Bobletec v The Queen
[2001] WASCA 222
•30 JULY 2001
BOBLETEC -v- THE QUEEN [2001] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 222 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:216/2000 | 12 APRIL 2001 | |
| Coram: | MALCOLM CJ WALLWORK J STEYTLER J | 30/07/01 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against conviction and sentence refused | ||
| PDF Version |
| Parties: | BOBBY CONSTANTIN BOBLETEC THE QUEEN |
Catchwords: | Criminal law and procedure Extension of time for applications for leave to appeal against conviction and sentence Extension of time granted Alleged lies during video record of interview Whether directions to jury correct in fact and law Whether miscarriage of justice Significance of lies by applicant on video recorded interview Whether statements in interview could be left with jury as lies to questioning officers No direction that lies could be used as evidence of consciousness of guilt Issue of prevarication by accused |
Legislation: | Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 11(a), Sch V |
Case References: | Brewster v Sewell (1876) 1 PD 154 Chamberlain v The Queen (No 2) (1983) 153 CLR 521 Edwards v The Queen (1993) 178 CLR 193 He Kaw Teh v The Queen (1985) 157 CLR 523 Jarvis v The Queen (1998) 20 WAR 201 Krakouer v The Queen (1996) 16 WAR 1 Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994 Lowndes v The Queen (1999) 195 CLR 665 Mason v The Queen (1995) 15 WAR 165 Mortimer v McCallan (1840) 6 M&W 296; 106 ER 672 Mraz v The Queen (1955) 93 CLR 493 Quach v The Queen [1999] WASC 210 R v Birks (1990) 19 NSWLR 677 R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 R v Glennon (1992) 173 CLR 592 R v Ruich [2000] WASCA 84 Rintel v The Queen, unreported; CCA SCt of WA; Library No 8594; 16 November 1990 Roddan v The Queen, unreported; CCA SCt of WA; Library No 980472; 26 August 1998 Ryan v The Queen (1967) 121 CLR 205 Sell v The Queen (1995) 15 WAR 240 Shepherd v The Queen (1990) 170 CLR 573 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BOBLETEC -v- THE QUEEN [2001] WASCA 222 CORAM : MALCOLM CJ
- WALLWORK J
STEYTLER J
- CCA 217 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Extension of time for applications for leave to appeal against conviction and sentence - Extension of time granted - Alleged lies during video record of interview - Whether directions to jury correct in fact and law - Whether miscarriage of justice - Significance of lies by applicant on video recorded interview - Whether statements in interview could be left with jury as lies to questioning officers - No direction that lies could be used as evidence of consciousness of guilt - Issue of prevarication by accused
Legislation:
Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 11(a), Sch V
(Page 2)
Result:
Application for leave to appeal against conviction and sentence refused
Representation:
Counsel:
Applicant : In person
Respondent : Mr K P Bates
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brewster v Sewell (1876) 1 PD 154
Chamberlain v The Queen (No 2) (1983) 153 CLR 521
Edwards v The Queen (1993) 178 CLR 193
He Kaw Teh v The Queen (1985) 157 CLR 523
Jarvis v The Queen (1998) 20 WAR 201
Krakouer v The Queen (1996) 16 WAR 1
Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994
Lowndes v The Queen (1999) 195 CLR 665
Mason v The Queen (1995) 15 WAR 165
Mortimer v McCallan (1840) 6 M&W 296; 106 ER 672
Mraz v The Queen (1955) 93 CLR 493
Quach v The Queen [1999] WASC 210
R v Birks (1990) 19 NSWLR 677
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Glennon (1992) 173 CLR 592
R v Ruich [2000] WASCA 84
Rintel v The Queen, unreported; CCA SCt of WA; Library No 8594; 16 November 1990
Roddan v The Queen, unreported; CCA SCt of WA; Library No 980472; 26 August 1998
Ryan v The Queen (1967) 121 CLR 205
Sell v The Queen (1995) 15 WAR 240
Shepherd v The Queen (1990) 170 CLR 573
(Page 3)
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: This is an application for leave to appeal against conviction and sentence. The applicant was convicted after a trial in the District Court on 30 August 2000 on an indictment containing one count that on 12 January 1999 at Kallaroo the applicant had in his possession a quantity of a prohibited drug, namely, heroin with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 29 September 2000 the learned sentencing Judge imposed a sentence of imprisonment for 5 years backdated to commence on 17 August 2000 and with an order for eligibility for parole. It follows that any application for leave to appeal against conviction should have been made on or before 20 September 2000 and any application for leave to appeal against sentence should have been made on or before 20 October 2000. On 10 October 2000 the applicant, then and now unrepresented, filed a notice of application for leave to appeal against conviction dated 8 October 2000. This was a document prepared by the applicant. It was not included in the appeal book. A further notice of appeal dated 1 January 2001, also prepared by the applicant, was filed on 8 January 2001.
