Attorney-General v Arkinstall
[2013] TASCCA 12
•13 November 2013
[2013] TASCCA 12
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Attorney-General v Arkinstall [2013] TASCCA 12
PARTIES: ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v
ARKINSTALL, Alan Robert
FILE NO: 661/2013
DELIVERED ON: 13 November 2013
DELIVERED AT: Hobart
HEARING DATE: 21 August 2013
JUDGMENT OF: Blow CJ, Tennent and Pearce JJ
CATCHWORDS:
Criminal Law – Procedure – Summing-up – Drug trafficking – Reverse onus when accused in possession of trafficable quantity of drug – Evidence of possession of trafficable quantity emerging from evidence of accused – Whether discretion not to direct jury as to reverse onus provision because of unfairness.
Misuse of Drugs Act 2001 (Tas), s12(2).
King v R (1986) 161 CLR 423, distinguished.
Aust Dig Criminal Law [3162]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC, S Karpeles
Respondent: T K Jago SC
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission
Judgment Number: [2013] TASCCA 12
Number of paragraphs: 45
Serial No 12/2013
File No 661/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
TENNENT J
PEARCE J
13 November 2013
Orders of the Court
Leave to appeal granted.
Appeal allowed.
Serial No 12/2013
File No 661/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
13 November 2013
I have read the reasons of Tennent J and Pearce J in draft form. I agree that leave to appeal should be granted, the appeal allowed, and no other order made. Subject to the comments below, I agree with their reasons.
Because the respondent gave evidence at his trial of having bought 25 "dots" of LSD, the learned trial judge was obliged to direct the jury, in accordance with s12(2) of the Misuse of Drugs Act 2001, that, if they were satisfied beyond reasonable doubt that he had had 20 or more units of LSD in his possession during the relevant period, they were to presume that he intended to sell at least some of that drug unless he proved otherwise on the balance of probabilities. I agree with Tennent J that there could never be circumstances that could warrant not giving such a direction after evidence of possession of a trafficable quantity of a drug has been given. If there were circumstances that would make the giving of such a direction so unfair that a miscarriage of justice would result, then a question might arise as to whether it would be appropriate to abort a trial, or even to stay proceedings. I do not wish to suggest that such a course could ever be appropriate, since no such question arises in this case. In this case, because of the way that evidence of possession of 25 "dots" came out, there is no reason to think that the Crown acted unfairly. The jury should have been directed in accordance with s12(2).
File No 661/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
13 November 2013
I have had the benefit of reading the draft reasons of Pearce J. I agree that the appeal should be allowed. However, I would deal differently with the grounds of appeal.
Ground 1 raises the issue of whether, once there is admissible evidence before a jury that an accused was in possession of a trafficable quantity of a controlled substance, a trial judge has a discretion whether or not to direct the jury by reference to the Misuse of Drugs Act 2001, s12(2).
Section 12(2) provides:
"(2) If it is proved in proceedings for an offence under subsection (1) that the accused —
(a) …
(b) ...
(c) …
(d) possessed a trafficable quantity of a controlled substance; or
(e) …
it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled substance required to constitute the offence."
In this case, as outlined by Pearce J, the evidence was that when police searched the respondent's premises they found 17 "dots" of LSD. A trafficable quantity of that substance is 20 units. For the purpose of the trial, there was no issue that a "dot" was a unit. On that basis, when the Crown opened its case against the respondent, no reliance was placed on the s12(2) presumption. In fact, counsel referred to it in the context of another count on the indictment, but specifically told the jury it did not arise in relation to the LSD dots.
No evidence was elicited in the Crown's case to indicate that the respondent, during the period covered by the indictment, had had possession of any more than the 17 dots found at the time of the police search. However, the respondent elected to give evidence on the trial. In the course of his cross-examination, he told the Court that he had bought 25 dots shortly before the search. The jury therefore had admissible evidence that, during the period covered by the indictment, the respondent had had possession of a trafficable quantity of LSD.
