Basic v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0219

KRESMIR BASIC	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	22 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 109
JUDGMENT APPEALED FROM:	DPP v Dakiz & Ors (Unreported, County Court of Victoria, Judge Carmody, 29 August 2014)

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CRIMINAL LAW – Appeal – Conviction – Trafficking a commercial quantity of a drug of dependence (cocaine) and knowingly dealing with the proceeds of crime – Whether the prosecution changed the nature of its case – Whether the prosecutor’s improper address occasioned a substantial miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Dean Cole & Associates
For the Crown	Ms S M K Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA

REDLICH JA:

We have had the benefit of reading the reasons in draft of Priest JA and agree that each of the grounds of appeal ultimately relied upon has not been made out.
With respect to grounds 1, 2(c) and 3, his Honour’s reasons sufficiently set out the relevant circumstances. We add the following to what his Honour has said.
The primary submission advanced by the applicant in support of those grounds was that, in closing submissions, the prosecutor materially enlarged the nature of the Crown case and thereby caused a substantial miscarriage of justice.
The Crown case at the outset, was that the trafficking the subject of charge 1 was by possession for sale of the cocaine found at McPherson’s premises.
In the course of the Crown case, the prosecution made it clear that the sale of cocaine to Mustica and the sums of money found in the applicant’s car (charge 2) and at the applicant’s home (charge 3) were respectively relied upon as constituting circumstantial evidence in support of charge 1. The prosecution maintained during the trial that the latter sums of money were the proceeds of the crime the subject of charge 1 and tended to show that the applicant possessed the cocaine found at McPherson’s premises for the purpose of sale.
At the conclusion of the Crown case, counsel for Basic and his co-accused made a no-case submission.
The gist of the application advanced for Dakiz was that the evidence did not enable a conclusion that he was in possession — as the law characterises possession — of the 830 grams of cocaine held by McPherson under lock and key.
Counsel for Dakiz plainly understood that the Crown had adduced evidence of large sales of cocaine; and he demonstrated a certain awareness of how that evidence was to be relied upon. He said:
Because Your Honour will appreciate that this is the largest uncharged act case ever to be run. That is, there is a clear trafficking, if one accepts the Crown case at its highest, there’s a clear trafficking probably on the Crown case of a large commercial quantity, and yet the Crown says no, no, no, we’re not going to have this exchange business, we’re going to have in actual possession, or in possession for sale. So there’s been a large exchange proof, but that, we presume, as all led to demonstrate volume by way of money and secondly – or quantity by way of money, for the purposes of the act, and secondly knowledge. So those two issues are dealt with by the between dates. But the between dates for actual possession on the Crown case, because this case has been run, you’re not in possession, McPherson is your man and you’ve got it there at McPherson’s and he’s just taking care of it for you.
Counsel for the applicant adopted the submissions of counsel for Dakiz on the question of possession of the cocaine the subject of charge 1. He went further, submitting that there was no evidence linking his client to anything taken by Dakiz to McPherson’s home. There was no evidence, he submitted, to connect the drugs found in Mustica’s possession with the cache found in McPherson’s home. He also submitted that charges 2 and 3 must fail. The Crown had attempted to link the two sums of money with the crime the subject of charge 1. This was said to be simply speculation.
With respect to charge 1, the prosecutor submitted that the Crown case had begun as, and was still, a case of trafficking by possession. There was possession, as the law understands that term, whilst the cocaine was at McPherson’s home.
But, presumably to meet the argument that McPherson alone had been in possession of the cocaine when it was at his home, the prosecutor submitted that there was a period after Dakiz took delivery of the cocaine, and before it was taken to McPherson’s home,[1] when the cocaine was in the possession of Dakiz and the applicant. The ‘between dates’ formulation of the charge, according to this submission, permitted the Crown to prove its case by reference to possession for that short period of time.
[1]This was in the period 7–8 July 2012.
The formulation just mentioned immediately led to a claim by counsel for Dakiz and the applicant that it was a departure from the Crown opening. In any event, counsel added, the evidence considered in the context of such a formulation did not permit a conclusion of guilt on charge 1.
Counsel for the applicant then further submitted that, with respect to charges 2 and 3, the Crown appeared to be shying away from asserting that the sums of money were the proceeds of the trafficking alleged by charge 1. The prosecutor had now cast the net wider.
Indeed, as we read what the prosecutor had said, he had cast the net wider. But in response to the applicant’s submissions in reply, he informed the judge that the Crown’s case on charges 2 and 3 remained that the moneys were the proceeds of the charge 1 trafficking.[2]