2 As will appear, the applicant is an immigrant to Australia from Romania and while able to communicate reasonably well in English, he has difficulty in fully grasping the content and significance of legal concepts. He obviously would have benefited from legal representation. Legal Aid, however, was refused and by reason of a lack of understanding that the Supervising Solicitor of the Unrepresented Criminal Appellants Scheme could not advise him without access to his copy of the transcript, which he refused, the Scheme was unable to give him the assistance which he needed. In addition, as evidenced by reference to the transcript of the hearing of his applications, there were some difficulties of communication to the Court. However, having closely studied the transcript of the trial, the grounds of appeal against both conviction and sentence, the applicant's written submissions and those of the Crown, I am confident that the Court has been able to be sufficiently informed of the relevant facts and arguments which were open to the applicant to understand his case and the issues sought to be raised.
Application to extend time
3 By a notice of application for an extension of time within which to appeal dated 7 January 2001 the applicant stated reasons for the delay. These were in substance that he had made an application for legal aid which was refused by a letter from the Director of Legal Aid dated 6 December 2000. There was then the misunderstanding between the
(Page 5)
- applicant and the supervising solicitor of the Unrepresented Criminal Appellants Scheme ("UCAS"). The solicitor advised the applicant by letter dated 20 December 2000 that it was not possible for her to make a decision whether the UCAS could assist the applicant until she had read the transcript of his trial and sentencing. Given the circumstances, the delay is largely explained by the fact that the applicant was without legal representation and awaiting the outcome of his legal aid application. After the notification that the application had been refused, the applicant clearly needed a reasonable period within which to prepare his grounds of appeal against conviction and sentence himself. In any event, so far as the application for leave in respect of conviction is concerned, there was in fact the earlier notice of appeal dated 8 October 2000 which was filed on 10 October 2000. This notice was filed some 20 days late.
4 The applicant made it clear that he relied upon both sets of grounds of appeal. In the particular circumstances of this case I would grant the application for an extension of time. In order to ensure that everything which the applicant wished to submit to the Court was taken into account, the applicant was given leave to make submissions with respect to both the first and the second notice of application for leave to appeal against conviction and his application for leave to appeal against sentence.
The Crown case
5 In order to understand the grounds of appeal and put them into context, it will be convenient first to consider the Crown case against the applicant. Section 6(1)(a) of the Misuse of Drugs Act relevantly provides that a person who, with intent to sell or supply it to another, has in his possession a prohibited drug, commits an indictable offence. Section 11(a) of the Act provides that, for the purposes of s 6(1)(a), if the quantity of the drug possessed by the accused is not less than the quantity specified in Sch V in relation to that drug, the accused:
"… shall, unless the contrary is proved, be deemed to have in his possession a quantity of the prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Sch V …".
- The quantity specified in respect of heroin is 2.0 grams.
6 As opened to the jury, the Crown case was that on Tuesday 12 January 1999 various police officers were conducting surveillance at
(Page 6)
- 93 Aristride Drive, Kallaroo. At about 3.40 pm the applicant alighted from a vehicle and went into the property at that address. At about 4.40 pm he was seen to leave the property and walk some 200m to Aristride Park. When he reached the park he sat on a park bench briefly and was then seen to go to a nearby tree and dig at the base of the tree. After a few moments he made his way back to the property at 93 Aristride Drive. The excursion to the park and back took something like 5 minutes.
