Behan v The Queen - [2000] WASCA 204

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BEHAN -v- THE QUEEN [2000] WASCA 204

CORAM: KENNEDY ACJ
MURRAY J
PARKER J

HEARD: 6 JUNE 2000

DELIVERED : 6 JUNE 2000

PUBLISHED : 4 AUGUST 2000

FILE NO/S: CCA 233 of 1999

BETWEEN: RAYMOND VALENTINE BEHAN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Evidence - Lie by accused - Relied on by Crown as evidence of guilt - Whether directions to jury adequate

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Retrial ordered

Representation:

Counsel:

Applicant: Mr O P Holdenson QC & Mr B R Jackson
Respondent: Mr J A Scholz

Solicitors:

Applicant: Pryles & Defteros
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Edwards v The Queen (1993) 178 CLR 193
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Pereira v Director of Public Prosecutions (1988) 63 ALJR 1

Case(s) also cited:

Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581
Caine (1990) 48 A Crim R 464
Chidiac & Asfour v R (1991) 171 CLR 432
Clarke v Johnstone [1986] VR 643
Cutter v R (1997) 143 ALR 498
Gipp v R (1998) CLR 106
Glennon v R (1994) 179 CLR 1
He Kaw Teh v The Queen (1985) 157 CLR 523
Healy v R (1995) 15 WAR 104
Knight v R (1992) 175 CLR 495
Mraz v R (1955) 93 CLR 493
Natesan v R (1996) 134 FLR 199
Palmer v R (1998) 193 CLR 1;
Pizzata v The Queen, unreported; SCt of WA; 29 October 1993; Library No 93059
Prasad v R (1994) 119 ALR 399
R v Burke (1997) 96 A Crim 334
R v Cervelli [1998] 3 VR 776
R v Cheung (1997) 97 A Crim R 282
R v Ellis (1998) 100 A Crim R 49
R v Franks (No 2) (1999) 105 A Crim R 377
R v Gaffney (1968) VR 417
R V Gallagher [1998] 2 VR 671
R v Grosser (1999) 106 A Crim R 125
R v Kelly (1975) 12 SASR 389
R v Laz [1998] 1 VR 453
R v Leff (1996) 86 A Crim R 212
R v Moran & Mokbel [1999] 2 VR 87
R v Nifadopolous (1988) 36 A Crim R 137
R v Renzella (1997) 2 VR 88
R v Seiffert & Stupar (1999) 104 A Crim R 238
R v ST (1997) A Crim R 390
R v Storey (1978) 140 CLR 364
R v Su & Ors [1997] 1 VR 1
R v Tannous (1987) 10 NSWLR 303
R V Zakaria (1992) 62 A Crim R 259
Tripodina and Morabito (1988) 35 A Crim R 183

JUDGMENT OF THE COURT: The applicant sought leave to appeal against his convictions on 25 October 1999 after a trial in the District Court on three counts of being knowingly concerned in the importation of a prohibited import, namely narcotic goods. The narcotic goods were methylenedioxymethamphetamine (MDMA) in tablet form commonly known as Ecstasy. The counts were laid under s 233B(i) of the Customs Act 1901 (Cth).
As amended at the hearing the application was pursued on three grounds:
1.The convictions were unsafe or unsatisfactory in that they were against the weight of the evidence.
2.The learned trial Judge erred in her directions to the jury concerning the lie said by the Crown to have been told by the applicant in signing the statement.
Particulars
(i)The learned trial Judge failed to direct the jury that there may be reasons for the telling of a lie apart from the realisation of guilt and a fear of the truth.
(ii)The learned trial Judge failed to direct the jury that the jury must find beyond reasonable doubt that the applicant lied because of the realisation of guilt and a fear of the truth.
3.The verdicts of the jury are unsafe and unsatisfactory in that no reasonable jury could have convicted the applicant in circumstances where the Crown did not exclude a rational hypothesis consistent with innocence, namely that the applicant did not know the nature of the contents of the three envelopes.
After hearing argument the Court was unanimously of the view that the leave should be granted and the appeal allowed on ground 2. It ordered that the accused should be retried and for this purpose the accused was remanded to the District Court. The Court was not persuaded that grounds 1 and 3 were made out. The Court indicated that its reasons for decision would be published later and it now does so.

