishonest intent. To do so was inconsistent with the verdict of acquittal. This was so even though the acquittal was the result of patent error on the part of the prosecutor.
23. It is unnecessary on this appeal to consider whether the learned magistrate was correct in his interpretation of the law. In consequence of the acquittals of the appellant in the Magistrates Court it was not open to the Crown in the Supreme Court to allege that the cash found in the possession of the appellant was suggestive of the appellant engaging in drug dealing as this would be to assert that the money was unlawfully obtained. Had the fact of the acquittals been made known to the trial Judge this would not have happened.
24. In the circumstances of this case it is probable, had objection been taken by defence counsel, that evidence as to the finding of the sums of money would not have been admitted. On the assumption that the money was not unlawfully obtained, it was irrelevant to the issues before the Court, and admission of the evidence was likely to be highly prejudicial to the appellant. At the least, if the evidence were led, a very clear warning was required in the charge to the jury that the jury must accord full force to the acquittals. In the events which happened, no such warning was given.
The indicia of drug trading found on 3 February 1989
25. If it is accepted that the sum of money found in the appellant's
possession on 3 February 1989 could not be suspected of being
unlawfully
obtained, the other items of evidence relied on by the Crown which were found
in the appellant's possession were not compelling
proof that the appellant was
a drug dealer. The scales, the resealable plastic bags and the surgical
gloves found on 3 February
1989 were located in different parts of his home
and bore no traces of drugs. The scales were neatly packaged ornamental
apothecary
balance scales. The appellant, and his former wife, gave evidence
that they had been given to them as a birthday present, and this
explained
their presence in a display cabinet in the appellant's home. Plausible
explanations for the gloves and plastic bags were
also offered by the
appellant.
Unsafe and unsatisfactory verdict on count 1
26. Counsel for the appellant contended that the verdict on count 1 was
unsafe and unsatisfactory as the only evidence identifying
the appellant as
the person who supplied Robbie with amphetamines on 13 January 1989 was that
of Robbie, an accomplice, whose evidence
was not in that respect corroborated.
Moreover, it is contended that Robbie's evidence was inherently unreliable
because of his addiction
to amphetamines.
27. Following the detection of Robbie in possession of amphetamines by the police, a search of his flat on 15 January 1989 disclosed eight resealable plastic bags containing amphetamine. The trial Judge correctly directed the jury that this discovery tended to bear out his evidence that there was a person who supplied him with significant quantities of amphetamine, but that it provided no support for the proposition that it was the appellant who was the supplier. The trial was conducted on the footing that there was no evidence from a source independent of Robbie tending to identify the appellant as his supplier. The jury was warned that Robbie was an accomplice. The dangers of acting on the uncorroborated evidence of an accomplice, and the reasons why such dangers exist, were explained by the trial Judge. Whilst the charge to the jury did not say, in so many words, that there was no corroborative evidence supporting Robbie's assertion that the appellant was his supplier, in my opinion that was the plain import of the directions given by the trial Judge.
28. Evidence was led at trial on the appellant's behalf from Dr Max Willow, an expert in neuro-pharmacology, as to the effects which prolonged ingestion of amphetamines can have on the human mind. Prolonged use may lead to a temporary condition of toxic psychosis, and a person suffering that condition may experience delusions, auditory hallucinations and changes in insight and judgment. Robbie in cross-examination readily admitted his addiction and frequent use of amphetamine leading up to his arrest on 15 January 1989. It was suggested that he was mistaken as to the identity of his supplier, a fact which he denied. He maintained that the appellant, who was well known to him, had been his supplier over a period of many months.
29. The possibility that Robbie's evidence might be unreliable on this score was the subject of a direction to the jury by the trial Judge. The jury was reminded of the cross-examination of Robbie and the evidence of Dr Willow.
30. In my opinion the evidence of Robbie was not so lacking in quality that it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt on count 1. It was open to the jury to act on Robbie's evidence if, after heeding the appropriate warnings which were given by the trial Judge, they were not in doubt as to its reliability.
31. In my opinion the conviction of the appellant on count 1 was not unsafe and unsatisfactory by reason of the lack of corroboration and inherent unreliability in Robbie's evidence.
Conclusion on count 1
32. Although the verdict on count 1 is not unsafe and unsatisfactory on the
grounds just discussed, the likelihood remains that the
jury, in deciding to
act on Robbie's evidence, were influenced by the evidence of the discovery of
the sum of cash under the appellant's
mattress during the search on 3 February
1989. It is likely that the jury treated the discovery of that money, in
conjunction with
the other items found, as being indicative of the appellant
being a dealer in drugs. Had the evidence of the money been excluded,
or had
the jury been warned that it must accept that no suspicion could attach to the
money as being unlawfully obtained, the verdict
could have been different. In
my opinion the admission and use made of the evidence about the money deprived
the appellant of a
real prospect of acquittal.
Unsafe and unsatisfactory verdict on count 2
33. The admission and use made of the evidence about the money found on 3
February 1989, and also about the further money found on
24 May 1989, is
likely to have influenced the jury in their consideration whether, assuming
the packets of amphetamine found in the
swimming pool liner in the appellant's
backyard on 24 May 1989 were in his possession, that possession was for the
purpose of supply.