In the absence of the jury, and prior to closing addresses, counsel for the Crown indicated that he proposed to address the jury to the effect that, in relation to the LSD, and notwithstanding what he had said in his opening address, there was admissible evidence in the form of an admission made by the respondent that in the period covered by the indictment he had been in possession of a trafficable quantity of LSD, and therefore the presumption applied. The learned trial judge expressed concerns about whether counsel could proceed in that way given the way in which the Crown had opened its case. She said that the respondent had given evidence to confront a certain case, and that what the Crown now sought to do represented a shift in that case.
The learned trial judge raised the issue of unfairness. After hearing limited further submissions, the learned trial judge ruled that there would be unfairness to the respondent to allow the Crown to address as it sought to do, and determined that it could not, and that she would not direct the jury by reference to s12(2) in respect of count on the indictment relating to the LSD.
The issue is whether the learned trial judge had any discretion to refuse to give the direction sought by the Crown, or whether, absent other considerations, she was obliged to give it.
Section 12(2) is unambiguous. If a certain matter is proved, a presumption arises. There is nothing in the section which suggests that, for example, that matter must be proved by evidence presented during the course of the Crown case, or that the presumption cannot be relied upon unless the Crown gives notice of its intention to do so prior to the trial commencing or in any opening by counsel for the Crown. The Crown in this case opened its case on the basis of what it understood the evidence would be. Unexpectedly, the respondent gave evidence and made an admission which added to the Crown case. At the close of the evidence, there was evidence before the jury which gave rise to the presumption.
In my view, the learned trial judge had no discretion to refuse to give the direction as sought.
However, it does not automatically follow that, once the direction was given, the respondent was without an avenue to address what it seems he perceived was unfairness to him. He could have, for example, sought to have the jury discharged on the basis that any unfairness arising, as a consequence of the direction being given, gave rise to a miscarriage of justice. That possibility does not appear to have been considered in this case, and it does not need to be considered or determined. It seems everyone, including the learned trial judge, in circumstances where this issue had clearly taken everyone by surprise, focused solely on whether or not the direction should be given without perhaps considering the broader picture.
If I am wrong as to my view in respect of ground 1, and the learned trial judge did have a discretion as to whether such a direction was given, then I agree with the reasons of Pearce J as to that ground.
I would also grant leave to appeal and allow the appeal. However, in the circumstances of this case I would make no further order.
File No 661/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
13 November 2013
The Appeal
The respondent was arraigned on three counts of trafficking in a controlled substance contrary to s12(1) of the Misuse of Drugs Act 2001 ("the Act"). The first count alleged trafficking in the controlled substance 4-bromo-2,5-dimethoxyphenethylamine, known as BDMPEA. The second count alleged trafficking in cannabis. The third count alleged trafficking in Lysergide, commonly called LSD.
In the course of the trial Wood J ruled that it would be unfair to the accused, because of the way the trial was conducted, to allow the Crown to rely on the reverse onus provision in s12(2) of the Act in count 3 which alleged trafficking in LSD. Accordingly, she directed the jury that on count 3 of the indictment the Crown bore the onus of proving beyond reasonable doubt that the accused possessed the LSD with the intention of selling it. The respondent was convicted on count 1 but acquitted on counts 2 and 3. The Attorney‑General seeks leave to appeal against the acquittal on count 3 pursuant to the Criminal Code, s401(2)(b), on the grounds that the ruling was an error of law. At the hearing of the appeal counsel for the respondent did not seek to be heard and made no submissions. Counsel for the appellant did not seek a retrial and seeks no other order.
For the reasons that follow I am satisfied that in her ruling her Honour made an error on a question of law, that leave should be granted and the appeal upheld.
Background
On 30 May 2012 the police searched two houses in Burnie. They found 218 pills containing BDMPEA, 108 grams of cannabis and 17 "dots" containing LSD. It was the Crown case that, although there was no direct evidence of sales, the jury could infer that the respondent had sold the drugs, possessed them with the intention of selling them himself or by arranging for his partner, Tamieka Buchanan, to sell them. The respondent admitted to having been in possession of the drugs but contended that they were for his personal use and he did not intend to sell them.