7 Photographs were taken as well as a brief surveillance video. The applicant was seen to be wearing a blue cap and a yellow shirt and white joggers. Police later investigated the base of the tree and found buried at the point where the applicant had been bending down and seen to be digging, a film canister. Inside that film canister were 11 small packets of a white substance. On later analysis that substance was found to comprise a total of 10.67 grams of heroin. The evidence relied upon comprised two certificates of drug analysis. The first related to six of the packets which contained 5.8 grams of material which was 50 per cent heroin. The second related to white powder in the remaining five plastic containers in which was found a quantity of 4.87 grams of 50 per cent heroin.
8 There was a forensic examination of the canister for evidence in the form of DNA. An expert report dated 30 August 1999 concluded that DNA typing from the canister was unsuccessful in detecting any human DNA. There was a further report dated 25 August 2000 which made it clear that no human DNA was detected on the top of the film canister. It was not possible to determine if there was no DNA present, or whether the amount of DNA was below that which the assay systems could detect. No identifiable fingerprints of the applicant were found on any of the items.
9 Later the same day, some five hours later at about 9.40 pm, the applicant was observed to leave the property at 93 Aristride Drive, make his way to the same park again, sit briefly on the bench, go to the base of the same tree and appear to dig there.
10 In the meantime, police officers had been to the site at the base of the tree and removed the film canister found there. They substituted another film canister for the one found. The substitute did not contain heroin but some other white substance. The substitute film canister was of a similar type and had been replaced in the same place as the original had been found.
(Page 7)
11 When the applicant returned to the park he dug in the same area and appeared to retrieve something. He then made his way back to 93 Aristride Drive. About half an hour later at about 10.12 pm he was again seen to go back to the park and to the same spot at the base of the tree. On this occasion when he returned to the property at 93 Aristride Drive he was stopped by police officers who spoke to him. He was not arrested at that time and was given help to make his way to a train station. The police officers who spoke to the applicant on the night of 12 January 1999 gave evidence that there was no sign whatever that the applicant was affected by alcohol.
12 About two months later the applicant was arrested and interviewed by detectives. He was told that he had been observed and what he had been seen to do. He was also told that the substance which was in the film canister was heroin. When asked about those matters the applicant told the police that he "did not do it, he could not remember".
13 During the course of the interview he was shown the photographs and also shown the video. In addition he was shown a blue cap and a yellow shirt that had been seized from his house and which he acknowledged were his. As appears from the video he was also wearing white joggers. When asked, "Well, did you put that film canister there?", the applicant answered, "I don't think so, Sir". He was asked, "Where did you get the film canister from?" and he replied, "I don't remember anything in this whole, sort of, problem". When shown the photographs which had been taken and asked if it was him shown in the photographs he said, "I don't know. You would have to judge".
14 In short, the Crown case against the applicant was that in going to the spot and burying what he did and going back there, he must have known full well what was going on and that he was burying a film canister containing heroin. It was also part of the Crown case that when the applicant said that he did not know or did not remember who the person in the photographs was, that was a lie. The jury were told by counsel for the Crown in opening that if they found that the applicant had lied, they were entitled to conclude that he did so because he knew the truth and because of a realisation of guilt.
15 Evidence was given by five police officers in support of the prosecution case, including the two surveillance operatives who produced and proved the items and facts relied upon as part of the Crown case. Evidence was given by Sergeant Van Der Schoor, who was involved in the operation, and who was responsible for the provision of the substitute
(Page 8)
- film canister and the substance put inside it. He was present when they were buried at the base of the tree in the park. He identified the applicant. He also arranged for a lift for the applicant to the Whitfords train station from Hillarys after he had been interviewed by police. This was undertaken by another officer. His evidence was that the applicant appeared to be sober and was not intoxicated or did not appear to be affected by other substances. He was steady in his feet and spoke coherently.
16 Police Constable Daly, who was with Sergeant Van Der Schoor, confirmed the conversation between the Sergeant and the applicant. He said that he did not smell any alcohol. The applicant did not slur his speech, although he spoke broken English. The observation of the Constable was that the applicant was steady on his feet. As a result of his observation of the applicant and the fact that he could smell his breath and there was no liquor on it, he was led to believe that the applicant was not affected by alcohol.