[2]A proposition the apparent illogicality of which was never explored. Charge 1 was a charge of trafficking by possession for sale, not sale. Any sales of cocaine disclosed by the evidence were of cocaine additional to the quantity found at McPherson’s home which was the subject of charge 1. There was evidence, of course, that the shipment from Hamzy was of a much larger amount than the quantity found at McPherson’s home, and evidence indicative of sales from what had been, at the outset, that much larger amount.
The judge then rejected the no-case submission. This led on to an application by Dakiz and the applicant that the jury be discharged because the Crown had changed its case with respect to charge 1. The application focussed upon the formulation which we have mentioned at [11] above.
The judge rejected this application. In the course of doing so, he adverted also to the Crown’s case against the applicant in respect of charges 2 and 3. He said this:
I note that - what I perceive might have been a change in the prosecution case arose on Friday, which was relating to the proceeds of crime. These are the changes against Mr Basic. I clarify that the property concerned in that case was to be money relating to Charge 1 and not any other criminal activity, and the prosecutor confirmed that was the case.
Thus far in the trial, it had not been contended for either Dakiz or the applicant that the evidence of sales of cocaine was not relevant to the Crown’s circumstantial case on charge 1.
The discharge application having failed, defence counsel then indicated that their clients would call no evidence. Closing addresses proceeded.
In his closing address, the prosecutor submitted that the applicant, acting ‘basically like the sales rep’ in his joint enterprise with his co-accused, had trafficked in roughly twice the amount of 830 grams of cocaine that was found at McPherson’s premises. He submitted that the applicant was in possession for sale of the drugs located at McPherson’s home. He also invited the jury to infer that the applicant had sold a further substantial amount of cocaine — that is, the difference between the quantity found at McPherson’s premises and not less than 1.5 kilograms of cocaine supplied by Hamzy. He further submitted, principally in the context of charges 2 and 3, that the applicant was, in short, a man of bad character.
Counsel for the applicant then made further application to discharge the jury, supported by counsel for Dakiz. It was submitted that in a number of respects the prosecutor had impermissibly addressed in a way which invited propensity reasoning. Basic had been painted as a person of bad character, from which it could be reasoned that he was guilty of all of the offences charged.
The judge refused that application. He was not persuaded that there was a high degree of necessity to discharge the jury.
It is important to note that the prosecutor’s identification of evidence of substantial trafficking of cocaine — see [19] above — was not relied upon to found a submission that the Crown had, in closing, impermissibly enlarged its case. Any such enlargement, of course, would have been quite different to the enlargement earlier complained of.
On appeal, however, counsel for the applicant[3] submitted that in his closing address the prosecutor had enlarged the Crown case from trafficking by possession for sale, and had not confined trafficking to the cocaine the subject of charge 1.
[3]Who was not trial counsel.
The prosecutor had not foreshadowed in opening that the jury would be asked to draw the inference mentioned at [19] above, but the invitation that it should do so did not alter the Crown case. It remained the Crown case that the trafficking, the subject of charge 1, was only by possession for sale. We do not consider that what the prosecutor said constituted a material alteration to the prosecution case or that the trial judge failed to give the jury any necessary direction in this regard. His Honour directed that charge 1 was a case which rested strictly upon possession for sale. He sensibly eschewed reference to the evidence of multiple sales, so that the jury would focus upon the central issue of possession.
There was no exception to his Honour’s directions on charge 1. That is unsurprising for two reasons. First, because his Honour’s charge, by focussing upon the possession issue, diminished the possible significance of the evidence of multiple sales to the Crown’s circumstantial case. Second, because we think that there was no surprise, from the standpoint of the accused men, in what the prosecutor had said about sales of cocaine in his closing address. The use of evidence of sales as part of the proof of the circumstantial case on charge 1 appears to have been understood by counsel for the accused men well before final addresses. In addition to the observations of counsel for Dakiz noted at [8] above, counsel for both defendants repeatedly referred to evidence of ‘uncharged acts’ without suggesting that such evidence did not serve a legitimate purpose from the Crown’s perspective.
Counsel for the applicant further submitted in this Court that there had been a miscarriage of justice by reason of the prosecutor’s enlargement, or variation, of the case against the applicant on charges 2 and 3. Counsel argued, as we understand it, that the prosecutor invited the jury to conclude that the moneys found in the applicant’s car and home were the proceeds of some undetermined drug trafficking. That is, he did not confine them to being proceeds of the crime the subject of charge 1.
Assume that this was so. Nonetheless, in his charge the judge confined the