The indictment did not particularise the quantity of the controlled substance that was the subject of any count. The particulars of count 3 of the indictment are in the following terms:
"… Alan Arkinstall at Burnie in Tasmania between on or about the 12th day of May 2012 and the 30th day of May 2012 trafficking in a controlled substance namely Lysergide."
The definition of "traffic" in s3 of the Act includes possessing a controlled substance with the intention of selling it. Under s12(2), if it is proved that a person charged with trafficking possessed a trafficable quantity of a controlled substance, the accused then bears the burden of proving, on the balance of probabilities, that he or she did not have the intention of selling it.
BDMPEA and LSD are each controlled substances; see the Act, s3, Sch1, Pt2, items 42 and 151 respectively. In the case of BDMPEA, the specified trafficable quantity is 25 grams. In the case of LSD the specified trafficable quantity is 2 milligrams or 20 units. It was an agreed fact that the 218 pills containing BDMPEA weighed a total of 66.5 grams. Thus there was no dispute that the quantity of BDMPEA subject to count 1 was a trafficable quantity and that, by operation of s12(2), it was presumed that the accused intended to sell that controlled substance unless he proved otherwise on the balance of probabilities. As to the LSD, the Crown case at the commencement of the trial was that the respondent possessed 17 "dots". Although there is no definition of "unit" in the Act, the trial proceeded on the basis that a "dot" was a unit for the purposes of Sch1, Pt2.
Counsel for the Crown, in his opening address to the jury, said the following:
"Now the Crown seeks to prove to you that well whilst he may have intended to use some of these drugs, whilst he may well have used some of these drugs, and may have shared them with his partner and his friends, he was in the business of selling drugs, and selling these particular drugs. In relation to the – count one BDMPEA you are going to hear evidence that all up he was in possession of two hundred and eighteen pills. Now those pills were tested, they were weighed - they weighed a total of sixty six grams. Now the trafficable quantity in relation to that particular drug is twenty five grams. So what you have, what you will be dealing with is a situation where the accused is in possession of over twice the trafficable quantity. Now trafficable quantity – what does that mean. It means that if you find that he's in possession of a trafficable quantity the onus of proof shifts to him. He has to prove to you that he did not intend to sell any of those pills. Now the standard of proof is a little bit different in relation to him and what he has to prove if you're satisfied he possessed them. Her Honour will tell you more about that at the conclusion of the trial but just start from the presumption that if you find he possessed that amount of drugs, then you have to be satisfied, he has to satisfy you that he didn't intend to sell any of them. Now with the other counts the onus remains on the Crown. The Crown has to prove to you beyond reasonable doubt that he intended to sell those other drugs, the cannabis and the LSD. There's not going to be any evidence in this trial that he was ever in possession of a trafficable quantity of LSD or cannabis. So it's only count one that you're concerned with as a trafficable quantity. But it goes back to the issue of considering each count separately, that's the most important thing." (Emphasis added.)
No doubt the Crown opened in those terms because at that stage of the trial its case was on the basis that the respondent possessed less than a trafficable quantity of LSD, although he possessed more than a trafficable quantity of BDMPEA. At the conclusion of the prosecution case that remained the position. However, the respondent elected to give evidence. During his examination-in-chief he gave the following evidence:
"And when you were buying drugs, what sort of volume were you buying in?.....I was buying the largest amounts that people that I was buying from could supply me with."
He was asked did he receive money for drugs or offer drugs to people for money, and he answered, "No". He said that although he had been asked to sell drugs he declined because "I wasn't in the business of selling drugs".
The respondent was then cross-examined.
"The LSD – you heard evidence that police found a snap lock bag with seventeen micro dots containing LSD in a handbag at Ms Buchanan's residence. Now is it the case that they're yours?.....Yes.
When did you buy those?.....Oh in the preceding days.