17 Evidence was also given by Detective Sergeant Hutchison. His evidence was that in January 1999 he carried out some surveillance observation duties in Kallaroo and later executed a search warrant at a house in the Fremantle area on 22 March 1999. He was accompanied by Detective Senior Constable Boult and other officers from the Drug Squad. The applicant was present at the house with another male person. At the completion of the enquiries at the house, the applicant was conveyed to the offices of the Drug Squad where he participated in a videotaped record of interview. During the course of the interview the applicant was shown various items, including those recovered from the base of the tree in the park as well as items of clothing. There was no attack at the trial on the credibility of the evidence of the police officers.
18 The applicant elected not to give evidence.
19 Prior to counsel addressing the jury, counsel for the applicant submitted to the learned trial Judge that it would not be appropriate for counsel for the Crown to rely upon the answers in the video record of interview, such as "I don't know" or "I can't remember", as lies indicating a consciousness of guilt. That submission was accepted by the trial Judge.
20 The jury were directed by the learned trial Judge that the applicant was the only person involved in the trial whose credibility had been attacked and were invited by his Honour to consider what was on the video:
(Page 9)
- "… in the light of commonsense; in the light of other evidence that exists in the matter and in the light of any inconsistencies or consistencies between proven matters that you find proven."
21 The learned Judge went on to direct the jury regarding the matters which the Crown had to prove beyond reasonable doubt as follows:
"Now in this particular case there is one charge to which the accused has pleaded not guilty and that is that on 12 January 1999 at Kallaroo he had in his possession a quantity of prohibited drug; namely, heroin, with intent to sell or supply it to another and that charge arises from the provisions of the Misuse of Drugs Act and in particular s 61A. The Crown has a number of matters which it is required to prove beyond a reasonable doubt. Firstly, and this is a particular, that the event occurred on 12 January 1999 at Kallaroo. Well, you know that on that occasion there was the surveillance by the police and there is an issue - the accused can't remember, he says, being in the park on that occasion. There is evidence from the policemen to the effect that he was there. He was identified as being there and there is a video on the relevant date.
So that the first matter you must find proved is that something occurred of relevant on 12 January 1999 at Kallaroo, secondly, that the accused was involved in the matter - that it was he who was the person who was present at the particular place at the relevant time. It's a matter for you to determine whether it was the accused or not. I don't think there was any particular issue taken about that by his counsel. What was being argued about is whether or not it could be said that, if he was there, he did anything - had anything to do with the heroin and knew that what was in the small article, that it was heroin.
Next, of course, the Crown must prove to your satisfaction that there - at the particular - the particular item was a prohibited drug, namely, heroin. Well, you have had the drugs been taken out of the small film capsule, it has been tested, there is evidence from a chemical laboratory that it's heroin, and I can tell you as a matter of law that heroin is a prohibited drug. So you won't have any difficulty with that."
22 The learned trial Judge then directed the jury about the concept of possession. His Honour told the jury that the concept of possession
(Page 10)
- involved "having the ability to exercise some dominion or control over a particular item, that is, to have some ability to deal with it and, if thought fit, to dispose of it in some way". The jury were told that physical possession or control was not necessary provided that the person charged had "some ability to exercise some dominion or control over it, to deal with it and to dispose of it". The learned Judge explained that the Crown case was that:
"… the accused took the drug to this particular place and was in the process - and buried it there.
He actually not only knew where the place was, he not only had an ability to go back, if necessary, to deal with it as he wished, but he actually had placed it there, and that being so, I think the Crown suggests that possession exists in several ways: firstly, that he may well have actually had physical control or custody of it at the relevant time in the sense of holding it or handling it as he buried it, or that so long as it was there, that he was the one that knew it was there and he was the one who had the ability to deal with it, the Crown says that would be adequate.
If you were to find that - be satisfied beyond a reasonable doubt that that was so, then you could find that the accused was in possession of it [as] known to the law, provided that you also find that when he had such possession, he knew that it - well, the substance was heroin."