The verdict on count 2 is therefore suspect for this
reason.
34. However the conviction on count 2 is challenged for a more fundamental reason. It is contended that on the evidence led by the Crown, the jury acting reasonably, must have entertained a sufficient doubt whether the packets of amphetamine were in the possession of the accused to have entitled him to an acquittal: Chamberlain and Another v The Queen (No.2) [1984] HCA 7; (1983-1984) 153 CLR 521 at 534. If this challenge is made good the verdict on count 2 is unsafe and unsatisfactory, and a verdict of guilty on the alternative count 3 for simple possession would have to suffer the same fate.
35. The appellant in his sworn evidence denied any knowledge of the packets of amphetamine discovered by the police. In the period immediately before 24 May 1989 a number of people resided on the property where the appellant lived. Two of these people, Ms Deborah Sykes and Ms Kimberly Skinner, gave evidence at the trial that they had no knowledge of the amphetamine. These women resided in the house on the property with the appellant. There was however another resident, Robert John Sykes, who was living in a shed in the backyard not far from the above-ground swimming pool where the drugs were located. Evidence was given that the police could not locate him at the time of the trial. A real possibility existed that he might have been the person who concealed the drugs, and was the possessor of them. This possibility was not negatived by evidence led by the Crown.
36. It is not improbable that the jury were influenced in arriving at their verdict by the finding of further resealable plastic bags and $610 cash in the appellant's house on 24 May 1989, and perhaps also by the finding of a mirror and a razor blade although the significance of these items is not explained by the evidence. But once it is accepted that the moneys were not unlawfully obtained these alleged indicia of drug trading were of little weight. If it is assumed that the moneys were not unlawfully obtained, in my opinion a jury acting reasonably would have to entertain a doubt whether Mr Sykes, and not the appellant, was the person who possessed the packets of amphetamine: R v Filippetti (1978) 13 A Crim R 335 and R v Dib and Dib (1991) 52 A Crim R 64.
37. At trial, no attempt was made by defence counsel, either by cross-examination of the police officers or by leading evidence, to establish the character and habits of Sykes. Before this Court the appellant adduced evidence in support of the ground of appeal concerning the competence of defence counsel that Sykes had a lengthy record of convictions, including convictions on 6 March 1990 for deemed possession for supply, and for administration, of "prohibited drugs" for which he was sentenced to terms of imprisonment of 6 and 1 month respectively. If this evidence is added to that led at the trial, the reason for doubt whether the appellant was the person with possession of the packets of amphetamine found on 24 May 1989 is increased.
Count 4
38. Count 4 charged the appellant with simple possession of a minute quantity
of cocaine found in a foil concealed in a wallet of
darts in the appellant's
bedroom. The appellant denied all knowledge of the drug. The verdict of the
jury indicates that they rejected
his evidence. It is not improbable that
they were influenced to do so because they had rejected his evidence about the
circumstances
in which he came to be in possession of large sums of money on
the occasions of the two police searches. Had that evidence not been
admitted, or had it been stressed to the jury that it was impermissible to
treat that money as having been unlawfully obtained, the
verdict might well
have been different.
Alleged incompetence of defence counsel
39. It is now well established that a Court of Criminal Appeal has
jurisdiction to set aside the verdict of a jury where incompetent
representation of an accused person at trial has led to unfairness in the
trial process which deprives the accused of a real prospect
of acquittal: Re
Knowles (1984) VR 751, and R v Birks (1990) 48 A Crim R 385. This
jurisdiction is founded on the general power to set aside the verdict of the
jury on any ground whatsoever where there is a
miscarriage of justice. The
incompetent representation may arise as the result of inexperience, oversight
or mistake by counsel.
The burden of establishing that the conduct of counsel
has enlivened the jurisdiction rests on the appellant who seeks to set aside
the verdict. Practical considerations rooted in the nature of the trial
process and in the role of counsel render the burden a difficult
one to
discharge, and courts are extremely cautious about exercising the
jurisdiction: R v Birks, per Gleeson C.J. at 391.
40. At all stages of the trial process counsel will be called on to make
decisions, often involving difficult matters of judgment,
whether to object to
questions or to evidence, whether to call a particular witness, whether to
pursue a particular line of questioning
or to ask a particular question.
Often a decision will be made hastily in the course of the trial. The
judgment of counsel will
be influenced by the instructions received from the
accused, and by counsel's perception of witnesses, and perhaps even of the
likely
reaction of the jury and the Judge to a particular course of action.
It is very difficult, if not impossible, to recreate before
an appeal court
the setting in which the decisions of counsel are made. Moreover, styles of
advocacy will vary from counsel to counsel.