All right. Can you be a little bit more specific than that Mr Arkinstall?.....The day before or the day before that. Maybe it could've even been days before that. I think I bought twenty five and I'd had a few.
All right. So you certainly had had a few from the amount that you purchased?.....Yes.
And you – it was probably twenty five that you purchased?.....I think so, yes.
Is that a common amount to purchase?.....That was the common amount I was purchasing."
And then a short time later:
"And were – was the seventeen that you were in possession of when police raided your house, was that the same bag that you'd purchased?.....I can't remember.
Can't remember? Okay. All right, thank you. If the exhibit could be taken from the witness? Do you remember how much you brought them for?.....Ah, I would buy twenty five for ten dollars a piece, two hundred and fifty dollars.
So again, you buy in bulk, twenty five, you get a discount?.....That's right.
If you were to say buy ten it might cost you twenty dollars each?.....I dunno."
Counsel for the State did not put to the respondent that the difference between the 25 dots he thought he had bought and the 17 found in his possession was explained by the sale of dots rather than by his evidence that he had "had a few". At the conclusion of the cross-examination the respondent was not re-examined.
In the absence of the jury, counsel for the Crown indicated to her Honour that in his closing address he would contend that it was open to the jury to be satisfied beyond reasonable doubt that the respondent was in possession of a trafficable quantity of LSD. The reason for that contention was the respondent's evidence from which it was open to the jury to find that within the period particularised on the indictment, the respondent had been in possession of 25 "dots" of LSD, the trafficable quantity being 20 units.
Upon that contention being raised, there was an exchange between counsel for the Crown and the learned trial judge.
"HER HONOUR: Well I'm not convinced that you can do that Mr Karpeles. You haven't opened on it.
MR KARPELES: With respect your Honour I had no idea what the accused was going to say. He's admitted under oath to be in possession of a trafficable amount quantity of LSD. I submit that I shouldn't be tied to my – what I said in my opening in relation to something that I didn't know was going to come out of the accused's mouth.
...
HER HONOUR: One of the concerns I have is that the accused gave evidence confronting a certain case and now there’s been a shift in that case.
...
HER HONOUR: Well it seems to me that the Crown case is that he had possession on the 30th of May of 17 dots, that's the Crown's case. The Crown didn't open on the presumption with respect to that, the Crown opened on the presumption with respect to the other item and that is the case that the accused has met and has given evidence on with respect to his trial."
An adjournment was taken so counsel could consider his position. On resumption he maintained the Crown's submission that the reverse onus provision should now apply to that count. Her Honour raised the issue of fairness. When addressing the difference between the 25 dots the respondent said he thought he had purchased and the 17 found in his possession, her Honour said:
"So there's the unfairness is it not? You've crept up just to the trafficable quantity, having told the jury you didn't rely on it, he's explained that he didn't – that he used them, you haven't challenged that and against that background, not having challenged his use of it you now say 'oh, well that's a trafficable quantity'. We rely on the presumption in the face of his evidence that he used it."
Counsel for the defence submitted that her Honour's position was correct. In the course of her submission counsel said:
"… and, in my submission, your Honour, it always has been – it has always been the defence case that Mr Arkinstall had a large amount of drugs that were for personal use. So it was always open that some evidence of other types of drugs might have come into it or quantities being different."
Then, an exchange between defence counsel and the learned trial judge included the following:
"MS EDWARDS: It was not put to Mr Arkinstall, well those extra eight you have sold.
HER HONOUR: No
MS EDWARDS: Or had someone offer or had someone else sold. I accept in the very general sense it doesn't change the defence case because our case has always been simply personal use, but it very much changes in terms of the embarking that the jury will have in respect of how this matter is dealt with. And that does change the defence case.
HER HONOUR: So the Crown case at the outset is 17 on the 30th, Miss Buchanan offered at the accused's direction for sale but there were no sale transactions before the 30th, that's the Crown's case. As opened we do not rely upon the presumption, that's the Crown's position. Evidence from the accused, nothing startling, I think I purchased 25 and I used some. And then critically no challenge to that."
