Abbott v The State of Western Australia
[2005] WASCA 42
•11 MARCH 2005
ABBOTT -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 42 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:154/2004 | 11 FEBRUARY 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA PULLIN JA | 11/03/05 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction refused Leave to appeal against sentence refused | ||
| A | |||
| PDF Version |
| Parties: | PAUL JOHN ABBOTT THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Direction to jury Section 11 Misuse of Drugs Act 1981 (WA) Person deemed to have intent to sell or supply Burden of proof Balance of probabilities Direction on the drawing of inferences Whether adverse inference must be only inference reasonably open Form of discretion Criminal law Application for discharge of jury Perception of prejudgment by juror Test to be applied Criminal law Admissions Applicant selectively answering police questions on videorecording of police search Whether unfairness Criminal law Sentence Possession of cannabis with intent to sell or supply Previous suspended sentence for similar offence Whether aggregate term of 2 years' 8 months' imprisonment excessive |
Legislation: | Misuse of Drugs Act 1981 (WA), s 11 |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Barca v The Queen (1975) 133 CLR 82 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Crayton v Bowen, unreported; SCt of WA; Library No 2552; 27 March 1979 Day v The Queen (2001) 127 A Crim R 403 Di Camillo v Wilcox [1964] WAR 44 Fowler v The Queen (2001) 121 A Crim R 531 Herbert v The Queen (2003) 27 WAR 330 Mackenzie v The Queen [2004] WASCA 146 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Plomp v The Queen (1963) 110 CLR 234 R v Falconer (1990) 171 CLR 30 R v Inglis [1917] VLR 672 R v Merritt [1999] NSWCCA 29 R v Mullen (1938) 59 CLR 124 R v Muratovic [1967] Qd R 15 Robertson v The Queen, unreported; CCA SCt of WA; Library No 950540; 1 June 1995 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985 Slater v Marshall [1965] WAR 222 Van Den Hoek v The Queen (1986) 161 CLR 158 Webb v The Queen (1994) 181 CLR 41 Woolmington v Director of Public Prosecutions [1935] AC 462 Woon v The Queen (1964) 109 CLR 529 Fairclough v The Queen (1995) 12 WAR 103 Krakouer v The Queen (1998) 194 CLR 202 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ABBOTT -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 42 CORAM : STEYTLER P
- ROBERTS-SMITH JA
PULLIN JA
- CCA 182 of 2004
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BLAXELL DCJ
File No : IND KAL 69 of 2003
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Catchwords:
Appeal - Criminal law - Direction to jury - Section 11 Misuse of Drugs Act 1981 (WA) - Person deemed to have intent to sell or supply - Burden of proof - Balance of probabilities - Direction on the drawing of inferences - Whether adverse inference must be only inference reasonably open - Form of discretion
Criminal law - Application for discharge of jury - Perception of prejudgment by juror - Test to be applied
Criminal law - Admissions - Applicant selectively answering police questions on videorecording of police search - Whether unfairness
Criminal law - Sentence - Possession of cannabis with intent to sell or supply - Previous suspended sentence for similar offence - Whether aggregate term of 2 years' 8 months' imprisonment excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 11
Result:
Leave to appeal against conviction refused
Leave to appeal against sentence refused
Category: A
Representation:
Counsel:
Applicant : Mr B G Illari
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Bruno Illari
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Barca v The Queen (1975) 133 CLR 82
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Crayton v Bowen, unreported; SCt of WA; Library No 2552; 27 March 1979
Day v The Queen (2001) 127 A Crim R 403
Di Camillo v Wilcox [1964] WAR 44
Fowler v The Queen (2001) 121 A Crim R 531
Herbert v The Queen (2003) 27 WAR 330
Mackenzie v The Queen [2004] WASCA 146
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Plomp v The Queen (1963) 110 CLR 234
R v Falconer (1990) 171 CLR 30
R v Inglis [1917] VLR 672
R v Merritt [1999] NSWCCA 29
R v Mullen (1938) 59 CLR 124
R v Muratovic [1967] Qd R 15
Robertson v The Queen, unreported; CCA SCt of WA; Library No 950540; 1 June 1995
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985
Slater v Marshall [1965] WAR 222
Van Den Hoek v The Queen (1986) 161 CLR 158
Webb v The Queen (1994) 181 CLR 41
Woolmington v Director of Public Prosecutions [1935] AC 462
Woon v The Queen (1964) 109 CLR 529
Case(s) also cited:
Fairclough v The Queen (1995) 12 WAR 103
Krakouer v The Queen (1998) 194 CLR 202
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1 STEYTLER P: I have had the advantage of reading, in draft, the judgment of Roberts-Smith JA. It is consequently unnecessary for me to set out the facts and circumstances giving rise to the applicant's three grounds of appeal against conviction, or to the sole ground of appeal which he raises against the sentence of imprisonment imposed upon him.
2 The first ground of appeal against conviction raises the issue of what is the appropriate direction to give to the jury concerning the drawing of inferences in a case in which possession of a prohibited drug is admitted and the only question is whether the accused person had an intent to sell or supply it to another, in circumstances in which s 11(a) of the Misuse of Drugs Act 1981 (WA) applies. That section provides that, for the purposes of s 6(1)(a) (which creates the offence of possession of a prohibited drug with intent to sell or supply it to another):
"… a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug …".
3 Counsel for the applicant contended (as far as I was able to understand his proposition) that, because the prosecution always bears an overall onus of establishing beyond reasonable doubt the guilt of an accused person, any inference which tends to establish the accused's intention to sell or supply a prohibited drug, other than one which arises from the quantity in his possession, must be the only reasonable inference which could be drawn on the available evidence.
4 In my opinion, one need do no more than state that proposition in order to see the fallacy of it. Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge. The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another. Consequently, the only work to be done by inferences arising from facts other than the quantity of the drug in the accused's possession would be that of helping, or hindering, the accused in that endeavour. That being so, it could not have been the legislature's intention that, before any inference adverse to the accused person could be drawn from evidence of that kind, it must be the only inference which could reasonably be drawn. In my opinion, any such construction would
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- fly in the face of the plain meaning of the section and subvert its evident intention.
5 It follows that the trial Judge was not required to make a direction of a kind contended for by counsel for the applicant. Ground 1 consequently fails.
6 Ground 2 of the grounds of appeal against conviction raises the issue of bias on the part of a juror.
7 What happened, in this case, was that a juror (the forewoman) approached the prosecutor during the luncheon break and told her that, notwithstanding that she knew that she was not supposed to talk to the prosecutor, she wanted to let her know that she was "doing a very good job". On being told of this, and after some debate with counsel, the trial Judge questioned the juror in the absence of the other jurors. He asked her what she had meant by her comment. She responded by saying, "I just like the way she's doing the prosecution. They're both [a reference to the prosecutor and defence counsel] doing a good job." The juror was asked whether she had any predisposition, at that point, to find the accused guilty. She responded by saying that she did not, that her comment was merely "personal" and that she had not "even taken any side" at that stage.