Facts

The applicant was tried with his brother Mitchell. Mitchell gave evidence at trial in which he denied that he or the applicant were involved in the importation. Mitchell suggested that someone may have been trying to "set him up". The applicant did not give evidence. Both the applicant and Mitchell were convicted of the three offences.
The applicant and his brother, Mitchell, left Australia on 24 January 1997 and travelled via London to Ireland. The applicant arrived back in Perth on 12 February 1997. His brother did not return until 24 February 1997.
The Crown alleged that the applicant's brother Mitchell had arranged for three envelopes to be posted from London to three different addresses in Perth. The addresses were (1) a post office box of the applicant at Wangara; Mitchell also used this post office box; (2) 11 Rosslyn Street, West Leederville which was the business premises of a company of the applicant and also the business premises of a business conducted by Mitchell; and (3) the home of the parents of the applicant and Mitchell. While staff, including their mother, had access to the mail box at 11 Rosslyn Street, and the parents as well as the applicant had access to the parents' mailbox, only the applicant and Mitchell had access to all three mailboxes. Mitchell was still overseas when the three envelopes were delivered in Perth. Each of the three envelopes were addressed to fictitious addressees. It was also the Crown case that the senders' names and addresses on the back of the envelopes were fictitious. It was the Crown case that Mitchell had pre-arranged for the applicant to collect the envelopes in Perth knowing that they contained the prohibited import. While the applicant did not give evidence during the trial he had given an account to the Australian Federal Police and he had written out a short statement. These were in evidence.
On 17 February 1997 the police seized from the mailbox at 11 Rosslyn Street (unknown to the applicant or those then at that address) one of the three envelopes. It was postmarked 10 February 1997 at London North. The addressee was a Paul Stanbury, a fictitious name and a person of course unknown at 11 Rosslyn Street. It was found to contain 160 Ecstasy tablets. A "controlled delivery" of the same envelope was then effected at 11 Rosslyn Street on 19 February 1997. The applicant was observed to collect it from the mailbox and take it inside the premises. A search warrant was executed. The envelope was found unopened in a room in those premises with other unopened mail. It was not concealed.
With the first envelope (although there was some variation in evidence about this) there was also found the second of the three envelopes. It too was unopened. It had been addressed to a J Thompson, PO Box 1234, Wangara 6065 which was the applicant's post office box. It too was postmarked 10 February 1997 at London North. It was found to contain 144 Ecstasy tablets.
The applicant's house in Currambine, of which he was the sole occupant, was later searched by the police. On a bench in the kitchen the third envelope was found. It was unopened. It had been addressed to a Paul Thomas at the address of the applicant's parents in Joondalup. It too was postmarked 10 February at London North. It was found to contain 144 Ecstasy tablets.
The three envelopes were identical. So too, in a number of respects, was the packaging within them. The stamps were the same on all three. The tear on one of the stamps on the first envelope was matched to the tear on one of the stamps on the third envelope. The postmarks were identical. All three envelopes were marked "Photos - Do not bend". Each contained the same MDMA and the tablets all had the same bird motif. Mitchell's fingerprint was found on the first envelope even though he was still overseas.
All told the 448 Ecstasy tablets were found to have a gross weight of 135.8 grams and to contain 34.75 grams of pure Ecstasy.
The evidence at trial, particularly of the applicant's mother who worked for him at 11 Rosslyn Street, indicated that the two envelopes found there were with other unopened mail as part of the usual practice followed. She would normally open the mail when she was preparing to go to the bank which she normally did once a week. It was also the evidence that on occasions it was not unusual for the applicant to collect his parents' mail at their house as they left in the morning before the postman delivered. On the occasions he did this he would usually place the mail inside their house or take it to his mother at 11 Rosslyn Street.
On the day the three envelopes were found by the police, and between the finding of the first two at 11 Rosslyn Street and the third at the applicant's house, the applicant was interviewed and he also made a handwritten statement. He denied any knowledge of the contents of the two envelopes which had then been found. In the written statement he said he had collected the first envelope that day from the mailbox but did not open it because it was not addressed to him or to anyone in the office and he did not know any of the names on the envelope. He also said he had collected the second envelope from the company's post office box at Wangara "yesterday or the day before". He had not opened this because it was not addressed to anyone he knew and he was "unaware" of the sender. He said the two envelopes would eventually have been returned to sender by somebody if they had not been claimed.
The applicant also wrote in this statement:
"I have never seen any other envelopes similar to the two that I have just described delivered to my business address or my PO box."
This is the lie on which the Crown relied and which is the subject of ground 2.
After the third envelope had been found in his kitchen the applicant later said to the police that he had collected the post at his mother's house but he did not go in as he was running late. "I went to my own house, I put it on the counter and I left, and that’s it. Didn't open it, just left it." He said he did not normally take notice of the envelopes when he collected the mail as he collected quite a bit of mail. "It's done afterwards, when we've got time or whatever." That was the only explanation offered to the police for the earlier handwritten statement in which he had said that he had never seen any other envelopes similar to the two found at 11 Rosslyn Street.