"… the video record of interview involved the accused prevaricating - in effect, not telling - in effect, according to the Crown, not telling the truth and that you can't rely on anything that is said by him in that."
24 After deliberating for some 55 minutes the jury returned a unanimous verdict of guilty.
Grounds of appeal against conviction in first notice
25 The grounds of appeal against conviction in the first notice dated 8 October 2000 were as follows:
(Page 11)
- "1. The Learned Trial prosecution made an error by:
(1) Intent to make an error in law by assessing the brief summary of the evidence saying that the accused lied on video.
1.1a Transcript of proceedings
1.1b Transcript of proceedings
(2) Failed to ensure, in the face of the facts, that there are all evidence [sic] to prove that the accused lied about drinking such as:
2.1 Drinking at the Kalaroo Pub
2.2 Accused under medications
2.3 The police lady officer who gave lift to the accused to Whitford train station asked the accused how many drinks of VB he had. The answer 'I cannot remember'.
2.4 At the time the accused had the video interview, the accused was under a severity of neck pain, as a result of the search of the accused's address 110/8 Ord St Fremantle.
(3) Created the case with respect to mens rea
2. The learned trial Judge made an error in law by
1. Deducting incorrect evidence before giving the directions which 'are necessary for you (jury) to bear in mind and follow when you (jury) consider your (jury) verdict'
'.. during the day he goes back there three or four times .. or a couple of times the day and then several times at night'
2. Intent to make an error before give directions in law
(Page 12)
- 3. Failed to ensure that there is full evidence, which can satisfy the jury, beyond reasonable doubt, that the question of lie have all the answers and is nothing left to direct the jury that the Learned Defence Counsel's submission have analytically and objectively approach according to Law.
4. Approach the case with respect to the actus reus.
- 3. There was a miscarriage of justice because the Learned Trial Judge was in error in acting on a wrong principle or in acting on a wrong principle [sic] or in misunderstanding or in wrongly assessing some salient feature of the evidence."
- Ground 1:1: Error by prosecution in suggesting that applicant lied on video
26 In opening the Crown case, counsel for the prosecution referred to the fact that, during the video interview, the applicant said that he did not know or could not remember if it was him in the photographs and video taken on 12 January 1999 of a man seen in the park where the film canister containing the heroin was found. Counsel also said that these statements constituted:
"… a lie and you can subject to conditions take that lie into account, if you find it to be a lie, in assessing the evidence against the accused. His Honour will tell you there are conditions which apply and his Honour will give you directions as to that before you could use a lie, if you found that to be a lie, against the accused."
27 Later, in the absence of the jury, counsel for the defence submitted that the statements of the applicant in the video record of interview that he did not know or could not remember if it was him in the photographs and the video, could not be left as a lie to the jury. This was in the context of a lie being used as evidence of a consciousness of guilt. Cf Edwards v The Queen (1993) 178 CLR 193; Mason v The Queen (1995) 15 WAR 165. This point was conceded by counsel for the prosecution and the learned trial Judge acknowledged that the statements "may not be a lie in the classic sense of the word".
28 The learned trial Judge did not give the jury any formal direction with respect to the applicant telling lies during the video record of
(Page 13)
- interview. In particular, there was no direction that any lies found by the jury to have been told by the applicant could be used by them as evidence of any consciousness of guilt on the part of the applicant. His Honour merely directed the jury that the Crown case was that:
"… the video record of interview involved the accused prevaricating - in effect, not telling - in effect, according to the Crown, not telling the truth and that you can't rely on anything that is said by him in that."
Ground 1.2: Error by the prosecutor in failing to ensure "in the face of the facts" that there are all evidence to prove [sic] that the accused lied about drinking such as:
1. Drinking at the Kalaroo Pub
2. Accused under medications
3. The police lady officer who gave lift to the accused to Whitford.
30 While difficult to understand, as I understood the submissions of the applicant, he appeared to contend that counsel for the Crown should have led evidence to prove that he lied on the video when he said that he could not remember anything happening in the park during the daytime on 12 January 1999.