8 The trial Judge found that the juror had been "frank and open" in what she said and was prepared to "take her comments at face value". He said that what had happened gave rise to no risk, or perception, of injustice. He declined to accede to defence counsel's request that the jury be discharged and the trial aborted. The applicant contends that he erred in that decision.
9 In Webb v The Queen (1994) 181 CLR 41 the High Court held that the test to be applied for determining whether an irregular incident involving a juror warrants the discharge of the juror or the jury is whether the incident is such that, notwithstanding any proposed or actual warning of the Judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.
10 In my opinion, it was undoubtedly open to the trial Judge to conclude that nothing that happened in this case should have given rise to any such reasonable apprehension or suspicion. The juror had done no more than compliment the prosecutor on her performance in circumstances in which, she said, she considered that defence counsel was also doing a good job and in which she had, as yet, formed no opinion on the question of the
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- accused's guilt or innocence and was "just listening". It was not suggested to us that there was any reason why the trial Judge (or any other reasonable observer) should have doubted that the juror was "frank and open", as the trial Judge found her to have been. There is, in these circumstances, no basis for the proposition that the trial Judge should have discharged the jury and aborted the trial. Ground 2 consequently fails.
11 Ground 3 raises the question whether evidence of videotaped admissions made by the applicant in the course of a police search of his home should, on grounds of unfairness, have been excluded at the trial because the applicant had, prior to making them in response to ongoing police questions, expressed an unwillingness to answer questions until he had had an opportunity to speak to his lawyer.
12 It is enough for me to say in this regard that, for the reasons which have been given by Roberts-Smith JA, there was no unfairness in the events of which complaint is made which was sufficient to justify exclusion of the videotaped admissions. Rather, the evidence reveals that the applicant's rights were fully explained to him before any questioning commenced and that, in those instances in which he declined to answer questions, he was not pressed to do so and, indeed, was told (on at least one occasion) that it was his right not to respond to questions if he did not wish to do so. Such answers as he chose to give were voluntarily made in full knowledge of his rights. No unfairness attended their making. This ground, too, fails.
13 I would consequently refuse the application for leave to appeal.
14 As to the application for leave to appeal against sentence, I agree, for the reasons given by Roberts-Smith JA, that this application should be dismissed. There is nothing I wish to add.
15 ROBERTS-SMITH JA: The applicant applies for leave to appeal against conviction and sentence following his conviction in the District Court at Kalgoorlie on 25 August 2004 of one offence of possessing cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and an aggregate sentence of 2 years' 8 months' imprisonment subsequently imposed upon him on 9 November 2004. The sentence consisted of 2 years' imprisonment in respect of the cannabis offence and a further 8 months' imprisonment to be served cumulatively, that being a suspended sentence of imprisonment imposed in the District Court in Kalgoorlie on 4 October 2001 in respect of an offence of cultivating cannabis with intent to sell or supply. The sentence was backdated to 25 August 2004.
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16 The grounds of appeal against conviction are that:
"1. The Learned Trial Judge gave a directions [sic] to the jury in relation to the drawing of inferences which was wrong in law.
Particulars
- 1.1 The offence being tried was under the Misuse of Drugs Act and therefore once the Prosecution had established that the Appellant had not less than the prescribed quantity of cannabis in his possession, then the deeming provision would automatically establish the element of intent to sell or supply.
1.2 The onus would then shift to the Appellant to prove on the balance of probabilities that he had the cannabis for his own personal use.
1.3 Because of this the Learned Trial Judge directed the jury that, in the matter of inferences, they could draw whichever inference they preferred when considering the established evidence. The Learned Trial Judge should have directed the jury that they could only draw an inference against the Appellant if it was the only reasonable inference which could be drawn on the evidence which they found proven.
2. The Learned Trial Judge failed to discharge the jury after having been informed of possible prejudice by the foreperson in favour of the State Prosecution.
Particulars
2.1 At an early stage of the trial during the Prosecution's case, the foreperson of the jury approached the State Prosecutor outside the Courthouse and informed her that she, the State Prosecutor, was doing a good job.
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- 2.2 The State Prosecutor brought this to the attention of the Learned Trial Judge in the absence of the jury.
2.3 The Learned Trial Judge questioned the foreperson of the jury in the absence of the other members of the jury about her comments.
2.4 The Defence made a submission and an application that the jury be discharged but the Learned Trial Judge refused the application and directed that the trial continue.
2.5 The Learned Trial Judge should have discharged the jury given that the juror who had made the approach was the foreperson.
- 3. The Learned Trial Judge failed to exclude evidence of alleged admissions made by the Appellant to the investigating Police Officers when such admissions were made in circumstances unfair to the accused.
Particulars
- 3.1 The Prosecution sought to lead evidence of a video tape of a search of the premises of the Appellant at 104 Dwyer Street, Boulder.
3.2 At a particular point in the search the Appellant clearly indicated to Police Officers that he did not wish to answer anymore [sic] questions until he had had an opportunity to speak to a lawyer.
3.3 The Police continued to ask him questions, and in particular questions about quantities of cannabis which were subsequently found.
3.4 Although the Appellant answered these questions, he did so reluctantly and repeated on a number of occasions that he wanted to speak to a lawyer before making any further comments.
3.5 Notwithstanding this, the investigating Police Officers continued to ask questions of the Appellant.
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- 3.6 The Defence made an application to exclude the sound of these questions and answers from the point at which the Appellant first stated that he wanted to speak to a lawyer before answering any further questions.
3.7 The Learned Trial Judge declined to direct that the sound from this part of the video tape be excluded."
17 When the applicant appeared in the District Court at Kalgoorlie on 23 August 2004 he pleaded guilty to possessing cannabis but not guilty to possessing cannabis with intent to sell or supply. Whether or not he had an intent to sell or supply the cannabis was accordingly effectively the sole issue at trial.
18 About 6.40 am on 4 December 2002, Kalgoorlie detectives went to the applicant's house at Dwyer Street in Boulder. The applicant was living there with his partner and two children.
19 When they arrived, Detective Davey, who was in charge of the search, introduced himself and told the applicant and Ms Cooper that they were there to execute a search warrant under the Misuse of Drugs Act.
20 The applicant showed the officers some cannabis in his bedroom. He brought out a large plastic container from the bedroom and placed it on a bench in the kitchen. The container, together with a green plastic bag, contained 134.8 grams of cannabis.
