Benter v The State of Western Australia - [2006] WASCA 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BENTER -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 286

CORAM: ROBERTS-SMITH JA

HEARD: 15 DECEMBER 2006

DELIVERED : 15 DECEMBER 2006

FILE NO/S: CACR 128 of 2006

BETWEEN: DARREN SIEGFRIED BENTER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
File No  :IND 13 of 2005

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal against conviction - Possession of methylamphetamine with intent to sell or supply - Direction to jury as to onus of proof in circumstantial case - Directing jury about the drawing of inferences in a circumstantial case - Whether trial judge failed to identify to jury competing inferences - Whether facts to be inferred were "intermediate facts" to be proved beyond reasonable doubt, or "strands of a cable analogy" - Whether trial judge erred in failing to direct jury as to mental elements necessary to establish possession - Whether reasonable prospect of succeeding on appeal

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L B Robbins
Respondent: No appearance

Solicitors:

Appellant: Hammond Worthington
Respondent: State Director of Public Prosecutions

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

Davies v The State of Western Australia [2006] WASCA 151
Knight v The Queen (1992) 175 CLR 495
Lai v The Queen [1990] WAR 151
R v ITA (2003) 139 A Crim R 340
R v Merritt [1999] NSWCCA 29
RPS v The Queen (2000) 199 CLR 620
Samuels v Western Australia (2005) 30 WAR 473
Tabe v The Queen (2005) 157 A Crim R 1

Case(s) also cited:

Abbott v Western Australia (2005) 152 A Crim R 186
Atholwood (2000) 110 A Crim R 417
Benter v Corkill (1999) 106 A Crim R 75
Burke (1997) 96 A Crim R 334
Cumming (1995) 86 A Crim R 156
Davies v Western Australia (2005) 30 WAR 31
Davis v The Queen (1990) 5 WAR 269
Gipp v The Queen (1998) 194 CLR 106
Gorman (1991) 56 A Crim R 406
Hiemstra v The State of Western Australia [2006] WASCA 70
Jones v The State of Western Australia [2006] WASCA 79
Markarian v The Queen [2001] WASCA 393
Mathews v The Queen (2001) 24 WAR 438
R v Solway [1984] 2 Qd R 75
Shepherd v The Queen (1990) 170 CLR 573

ROBERTS-SMITH JA: The appellant was convicted following trial before his Honour Judge Groves and a jury in the District Court on 21 July 2006 of possessing a prohibited drug with intent to sell or supply. He was sentenced to 2 years' imprisonment with an order that he be eligible for parole.
The appellant's appeal notice was filed on 27 September 2006. The appellant's case was filed on 22 November. There are four grounds of appeal. The appellant requires leave to appeal in respect of each ground of appeal (s 27(1) of the Criminal Appeals Act 2004 (WA)). The Court or a sentencing Judge must not grant leave unless persuaded the ground has a reasonable prospect of succeeding on appeal (s 27(2)). The application of that test was explained in Samuels v Western Australia (2005) 30 WAR 473 at [50] to [60]. I adopt here the approach articulated by the Court in that case.