31 In the video the applicant also said that on 12 January 1999 he had been drinking at the house of a Mr Simon at 93 Aristride Drive. He then went to the park and sat "a little" on the bench. He then relieved himself. He then walked back to the house in Aristride Drive and on the way he was stopped by the police and searched.
32 The applicant also said in his submissions in this Court that he had been drinking in the "Pub". In his particulars he said this was the Kallaroo Pub. There was no reference to the Kallaroo Pub at the trial. The applicant also contended that, in addition to the drinks he consumed at the Pub that afternoon, he was under some form of medication. He further alleged that a female officer who gave him a lift to the Whitford train station had asked him how many drinks of "VB" he had consumed,
(Page 14)
- and the answer was that "I cannot remember". Finally, the accused contended that during the video record of interview he was suffering from a severe neck pain. In my opinion, all of these matters were matters which counsel for the defence could have raised in cross-examination of the police officers if it was thought relevant or necessary for the purposes of the defence. The fact that the applicant was suffering neck pain was raised by him during the video interview.
33 The question of the applicant's state of intoxication on 12 January 1999 was a live issue in the trial. It was the subject of a significant amount of evidence. Counsel for the prosecution asked Sergeant Van Der Schoor, who was involved in the surveillance operation, if he was in a position to be aware of the applicant's breath in relation to whether the applicant had been drinking. The following evidence was given in chief by Sergeant Van Der Schoor:
"DEMPSTER, MR: You observed him, obviously, as you have told us at the park and then had a conversation with him and then there was an arrangement about his being conveyed somewhere else?---That's correct.
DEMPSTER, MR: During the course of your observations did you form any opinion as to whether [the applicant] had taken alcohol?---Mr Bobletec appeared sober. He wasn't intoxicated or didn't appear to be affected by any other substances. He was steady on his feet and he spoke coherently."
34 In cross-examination counsel for the applicant brought out that the Sergeant arranged for another officer to give the applicant a lift to the Whitfords train station from Hillarys. The Sergeant said that the applicant was let go at that stage because he was not then in physical possession of any drugs so as to cause him to be arrested there and then. The Sergeant also agreed that he had no reason to believe at that point that the applicant had recently been driving a motor vehicle. Consequently, he had no authority to take a sample of breath for analysis. He denied that the applicant was slightly intoxicated and unsteady. In re-examination he was asked, "Were you in a position to be aware of his breath and so on?" and the Sergeant answered:
"Yes. If he had been drinking I would have smelt that certainly whilst we were in the back of the car together."
(Page 15)
35 Constable Daly, who was present at the time and who was by consent in Court when the Sergeant gave his evidence-in-chief, was asked if he was present during the conversation between Sergeant Van Der Schoor and the applicant. The Constable said he was. The following exchange then occurred:
"From your observation of the accused, are you able to make any assessment of his sobriety, whether he was intoxicated or not?---Yes. …
Did you observe him to walk and carry out physical movements?---Yes. …"
- Constable Daly was cross-examined on this evidence as follows:
"Constable Daly, you didn't give Mr Bobletec a breath or blood test or anything like that, did you?---No, I didn't."
37 If the applicant had wished to contend in his defence that he was too intoxicated to form the intention to possess the heroin, it was necessary for him to raise that issue. The evidence adduced from the police officers in cross-examination was clearly insufficient to raise such a defence.
Ground 1.3: The prosecution made an error by "created [sic creating] the case with respect to mens rea
38 It is difficult to understand this ground. Counsel for the prosecution, in opening the case to the jury, did not outline the law relating to the mental element of possession. Counsel, however, did open the Crown case on the facts of the issue of possession saying:
"The Crown case … is simply that the accused, in going to the spot he did and going there three times, must have known full well what was going on and that he was burying a film canister containing heroin."
39 The learned trial Judge directed the jury that:
(Page 16)
- "The Crown has a number of matters which it is required to prove beyond a reasonable doubt. Firstly, and this is a particular, that the event occurred on 12 January 1999 at Kallaroo. Well, you know that on that occasion there was the surveillance by the police and there is an issue - the accused can't remember, he says, being in the park on that occasion. There is evidence from the policemen to the effect that he was there. He was identified as being there and there is a video on the relevant date.