21 When asked, the applicant told the officers that was the only cannabis in the house.
22 He was asked whether there were any large sums of cash on the premises and he told the police officers that he had money underneath a mattress in his bedroom and retrieved for them some $2000 in $100 notes from under the mattress.
23 The police then began searching the house.
24 In accordance with usual police procedure they made a video-tape of the search.
25 The procedure in such cases is not to leave the camera running for the whole time the search is being conducted, but rather, when an item of interest is found, to bring the recorder to that location and commence
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- taping while the item is still in situ. Where the suspect is present, as in this case, any questions the officers ask of the suspect about the item will be video-taped. That is what happened here.
26 During the search, one of the officers located another $500 in cash in a box in the drawer in the master bedroom. Also in that bedroom they found six bags of cannabis material, weighing a total of 190 grams. Each bag weighed between 30 and 32 grams.
27 In what was described as the office area or sleep-out area at the rear of the house, the police officers found 11.8 grams of cannabis material in a tin, 4 grams of cannabis plant material in a drawer in a filing cabinet and in the same drawer another bag containing 4.2 grams of cannabis plant material. Near a desk and in the corner of the room there was a large plastic tub containing four shopping bags which themselves contained various bags of cannabis material. They weighed 440 grams, 432 grams, 439 grams and 433 grams respectively. When asked about them the applicant told the police that he had purchased that cannabis for $6000 the day before.
28 In another tub in the same office area, police found another three small and three medium size clip seal bags containing cannabis. The total amount in those bags was 93.7 grams. In the same tub there was another shopping bag containing 48.3 grams of cannabis plant material.
29 On the computer desk in the office area the police officers found 1.27 grams of cannabis in an envelope, a set of scales, a box of resealable plastic bags and a further plastic sealable bag container which had obviously contained plastic bags at some stage. On the desk there was also a piece of paper with a list of people's names and amounts of money.
30 There was another box of resealable plastic bags in the cupboard in that room and underneath a mattress in the dog's bed, police found another $2000 in $50 notes.
31 The total amount of cannabis found during the search was 2,232.07 grams. The total amount of cash was $4500.
32 There was evidence from a Detective Senior Constable attached to the Organised Crime Unit that cannabis is usually sold in kilogram, pound, ounce or gram weights. The most favoured method of packaging cannabis for sale or supply is in plastic clip seal bags. His evidence was that in December 2002 naturally grown cannabis (as distinct from
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- hydroponically grown cannabis) sold for approximately $25 per gram, $300 per ounce (28 grams) and $2500 for a pound (454 grams).
33 On that evidence the total amount of cannabis found in the house if sold in ounce amounts was worth over $20,000 and if broken down to sell in street dealer gram amounts, it would have totalled over $55,000.
34 The Senior Detective also gave evidence that the set of scales, the clip seal bags, lists with names and amounts of them and the large amounts of cash were paraphernalia often associated with drug dealing.
35 The applicant's evidence at trial was that the cannabis was for his own use. His partner, Ms Cooper, testified that she had been with him for 16 years and he had been a heavy cannabis smoker so long as she had known him.
36 As to the large quantity of cannabis found, it was the applicant's evidence that he had some amounts of cannabis around the house prior to 2 December 2004 but then about that time was told by a fellow user of an opportunity to buy a large quantity of cannabis at a particularly cheap price. The necessary arrangements were made and he purchased this large amount of cannabis for $5000 from people he met by arrangement in a Bassendean car park about 8 pm on 2 December. His idea was that it was going to keep him in stock for his own personal use for a long time into the future.
37 His evidence was that the suppliers drove away once the transaction was completed and he drove back to Kalgoorlie and to Boulder, arriving about 3 am. When he got up in the morning his intention was to dig a hole in the back yard and hide the drugs containing cannabis in that. However, the police arrived unexpectedly and found it.
Ground 1 - Inferences Direction
38 Given the sole issue at trial, a particular difficulty confronting the applicant in light of his formal admission by his plea of guilty to possessing 2.2 kilograms of cannabis, was the deeming operation of s 11 of the Misuse of Drugs Act.
39 That section provides:
"For the purposes of -
(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited
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- drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug …"
40 The quantity prescribed in respect of cannabis in Sch V is 100 grams.
41 There is no doubt that s 11 reverses the onus of proof in relation to the element of intent; it is therefore for the accused to prove, in circumstances which give rise to the presumption, that it is more probable than not that he did not have an intent to sell or supply.
42 The operation of the predecessor to s 11(a) was explained by the Court of Criminal Appeal in Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985. The Court (Wallace, Brinsden and Olney JJ) held (at p 6) that:
"The only meaning that any reasonable understanding of the English language can attribute to s 11(2) of the Misuse of Drugs Act is that it forecloses the issue of intent to sell or supply to another upon proof of the cultivation of a number of prohibited plants not less than the number prescribed in the Schedule unless the contrary is proved, or put in another way, unless it is proved that the accused person, who otherwise is by statute deemed to have a particular intention, did not have the intention. In the absence proof of a contrary intent, the section substitutes proof of a prescribed number of plants for proof of intent.
There can be no doubt as to the meaning or effect of s 11. Nor is there any doubt that, according to long established principles, the contrary will be adequately proved for the purpose if it is proved on the balance of probabilities."
43 Following counsels' addresses to the jury the learned trial Judge raised a number of matters with them in the absence of the jury before commencing his summing-up.
44 On the matter relevant to the first ground of appeal his Honour said (AB 369):
"… as I see it, the usual direction as to inferences does not apply where the onus of proof has changed. In other words, it would be a mistake in law to tell the jury they should only draw
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- an adverse inference against the accused if it is the only reasonable inference in all the circumstances because that's a rule that arises from the burden and standard of proof where it's beyond reasonable doubt."
45 Counsel for the accused submitted that it depended on how the inference arises and on what part of the evidence and respectfully expressed his disagreement with the learned trial Judge. He accepted what his Honour had said in relation to the cannabis itself, but submitted that in relation to the other items, the plastic bags, the scales, the lists and other matters upon which the State was relying for an inference that the applicant had the intent to sell or supply:
"… the usual rule as to inferences should be pointed out to the jury because it does apply to those matters. Those are matters which the jury have to find beyond a reasonable doubt, in my respectful submission."
46 His Honour referred to a decision of the Court of Criminal Appeal in Robertson v The Queen, unreported; CCA SCt of WA; Library No 950540; 1 June 1995 as being clearly to the effect that the burden of proof shifts to the defence to disprove the intention once the prescribed quantity is shown to be in the possession of the accused.