Some will pursue long and
painstaking examinations and cross-examinations, taking every point that
arises and leaving no stone unturned,
and thereby attracting the criticism of
others that a strong point became lost amongst weaker ones, that the attention
of the jury
was lost, that one too many questions was asked, and so on. The
reverse also applies; those who advocate brevity are not without
critics. It
is frequently impossible to judge whether criticisms of counsel are well
founded, or how a particular jury might have
reacted to the way in which
counsel conducted the trial. It is easy enough to criticise with the benefit
of hindsight after the
trial is finished, but the decisions of counsel at
trial are made in a wholly different situation. As Gleeson C.J. at 391
observed
in R v Birks:
"It sometimes happens that a person who has been convicted of a41. The argument before this Court, and evidence led in support of it, demonstrates another difficulty which can arise where the competence of defence counsel is called into question. Evidence was led from the appellant's solicitor who instructed both defence counsel at the trial, and different counsel to argue this appeal. The solicitor asserted various failures on the part of defence counsel to ask particular questions and to raise objections. In argument other criticisms of defence counsel were made, for example that his closing address failed sufficiently to canvass the evidence, and was too short. But these criticisms occurred in the absence of defence counsel whose reasons for his presentation of the appellant's case remain unknown to this Court. As a general rule, a party is bound by the conduct of his or her counsel. Counsel have a wide discretion as to the way in which the trial is conducted. In Halsbury's Laws of England (4th ed.) Vol. 3(1) para.518, the role of counsel is stated in the following terms:
crime seeks to have the conviction set aside on the ground that
counsel at the trial has acted incompetently, or contrary to
instructions. It is well settled that neither of these
circumstances will, of itself, attract appellate intervention."
"...a barrister is ordinarily instructed on the implied42. The absence of explanation from the counsel whose performance is under challenge is likely to make it difficult for the Court to be satisfied that counsel was not acting in a manner reasonably calculated to further the interests of the person represented.
understanding that he is to have complete control over the way in
which the case is conducted. Unless and until his instructions
are withdrawn, counsel has, with regard to all matters that
properly relate to the conduct of the case, unlimited authority to
do whatever he considers best for the interests of his client.
This authority extends to all matters relating to the action,
including the calling and cross-examination of witnesses,
challenging a juror, deciding what points to take, choosing which
of two inconsistent defences to put forward, and even to agreeing
to a compromise of the action, or to a verdict, order or judgment."
43. Before a Court of Criminal Appeal will set aside a verdict of the jury on the ground of alleged incompetence it is therefore necessary that serious error on the part of counsel be shown which cannot be explained as a decision reasonably made at the time on the instructions then to hand, or to obtain a perceived tactical or other advantage. In R v Birks, Gleeson C.J. at 392 instanced "flagrant incompetence" as an occasion for the intervention of the Court.
44. The intervention of a Court of Criminal Appeal on the ground of the incompetence of counsel is likely to be rare. However in the present case I consider the ground of appeal is made out on the failure of counsel to make it plain to the trial Judge that the charges of unlawful possession of the money discovered during the searches of the appellant's home on 3 February 1989 and 24 May 1989 had resulted in acquittals, and to rely upon the principle clearly established by The Queen v Storey that the appellant was to be taken as entirely innocent of those offences. It has been established by evidence before this Court that the appellant's instructions to defence counsel raised this topic, and the failure of counsel to pursue it cannot be dismissed on the ground that he could have perceived some lurking advantage to the appellant by not doing so. I have already indicated my opinion that the admission of the evidence about the money, and use which was then made of it, is likely to have deprived the appellant of a real prospect of acquittal on counts 1 and 2.
45. At first sight, the failure of defence counsel to pursue the antecedents of Mr Sykes at the trial also appears as a serious error which failed to elucidate the ground for doubt that the appellant was the person in possession of the packets of amphetamine discovered on 24 May 1989. However, without knowing why counsel omitted to do so, I do not think this failure would alone be sufficient to warrant intervention.
46. In other respects the criticism made of defence counsel in my opinion has not been shown to be outside the realm of reasonable judgment made in the course of the trial.
Conclusions
47. I would allow the appeal and set aside the verdicts of the jury on counts
1, 2 and 4. The strength of the Crown case on count
1 will be much weakened
by the exclusion of the evidence about the money found in the appellant's
possession on 3 February 1989,
but I do not think it can be said that the
quality and quantity of the other evidence on count 1 is such that a jury,
acting reasonably,
could not find the charge proved. I would order a retrial
on count 1.
48. On counts 2 and 3 I would order an acquittal as the evidence must leave open a doubt whether the appellant had possession of the packets of amphetamine.
49. On count 4 there is evidence which upon a retrial could lead to a conviction. However the amount of drug was minute and I agree with Higgins J. that it would be oppressive to order a retrial on that count.
HIGGINS J. On 18 November 1991, the Director of Public Prosecutions (DPP)
presented an indictment against the appellant charging
him as follows:
1st Count ... That between about the 29th day of December 1988 and2. The first count alleged an offence under s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978. "Methylamphetamine" was a schedule 8 "controlled substance". A Dr Willow gave evidence that "Methamphetamine" was a synonym for "Methylamphetamine". The same chemical substance was referred to.
the 16th day of January 1989, at Canberra in the Australian
Capital Territory (the appellant) did supply a controlled
substance, to wit, meth-amphetamine, to another person, namely
Luke Gerard Robbie.
2nd Count ... That on the 24th day of May 1989 ... did possess a
drug of dependence, to wit, amphetamine, for the purpose of supply
to another person.
3rd Count ... That on the 24th day of May 1989 ... did possess a
drug of dependence, to wit, amphetamine.
4th Count ... That on the 24th day of May 1989 ... did possess a
drug of dependence, to wit, cocaine.