So that the first matter you must find proved is that something occurred of relevance on 12 January 1999 at Kallaroo, secondly, that the accused was involved in the matter - that it was he who was the person who was present at the particular place at the relevant time. It's a matter for you to determine whether it was the accused or not. I don't think there was any particular issue taken about that by his counsel. What was being argued about is whether or not it could be said that, if he was there, he did anything - had anything to do with the heroin and knew that what was in the small article [ie, the film canister], that it was heroin.
Next, of course, the Crown must prove to your satisfaction that there - at the particular - the particular item was a prohibited drug, namely, heroin. …
Next, of course, the Crown must satisfy you beyond a reasonable doubt that as at the relevant time the accused possessed the heroin. Well, the concept of possession involves having the ability to exercise some dominion or control over a particular item; that is, to have some ability to deal with it and, if thought fit, to dispose of it in some way.
In other words, it is not necessary that a person be found in physical possession or control over a particular substance including, for example, a drug, … and what is said in this case by the Crown is that the accused took the drug to this particular place and was in the process - and buried it there.
He actually not only knew where the place was, he not only had an ability to go back, if necessary, to deal with it as he wished, … the Crown says that would be adequate.
(Page 17)
- If you were to find that - be satisfied beyond a reasonable doubt that that was so, then you could find that the accused was in possession of it known to the law, provided that you also find that when he had such possession, he knew that it - well, the substance was heroin.
Of course, as to that particular matter, there is no direct evidence in the sense of someone seeing him doing something. It is a matter for you to consider the circumstances and determine whether you can draw an inference that that was so from the evidence and therefore so far as possession is concerned, it is the two concepts involved of having some ability to deal with it … and at the same time know that it was a prohibited substance as alleged by the Crown."
40 The learned Judge then went on to direct the jury on the issue of intent to sell or supply the heroin to another. So far as the defence case was concerned, the learned Judge directed the jury that:
"In the particular you have the situation where, as far as the accused is concerned, it is said that he did not accept, in effect, that it was he who was there at the tree. He, in effect, could not remember being there on that day and it is said that there is insufficient evidence upon which you can find that there was any possession by him and inherent in that, is the submission on behalf of the accused that he could not have the intent to sell or supply it to another."
41 Later, the learned Judge directed the jury that the defence contended that the jury:
"… could not conclude necessarily, or to the required degree that what [the applicant] was doing was burying anything. From the description given by the policeman [sic policemen] he appeared only to be digging and therefore it was said no inference was possible in the way in which the Crown was suggesting - that there were alternative inferences possible, that is, that someone else put it there, and that the accused didn't know it was there and/or didn't know it was heroin - that there was no DNA or fingerprint evidence which was able to connect the accused with the particular article, and it was said on behalf of the accused that if you examine the evidence, you could not find it proved beyond a reasonable doubt that the accused man
(Page 18)
- possessed this drug and at the same time knew it was heroin and/or had the necessary intent as alleged by the Crown."
42 The learned Judge went on to direct the jury about the appropriate approach which they should adopt to the drawing of inferences adverse to the accused.
43 In the present case, an examination of the evidence leads me to the conclusion that the evidence of the police officers, combined with the video film taken at the time and the video record of interview, was such that it was open to the jury to infer that when the applicant was observed to go from the house in Aristride Drive to the park and dig at the base of the tree on the three separate occasions, he had either previously placed the film canister containing the heroin there, or that on the first occasion when he went to the park, he had placed the canister containing the heroin there. If it had been placed there previously, the jury would have been entitled to draw an inference from his actions that he was intentionally exercising dominion or control over the film canister and its contents. Alternatively, if he had buried the canister there on that day, he was likewise exercising dominion and control over it. Even if the canister containing the heroin had been placed there by someone else at an earlier time, the jury were entitled to find that the applicant must have known that the film canister had been buried there; that it contained heroin; and that he had dug up the canister on each of the occasions for some purpose connected with the presence of the heroin, whether for the purpose of removing some of it or otherwise exercising control and dominion over it.