47 Counsel for the accused maintained his objection, submitting that the overall burden never shifts from the State. His Honour then said (AB 371):
"When it comes to the issue of whether it's more likely than not that the accused did not intend to sell or supply the cannabis, the jury's dealing with all the evidence relevant to that issue which includes not only the direct evidence of the accused but also the surrounding circumstances and the inferences to be drawn from the surrounding circumstances so, as I see it, the burden on the accused applies in respect of the inferences as well that goes with that issue."
48 Mr Illari maintained his objection.
49 Following further discussion, his Honour indicated to counsel that what he proposed doing was to simply tell the jury that where there were competing inferences, it was for them to determine what inference they should draw; he did not intend to direct them that they should only draw an adverse inference against the accused when it is the only reasonable
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- inference, as would be the case where the burden of proof was on the prosecution to prove the issue beyond reasonable doubt.
50 In the event, in the course of his directions, and having explained the presumption of innocence and the burden of proof ordinarily applying, and the elements of the offence charged, his Honour pointed out to the jury that it was only the second element, namely whether or not the accused intended to sell or supply the cannabis to another, which was in issue in the trial.
51 Shortly after, he repeated that (AB 386):
"… it's the second element that's in issue in this trial, so the burden is on the prosecution to prove beyond reasonable doubt that the accused intended to sell or supply the cannabis to another."
52 His Honour then went on to deal with the issue of intent in the context of s 11 (AB 386):
"… parliament has provided in the Misuse of Drugs Act that in circumstances where a person is found in possession of more than a specified quantity of a particular drug, then that person is deemed to have the intent to sell or supply it to another unless the contrary is proved.
Now, for various drugs there are various specified quantities. For example, with amphetamine or heroin, if someone is found in possession of two grams they are deemed to have the intent to sell or supply it unless the contrary is proved; with cannabis, because of the nature of the drug, the specified quantity is 100 grams and once an accused person is found in possession of more than 100 grams of cannabis, he is deemed to intend to sell or supply it to another unless the contrary is proved.
In this case the accused was found in possession of quantities of cannabis totalling 2,232 grams. That being so, the law deems him to be guilty as charged unless the evidence overall makesit more likely than not that he did not intend to sell or supply itto another. So to put it another way, once the accused having been found in possession of more than the specified quantity of cannabis, the law assumes that he's guilty of intending to sell or supply it to another unless there's evidence to show thecontrary. In this case what that means, of course, is that the accused
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- necessarily, in order to establish a contrary intention, would have to call evidence and he has given evidence and he has also called the evidence of other witnesses and you take all of their evidence into account along with the evidence of the prosecution witnesses in deciding whether or not it has been proved that he did not intend to sell or supply to another.
Whereas with the prosecution, when the onus of proof is on the prosecution the onus of proof is beyond reasonable doubt, when the onus is on the accused, as it is in this trial, there's a lesser onus; it's an onus to prove on the balance of probability. So all he has to do is to prove that it's more likely than not that he did not intend to sell or supply to another. I hope that's very clear to you what the burden of proof is and the standard of proof that applies in this case."
53 Having then outlined the evidence, his Honour pointed out that the total weight of the cannabis found was 2,232 grams which was more than 22 times the prescribed amount and that obviously the prosecution relied upon the presumption that the accused intended to sell or supply it to another and "… also rely upon inferences to be drawn from the surrounding circumstances …".
54 The learned trial Judge then reminded the jury of the evidence given by the applicant and on his behalf. He said that in the end the essential issue was whether or not the jury accepted the applicant's evidence that he possessed the cannabis for his own personal use.
55 His Honour then gave the direction which is the subject of challenge in this ground (AB 395-6):
"When you are assessing the surrounding circumstances each side is asking you to draw inferences for or against the accused. An inference is simply a logical deduction which arises from the facts as you find them to be. In some instances there will be competing inferences that you are asked to draw arising from the same facts. For example, with the presence of the plastic clip-seal bags the prosecution is asking you to infer that these plastic clip-seal bags were to be used for dealing in cannabis, whereas the defence is asking you to infer that they were used for storing electronic parts.
It's entirely a matter for you what inferences you might draw from a particular fact or from a collection of particular facts. In
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- going through that process you must not enter into the realms of speculation and conjecture or look for theories that are unsupported by the evidence. You must also remember that in the end what you are required to do is to look at the evidence as a whole, including not only the direct testimony of the witnesses but also the inferences that you draw from the surrounding facts, and having done that and looked at the whole of the evidence, you must then determine whether it's more likely than not that the accused did not intend to sell or supply the cannabis. If you conclude that it is more likely than not that he did not intend to sell or supply, then he is guilty only of simple possession of cannabis. If you come to the opposite conclusion, then he is guilty as charged."
56 In Robertson v The Queen the amount of drugs involved brought the s 11 presumption into play in respect of some counts, but not others. In relation to those which it did not affect, the Crown relied upon proof of surrounding circumstances as a basis for inferring intent. In relation to those counts to which it did apply, the Crown relied upon s 11. In directing the jury the Judge gave no specific attention to the question of proof of intent to sell or supply. He made no reference to s 11 nor in respect of which charges it was or was not available. The particular direction impugned in the appeal was to the effect that if the jury were satisfied as to the accused's possession of the drugs, they would have no difficulty with the intent to sell or supply. The Court of Criminal Appeal held that to be a fatal misdirection because the jury could well have understood from it that all they had to consider was whether the Crown had proved the accused was in possession of the drugs - and if they were satisfied of that they could take it he had an intent to sell or supply them to another.
57 I return to Singh v The Queen. In that case the impugned direction was effectively that the Crown had the burden of proving all matters beyond reasonable doubt, except the matter of intent, in relation to which it was for the accused to establish the absence of intent to sell or supply the cannabis to another. The trial Judge went on to say if the jury was satisfied beyond reasonable doubt that the plants were cannabis plants and that the accused cultivated them, then they would have to consider the question of intent and if they were satisfied that probably he did not have the intent to sell or supply the cannabis, then the Crown case to that part of the charge failed.
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58 The Court of Criminal Appeal held that it would have been preferable had the Judge not said to counsel during his final address and again to the jury in his charge that the accused carried an onus to prove the absence of intent to sell or supply to another because that might tend to induce the jury to look only to the evidence produced by the accused when considering the question of intent. The Court said that a preferable approach is to explain the effect of s 11 by pointing out that proof to the required standard of the cultivation of the prescribed number of plants or the possession of the prescribed quantity of drugs "… is adequate proof of intention to sell or supply to another unless the jury concludes upon the whole of the evidence that it is more probable than not that the accused did not have that intention". Their Honours concluded that was in effect how the trial Judge had finally dealt with the case. The appeals were dismissed.