jury’s use of the evidence the subject of charges 2 and 3 in strict accordance with the way in which the prosecutor had confirmed to his Honour, before addresses, the Crown case was put. That is, that there was a necessary relationship between charges 2 and 3 and the crime alleged by charge 1. No further direction was required. No exception was taken. The direction was, if anything, particularly favourable to the applicant. Further, the acquittal of the applicant on charge 3 demonstrates that the jury well understood the way in which they were to approach the evidence on charges 2 and 3.

For completeness, we add this. The Jury Directions Act 2013 applied to this trial. It was incumbent upon counsel to request any direction that it was considered necessary in order to secure a fair trial and avoid a miscarriage of justice. No such directions were sought, either with respect to charge 1, or with respect to charges 2 and 3. It was accepted on appeal that pursuant to s 15 of the Jury Directions Act it was necessary to demonstrate that the trial judge ought to have concluded that in the absence of such a direction a substantial miscarriage of justice would result.[4] No such demonstration was attempted.
[4]Xypolitos v The Queen [2014] VSCA 339, [41].
With respect to ground 4, we entirely agree with the reasons of Priest JA.
We would refuse leave to appeal.

PRIEST JA:

Introduction

On 29 August 2014, following a trial before a jury in the County Court, the applicant was found guilty of trafficking a commercial quantity of a drug of dependence,[5] cocaine (charge 1), and one charge of knowingly dealing with the

proceeds of crime[6] (charge 2).[7] Given the issues arising on this application, it is significant — as will later become clear — that he was acquitted of a further charge of knowingly dealing with the proceeds of crime (charge 3).

[5]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is 25 years’ imprisonment.

[6]Crimes Act 1958, s 194(2). The maximum penalty is 15 years’ imprisonment.

[7]The applicant was sentenced to be imprisoned for four years on the first charge, and for six months on the second, leading to a total effective sentence of four years’ imprisonment, upon which a non-parole period of three years was fixed. There is no challenge to the sentence.

In their final form,[8] the applicant sought leave to appeal against conviction on four grounds:
[8]Grounds 2(a) and 2(b) were abandoned on the hearing of the application.

1. Changes in the way the Crown put its case resulted in a substantial miscarriage of justice.
2. The judge erred in directing the jury on the requirements of proof of charge 1 in:
…
(c)failing to direct the jury that the possession of drugs for sale was the only basis upon which the applicant might be convicted on charge 1.

3. The verdict of the jury on charge 1 is uncertain.
4. A substantial miscarriage of justice was occasioned by the Crown’s reliance on tendency reasoning in its closing address.

For the reasons that follow, I would refuse leave to appeal.

Overview of the cases at trial

On 24 July 2012, a commercial quantity of cocaine was found by police at the premises of one Bradley McPherson. The prosecution case on charge 1 was that the applicant and Mamdouh Dakiz were involved in a joint criminal enterprise to traffick the cocaine, the trafficking being constituted by possession for sale[9] between 3 July and 24 July 2012. Dakiz and the applicant, so the prosecution alleged, agreed to source the cocaine from Haysam Hamzy in Sydney, New South Wales, and store it at McPherson’s premises, prior to selling it to others, including Rick Palahinjak and Steven Mustica. In large part, the evidence relied upon by the prosecution consisted of various meetings and conversations between the applicant, Dakiz and others — including a meeting at Southbank on 8 July 2012, when Dakiz handed over a large amount of cash to a man, McCabe Foster, the cash later being seized by police — harvested from telephone intercepts, listening devices and physical surveillance. During the recorded conversations there were references to ‘shiela’ or ‘girl’, which, the prosecution alleged, was code for cocaine.
[9]Section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 provides:
‘traffick’ in relation to a drug of dependence includes—
(a)   prepare a drug of dependence for trafficking;
(b)   manufacture a drug of dependence; or
(c)   sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence; …