Ground 1

Ground 1 turns on a direction given by his Honour in relation to circumstantial evidence. The submissions briefly in support of that recognise that the main issue in the trial was whether it was the appellant who possessed the drugs.
The submission is that the State case relied entirely on circumstantial evidence, there being no direct evidence linking the appellant to the offence. It is said the State presented the circumstantial case as one involving a chain of circumstances. The direction complained of is at t/s 529 in which his Honour is commencing his reference to the outline of the State case which, in the previous page at 528, he said relied upon circumstantial evidence which he described as evidence of circumstances connecting or tending to connect the accused to the commission of the offence and from which the State said the jury could infer certain facts.
His Honour observed that the State acknowledged, quite correctly, that there was no direct evidence linking the accused to the offence. Then at t/s 529 his Honour said:
" … what the state [sic] says is that there is a chain of circumstances inconsistent with the innocence of the accused man."
His Honour went on to refer to the process of drawing inferences from facts otherwise found proved. His Honour went on to give further directions about that, and I will come to those in a moment. The reason Mr Robbins, who appears for the appellant, says his Honour's reference to the State saying there was a chain of circumstances inconsistent with the innocence of the accused is incorrect is because, it is submitted, this was not a "chain of circumstances" or "strands of a cable" case.
Directions by a trial Judge are to be tailored to the evidence and the law relevant to the case and a trial Judge should tell the jury no more than is necessary of the law to enable them to understand the law in the context of the case and no more of the facts or matters put in respect of or by the parties to enable the jury to appreciate the particular issues which they are being called upon to determine and to enable them to apply the law to those (RPS v The Queen (2000) 199 CLR 620 [41] and [42]).
The Judge must identify the issues and matters it is necessary for the jury to determine to perform their task and arrive at their verdicts (R v ITA (2003) 139 A Crim R 340, [90]). Contrary to the submissions advanced on behalf of the appellant, it seems to me this was not an intermediate facts case.
There was no dispute about the existence of the five matters relied upon. They are the matters which are set out at par 5 of the appellant's submissions.
The first was that the appellant was one of the occupants of the house where the 13½ grams of methylamphetamine was found in the games room. The other occupant of the house, it is said, was his girlfriend.
The second is that plastic bags were found at the premises the appellant occupied. The plastic bags containing the drugs were said to be identical to the bags located in the drawer of the kitchen and were similar to or identical with a plastic bag found in the hidden compartment of a bookcase, although the bag containing the drugs was different from the bag in which another person present, Mr Makridis', drugs were found.
The third is that there were various items said to be drug related found on the coffee table in the lounge and on the shelf next to the television. These included a beanie containing cannabis in a clip-seal bag a set of scales and a spoon which had traces of drugs on them; and a light bulb with traces of methylamphetamine.
Fourth, there were items found in the hidden compartment of the bookcase such as scales, ammunition and a piece of paper which a witness suggested contained references to drugs and drug dealing; and, fifth, a security monitoring system that the appellant had installed allowing him to see anyone who approached the house from the driveway.
As I say, there was no dispute about the existence of these five matters relied upon by the State as circumstances in the context of the evidence as a whole tending to indicate the guilt of the appellant. The contest was about what, if any, inference or inferences could be drawn from them.
This case is entirely distinguishable from that referred to by the appellant (R v Merritt [1999] NSWCCA 29) for this reason: the intermediate facts relied upon in that case, including whether the glove with the appellant's fingerprint on it had in fact been used in the robbery and whether the scars the appellant had were from bullet wounds suffered about the time of the robbery, were in dispute and were indeed contentious.
To the contrary, the matters which were described as intermediate facts by Mr Robbins were here, in my opinion, not properly so characterisable. They were indeed, as the State proffered, circumstances from which, collectively, inferences could be drawn. There was therefore no need for the trial Judge to give a direction in terms of finding intermediate facts beyond reasonable doubt - although effectively his Honour's directions in relation to the finding or the drawing of inferences of guilt beyond reasonable doubt had that effect. To that extent the directions his Honour gave on inferences and circumstantial evidence were, if anything, likely to be regarded by the Court of Appeal as unduly favourable to the appellant.
The directions given commence at t/s 528, as I have indicated. I have also already referred to part of what his Honour said at t/s 529. Later on that page his Honour continued to say:
"Whilst you can't guess or speculate, you can nevertheless draw inferences from the facts which you find to be established beyond reasonable doubt."
His Honour then explained that an inference is simply a logical deduction or a conclusion which the jury might draw from the facts which they found to be proved. At t/s 530 his Honour went on to say:
" … before you can draw an inference or a conclusion against the accused or adverse to him, you must be satisfied that it is the only inference or conclusion which can be drawn consistent with the proven facts.
If you think that there is an alternative reasonable inference which you may draw and which may be open to you on the evidence, then no inference may be drawn against the accused, so if there are competing inferences, one favourable to the accused, another inference not favourable to the accused, you have got to give the accused the benefit of the doubt. It's no special privilege to any accused person that if the jury has any reasonable doubt then they must - you must acquit the accused.
If, however, after a consideration of the evidence you are satisfied beyond reasonable doubt that an inference is the only inference - or the only reasonable inference to be drawn, then you may draw that inference. The state [sic] says that it has proven to you certain facts and from those facts you may draw an inference that the accused did have possession of these drugs."
His Honour went on then to adumbrate the five matters to which I have already referred.
As the Court in Merritt (Wood CJ at CL and James and Adams JJ), said at [70] of that case:
"Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be, intermediate facts, 'which constitute indispensable links in a chain of reasoning towards an inference of guilty' (Shepherd 170 CLR per Dawson J at 579)."
Their Honours continued:
"It is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. This is implicit in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 (eg per Gibbs CJ and Mason J at 535, 537‑538, Deane J at 626‑627) and see Shepherd 170 CLR 573 per Dawson J at 583 and 585, and McHugh J at 592 and 594."
Shortly thereafter their Honours went on to say:
"In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting. If the case is one where, in the judge's opinion, there were no such crucial intermediate facts, it 'will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence' (Shepherd 170 CLR at 579 per Dawson J) … "
In the present case I am not persuaded there is any reasonable prospect the Court of Appeal might be persuaded that the directions given by his Honour did not meet that requirement. There is accordingly no reasonable prospect, in my view, that this ground would succeed on appeal, and leave to appeal in respect of it must be refused.