59 Singh was explained by Murray J in Fowler v The Queen (2001) 121 A Crim R 531. At [8] his Honour observed that:
"It has been held that the effect of this provision is not to displace the onus resting upon the Crown to prove guilt of such an offence beyond reasonable doubt, but in a case to which s 11 applies it may discharge that onus by proving beyond reasonable doubt possession of at least the prescribed quantity of a prohibited drug or the cultivation of at least the prescribed number of prohibited plants. Conviction will follow unless, upon the whole of the evidence, the jury think it more probable than not that the accused had no such intention to sell or supply: …"
60 Although Murray J was in dissent in Fowler, that was in relation to a different point. I respectfully agree with his Honour's statement of the position with respect to the operation of s 11 of the Misuse of Drugs Act.
61 In my opinion s 11 does not displace the fundamental principle that it is for the prosecution to prove each element of an offence beyond reasonable doubt (Woolmington v Director of Public Prosecutions [1935] AC 462 and R v Mullen (1938) 59 CLR 124 in which the High Court held that proposition applied just as fundamentally in the Australian Code jurisdiction).
62 The burden of proof on an accused in a case in which s 11 arises, is both a legal and an evidential burden. It is an evidential burden because if the only evidence at the close of the prosecution case is that the accused
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- was in possession of more than the prescribed amount of the drug, the jury may rely upon his deemed intention to sell or supply to be satisfied of that fact beyond reasonable doubt. It is a legal burden because, unless on the evidence as a whole the accused satisfies the jury on the balance of probabilities that he did not have the relevant intent, the presumption will not be displaced and again, the jury may rely upon it to be satisfied of the matter beyond reasonable doubt. Unlike provisions such as s 23 Criminal Code (involuntariness; accident), s 246 Criminal Code (provocation) and s 248 Criminal Code (self-defence), which cast only an evidentiary burden on an accused whilst the legal burden of proof in respect of the particular issue remains upon the prosecution (R v Falconer (1990) 171 CLR 30; 61-62, 68, 83; Van Den Hoek v The Queen (1986) 161 CLR 158, 162; R v Muratovic [1967] Qd R 15, 17-18, 25), s 11 of the Misuse of Drugs Act effectively places upon the accused the legal burden of proving (on the evidence as a whole) on the balance of probabilities that he did not intend to sell or supply the drug. In a case in which the presumption applies, the jury is entitled to be satisfied beyond reasonable doubt of the existence of the relevant intent, unless it is displaced by a satisfaction that on the evidence it is more likely than not that the accused did not in fact have it.
63 It is in that context that the learned trial Judge's directions on inferences must be considered.
64 The submission advanced on behalf of the applicant was, in essence, that in this case the prosecution was relying first on the presumption which applied because a quantity in excess of the prescribed amount of cannabis had been proved and also, upon the inference to be drawn from proof of such facts as the applicant's possession of scales, cash, clip seal bags and other paraphernalia of drug dealing.
65 Mr Mactaggart for the respondent, relied upon the proposition that the applicant's plea of guilty constituted an admission of all the essential facts necessary to constitute the offence the subject of the charge. That proposition, expressed in that way, is undoubtedly the law (R v Inglis [1917] VLR 672, 674; Di Camillo v Wilcox [1964] WAR 44; Slater v Marshall [1965] WAR 222). But that does not foreclose the issue in dispute here. A plea of guilty admits no more than the essential ingredients of the offence to which the plea is made (Crayton v Bowen, unreported; SCt of WA; Library No 2552; 27 March 1979). The applicant's plea of guilty was to an offence of possession of cannabis. No particular quantity of cannabis was an element of that offence; any amount of cannabis was enough. What did matter here was that the
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- accused did actually and formally admit possession of the quantity charged, namely, some 2.2 kilograms - an amount which was (significantly) more than that required under Sch V of the Misuse of Drugs Act to enliven the operation of s 11. It was in that way that the deeming effect of s 11 was common ground.
66 It seems to me that it is wholly artificial and wrong in a case in which s 11 applies, to compartmentalise the evidence which bears upon that issue from that which goes to proof of intent (or lack of it) generally.
67 In my view, once s 11 is enlivened by proof of the relevant quantity of prohibited drug, the sole question on the element of intent to sell or supply falls to be determined on the consideration of the question whether the jury is satisfied on the evidence as a whole, that it is more probable than not that the accused did not have an intent to sell or supply. If the jury is so satisfied, the prosecution will have failed to prove the element of intent and that charge must fail. If the jury is not so satisfied, the accused will be deemed to have had the relevant intent and the jury will be satisfied of that element beyond reasonable doubt.
68 All the evidence which goes to the issue of intent falls to be considered in this way and for the purpose of determining whether or not the accused has discharged the onus of proving lack of intent. Contrary to what seems to be the implicit assumption in this ground, the evidence does not have to be considered from two separate points of view - namely whether the presumption has been displaced and whether the prosecution has proved intent otherwise. It is a simple exercise, which turns on whether or not the presumption has been displaced.
69 So far as inferences are concerned, it is also to be borne in mind that the requirement that an inference adverse to an accused cannot be drawn unless it is the only inference reasonably open, does not apply to all inferences. The direction relates to circumstantial evidence and recognises that in a criminal case not all inferences adverse to an accused have to be proved beyond reasonable doubt. It is the inference of guilt itself or the inference of a fact indispensable to proof of guilt, which must be the only inference reasonably open. There may be various inferences adverse to an accused which individually are not the only inferences reasonably open, but which in combination lead to satisfaction of guilt, or a fact essential to guilt, beyond reasonable doubt.
70 This was explained by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535-563:
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- "… in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279, cited in R v Van Beelen (1973) 4 SASR 353 at 373 and see Thomas v R [1972] NZLR 34 at 37-8 and 40 and cases there cited. …
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relation to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence: Luxton v Vines (1952) 85 CLR 352; [1952] ALR 308; BC5200130 at 358; and Barca v R (1975) 133 CLR 82; 7 ALR 78; BC7500049 at CLR 104." (My emphasis).
71 In similar vein, Brennan J said (at 599):
"The prosecution case rested on circumstantial evidence. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which the jury finds. The drawing of the inference is not a matter of evidence: it is solely a function of the jury's critical judgment of men and affairs, their experience and their reason.
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- An inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open upon the whole body of primary facts." (My emphasis).
72 What was said in Chamberlain was subsequently clarified in Shepherd v The Queen (No 5) (1990) 170 CLR 573 per Mason CJ at 576:
"Nevertheless the jury cannot view an immediate fact as an indispensable basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence." (My emphasis).
73 Thus, the so-called "inference direction" limits the requirement to exclude all other reasonable hypotheses, to a finding of the guilt of the accused or to an intermediate fact proof of which is essential to a finding of guilt (Plomp v The Queen (1963) 110 CLR 234; Barca v The Queen (1975) 133 CLR 82 and see the discussion by the New South Wales Court of Criminal Appeal as to the appropriate form of direction to be given, in R v Merritt [1999] NSWCCA 29).