3. The second and third counts were alternatives. They alleged offences under s.164(2) of the Drugs of Dependence Act 1989 (proclaimed 15/3/89). "Amphetamine" is a drug of dependence by virtue of Schedule 1 of that Act. Two grams is declared a "traffickable quantity".
4. The fourth count alleges a similar offence. Cocaine is also listed in Schedule 1. Two grams is declared to be a "traffickable quantity".
5. The case for the prosecution was that in January 1989, one Luke Robbie, the person referred to in count 1, was apprehended by police. He was in possession of a considerable quantity of the drug referred to in count 1. He gave information to police naming the appellant as his supplier.
6. Police obtained a search warrant. On 23 February 1989 they searched the appellant's premises. No drugs were found.
7. However, $2,815.00 in cash was located under the appellant's mattress. He had a further $900.00 on his person. Plastic re-sealable bags were found in a cupboard. Surgical gloves were found in a wardrobe. There was a set of scales found in a display case.
8. The appellant told police the money was from the recent sale of a motor vehicle. He had no documentation to evidence the sale and could not name the buyer.
9. At first, police handed the money back to the appellant. Later they seized it and charged him with unlawful possession of it contrary to s.527A Crimes Act 1900 (ACT).
10. On 24 May 1989, another search of the appellant's premises was conducted. On this occasion, the appellant had $610.00 in his wallet. He said some of it had come from the sale of motor cycle parts. A quantity of a substance, later identified as amphetamine powder, was found in the lining of an above ground swimming pool in the back yard of the premises. A very small quantity of cocaine was found concealed within a piece of silver foil inserted into the cavity of a darts flight in a leather container in the appellant's bedroom. Some more re-sealable plastic bags were located and seized. As well, two small mirrors and a straight back razor blade were seized.
11. The appellant denied any previous knowledge of the drugs. A charge of unlawful possession was also brought in relation to the $610.00 found in the appellant's wallet.
12. It is relevant to mention the summary matters alleging the sums of money referred to were "reasonably suspected of having been stolen or otherwise unlawfully obtained" because, on 29 May 1990, Magistrate Ward dismissed those charges.
13. At the trial, Robbie gave evidence. He said that he had purchased drugs on a number of occasions from the appellant before 13 January 1989. He said he went to the appellant's home on 13 January 1989. He purchased a quantity of amphetamine. It was, he said, the drug that police had found in his flat on 15 January 1989. He had cut and packaged the drug for the purpose of supply to others. The substance seized from Robbie by police was found to contain Methamphetamine.
14. The bags in which the drug was found were similar to the bags later found in the appellant's possession. Such bags are not, however, particularly distinctive. The appellant had been a friend of Robbie's for many years. They had a mutual interest in motor cycles. Robbie conceded that, on or about 13 January 1989, he had also purchased motor cycle parts from the appellant. He also conceded that his use of amphetamines had affected his capacity to recall accurately past events. He did not, however, concede that he could be mistaken about his drug deals with the appellant.
15. It is fair to comment that the only alleged supplier Robbie apparently informed police about was the appellant. It seems there must have been others. His drug habit pre-dated the occasions he said he was supplied with drugs by the appellant.
16. At the time he gave evidence, Robbie had pleaded guilty and been sentenced. The sentencing judge had taken account of his assistance to police in informing on the appellant. Robbie was given a suspended sentence and a community service order.
17. Counsel for the appellant sought to adduce evidence of this sentence. However, he denied that he was seeking to found a suggestion that Robbie had falsely implicated the appellant in order to achieve a lesser sentence than he otherwise would have suffered. The learned trial judge refused to permit that evidence to be tendered in the presence of the jury. Why counsel did not put his submission on that ground was not really explained.
18. There was evidence that persons other than the appellant lived at the house. One was Ms Debbie Sykes. She was the de facto wife of the appellant. Ms Kimberley Skinner also lived in the house. Ms Sykes and Ms Skinner gave evidence denying any knowledge of the drugs located by police.
19. It also emerged that Ms Sykes' brother Robert was, at the time of the police searches, living in a shed at the back of the garage not far from the swimming pool. He could not be located to give evidence at the trial. It seems he had some sort of criminal record including a record of convictions for possession and administration of "prohibited drugs". He had also pleaded guilty to supplying "prohibited drugs". On 6 March 1990, Sykes was sentenced to six months imprisonment for those offences.
20. The appellant gave evidence denying any knowledge of the drugs found on 24 May 1989. He also denied supplying any drugs to Robbie. In the course of his evidence he explained the presence of scales, gloves and re-sealable bags. He sold jewellery, he said, as well as motor cycle parts. Indeed, another witness, Mrs Tracey Guerin, the appellant's second wife, gave evidence, which was not challenged, that the scales in question had been a birthday present from a friend. The gloves were for use in washing up. No drug or trace of any drug was found on the scales or on any of the other items found.
21. The appellant was found guilty of the offences charged in the first, second and fourth counts. No verdict was required on count 3.
22. A number of grounds of appeal were relied upon. They may be summarised
as follows:-
1. That the verdicts were unsafe and unsatisfactory.Verdict unsafe and unsatisfactory - Corroboration
2. That the trial of counts 1, 2, 3 and 4 should have been
severed.