Ground 2

The direction attacked by this ground is said to have invited a process of elimination and to have potentially distorted the jury's reasoning such that they may have considered that their task was to decide whether the inference not favourable to the appellant had been eliminated rather than whether the guilt of the appellant was proved.
Reference is made to Davies v The State of Western Australia [2006] WASCA 151, particularly per Wheeler JA at [6]. The submission is that it is never appropriate for a trial Judge in a circumstantial case to direct a jury that if there are competing inferences, one favourable, the other not favourable, the jury cannot draw the one which is consistent with guilt or, as in this case, must give the accused the benefit of the doubt.
It is submitted the task for the jury is not to decide whether hypotheses consistent with innocence can be eliminated, but rather whether the guilt of the accused is proved beyond reasonable doubt (Knight v The Queen (1992) 175 CLR 495 per Mason CJ and Dawson and Toohey JJ, 503). Then it is submitted that a Judge should never, when giving an inferences direction in relation to matters on which the burden is on the prosecution to prove a charge beyond reasonable doubt, say anything to suggest that the jury is required to compare the competing inferences and only if they are "equally reasonably open" to then give the appellant the benefit of the doubt (Davies v The State of Western Australia (supra) per Pullin JA at [77]).
The submission is that the Judge ought not to have directed the jury as he did concerning how the jury should approach the task of competing inferences. It is for the jury to decide whether an inference should be drawn and it is not necessary to first give the competing inferences equal weight before giving the accused the benefit of the doubt (Davies (supra) [77] per Pullin JA). As Pullin JA said at [77] of that case:
" … a Judge should never, when giving an inferences direction in relation to matters on which the burden is on the prosecution to prove a charge beyond reasonable doubt, say anything to suggest that the jury is required to compare the competing inferences and only if they are 'equally reasonably open' to then give the appellant the benefit of the doubt. There are not, to use the words of Dixon CJ, 'degrees of consistency': see Plomp v The Queen (1963) 110 CLR 234 at 243. It is for the jury to decide whether an inference should be drawn. It is not necessary to first give the competing inferences equal weight before giving the accused the benefit of the doubt."
At [6] her Honour Wheeler JA referred to potential distortions of the jury's reasoning which may flow from certain directions in relation to circumstantial evidence. She gave by way of example the customary direction that an inference unfavourable to an accused person can only be drawn where it is the only reasonable hypothesis or only reasonable inference open, tends to invite a process of elimination, that is, her Honour said:
" … it carries the risk that a jury will conceive its task as being deciding whether hypotheses consistent with innocence can be eliminated, rather than whether the guilt of the accused is proved. Once all alternative inferences are eliminated, there is a risk that the jury, perceiving that the hypothesis consistent with guilt is the only one remaining, may feel that its task is accomplished, and may not give appropriate scrutiny to whether that hypothesis is or is not proved beyond reasonable doubt."
Finally, I note in relation to that case her Honour's observation at [9]:
" … it should be made clear to the jury in every case that the direction is no more than an aid to the application of the underlying principle concerning the onus and standard of proof."
The critical feature of the direction relied upon here or said here to demonstrate the incorrect approach or the deficiency referred to in the authorities which I have discussed appears at t/s 530.
This direction was given by his Honour:
"If you think that there is an alternative reasonable inference which you may draw and which may be open to you on the evidence, then no inference may be drawn against the accused, so if there are competing inferences, one favourable to the accused, another inference not favourable to the accused, you have got to give the accused the benefit of the doubt."
The critical feature identified by the High Court in Knight was a suggestion that it would be only where the jury thought the competing inferences were equally open that they would need to give the accused the benefit and not draw the inference adverse to the accused. That indeed is the way Pullin JA recognised it in the passage I have quoted at [77] from his judgment in Davies.
The direction given by the trial Judge here does not, in my view, demonstrate that flaw. His Honour spoke only of competing inferences reasonably open. I do not consider the Court of Appeal would find his direction in respect of this was erroneous nor deficient. This ground has no reasonable prospect of succeeding on appeal and leave to appeal in respect of it must accordingly be refused.