74 From a consideration of the authorities referred to above, it is apparent that the form of any direction as to inferences which may need to be given in any particular case, will depend upon the evidence and issues in that case.
75 In this case, when directing the jury on the process of drawing inferences in respect of the issue of intent, it was necessary for his Honour to tell the jury that once they were satisfied the quantity of cannabis exceeded the prescribed amount (which the applicant admitted) the onus was on him to satisfy them that he did not have an intent to sell or supply. They would need to look at all the evidence to determine whether the inference could be drawn, on the balance of probabilities, that he did not have that intent. Unless they were so satisfied, then by the operation of s 11 of the Misuse of Drugs Act he would be deemed to have had the intent and the jury could be satisfied of it beyond reasonable doubt.
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76 There is simply no room in that construct for any direction that the jury could not draw an adverse inference of intent (or the guilt of the applicant) unless there was no other reasonable hypothesis open.
77 The directions given by the learned trial Judge accorded with what the law required. On several occasions his Honour pointed out that the only issue in the trial was the intent of the applicant and that the burden was on the prosecution to prove that beyond reasonable doubt. He correctly explained the operation of s 11 of the Misuse of Drugs Act, telling the jury that once the applicant was found in possession of more than the prescribed quantity, the law assumed him to have the intent to sell or supply unless he satisfied them on the evidence as a whole, it was more likely than not that he did not have that intent. With respect to the drawing of inferences (on the issue of intent), his Honour reminded the jury they had to look at the evidence as a whole and to determine whether it was more likely than not that the applicant did not intend to sell or supply. His Honour's final comment about that :
"If you conclude that it is more likely than not that he did not intend to sell or supply, then he is guilty only of simple possession of cannabis. If you come to the opposite conclusion, then he is guilty as charged"
- was in fact unduly favourable to the applicant, because "the opposite conclusion", in that context, would have been satisfaction that it was more likely than not that the applicant did intend to sell or supply. The jury did not have to go that far. If the jury were left in a state of uncertainty, not being able to find whether it was more likely than not that the applicant did or did not have an intent to sell or supply, then the applicant would not have discharged the onus and s 11 would operate to deem him to have had the intent.
78 Ground 1 has not been made out.
Ground 2 - Juror bias
79 After the lunch adjournment on the second day of trial, the State prosecutor informed the learned trial Judge in the absence of the jury, of an approach by the forewoman during the break (AB 253):
"… I have just recently disclosed to my learned friend that during the luncheon break, perhaps 20 minutes ago, I was standing outside with Mr Scutt and the forewoman approached us as we were standing outside. She said, 'I know I'm not
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- supposed to talk to you,' words to that effect. I in fact put my hands up and said, 'No, you're not allowed to talk to us,' but she nevertheless continued and said, 'I just want to let you know I think you're doing a very good job."
80 Counsel for the applicant immediately made an application for discharge of the jury saying:
"… At this point in time it is clear not just any jury member but the forewoman has approached the prosecutor and has indicated a particular frame of mind not having heard all of the evidence. It is clear it sounds very much as if she's made a decision up in her own mind. She's the forewoman; not that that, of course, means she has any additional influence at law more than anyone else, but she's the forewoman, she's the spokesperson, and if she's made up her mind already at this point in time, who can tell what impact that has had with the other members of the jury …"
81 His Honour pointed out that the words used did not indicate a pre-judgment about the issues in the trial.
82 Counsel for the applicant argued that the fact that the forewoman had gone to the trouble of approaching the prosecutor and persisted in her approach despite the fact that the prosecutor had told her she should not speak to her clearly indicated pre-judgment. He said it was not so much just the words but the circumstances in which they were said.
83 After some further dialogue between his Honour and counsel, his Honour called the forewoman into court in the absence of the other members of the jury. His Honour reminded the forewoman that there was a rule in criminal trials that counsel are not allowed to talk to members of the jury for obvious reasons and if there is any exchange, even an accidental one, counsel are expected to report it to the trial Judge so that he can then decide what to do about it. He said that the prosecutor had told him that outside the courtroom during the lunch break the forewoman approached her and said to her that she was doing a good job. His Honour asked whether that happened. There was then the following exchange:
"THE FOREMAN: Yes, it did.
BLAXELL DCJ: I just want to inquire what you meant by that comment.
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- THE FOREMAN: I just like the way she's doing the prosecution. They're both doing a good job.
BLAXELL DCJ: That's nice to hear. Does that indicate in any way that you're predisposed to find the accused guilty?
THE FORMAN: No; no, not at all; no.
BLAXELL DCJ: No.
THE FOREMAN: No.
BLAXELL DCJ: So it's just a personal comment.
THE FOREMAN: Just a personal comment, yeah.
BLAXELL DCJ: It doesn't in any way indicate your level of thinking.
THE FORMAN: I haven't even taken any side at this stage. I'm just listening.
BLAXELL DCJ: All right. Thank you very much. If you would like to return to the jury room, thank you."
84 The learned trial Judge then informed counsel that it seemed they were both doing a good job and his Honour could see no reason why he should not accept the forewoman's assertion that she had not made up her mind and was keeping an open mind. He then gave the following ruling:
"BLAXELL DCJ: All right. Well, having brought the forewoman in here and questioned her, she asserts she hasn't made up her mind about the issues in this trial and she impressed me as being frank and open in her statements. I don't think she was endeavouring to cover for an indiscretion or anything of that nature and I think I should take her comments at face value and, that being so, I don't think there's any risk of injustice or a perception of injustice when one judges her comments fairly and in the light of what I have had to say. So for those reasons I do refuse the application to abort the trial."
85 The law in relation to circumstances such as these was discussed in Webb v The Queen (1994) 181 CLR 41. That was a murder case in which, towards the end of a long trial, a juror gave flowers to the victim's mother.
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86 The High Court made it clear that the test to be applied where there is an application for discharge of a juror or a jury on the ground of perceived bias, is whether, despite any warning given to the jury about the matter, is whether the incident gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its part impartially (Mason CJ and McHugh J at 53). It is the same test as is applied where it is alleged that a Judge has been, or might be actuated by bias, namely whether an informed and fair-minded observer might reasonably apprehend that the Judge has judged or might pre-judge the case (per Mason CJ and McHugh J at 46-47).
87 Whilst pointing out (at 52) that it is the court's view of the public's view, not the court's own view, which is determinative, their Honours added (at 52):
"… that does not mean that the trial Judge's opinions and findings are irrelevant. A fair-minded and informed observer would place great weight on the Judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the Judge's findings."