Ground 2

In Edwards v The Queen (1993) 178 CLR 193 at 210-211, the majority comprising the Court, Deane, Dawson and Gaudron JJ said:
"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest …. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it … and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt …. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect."
Her Honour gave a detailed direction to the jury about the lie on which the Crown expressly relied. This direction, so far as it went, appears to have been consciously fashioned to reflect the passage just quoted from the decision in Edwards v The Queen (supra).
The direction, however, stopped short of dealing with that aspect of the observations in Edwards v The Queen which emphasised that there may be reasons for the telling of a lie apart from the realisation of guilt and the need to direct that if the jury accept that a reason of that kind is the explanation for the lie they cannot regard it as an admission.
In R v Konstandopolous (1998) 4 VR 381 Callaway JA, Winneke P and Kenny JA concurring, said at 388:
"An Edwards direction is not, as such, a requirement of law. It is a class of direction that is necessary, in a particular situation, to prevent a miscarriage of justice. The miscarriage to which it is directed is the jury's using a lie in an impermissible way. If the direction actually given in the course of a charge avoids that risk, it is sufficient … Moreover, it is fundamental that a judge should tailor a charge to the circumstances of the case, telling the jury what they really needed to know and omitting matter that is theoretically interesting but practically irrelevant. The ideal is that the jury should be given only the components of an Edwards direction that are relevant to the case at hand in a fashion tailored to the evidence in that case, although in practice it is usually necessary to go further as a matter of prudence."
In this case the evidence included the explanation of the accused that when he collected the mail from his parents mail box he had not looked at the envelope which was the subject of this indictment. While that explanation may not have been thought by the jury to carry much weight, it is nevertheless one which clearly required consideration. If accepted, it would provide an innocent or inadvertent explanation for the apparent lie.
In this case it was a critical issue for the jury whether the applicant knew of the contents of the envelopes by virtue of some knowledge of or involvement with Mitchell in the scheme for the sending of the Ecstasy in the envelopes from the UK. The case of the Crown for this depended on circumstantial evidence. The accused denied knowledge. In such circumstances a lie by the accused as to his knowledge of one of the envelopes may have weighed with particular significance in the deliberations of the jury. It was, therefore, of importance in this case that the jury be reminded that apparent lies may have innocent explanations or be explained by matters other than guilt and have their attention directed, in particular, to the explanation offered by the applicant in respect of the lie on which the Crown placed reliance. That was not done. The materiality of this omission in this case must call into question the reliability of the verdict.
The Crown submitted that this was a case where the proviso to s 689(1) of The Criminal Code might be called in aid to support the conviction, ie that there was no substantial miscarriage of justice. The difficulty we perceive in this is the materiality which the jury may have attached to this particular lie in their consideration of the weight and force to be given to the applicant's denial of knowledge of the importation. This precluded, in our view, reliance on the proviso in the circumstances of this case.
For these reasons we were persuaded that the trial miscarried. It is unnecessary to consider the ground further.

Grounds 1 and 3

These may be dealt with together. Ground 3 is really a specific aspect of ground 1. In truth it puts ground 1 at its highest. Hence, the applicant's submissions focussed on ground 3.
The contention for the applicant was that his accounts given orally and in writing to the police (at least when taken with the applicant's explanation for the "lie") were consistent with the Crown evidence so far as it touched on the observed and known conduct of the applicant. The applicant had consistently denied any knowledge of the importations the subject of the charges and any knowledge of any expectation that the three envelopes would be received in the mail as they were.
The account of the applicant with respect to the first and second envelopes was that they had been left unopened and with other mail at the business premises at 11 Rosslyn Street where other persons had access to them. The applicant had even written on the second envelope, that addressed to his business post office box, "Not at this address try Box 1233".
In the applicant's submission the ultimate issue for the jury in light of the evidence in this case became whether the applicant knew the drugs were in, or were likely to be in, the envelopes. It was submitted that to establish this the Crown must prove that knowledge was the only rational inference open on the evidence; Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3. To do this it was necessary, in the circumstances, for the Crown to exclude the hypothesis that the applicant was ignorant of the contents of the envelopes. It was the applicant's submission that the evidence was insufficient for these purposes. Further it was submitted that guilt was not the only rational inference open on the evidence.
In Jones v The Queen (1997) 191 CLR 439 at 450-451, Gaudron, McHugh and Gummow JJ referred to the earlier decision in M v The Queen (1994) 181 CLR 487 particularly at 493 and said:
"In M, Mason CJ, Deane Dawson and Toohey JJ said … that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that …:
'In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained … the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'"
At 452 their Honours further said:
"However the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory."