Charge 2 and charge 3 related respectively to the sum of $17,960 cash found in the applicant’s car at the time of his arrest, and a further sum of $76,750 found shortly afterward in his kitchen cupboard.

Essentially the defence case was that the applicant had nothing to do with the cocaine that was found at McPherson’s home. The cocaine was not under his or Dakiz’s custody or control, and there was no relevant agreement between the applicant and Dakiz. Moreover, the suggestion that ‘shiela’ or ‘girl’ related to cocaine ought not to be accepted, since there clearly were occasions when those words referred to a female. Further, the movement of money did not support the agreement alleged by the prosecution. There was no evidence of the applicant giving cash to Dakiz preparatory to his meeting with Foster on 8 July 2012, or that either had possession of cocaine. No evidence was, however, called by the defence.

The central issue for the jury on the first charge was whether the evidence established an agreement between the applicant and Dakiz to traffick not less than a commercial quantity of cocaine, the trafficking being constituted by possession for sale. On charge 2 and charge 3, the issue was whether the sum of $17,960 located in the glove box of the applicant’s car, and the $76,750 in his cupboard, were the proceeds of crime associated with the trafficking, charge 1.

Evidence in the prosecution case

There was evidence that between 3 January and 6 January 2012, Dakiz and Hamzy were in regular phone contact with one another. On 6 January 2012, Hamzy flew to Melbourne and contacted Dakiz. Since Dakiz was interstate at the time, he made contact with the applicant and asked him to meet with Hamzy. They met on 8 January 2012.

Some months later, on 3 July 2012, the applicant and Dakiz were at the applicant’s home. Dakiz told the applicant he was going to Sydney and that he would be going to see Hamzy the following day. The next day, 4 July 2012, Dakiz flew to Sydney. Significantly, on 5 July 2012 Dakiz contacted the applicant and told him that he was returning the following day, that the ‘sheila’ will be coming with him, and that 'she’ll be [there] on [7 July 2012]’. (As I have mentioned, the prosecution case was that references to ‘shiela’ or ‘girl’ were code for cocaine.) Dakiz returned to Melbourne on 6 July 2012.

On 7 July 2012, McCabe Foster transported cocaine from Sydney to Melbourne by road. Foster was, it was alleged, Hamzy’s courier. Several telephone calls demonstrated that Foster arranged to meet Dakiz in Mordialloc. The prosecution case was that Foster gave Dakiz a sample of cocaine at that meeting.

Foster and Dakiz met again the following day, 8 July 2012, this time at Southbank. They were under police surveillance. It was claimed that Foster supplied Dakiz with a commercial quantity of cocaine, in exchange for a part payment of $205,850. I pause to note that later that evening, Foster was intercepted by police as he drove to Sydney, and $205,850 cash in his possession was seized.

Over days following, there were telephone calls between the applicant and Dakiz in which they discussed how to pay the amount still owing to Hamzy for the cocaine (some $155,000).

On 9 July 2012, Dakiz met McPherson at his residence. He left the cocaine at McPherson’s residence, where it was stored until the applicant was arrested on 24 July 2012, when police located 830.4 grams of cocaine[10] (together with plastic clip seal bags and electronic scales).
[10]By virtue of Column 2A, Part 3, Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981, a commercial quantity of a mixture of substance and cocaine is 500 grams.

On 11 July 2012, a listening device captured Palahinjak at the applicant’s house giving him ‘55’, which the prosecution alleged was $55,000 to be used by the applicant to help pay off Hamzy. Later that day, the applicant met with Mustica, in South Melbourne. Shortly after this meeting Mustica was intercepted by police in his vehicle in possession of 13 small packets of cocaine totalling 11.1 grams.