88 Toohey J also held it was the "reasonable apprehension" test which had to be applied (p 88) as did Brennan and Deane JJ notwithstanding they were in the minority (Brennan J at 57 and Deane J at 71).
89 Here, counsel for the applicant conceded the learned trial Judge had applied the correct test. That was an important concession. It is very difficult to mount an argument that a trial Judge has erred in the exercise of a judicial discretion if it is accepted that he or she applied the correct test to it. It would be necessary to demonstrate that the Judge made a significant error of fact, or exercised the discretion in a way which was not open (that is, which was unreasonable in the "Wednesbury" sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 per Lord Greene MR at 229-230; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42). Counsel for the applicant was unable to point to anything here which could give rise to a concern in either respect.
90 The view taken by the learned trial Judge was clearly open to him. He had the opportunity of seeing and hearing the juror and assessing the credibility of her answers. To paraphrase Mason CJ and McHugh J in Webb (at 53), a fair-minded person would give considerable weight to the
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- learned trial Judge's conclusion that the public ventilation of the incident and the juror's explanation, would nullify the inference of partiality otherwise to be drawn from the irregularity.
91 It was open to his Honour to conclude that the incident, in light of the circumstances and the explanation given by the juror, would not give rise in the mind of a fair-minded informed observer to a reasonable apprehension that the juror had pre-judged the case.
92 His Honour having applied the correct test, I do not think it open to this Court in the circumstance to substitute its opinion for that of the learned trial Judge, even were that to be a different opinion (which however, for myself, it is not).
93 I would not uphold this ground of appeal.
Ground 3 - Failure to exclude admissions
94 The circumstances out of which this ground arises are set out in the particulars to the ground. Some further brief elaboration is necessary.
95 The evidence of the police search recorded on video was objected to prior to the trial commencing. A voir dire was held. The only evidence on the voir dire was the video itself - no other evidence was given by the prosecution nor by the defence. The objection was both as voluntariness and unfairness. The learned trial Judge ruled that there was no evidence at all to indicate the applicant's will was overborne and that the prosecution had established that he was well aware of his rights, and understanding them, answered such questions as he wished to and declined to answer such other questions as he did not wish to answer. His Honour ruled the statements which were made were made voluntarily. On the issue of unfairness, his Honour concluded that the applicant had not satisfied him that he should exercise his discretion to exclude the evidence as no unfairness had been demonstrated.
96 In his submissions, counsel for the applicant acknowledged that the applicant had been cautioned at the commencement of the search and that the applicant clearly understood the caution.
97 It was submitted that on various occasions during the search the applicant indicated that he did not wish to answer anymore questions until he had spoken to his lawyer, but the questioning continued, during which certain admissions were made, and those answers should have been excluded as either being involuntary or at least indicative of unfairness.
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98 On a fair reading of the transcript of the video-recording however, it is quite apparent that the applicant, having been cautioned appropriately, and having explained his understanding of the caution, did respond to questions asked by the investigating officers during the search. Questions were asked in relation to particular items as they were found. At a point well into the search and the questioning, when asked for example, whether particular items of cannabis were for selling, the applicant responded "Well, I'm not answering. I've got nothing to say". No further questions were asked about that particular item, the video was switched off and the search continued. More cannabis was found. Asked again whether he was sure he was not selling it, the applicant said "Oh look, I'll need to speak to my lawyer. No that's all I'm saying". The detective responded: "That's fine, mate. It's your right. I'll just ask you questions and …" at which the applicant interrupted and said "No. You read me my rights at the start and I want to speak to my lawyer". The detective responded "Yeah, not a … not a problem, mate. If you don't want to answer those questions, that's fine".
99 The detective then asked the applicant if he wished to ring a lawyer when they stopped the tape or whether he was happy to answer whatever other questions might be asked (about other items). Although the tape is difficult to hear, the applicant's response was that he would answer all their questions and he would speak to his lawyer after that (that is, after completion of the search).
100 There were other occasions on which questions were asked and the applicant selectively answered some but not others, indicating that he wished to speak to his lawyer before responding to those.
101 The applicant's responses declining to answer some questions confirm his awareness and understanding of his right not to answer particular questions. That consideration goes both to voluntariness and unfairness (although unfairness is the only issue raised by this ground of appeal).
102 The applicant had no legal right to speak to a lawyer before the search could continue (Mackenzie v The Queen [2004] WASCA 146 per Wheeler J (with whom Malcolm CJ and McLure J agreed) at [61] - [64]). His legal right was to decline to answer questions if he did not wish to answer them. He could have refused to answer any questions. He did not take that course. He answered many questions but declined to answer some. He said he would not answer particular questions until he had spoken to a lawyer. At one stage he was given an opportunity to speak to
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- a lawyer on the telephone and he did so. He continued to answer some questions thereafter.
103 When the applicant did decline to answer questions, he was not asked anything further about the particular item then being discussed and the search moved on.
104 The answers which the applicant did give were clearly voluntary and admissible (see Woon v The Queen (1964) 109 CLR 529 per Kitto J with whom Owen J agreed) at 537, Taylor J at 539, Menzies J at 540 and Windeyer J at 541). There was no unfairness involved in the process, nor in the evidentiary use of the material.
105 This was not a case in which the applicant told the police he did not wish to answer any more questions until he had spoken to a lawyer. Quite different considerations would have arisen in that circumstance.
106 There is nothing in this ground.
107 It follows that the appeal against conviction cannot succeed. I would refuse the application for leave to appeal.
Sentence
108 The sole ground of appeal is that the total sentence of 2 years' and 8 months' imprisonment was so excessive as to demonstrate error.
109 In support of this ground the applicant gives the following particulars:
"(a) The original sentence of 12 months imprisonment which was suspended by the District Court in Kalgoorlie on 4th October 2001 related to an offence of Cultivation of Cannabis with Intent to Sell or Supply. The principal offender actually rented premises of the Applicant, who was aware that he was cultivating plants hydroponically on the premises. The Applicant's degree of involvement was lesser than the principal offender.
(b) The Applicant was found guilty of possessing on 4th December 2002 some 2kg of cannabis with intent to sell or supply to another.
(c) The Learned Sentencing Judge proceeded to sentence on the basis that the Applicant was involved in an ongoing
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- commercial enterprise of the sale of cannabis. Whilst there was some evidence of dealing, it was also clear that the Applicant had a serious cannabis addiction which would, notwithstanding the verdict of the jury, go some way to explaining the amount of cannabis in his possession.
- (d) There was documentary evidence before the Court of the Applicant's attempt to overcome his addiction since his arrest.
(e) The Learned Sentencing Judge failed to place sufficient emphasis on the Applicant's attempts at rehabilitation in calculating the length of the sentence to be imposed."