3. That the appellant did not receive a fair trial by reason of
the flagrant incompetence of counsel who represented him on
his trial.
4. That the learned trial judge wrongly admitted evidence of
the finding of the sums of money on 3 February 1989 and
24 May 1989 respectively.
5. That the learned trial judge wrongly admitted evidence of
the finding of re-sealable bags, scales, surgical gloves,
mirrors and razor.
6. That the learned trial judge did not sufficiently direct the
jury as to the use of evidence relevant to the first count
in relation to the remaining counts.
7. That evidence of previous drug deals between the appellant
and Robbie should not have been admitted.
8. That the direction concerning corroboration of Robbie's
evidence was inadequate.
24. However, the appellant says that the following passage in his Honour's
summing up was erroneous. His Honour referred to the
fact that drugs were
found in Robbie's possession and went on to say:-
"Now, you may think, ladies and gentlemen, that that is supportive,25. The jury was directed that they could use the evidence of Robbie to establish that, if the appellant was in possession of drugs on 24 May 1989, his purpose was that of supply.
generally, of the story that Mr Robbie tells. It is entirely a matter
for you. I supply (simply?) offer the comment, which you are free to
accept or reject, that whilst it does support Mr Robbie's story that
somebody supplied him the Methamphetamine shortly before 15 January
1989, of itself, it does not support the proposition that it was the
accused who supplied it to him. But you might think that it makes the
story of Mr Robbie overall more credible and if you think that the
evidence of Mr Robbie is supported in some material way by that other
evidence, that is entirely a matter for you."
26. The jury was also instructed that the finding of the scales, plastic bags, mirror, razor blade and money was evidence capable of supporting the second or third counts but not the fourth.
Corroboration
27. As to the first count, it is clear that the possession by Robbie of
amphetamines did not, as the learned trial judge noted, corroborate
the
proposition that the appellant supplied him with drugs on or about 13 January
1989.
28. Robbie's own evidence of previous occasions of supply could not do so either. It was subject to similar difficulty.
29. However, in my opinion, the jury was properly warned about the danger of convicting on the evidence of an accomplice (see Davies v DPP (1954) AC 378).
30. It does not follow that a verdict is "unsafe and unsatisfactory" merely because it is based on acceptance of the evidence of an uncorroborated accomplice (see Carr v R [1988] HCA 47; (1988) 165 CLR 314).
Evidence of finding of scales, re-sealable bags etc
Counts 2 and 3
31. These counts could only be supported by circumstantial evidence.
32. Without support from the alleged indicia of drug dealing found in the house it is quite clear that, given the presence of the elusive Mr Sykes, it was impossible for the jury to have been satisfied that the appellant rather than Sykes was the person who had placed the drugs found on 24 May 1989 in the pool liner (see R v Filippetti (1984) 13 A Crim R 335; R v Dib and Dib (1991) 52 A Crim R 64).
33. The various household items said to be indicia of drug dealing are, in my view, insufficient rationally to support the proposition that the drugs found belonged to the appellant. None of the items found had any traces of any illicit drug. None of the items was so placed as to indicate use in drug packaging.
34. Even if evidence as to the possession of those items was rightly admitted, it is unsafe to permit the finding of guilt on count 2 to stand. It follows that it would have been unsafe to permit a conviction on count 3.
35. That judgment is one this Court may make even if it was not open to the learned trial judge to have directed a verdict of acquittal on these counts (see Doney v R [1990] HCA 51; (1990) 171 CLR 207).
36. However, other matters fall to be considered.
Improper Joinder of Counts
37. It is clear that the joinder of count 1, particularly with counts 2 and
3, was prejudicial to the appellant's case. This is
particularly so when
linked with Robbie's evidence that the appellant had supplied him with drugs
on other occasions.
38. That course was permissible, of course, if, and only if, the evidence supporting one count would be admissible in any event on the other count or counts or if any impermissible use of the evidence could have been effectively avoided by appropriate directions to the jury (see De Jesus v R [1986] HCA 65; (1986) 61 ALJR 1; Wilde v R [1988] HCA 6; (1988) 164 CLR 365).
39. That raises the question as to whether the evidence given by Robbie was relevant to prove that the amphetamines found on 24 May 1989 were, if in the appellant's possession, possessed by him for the purpose of supply. It is clear that those drugs could not have been possessed for the purpose of supply to Robbie. The question at issue is whether evidence that the appellant had been previously guilty of supplying drugs to Robbie is admissible to show that any sizable quantity of drugs subsequently possessed by the appellant was so possessed for the purpose of supply. If it ought not to have been admitted on counts 2 and 3 then those counts should not have been joined with count 1. It is not really possible for the prejudicial effect of that evidence, once admitted, to be eradicated by direction.
40. In Hoch v R [1988] HCA 50; (1988) 165 CLR 292, the full High Court found that several counts alleging indecent assault against various victims were improperly joined. The evidence of the several alleged victims could have been the product of collusion between them. As a result it was held that it would not, on any one count, have been appropriate to admit the evidence relevant to any other count. Thus they should have been severed.