The applicant was, as indicated, arrested on 24 July 2012 while driving a motor vehicle. His car was searched and $17,960 cash was found in the glove box (this was the basis of charge 2). He was taken to his home address, where police found $76,750 in a kitchen cupboard (the basis of charge 3), along with a money counting machine and a communications jamming device.

Changing nature of the prosecution case — Grounds 1, 2(c) and 3

Grounds 1, 2(c) and 3 were argued together. They claim that justice miscarried because the prosecution changed its case in the course of the trial. In my opinion, however, these grounds cannot be upheld.

The prosecutor opened in unequivocal terms that the case for the prosecution on charge 1 was put on the basis that the trafficking alleged was constituted by possession for sale. He told the jury:

… Charge 1 … is trafficking in no less than a commercial quantity of a drug of dependence; in this case, cocaine.
I want to just explain some of the definitions which will help you understand how the prosecution puts its case. Definition of ‘trafficking’, what the law says about trafficking with respect to a drug of dependence is that if a person has in possession for sale a drug of dependence, in this case no less than a commercial quantity, then that is trafficking.
I just want to repeat that. If someone has in their possession for sale — and this is what the prosecution says — for sale a drug of dependence that is one of the things that would amount to trafficking, for the purposes of the definition of that charge.

In this Court, the applicant’s counsel submitted that the nature of the prosecution case changed in the course of the trial, however, such that justice miscarried. Rather than remaining one of possession for sale, evidence of a specific sale to Mustica (and other evidence) — and arguments advanced by the prosecutor in his final address[11] — had converted the prosecution’s case into a different species of trafficking. Indeed, counsel submitted that the case had metamorphosed from one of possession for sale, to one where the trafficking was in the nature of a trade or business of dealing in drugs.[12] Properly analysed, there is, in my view, no substance in this contention, since, even if it be thought that the prosecutor permitted the parameters of the prosecution case to become blurred, ultimately the trial judge ensured that the jury understood that the basis of the case they had to consider was one of trafficking by way of possession for sale.
[11]See above, [19].
[12]See R v Giretti (1986) 24 A Crim R 112, 130 (Ormiston J).

Part way through the prosecutor’s opening, in the absence of the jury, counsel for Dakiz — supported by the applicant’s counsel — asked whether the prosecution was ‘continuing with the proposition for which they have told us twice already that this is a case of possession for sale, or is it something different from that’. In response, the prosecutor again made it plain that the case was one of possession for sale, but that the sale of cocaine to Mustica was evidence which supported the inference that the cocaine located at McPherson’s residence was possessed for the purposes of sale. Defence counsel were, so it seems from discussion, clear from that point on — if it had not previously been clear to them — that the case was one of possession for sale. The prosecutor then completed his opening, and commenced to adduce evidence.

There the matter rested until the end of the prosecution case, when defence counsel made a submission that there was no case for their clients to answer. Lying at the heart of that submission was the proposition that there was no evidence that the applicant or Dakiz had constructive possession of the cocaine found at McPherson’s premises — a submission which tacitly acknowledged their understanding that the case against their clients was one of possession for sale. The submission that there was no case to answer failed.

Next, counsel for the applicant and Dakiz sought a discharge of the jury on the basis that the prosecution had changed its case.[13]
[13]See above, [11].

The judge rejected the submission made by defence counsel that the prosecutor’s submissions had effected a change in the essential nature of the prosecution case. He said:

I have heard submissions from both counsel for the two accused to discharge the jury without verdict in this case. The basis for the submission is that the Crown has changed the legal basis for the prosecution against the two accused.
The complaint is that the Crown opened its case saying the possession for sale was when the cocaine was in actual possession of McPherson. The factual matrix is the same as was opened, that is, the Crown’s case always was the drugs and the money changed hands between Dakiz and Foster on 8 July 2012 at Southbank. That cocaine is then said to be taken by Dakiz to McPherson. It remained in McPhersons possession until 24 July 2012, that is the search and arrest date.
[The prosecutor] submitted that nothing has changed in the Crown’s case. The jury could convict on the exchange evidence relevant on 8 July 2012 he says. The prosecution case is still that McPherson held or possessed the cocaine for Dakiz and Basic, and that is the basis for the case he says.
…
In this case, the possession for sale was always said to be in the actual possession of McPherson. The Crown case was always that the cocaine was exchanged between Foster and Dakiz on 8 July 2012. The cocaine later was deposited with McPherson. The Crown case is Dakiz and Basic are in joint criminal enterprise for the purpose of trafficking this cocaine.
I do not accept that there has been a shift in the Crown case. The Crown case was always a between dates allegation on 3 July to 24 July 2012. The case was an exchange between Foster and Dakiz ie, money for drugs. The drugs were then moved to McPherson. The drugs were found at McPherson’s. They have been weighed and analysed and confirmed that it is cocaine.
So I refuse the application to discharge the jury without verdict. I note that what I perceive might have been a change in the prosecution case arose on Friday, which was relating to the proceeds of crime. These are the charges against Mr Basic. I clarify that the property concerned in that case was to be money relating to Charge 1 and not any other criminal activity, and the prosecutor confirmed that was the case.[14]

[14]This last paragraph of the judge’s ruling relates to charges 2 and 3, not charge 1.

In my view the judge’s ruling was correct.

Following the failure of the application to discharge the jury, defence counsel elected to call no evidence and counsel addressed the jury.

In the course of his final address, the prosecutor made submissions which, perhaps, were apt to expand the prosecution case. To put the matter into perspective, there was evidence in the prosecution case from Detective Nicholas Vaughan, a police officer expert in the monetary value of illicit drugs. He gave evidence that the sum of money paid to Foster (that is, $205,850, with another $155,000 owing) would purchase 1.5 to 2.00 kilograms of cocaine (as opposed to the 830.4 grams located at McPherson’s premises). In his address, the prosecutor said:

… I told you about the evidence of Detective Sergeant Vaughan and you heard the evidence of him telling you that $360,000 buys you between 1.5 and two kilograms. When the police ultimately seized the drugs at Mr McPherson’s place, the cocaine, there was — and this is an emphasis only — 830 grams.
On Mr Vaughan’s evidence, even if you take the lower amount of 1.5 kilograms, the difference between 830 grams and 1.5 kilograms means that some has been — the prosecution says — sold.
Who has been selling it? Who has access to it? Who is making the phone calls to Mr McPherson? Mr Basic. …

Ultimately, however, the judge left the case to the jury as one of possession for sale. That was the manner in which the case had been opened, and in essence how the prosecution had gone to the jury.[15] Sales had been relied upon by the prosecution to show that the commercial quantity of 830.4 grams found at McPherson’s premises was possessed for the purposes of sale. When challenged in the course of his opening, the prosecutor had made plain that sale of some of the cocaine would be relied upon as part of a circumstantial case to prove the intended purpose of the cocaine’s possession. Thus, the essential nature of the prosecution’s case did not change throughout the trial, even though, at times, the prosecutor’s presentation of the case may have suffered from a lack of precision. I do not accept, however, that there is substance in the complaint that the prosecution case changed in any material way.[16] Certainly the judge was astute to ensure that the jury understood that the prosecution’s case on the trafficking charge was by way of possession for sale; and, as part of that, to ensure that the jury comprehended that any evidence of discrete sales was to be viewed solely as part of the prosecution’s circumstantial case, in which any discrete dealing with the cocaine was tendered to prove that the possession of the cocaine was for the purposes of sale.
[15]See above, [19], [54].
[16]See above, [21]–[27].

I should add that the applicant also sought to suggest that the prosecution had changed the way in which charge 2 and charge 3 were put. Although the prosecution opening had asserted that the two sums of money making up each charge were proceeds of crime ‘arising from drug trafficking activities’, the applicant’s counsel at trial, so it was argued, had not understood that each charge was linked to charge 1. In the circumstances, however, this is a somewhat unrealistic submission. The judge directed the jury that they had to be satisfied that the sum of $17,960 in the applicant’s car, and the $76,750 in his kitchen cupboard, were the proceeds of the trafficking in charge 1. He told the jury that they had to be satisfied that the money in each case was the proceeds of crime on the trafficking charge, and that it was ‘not appropriate to reason that [the applicant] is a drug dealer, hence all the money is the proceeds of crime’.