It is our view that the submissions for the applicant in this respect undervalue the force of the evidence against the applicant. The evidence established that Mitchell, the applicant's brother, had a direct involvement in the sending of the three envelopes containing the prohibited import from the UK to Perth. The envelopes were each addressed to persons who were fictitious and, of course, unknown at the addresses to which they were addressed. Apart from Mitchell, only the applicant had access to the mail at each of the three addresses. While other persons, family and employees, had access to the mail at two of the addresses at the time only the applicant had access to the third. Mitchell knew of the arrangements for mail at all three addresses. The applicant and Mitchell had travelled to Ireland via London late in January 1997. The applicant had returned to Perth on 12 February 1997 which was two days after the envelopes were postmarked in London North. Mitchell, however, remained overseas until 24 February 1997 which was a week or so after the envelopes were delivered in Perth in the ordinary course of post. While others might have collected the mail at two of the addresses it was the applicant who did so. He alone could have collected and did collect the mail from the Wangara post office. The applicant had to go to another suburb to collect the mail from his parents' house that day. This he did even though he was under some time pressure that morning, so much so, he said, that he did not have time to put the mail inside his parents' house. Instead he returned to his own house where he left the unopened mail rather than taking it with him to his business premises at 11 Rosslyn Street where his mother worked.
At 11 Rosslyn Street two of the envelopes were left unopened with other unopened mail. These were the applicant's business premises which he shared with Mitchell. He knew the practice followed with mail by which it would not be opened by others for some days, ie until his mother prepared the banking.
The endorsement "Not at this address - try Box 1223", which the applicant had written on the one envelope addressed to the one address to which he alone had access at the time, is one which was obviously not intended to be acted on as the applicant had no knowledge of the addressee yet he wrote the endorsement, apparently for the postal authorities, that another PO box be tried, but he kept the endorsed envelope and did not leave it at the post office. This conduct is well capable of being seen by the jury to be a subterfuge to afford some protection to the applicant against the possibility that he would be found with the envelope.
The applicant submitted, in particular, that the inference was open on the evidence and had not been displaced that Mitchell had sent or arranged the sending of the three envelopes from the UK without the applicant knowing of them, in the expectation or hope that the three envelopes would still be lying around when he arrived in Perth on 24 January 1997. There are obvious difficulties in the way of accepting this submission. The three envelopes were addressed to three persons who were fictitious and unknown at each of the three different addresses to which they were addressed. Each of the envelopes was endorsed with the name and address of the sender, in each case a sender unknown at the address to which the respective envelope was addressed. There could hardly have been an expectation, reasonable or otherwise, that any of the envelopes, let alone all three, would have been left undealt with by unknowing people in Perth until Mitchell's return. The reasonable expectation is that by then each of the three envelopes would have been returned to the post office marked not known at this address or return to sender. Perhaps even more significant in this respect is the value of the illicit contents of the three envelopes. On the evidence the jury could have been satisfied these contents were worth more than $30,000. It is quite implausible that Mitchell would have run the grave risk of these envelopes, with such valuable contents and with fictitious addressees, arriving at the Perth addresses without giving advance warning to someone to ensure their safe handling. The other evidence points to the applicant as being the only person who could have ensured the safe handling of all three envelopes. It was the applicant in fact who did receive all three envelopes. The total circumstances, especially the use of fictitious addressees and senders on three separate envelopes, and the endorsement by the applicant on the first envelope, were sufficient to enable the jury, properly directed, to be satisfied that the applicant's receipt was knowing and not innocent of the nature of the contents.
Putting aside the deficiency in her Honour's direction which has been discussed under ground 2, it was our view that it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt of each of the three offences in light of this evidence. In particular, it was our view that it was open to the jury to exclude any available reasonable hypothesis consistent with the applicant's innocence and in particular with his ignorance of the contents of the three envelopes.

Decision

For these reasons, briefly stated, grounds 1 and 3 were not made out. As indicated earlier ground 2 was established. For that reason on 6 June 2000 leave to appeal was granted, the appeal allowed, a new trial was ordered and the applicant was remanded to the District Court for this purpose.