41. In a joint judgment, Mason C.J., Wilson and Gaudron JJ. said:-
(296) "In cases such as the present the similar fact evidence serves42. The rational possibility of concoction, their Honours held
two functions. Its first function is, as circumstantial evidence, to
corroborate or confirm the veracity of the evidence given by other
complainants. Its second function is to serve as circumstantial
evidence of the happening of the event or events in issue. In relation
to both functions the evidence, being circumstantial evidence, has
probative value only if it bears no reasonable explanation other than
the happening of the events in issue."
(296) "... thus destroys the probative value of the evidence which is a43. It does not seem that "probative value" has any necessary relationship to whether a jury would or would not believe the evidence in question. The issue as to whether or not the alleged victims had concocted their allegations of indecent assault was a jury question. The sense in which "probative value" was used seems to have been whether it was rationally open to conclude, on the evidence of the various complainants, that they had collaborated to concoct their allegations. If it was open so to conclude then
condition precedent to its admissibility."
(297) "...The evidence of the several complainants lacked the requisite44. Brennan and Dawson JJ. held that it had been incumbent on the trial judge to enquire whether in the circumstances there was "a real chance" that the evidence of similar facts was the result of concoction. If there was, it should be excluded:
probative force necessary to render it admissible as similar fact
evidence in relation to the other offences charged."
(302) "If there is a real danger of the concoction of similar fact45. In this case, the "other occasion" evidence is of only one witness. Robbie was, viz-a-viz the appellant, an accomplice. He stood to gain, and did gain, leniency on the supposition that he had named his supplier. Once he had gained that leniency, he could hardly retract his statements implicating the appellant. His testimony, even as to one occasion of supplying Methamphetamine (represented by count 1), was inherently suspect. It was rationally open to conclude that it, and the evidence of previous instances of supply, was concocted. It was necessarily tainted by self-interest.
evidence it is consistent with the attitude which the law adopts toward
evidence of that kind that it should exclude it upon the basis that its
probative value is depreciated to an extent that a jury may be tempted
to act upon prejudice rather than proof. That consideration is of
special importance in cases where the fact to be proved is inferred not
from similar facts which have been clearly established but from the
concatenation of the testimony of a number of witnesses who depose to
the occurrence of similar facts."
46. Furthermore, that evidence, if accepted, merely tended to establish a propensity to hold drugs for the purpose of supply. It tainted the other evidence as to the items found in the appellant's house on 3 February 1989 and 24 May 1989 giving a sinister connotation to the concatenation of those items which otherwise it is unlikely that they would bear.
47. There was, also, a real risk that the evidence of those items would be used to support the evidence relevant to possession so as to implicate the appellant with that possession. There was a further risk that, notwithstanding any warning to the contrary, that such evidence would be taken as corroboration of the evidence of Robbie that the appellant had been his drug supplier.
48. The summing-up does not expressly instruct the jury that this mode of reasoning is impermissible. That would, in any event, have been a difficult task.
49. In my opinion, it would have been open to infer from the finding of the amphetamines on 24 May 1989, even if in the appellant's possession, that they were not held for the purposes of supply. They were not packaged for distribution. There was no evidence of preparation to do so. The scales, surgical gloves and plastic re-sealable bags had been seized on 3 February 1989. There were no scales or gloves found on 24 May 1989. There was a razor and two mirrors taken. They could have been associated with drug use but revealed no evidence of having been so used in fact. There was no other reason to assume they had any connection with drug use or distribution.
50. Needless to say, the cocaine found was in such a tiny quantity that its presence could have no relevance to the purpose of the possession of the discovered amphetamines.
51. However, it is submitted for the respondent that Harriman v R [1989] HCA 50; (1989) 167 CLR 590, at least permits evidence to be admitted of other occasions of supply of drugs, even if from an alleged accomplice, to demonstrate that the amphetamines found on 24 May 1989 were possessed by the appellant for the purpose of supply.
52. In that case, the accused, Harriman, was charged with being knowingly concerned in the importation of heroin. Martin, the principal offender, gave evidence against Harriman. Evidence was given from two other persons who said they had been accomplices of Martin and Harriman in earlier drug transactions involving the supply of heroin. The evidence of one of those witnesses, Lisk, was corroborated by the terms in which Harriman had written to Lisk in correspondence. That correspondence was tendered in evidence.
53. Brennan J. (593-4) said:
"Evidence that an accused has committed other offences of the same or54. If that test is applied to the present case, it is apparent that, whilst the evidence of supply to Robbie does, as a matter of experience of human affairs, render it more likely that the appellant supplied or had a propensity to supply others with similar illicit drugs, it does so only via a process of reasoning that relies only on such a propensity. The degree of "probative force" possessed by such evidence was, as I have noted, inherently suspect.
similar character is inadmissible unless the evidence is of such
probative force in the instant case that it would be an affront to
common sense not to admit it. Or, to put it another way, unless the
probative force of the evidence clearly transcends the merely
prejudicial effect of showing that the accused has committed the
offences ...
If, as a matter of human experience, the evidence tends to establish the
offence charged or a fact in issue otherwise than by showing merely the
commission of another offence or a propensity to commit an offence, the
evidence is admissible."