If anything, the way in which the case on charge 2 and charge 3 was left to the jury — by tying each to charge 1 — was unduly favourable to the applicant. He was, in any event, acquitted on charge 3.

The complaints made under cover of grounds 1, 2(c) and 3 cannot succeed. I turn to ground 4.

Prosecutor’s improper submission — Ground 4

During the course of his final address to the jury, the prosecutor made an improper submission.

To provide context, the prosecutor advanced the contention that none of the intercepted telephone calls demonstrated that the applicant was in legitimate employment. The prosecutor then said:[17]

[T]here was not one call there, [where] there was any suggestion that Mr Basic actually worked full time.
There was none. In fact, Mr Basic almost leads a life of leisure, in the sense that he sleeps during the day, and then he is out there at night, you know, just driving around, selling cocaine. You know, he is just out there, driving his Mercedes, you know, $17,000 in the glove box, $70 odd thousand dollars in the kitchen, a money counting machine, the downer.
Yes. Paints a real clear picture to me. I hope it paints a clear picture to you. …

[17]Emphasis added.

In this Court, counsel for the applicant submitted — in my view, correctly — that the impugned remarks were inflammatory. Counsel argued that, by reference to the applicant being unemployed, living a life of leisure, driving around in his Mercedes and selling cocaine, the prosecutor’s submissions were apt to paint the applicant as a man of bad character and to invite illegitimate propensity reasoning. The prosecutor’s expression of his opinion that the applicant was a drug dealer was, at best, irrelevant; but given that its source was the prosecutor, it possessed a veneer of legitimacy, and thereby attracted an added dimension of prejudice. In my opinion, these submissions have substance.

Quite remarkably, when she commenced argument on this ground, counsel for the respondent initially sought to defend the propriety of the impugned remarks. The Court was informed — contrary to its collective experience of more than a century — that counsel (prosecuting counsel included) often expressed personal opinions in addresses to juries. I am unaware that such has become the fashion. But if it has become the practice for counsel to express their personal opinions, it is a practice to be deprecated in the strongest terms. It must cease. The personal opinions of counsel — whether expressed to a judge or a jury — introduced at any point in the trial process, and whether expressed as such or conveyed by way of comment, are wholly irrelevant, and, as the present case illustrates, potentially prejudicial.[18] Indeed, any expression of opinion by a barrister is in flagrant disregard, or in ignorance, of the rules that govern a barrister’s conduct.[19]
[18]Rees v Bailey Aluminium Products Pty Ltd & Anor (2009) 21 VR 478, 503 [80] (Ashley and Redlich JJA, and Coghlan AJA). See also Libke v The Queen (2007) 230 CLR 559, 577-8 [37] (Kirby and Callinan JJ), 589 [80] (Hayne J).
[19]By way of example, rule 18 of the Victorian Bar’s Rules of Conduct provides:
A barrister must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the barrister’s opinion on the merits of that evidence or issue.

Moreover, prosecuting counsel must not make submissions calculated to inflame the jury.[20] In Livermore,[21] the New South Wales Court of Criminal Appeal summarised the position:[22]
[20]Rule 136 of the Rules of Conduct provides:
A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
[21]R v Livermore (2006) 67 NSWLR 659 (McClellan CJ at CL, Johnson and Latham JJ).
[22]Ibid 667 [31] (emphasis added). See also R v Roulston [1976] 2 NZLR 644; R v McCullough [1982] Tas R 43; Whitehorn v The Queen (1983) 152 CLR 657; Vella v R (1990) 2 WAR 537; R v Callaghan [1994] 2 Qd R 300; R v DDR [1998] 3 VR 580; R v MRW (1999) 113 A Crim R 308; R v Kennedy (2000) 118 A Crim R 34; R v Rugari (2001) 122 A Crim R 1; R v Liristis (2004) 146 A Crim R 547; R v Attallah [2005] NSWCCA 277; R v Janceski (2005) 64 NSWLR 10; R v KNP (2006) 67 NSWLR 227; R v Smith (2007) 179 A Crim R 453; R v Stewart (Eric) [2009] 3 NZLR 425; Wood v R (2012) 84 NSWLR 581; Ibrahim v The Queen [2014] NSWCCA 160 [77]–[80]; McGlaughlin v The Queen [2014] NZCA 547; Woods (a Pseudonym) v The Queen [2014] VSCA 233.