110 It is apparent that the particulars are somewhat confusing. They appear to involve a challenge to the original sentence of 12 months' suspended imprisonment imposed in the District Court on 4 October 2001.
111 When queried about this on the hearing of the appeal, Mr Illari eschewed that, submitting that the challenge was to the overall sentence imposed on 9 November 2004 as being excessive.
112 The circumstances were that just under 14 months before the applicant's arrest on the charge of possessing cannabis with intent to sell or supply, he had been convicted in the District Court at Kalgoorlie on 2 October 2001 for cultivating cannabis with intent to sell or supply. On that occasion he was sentenced to 12 months' imprisonment suspended for 18 months. It was submitted that the circumstances of the cultivation offence were that the applicant had rented his property in Forrest Street, Boulder to another person who had cultivated cannabis plants hydroponically on the premises. Both offenders were placed on suspended sentences.
113 The applicant had a previous conviction for possession of cannabis with intent to sell or supply in the Wiluna Court of Petty Session on 24 February 1993, when he was fined $500.
114 In his outline of submissions, counsel for the applicant referred to the submission put to the learned sentencing Judge to the effect that since the suspended sentence had been imposed the applicant had been diagnosed with attention deficit disorder. That was the basis for a submission that the suspended sentence should not be triggered, it being put that the applicant's continued use of cannabis related to his difficulties with
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- ADHD and that following the diagnosis the applicant had made strenuous efforts to overcome his habit. His Honour noted that he had considered that submission carefully but in his view the applicant's previously undiagnosed condition could not explain nor in any way excuse his repeated dealings in cannabis.
115 It was then submitted that whilst it was accepted that a term of imprisonment to be immediately served was "probably inevitable", the length of the sentence of 2 years, given the applicant's background, his circumstances and his attempt to overcome his cannabis problem, was so excessive as to demonstrate error.
116 Ultimately, in his oral submissions, counsel for the applicant said there was no complaint being made about the 8 months' imprisonment; the 2 years' term by itself was "probably not" excessive and the real argument was that the total sentence of 2 years and 8 months was too long given the applicant's particular circumstances and his problems with cannabis "which were subsequently identified as being due in some degree to ADHD".
117 In his sentencing remarks the learned trial Judge found that the only reasonable inference from all of the surrounding circumstances was that the offence was not isolated and the applicant was a regular dealer in cannabis. That finding is not challenged.
118 His Honour observed that although the applicant was a fairly heavy user of cannabis, he had ample financial resources and did not need to deal in the drug in order to maintain his own habit. His motivations in selling cannabis were "clearly commercial".
119 His Honour referred to the fact that the applicant was then 37 years of age, a self-employed television technician with a de facto wife and two children who were very dependant upon him.
120 His Honour referred to the various references and letters he had received which referred to the severe impact on the applicant's family which had arisen from his conviction, but as against that he did have a significant prior record including convictions in 1993 and 2001 for offences of a similar nature.
121 Pre-sentence and psychological reports had been obtained and his Honour had taken their contents into account. He noted the applicant had had a very troubled early childhood but from the age of 3 had been raised and brought up by caring foster parents. He noted the applicant had
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- an undiagnosed condition of attention deficit disorder and his claim that it was because of that condition that he turned to cannabis at the age of 14. Thereafter the applicant was a regular cannabis user and developed a fairly heavy habit, although following his diagnosis which occurred after his arrest in December 2002, he had made strenuous efforts to overcome his habit.
122 I have already referred to his Honour's finding that the applicant's previously undiagnosed condition did not explain nor excuse his repeated dealings in cannabis.
123 His Honour also had regard to the devastating impact of the applicant's incarceration and the confiscation of his assets would have on his family. However, in that respect his Honour pointed out it was significant that when committing the December 2002 offence the applicant was well aware of those potential impacts because counsel had specifically referred to his awareness of them in the sentencing proceedings on 4 October 2001. His Honour quoted what had been said by the applicant's counsel to the learned sentencing Judge on that occasion:
"He now readily acknowledges the foolishness of his actions. He is very concerned about the impact of this on him and, more particularly, his wife and family who have been fairly significantly affected by this offence in that there was of course an application to forfeit property, although that matter has now been resolved. There was a freezing notice issued and proceedings had to be instituted in relation to that matter."
124 As his Honour pointed out, the submissions from the applicant's counsel in relation to the December 2002 offence had been very much along the same lines and his Honour concluded:
"… if there is one thing that is clear, it is that the suspended imprisonment on the previous occasion did not deter you from further offending in a similar fashion. The court is obliged to impose penalties that will act as a personal and general deterrent and in your case you have, by your own actions, effectively placed yourself beyond any chance of being shown the same leniency on this occasion as you were shown previously.
It is inevitable the term of imprisonment that was previously
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- suspended must now be ordered to be served. It is also inevitable that in respect of your most recent conviction there must be a further cumulative term."
125 His Honour accordingly ordered that the 12 months' imprisonment previously suspended should now be served, but having regard to the amendments to the Sentencing Act which required its adjustment, set the term to be served at 8 months instead of the previous 12, backdated to commence on 25 August 2004.
126 In relation to the December 2002 offence, his Honour thought a term of 3 years' imprisonment would have been appropriate but reduced that by one-third also to accommodate the Sentencing Act amendments.
127 In the end, counsel's submission as to sentence was simply that the aggregate term of 2 years' 8 months' imprisonment was too long.
128 To the extent the applicant's submission might be founded on the proposition that greater weight should have been given to the effect of the applicant's incarceration upon his family and his involvement with cannabis having flowed from his attention deficit disorder, it must first be noted that his Honour had specific regard to those matters. No challenge is made to his Honour's finding that the applicant had no financial need to deal in cannabis to support his own habit and there was therefore no relationship between his ADHD and the offence.
129 In light of that, the value and quantity of the drugs involved in the offence, his two prior convictions for similar offences and the fact that the December 2002 offence was committed whilst the applicant was subject to a suspended sentence of imprisonment, it cannot be said that the aggregate sentence of imprisonment was in any way disproportionate to the applicant's overall criminality and nor could the aggregate sentence be in any way properly described as "crushing" (see Herbert v The Queen (2003) 27 WAR 330). The sentence imposed was entirely within the range of an appropriate exercise of the sentencing discretion (Day v The Queen (2001) 127 A Crim R 403).
130 I would refuse the application for leave to appeal against sentence.
131 PULLIN JA: I have read in draft the reasons for judgment of Steytler P and Roberts-Smith JA.
132 I agree with Roberts-Smith JA, save for his reasons in relation to ground 1.
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133 In relation to that ground, I agree with Steytler P's reasons.
134 I also agree with the other members of the Court that both the application for leave to appeal against conviction and the application for leave to appeal against sentence should be dismissed.
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