55. It is pointed out, quite expressly, by Gaudron J. (614) that in order for
"other occasion" evidence to be admissible, the degree
of probative force it
needs to possess is
"quite distinct from the question whether the evidence is necessarily,56. Accordingly, whilst it is clear enough that the "other occasion" evidence given by Robbie was relevant to establish or corroborate the act of supply on 13 January 1989 (subject to satisfaction of the Hoch test) it was not permissibly relevant to the matter alleged in count 2.
or even likely, to be accepted by a jury as true".
57. It does not seem to me to be reasonably likely that a direction could remove the impermissible prejudicial effect of that evidence. In any event, there was no such direction.
58. Count 1 was, therefore, impermissibly joined with the remaining counts. Additionally, the evidence of supply to Robbie was not admissible in relation to count 2. It was not admitted in relation to count 3 but would have created prejudice on the issue of possession notwithstanding directions to the contrary.
Admission of evidence of money found
59. The appellant had been acquitted of charges of unlawful possession of the
money found on 3 February 1989 ($3,715.00) and 24 May
1989 ($610.00). It was
apparent that if that money, or any of it, had been reasonably suspected of
being "stolen or unlawfully obtained"
contrary to s.527A of the Crimes Act
1900 (ACT), it could only have been because the money was in whole or part the
proceeds of the sale of illicit drugs (see, for example,
Morris v Russell
(ACTSC; Kelly J.; 30/3/90; unreported).
60. The acquittals of the appellant on 29 May 1990 necessarily prevented it being open to the prosecution to contend that the money found was or included the proceeds of drug dealing.
61. That would have required either the exclusion of the evidence in question or, at the very least, a direction that no adverse inference was to be drawn from it. There was no such direction sought or given (see R v Storey [1978] HCA 39; (1978) 140 CLR 364; Groves v R [1981] FCA 22; (1981) 58 FLR 18).
62. However, the respondent contends the evidence was admissible because the learned Magistrate (Ward M) had applied the wrong test in dismissing the charges.
63. The test the learned Magistrate was bound to apply, it was said, was that
adopted by Kelly J. in Morris (supra), following and
approving the approach of
Yeldham J. in Parker v Todhunter (1987) 26 A Crim R 169. Kelly J. said
(10) "The question he (the learned Magistrate) would then [at the64. His Worship did refer to Morris. It was cited to him for the proposition that it was only the suspicion of the Court that was relevant. The prosecutor was obliged to do that because none of the police witnesses who attended on 3 February 1989 and 24 May 1989 gave any evidence that they entertained, reasonably or otherwise, any such suspicion.
conclusion of the prosecution case) have been required to ask himself
would have been whether, having regard to all the evidence pointing to
the moneys having been unlawfully obtained, he was satisfied beyond
reasonable doubt that it was then proper for him to entertain a
reasonable suspicion that the money was unlawfully obtained bearing in
mind that suspicion is less than prima facie proof and certainly less
than proof beyond reasonable doubt."
65. It is obvious that the suspicion in question must arise contemporaneously with the finding of the goods or money in question.
66. However, it does not seem to me that his Worship was at variance with
Kelly J. His Worship did comment as follows:-
(1) "There are very good reasons why it ought to be someone else other67. That comment, quite properly, drew attention to the need for the prosecution, if it hoped to succeed in persuading the Court that there was the relevant suspicion attaching to the possession of the items in question, and that the suspicion was reasonable in all the circumstances. The gist of his Worship's finding was contained in the following passage:-
than the Court to do the suspecting. It ill behoves a Court to guess or
suspect. A Court acts on evidence and makes findings and in the second
place it may well be that a Court is not in full possession of all the
facts relevant to the formation of the suspicion or to the
reasonableness thereof."
(8) "There is nothing in the facts of these cases (that is, the68. I agree entirely. It might also be noted this finding had regard to evidence of the presence of the scales, gloves, bags, mirrors and razor. It had included a consideration of the evidence of the finding of amphetamines and cocaine. It is a finding that the facts and circumstances of the location of the money including those circumstances did not warrant a reasonable suspicion that that money had been connected with dealings in illicit drugs.
unlawful possession charges) which would enable the court to be
satisfied beyond reasonable doubt of the suspicion in either case. With
regard to the $3,700.00 odd, the relevant policeman gave the money back
to the defendant which says something, surely, about the state of his
suspicion. There was nothing particularly remarkable or compelling
about the possession of the $610.00 and I could not, in the absence of
evidence from the informant or somebody else infer that any suspicion
they might have held was held on reasonable grounds."
69. The suspicion must be assessed objectively as a reasonable one, by the Court hearing the information, on the evidence adduced before it. If the prosecution failed to convince a Magistrate that such a suspicion attached to the sums of money found, it is not entitled to destroy the effect of that acquittal by inviting a jury to draw the same inference that it failed to persuade the learned Magistrate should be drawn. Perhaps another tribunal of fact might have drawn another inference. However, the prosecution did not appeal from Magistrate Ward's decision. It must be treated as final and conclusive.
70. It follows, in my opinion, that evidence of the finding of the money should have been excluded.
Incompetence of Counsel
71. There was evidence presented on the appeal which suggested that counsel
briefed for the appellant was both inexperienced and,
also, unaware of the way
in which a criminal trial should be conducted.