This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this Court. They are:
(i) A submission to the jury based upon material which is not in evidence.
(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
(iii) Comments which belittle or ridicule any part of an accused's case.
(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
(v) Conveying to the jury the Crown Prosecutor’s personal opinions.

It was, as I have said, wholly improper for the prosecutor to express his opinion, particularly when that expression of opinion was that the applicant could be seen to be a drug dealer.

Unsurprisingly, counsel for the applicant at trial was prompted to seek a discharge of the jury. In ruling on the application, the judge remarked that the prosecutor’s submissions were ‘put in a forceful manner and could be perceived as inflammatory’, and said that it was ‘unfortunate the submission was made in that manner’. His Honour declined to discharge the jury, however, being of the view that there was no high degree of need to do so.

Despite the fact that the impugned remarks were improper and prejudicial, however, I have concluded — not without considerable hesitation — that there has been no substantial miscarriage of justice. Central to my conclusion is my estimation of the effect of the directions that the judge subsequently gave to the jury. The directions were, in my view, effective to nullify the unfairness generated by the prosecutor’s remarks.

In the course of his Charge, the judge directed the jury that the comments of counsel were not evidence. He told the jury that they must decide the case only according the evidence; that they ‘must ignore all other considerations such as any feelings of sympathy or prejudice [they] may have for anyone involved in the case’; and that they ‘must dispassionately weigh the evidence logically and with an open mind not according to [their] passions or [their] feelings’. With respect to the evidence, the judge instructed the jury that they must consider the evidence against the applicant and Dakiz, and the evidence on the three charges against the applicant, separately; and he specifically directed the jury that if they found the applicant guilty of one of the charges, they could not ‘reason that because he is engaged in misconduct, he is the kind of person who is likely to have committed the other charges’.

Importantly, when directing on the elements of charge 2 and charge 3, and having discussed the factual circumstances relating to both charges, the judge in effect warned the jury against acting upon the prosecutor’s remarks. He said:

… [The applicant], it was said in argument, was a drug dealer and does not put his money in the bank. Just on that, I direct you that you have to be satisfied beyond reasonable doubt that this money, the money is the proceeds of crime. It is not appropriate to reason that [the applicant] is a drug dealer, hence all the money is the proceeds of crime.

It will be remembered that charge 2 related to the sum of $17,960 located in the applicant’s car when intercepted by police, and charge 3 related to $76,750 found in the applicant’s kitchen cupboard. Following a jury question about these charges, the judge again directed that each charge must be considered separately and in light of the evidence admissible with respect to it. Importantly, in a direction similar to one earlier given, the trial judge again admonished the jury not to reason impermissibly. His Honour said:

Just on that I direct you that you have to be satisfied beyond reasonable doubt that this money is the proceeds of crime. It is not appropriate to reason [the applicant] is a drug dealer, hence all the money he has is proceeds of crime.

As I have been at some pains to make plain, the prosecutor should not have made the comments that he did. In the end, however, I have concluded that the judge’s directions were sufficient to neutralise their sting. I am fortified in that view by the jury’s acquittal of the applicant on charge 3. Had the jury been improperly influenced by the prosecutor’s suggestion that the applicant was a drug dealer, it might be thought that they would have been moved to convict the applicant on both charge 2 and charge 3. His acquittal on the third charge, however, eloquently demonstrates that the jury’s reasoning was not irremediably polluted by what the prosecutor had said.

For these reasons, I would not uphold ground 4.

Before leaving this ground, however, I again emphasise this. Expressions of personal opinions by counsel, particularly when their manner of expression is designed to incite emotion or improper reasoning, will not be tolerated. They have no legitimate role in a trial, criminal or civil. The fate of this application ought not be seen as tacit encouragement for the kinds of submissions that were properly the subject of criticism in this case.

Conclusion

For the foregoing reasons, the application for leave to appeal against conviction must be refused.

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[2015] VSCA 109

22 May 2015