Her Honour then made a ruling in the following terms:
"I hold the view presently that there is a fundamental issue of fairness here and I think the reason for that would be evident from my exchange just now with Ms Edwards. The way in which the Crown opened, the way in which the Crown cross-examined, the nature of the new evidence and the way in which this development has arisen.
...
Well I rule that in all the circumstances of this trial it would be unfair to allow the Crown to rely upon the presumption with respect to the LSD and for the reasons that would be evident from my exchange with Ms Edwards, and I will not (indistinct word) the presumption. The Crown case fundamentally has not altered and that is the number in possession as at the 30th and the evidence pre-dating the 30th and in essence the Crown's case is that the amount that was in possession, for the purpose of sale, was less than the trafficable quantity and the Crown has not challenged that any amount, any critical amount – the amount over the trafficable quantity was for other than personal use."
Her Honour later directed the jury, in accordance with her ruling, that the Crown bore the onus of proving each element of count 3 beyond reasonable doubt and that the reverse onus provision in s12(2) of the Act applied only to count 1 on the indictment.
The grounds of appeal
There are two grounds of appeal:
"1That the learned trial judge erred in law in failing to direct the jury in accordance with Section 12(2) of the Misuse of Drugs Act 2001 that if they were satisfied beyond reasonable doubt that the respondent possessed a trafficable quantity of the controlled substance, lysergide, at any time during the period specified in the indictment then they were to presume he intended to sell the drug unless the respondent proved on the balance of probabilities that this was not the case.
2If a discretion did exist in the trial judge whether to direct the jury in respect of Section 12(2) of the Misuse of Drugs Act 2001 then her Honour erred in law in the purported exercise of the discretion in that she considered the test was whether that the Crown had acted unfairly rather than considering how the change of evidence of the Crown case unfairly impacted on the defence case."
Ground 1
The substance of the appellant's argument in support of ground 1 of the appeal is that once there is admissible evidence capable of satisfying a jury that a charged person was in possession of a trafficable quantity of a controlled drug within the period identified in the indictment, a trial judge must direct the jury that the reverse onus provision in s12(2) applies if the jury is satisfied that such possession has been proved beyond reasonable doubt. The operation and effect of s12(2) is explained in Tasmania v Spence [2008] TASSC 32. The Crown submits that s12(2) is "not discretionary". It would follow from that submission that a trial judge must direct the jury that the presumption is to have operation if the jury is satisfied of possession of a controlled substance of not less than a trafficable quantity no matter how the Crown opened its case and no matter how the trial was conducted. I am not presently prepared to go that far and I do not wish to state in this appeal that there is such an inflexible rule of universal application. It is not necessary that I do so in this case because of the view I have reached about ground 2. The fundamental task of a trial judge is to ensure a fair trial of the accused: RPS v R (2000) 199 CLR 620. There may be circumstances different than in this case that lead a trial judge to conclude that application of the presumption would amount to an error or a miscarriage of justice, even where evidence is admitted which is capable of proving possession of a trafficable quantity of a controlled substance. I do not purport to determine or predict what those circumstances may be.
I have concluded that in the circumstances of this case the trial judge was in error in failing to direct the jury that the presumption applied to count 3 if the jury was satisfied beyond reasonable doubt that between 12 May 2012 and 30 May 2012 Mr Arkinstall possessed not less than 20 dots of LSD. However that conclusion, at least in part, depends on the considerations of fairness which applied in this case. Those considerations are dealt with in ground 2 of the appeal. My conclusion does not depend on acceptance of the contention that it was necessarily an error to direct the jury that the presumption did not apply to count 3. Thus ground 1 of the appeal is made out but only to the extent that it coincides with ground 2. It is unnecessary for me decide further.