72. Consequently, there had been no application for severance of the counts on the indictment. No objection was taken to the "similar fact" (or, more accurately, "other occasion") evidence of Robbie, until prompted by the appellant's solicitor. The grounds offered in support of that objection were completely irrelevant and led to the evidence being admitted "for a limited purpose". No objection was taken to the evidence of the finding of the money and no effective use was made of the acquittals of the appellant referred to above. Complaint was also made about counsel's cross-examination and addresses, belated attempts to avoid a "Browne v Dunn" (1894) 6 R 67 situation and so on. There was no attempt to elicit evidence of the criminal record of the absent Robert Sykes. Finally, the request for further directions following the learned trial judge's summing up was ineffectual and inadequate.
73. Counsel did raise three matters following the summing up. First, that the jury should be reminded that the evidence of prior drug dealings was relevant only to the second count. His Honour agreed to that. The second was that Robbie's evidence should not be taken into account on counts 2 and 4 if the appellant was acquitted on the first count. His Honour had reminded the jury that the evidence of Robbie was to be treated with caution and whatever point counsel was making seemed to be satisfied by his Honour reminding counsel that he had done so. The third request was that the jury be instructed that evidence as to the items seized on 3 February 1989 should not be taken into account in respect of counts 2, 3 and 4. His Honour had told the jury that they could take that evidence into account only in relation to count 2. Counsel further asked that the jury be reminded that no amphetamine was found when the gloves, scales and bags were located.
74. His Honour did redirect that the evidence of "other occasions" of supply of drugs to Robbie was relevant only to the second count. Further, he told the jury that guilt on one count would not, by itself, mean that the appellant was or was more likely to be guilty of other charges. He did advise them that a finding of not guilty on count 1 would render it unlikely that Robbie's evidence could be used to support a finding of guilt on the second or third count.
75. This was a little confusing as the jury had previously been instructed that Robbie's evidence as to "other occasions" of supply apart from its obvious relevance to count 1 was relevant only to count 2.
76. His Honour did remind the jury that Robbie's evidence was irrelevant to the fourth count.
77. The way the matter was run failed to take up the possibility that Robbie's evidence was tainted, not merely by the effect of drugs, but by a desire to curry favour with the prosecuting authorities. His Honour was not asked to direct the jury on the reasons which Robbie could have had not merely to give inaccurate evidence but untruthful evidence. That deprived the jury of the opportunity of considering that Robbie, who obviously had a "supplier" might have named Guerin, even if the latter was not, in fact, his supplier, because he wanted to get leniency but was afraid of retribution from his real supplier should he name that person. Certainly, that would have provided a far more convincing reason for caution in accepting Robbie's evidence than the effect of drugs on his memory.
78. The incompetence of counsel as a ground of appeal was considered in R v Birks (1990) 48 A Crim R 385.
79. There was no doubt in that case that counsel had, through inexperience and oversight, failed to put matters to witnesses which led to comments both by the prosecutor and the trial judge that were destructive of the credit of the accused.
80. Nevertheless, as Gleeson C.J. noted
"It sometimes happens that a person who has been convicted of a crime81. It was considered, nevertheless, that, in all the circumstances, this factor had contributed to a lack of fairness in the trial process.
seeks to have the conviction set aside on the ground that counsel at the
trial has acted incompetently or contrary to instructions. It is well
settled that neither of these circumstances will, of itself, attract
appellate intervention."
82. Hunt J., in R v Dib and Dib (supra) (71), similarly expressed the view that an alleged failure of counsel properly to cross-examine would not suffice, by itself, to support the quashing of a conviction.
83. However, it is also clear from Birks that, it may appear as a result of counsel's experience and conduct that decisions to object or not to evidence, to seek or not proper directions from the trial judge may well have been motivated by inexperience rather than representing a deliberate tactical decision. In such circumstances, it may be that appellate intervention to remedy a defect in the trial process resulting therefrom would more readily be forthcoming.
84. The principle is, I consider, aptly stated by Gibbs C.J. in De Jesus v R
(3) "It is not necessarily fatal to an appeal that counsel for the85. There is no doubt that the way this case was, at trial, conducted for the appellant, caused or contributed to a result which might well have been otherwise had a different course been followed.
accused at the trial failed to raise the necessary objection. Of
course, if it were thought that counsel had deliberately refrained at
the trial from submitting that the joinder was impermissible, in order
to gain some tactical advantage, the case would be different."
86. The jury could lawfully have convicted on count 1 on the uncorroborated evidence of an accomplice but might well not have done so. There was no evidence sufficient to found a conviction on counts 2 and 3. The Crown case on count 4 was a strong one but the strength of the appellant's denials of knowledge of the presence of the cocaine was seriously weakened by the joinder of count 1 on the indictment as well as the evidence led to support counts 2 and 3.
87. In the result, I would uphold the appeal. I would quash all three convictions and the sentences thereon. I would order a new trial in respect of count 1. Verdicts of acquittal should be substituted in respect of counts 2 and 3. I would order that further proceedings on count 4 be stayed. The amount of drug found was minute. It was not consistent with trafficking. It could attract, by itself, only a nominal penalty. Thus, notwithstanding that a jury properly instructed might well convict, it would be oppressive, I think, for that matter to be tried again.
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