Ground 3

Ground 3 is founded on a proposition that in this case there was a rational competing inference identifiable that the other co‑occupier of the house, the appellant's girlfriend, was the sole possessor of the drugs which were found. That proposition, as Mr Robbins concedes, was never put at trial. The way the defence was conducted at trial was to rely upon evidence or inferences that the drugs belonged or may have belonged to another person in the house, the man Makridis.
It is not necessary for me to canvass here the evidence upon which the defence relied for that purpose. Sufficient to say it might reasonably have been thought by defence counsel that it was a proposition in respect of which there was a potentially strong inference.
In those circumstances it seems to me that counsel may have had very good forensic reasons for not then also suggesting or seeking to suggest to the jury that the drugs may have belonged to the appellant's girlfriend in respect of whom, on the face of it, there was no evidence of that kind other than her presence in the house and apparently some evidence that she had previously been, or was, a drug user.
Those forensic reasons may well explain first of all why counsel did not make that suggestion to the jury and why defence counsel did not ask the Judge to give any directions in due course as to that possibility either. In the course of his submissions to me this morning when these matters were canvassed Mr Robbins indicated that, having regard to considerations of that kind, the ground was not pressed.
I think that concession, if it may be so described, was properly made. In my view, this ground has no sufficient prospect of success and leave to appeal in respect of it must be refused.

Ground 4

Ground 4 complains that the trial Judge failed to direct the jury that to establish possession mere knowledge together with a future intention to exercise control is not sufficient.
It is submitted that his Honour was required to direct the jury that they would have to be satisfied beyond reasonable doubt that the accused had a present intention to possess the drugs which had been found under the stool. Reference is made to Tabe v The Queen (2005) 157 A Crim R 1 per Gleeson CJ at [10], McHugh J at [57] and Hayne J at [102].

The appellant also relies upon Lai v The Queen [1990] WAR 151 at 155 in support of the proposition that in order to prove possession the jury had to be satisfied that the appellant had a "present" intention to possess the drugs.
It is of course necessary to look at the directions given by the trial Judge. That has to be done in the context of the evidence given at the trial. The fact is, it seems to me, there was no evidence to suggest any future intention; that was never an issue factually in the case.
I turn to the directions first at t/s 525 whereafter his Honour had explained the elements of the offence of possession of a prohibited drug with intent to sell or supply. He said that the real issue in that trial, as both counsel had indicated, was whether or not the accused had the drug in his possession. He went on to say:
"Possession in this context is having something, knowing that you have it and intending to exercise some control over it.
In ordinary terminology possession means that you have the item in question physically under your custody or control. If you have a pen in your pocket or a wallet in your pocket, sure, you have possession of it. You know it's there and it's on your person; you have possession of it."
A few minutes later his Honour said:
"You cannot have possession of something unless you know that you have it. "
At page 526 he said:
"If he didn't have knowledge of them, he could not have possession of them. If you weren't satisfied beyond reasonable doubt that he did have possession of the drugs, then you must acquit him, so possession involves knowing that you have it and intending to exercise some control over it … "
That last, as I apprehend it, is the particular comment complained of by reference to the use of the word "intending". It is said of course that his Honour should have said, "the accused had a present intention". However, directions are to be read as a whole and in context. So reading them, I think it clear enough his Honour was meaning "presently intending", and the jury would have so understood him in that way. I do not think there is a reasonable prospect that the Court of Appeal would be persuaded otherwise.
On that understanding of it, this ground has no reasonable prospect of success. Leave to appeal must accordingly be refused in respect of it.
Leave to appeal being refused in respect of all four grounds, the appeal is deemed to be dismissed pursuant to s 27(3) of the Criminal Appeals Act.
The orders will accordingly be:
(1)leave to appeal is refused on all four grounds;
(2)the appeal is dismissed pursuant to s 27(3) of the Criminal Appeals Act.