Ground 2
The learned trial judge's ruling was principally based on the proposition that it was unfair to permit the Crown to rely on the reverse onus provision when:
(a) the Crown opened on the basis that its case was that the respondent had possession of 17 dots of LSD on 30 May 2012. On that basis the presumption would not apply; and
(b) the respondent's own evidence was the only evidence on which the jury could conclude that he had possession of a trafficable quantity of LSD. Her Honour suggested that this evidence might have been anticipated by the Crown. The Crown did not then challenge the respondent's assertion that he had probably purchased 25 dots and used a few. It was not put to the respondent that he had sold any of the dots he said he purchased.
Her Honour's ruling was made in the course of the trial and she did not have the opportunity to refer to any authority in support of it. Counsel for the defence referred to two cases, namely Waters v R [2011] VSCA 415, and King v R (1986) 161 CLR 423. Waters does not advance the respondent's position.
In King, the applicant, Mr King, was charged together with a man named Matthews, with the murder of Mr King's wife. The Crown case at trial was presented on the basis that Mr Matthews killed the deceased by shooting her, and that Mr King was an accessory before the fact because he had procured Matthews to do the killing. The judge directed the jury, at the request of the prosecution, that they could convict Mr King even if they were satisfied that he had procured some other unidentified person, not Matthews, to commit the murder. Matthews was acquitted and King was convicted. The New South Wales Court of Criminal Appeal concluded that the trial had been unfair, set aside the conviction and ordered a retrial. The principal issue before the High Court was whether a retrial or an acquittal should have been ordered and there was no challenge to the finding of the Court of Criminal Appeal that the direction of the trial judge was irregular. The basis of that conclusion appears from the judgment of Dawson J, at 432:
"The element of surprise involved in this course was held to have resulted in possible prejudice to King's case, his counsel having cross-examined Siemsen and addressed the jury in reliance upon the presentation of a case by the Crown that the person who killed the deceased was Matthews (the co-accused). Had King's counsel known that alternatively Siemsen or some other person unknown to the Crown was alleged to be the actual murderer, he may well have cross-examined or addressed in a different way."
Also, Deane J, said at 428:
"In fact, by its conduct of the trial, the Crown made it clear that it sought to prove that the applicant was guilty of murder only on the basis that he was an accessory before the fact to the killing of his (the applicant's) wife by his co-accused, Matthews. It was on that basis that both the prosecution and defence cases at the trial were presented and conducted during the course of evidence."
There are significant differences between this case and King. In that case the Crown case changed. The change was constituted by reliance on a factual hypothesis contradictory to that relied on during the trial which formed an alternative basis of criminal responsibility and, although it should have been apparent to the Crown, was concealed until the last moment. The change occurred after final addresses to the jury.
The principle which arises from King and the cases which follow it is that unfairness amounting to a miscarriage of justice arises not from the way in which the Crown conducts its case per se, but from the consequences such conduct has upon the accused on the conduct of his or her own case. In other words, did the conduct of the Crown case lead the respondent to conduct his case in a way different from that in which he would have conducted it had the Crown not acted as it did; Grundy v R [1994] TASSC 111 per Underwood J (as he then was), at [12]; applied by Wright J in Walsh v R (1996) 6 Tas R 70; Carr v R (2000) 117 A Crim R 272 at [43] and following; GAE v R (2000) 109 A Crim R 419 at 443 – 444 [84]. Her Honour's ruling was aimed at preventing a miscarriage of justice. To the extent that the ruling depended on issues of fairness it constituted the exercise of a discretion. Such a discretion must be exercised in accordance with principle. If a judge acts upon a wrong principle or extraneous or irrelevant matters, or does not take into account some material consideration, then the exercise of discretion miscarries and an appellate court may intervene: House v R (1936) 55 CLR 499. With respect to the learned trial judge, there was no assessment of how, if at all, the Crown conduct of its case had affected the respondent's conduct of his own case. Had the issue been addressed it would have been apparent that the respondent's conduct of the trial was not affected in any material way by the Crown's opening or conduct of the trial and no other unfairness to the respondent arose. The following considerations apply:
(a) the application of the s12(2) presumption did not alter the basis of the criminal responsibility alleged against the respondent on count 3, only the evidentiary onus. The Crown case was that the respondent possessed LSD with the intention to sell, even if he also intended some for personal use. That case did not alter during the trial;
(b) throughout the trial it was the respondent's case that the drugs were in his possession for personal use. There was no suggestion by counsel for the respondent that, had the Crown not opened as it did, then it would have changed the way the Crown witnesses were cross-examined and it is not apparent to me how there could have been a change. In this respect the only relevant Crown witness was the respondent's partner, Tamieka Buchanan. She agreed that she offered some controlled substances for sale but said that she did so without the knowledge, encouragement or instigation of the respondent. In the course of her evidence the trial judge gave leave to the Crown to cross-examine her as an unfavourable witness pursuant to s38 of the Evidence Act 2001. She was then cross-examined by counsel for the respondent. She was not cross-examined about the quantity of "black dots", but maintained that the respondent was a daily drug user and that he did not sell the drugs;
(c) the evidence about the quantity of LSD in the respondent's possession came from the respondent himself. Although the learned trial judge suggested that the Crown may have predicted such evidence I am less confident that is so. The evidence of quantity was volunteered by the respondent in cross-examination but was not in answer to a question directed at quantity. However all that is by the way. Even if the evidence might have been predicted by the Crown it gives rise to no unfairness to the respondent. His decision to give evidence was, as in any criminal trial, his to make, and there is always the prospect that evidence unfavourable to his case will be elicited in cross-examination. It was not put on behalf of the respondent at trial or in this appeal, that his decision to give evidence was influenced or affected by the terms of the Crown opening, or the way the Crown conducted its case. There was no dispute that the quantity of BDMPEA was a trafficable quantity and thus he already faced the presumption on count 1. He maintained throughout his evidence and cross-examination that the LSD was for his personal use;
(d) that the Crown did not put to the respondent that he had sold the eight dots was not a relevant consideration. The explanation for the difference between the amount the respondent purchased and the amount found in his possession, whether it was personal use or sale, is irrelevant to the operation of the presumption. In any event the failure to put to the respondent that he had sold the eight dots could only have been in his favour concerning the issue of his intent, whether or not the presumption applied;
(e) the evidence and issue arose prior to the addresses to the jury. No opportunity was lost to address the jury about the operation of the presumption and the evidence concerning it. Nor was any opportunity lost to call other evidence relevant to the operation of the presumption.
The misapplication of principle in exercise of the discretion amounted to an error on a question of law. Although the exercise of the discretion depended on the facts of the case, and thus may be a question of mixed fact and law, an appeal nevertheless lies. Counsel for the appellant sought to distinguish Williams v R (1986) 161 CLR 278. It was unnecessary that he do so. I am not satisfied that there is a factual distinction, but the limitation on the right of appeal found to apply in Williams was overcome by an amendment to s410(2)(b) of the Criminal Code in 1987 by omission of the word "alone" from the phrase "question of law alone".
Grant of leave and outcome
Something more than a mere error of law is required to justify the grant of leave: R v Pawsey [1989] Tas R 189 per Green CJ at 195. However in my view the appellant should be granted leave since the appeal raises questions of general importance concerning the operation of s12(2) of the Act. Section 402(5) of the Code provides that if the Court allows an appeal against an order arresting judgment or against an acquittal, it may make any of the following orders, if applicable:
(a)that judgment be pronounced upon the offender;
(b)that a conviction be entered against the offender;
(c)that a venire de novo or new trial shall be had in such manner as the Court may direct;
(d)that the offender shall appear at such time and place as the Court may direct to receive judgment.
Counsel for the Attorney-General does not seek a retrial. No order is sought quashing the acquittal although it has not been authoritatively determined that such an order may be made in any event; Director of Public Prosecutions v Cook [2006] TASSC 75 per Crawford J (as he then was) at [53], Blow J (as he then was) at [93] and Tennent J at [153]. I would grant leave to appeal, allow the appeal and make no other order.
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