44 Of course the case was one which required the jury to draw inferences. As to this, the learned Judge directed the jury as follows:
"You are able to draw inferences in a criminal trial and you [are] asked to draw inferences in this case; inferences as to the question of possession and a conclusion as to the intent of the accused man, and, of course, a jury can draw inferences in a criminal trial and they can draw inferences which are adverse to an accused; that is, which point to his or her guilt.
However, there is a special rule which applies in the criminal law and it is this: that if a jury is considering certain proven facts and say to themselves, 'Well, there's an inference we can draw which is adverse to the accused', but there's an alternative reasonable inference that can be drawn or more than one, then you are not permitted to draw the adverse inference. That is
(Page 19)
- more or less connected with the idea of the presumption of innocence but on the other hand if a jury is considering the matter and there are certain proven facts and there is only one inference possibly that can be drawn and that is adverse to an accused person, then that inference can be drawn.
So your job in this particular trial is to consider the evidence and come to a decision whether or not you are satisfied beyond a reasonable doubt that the accused committed the offence. If you are so satisfied then you would find the accused guilty. If you are not so satisfied beyond a reasonable doubt you would find the accused not guilty and without in any way commenting on a possible verdict of yours in this matter it is necessary for you to consider this matter without consideration of any possible punishment that might arise as a result of a particular verdict of yours. That is a matter for me, if necessary, to deal with in due course."
45 As Brennan J (as he then was) said in He Kaw Teh v The Queen (1985) 157 CLR 523 at 564:
"It is generally true to say (as Barwick CJ pointed out in Ryan v The Queen [(1967) 121 CLR 205 at 213] that an act or omission done or made by a person is the essential foundation of his criminal responsibility. Having something in possession is not easily seen as an act or omission; it is more easily seen as a state of affairs (cf per Gibbs J in Beckwith v The Queen [(1976) 135 CLR 569 at 575]), but it is a state of affairs that exists because of what the person who has possession does in relation to the thing possessed. 'Possession is proved by various acts varying with the nature of the subject matter': Isaacs J speaking for the Court in Moors v Burke [(1919) 26 CLR 265 at 271]."
46 His Honour went on to say at 564 - 565:
"Criminal responsibility depends not only upon a person's act or omission but also upon the circumstances in which the act is done or the omission made, usually upon his state of mind at that time and sometimes upon the results of his act or omission. However, the definition of a criminal offence ordinarily comprehends only the prohibited act or omission (conduct), the circumstances in which the act is done or the omission is made and, in some instances, the results of the act or omission. These
(Page 20)
- elements - conduct, circumstances and results - are what Dixon CJ in Vallance v The Queen [(1961) 108 CLR 56 at 59] called 'the external elements necessary to form the crime'. When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present. The mental element is mens rea or guilty mind."
47 Later, in his judgment in He Kaw Teh Brennan J summarised the general principles which should be applicable to the interpretation and application of provisions which prohibited possession or importation of prohibited substances, namely:
"1. There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.
2. There is a further presumption in relation to the external elements of the statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either -
(a) knows the circumstances which make the doing of that act an offence; or
(b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
3. The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.
4. The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides."
(Page 21)
48 In the present case, the prosecution was required to prove beyond reasonable doubt that the actions of the applicant in relation to the film canister and its contents were consistent only with an intention on his part to exercise dominion and control over the contents which he knew to be heroin. The jury had to be satisfied of those matters beyond a reasonable doubt. In order to reach that result, they would have to be satisfied that there was no other reasonable inference consistent with innocence. In my opinion, the directions given by the learned Judge to the jury were sufficient for that purpose: Chamberlain v The Queen (No 2) (1983) 153 CLR 521 at 599 per Brennan J; Sell v The Queen (1995) 15 WAR 240 at 255 per Malcolm CJ; Shepherd v The Queen (1990) 170 CLR 573 at 585 per Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed); and Krakouer v The Queen (1996) 16 WAR 1 at 13 - 14. Like Krakouer, this was a case in which the evidence presented by the Crown of the circumstances relied upon as the basis for proof of possession of the subject heroin was hardly challenged. The issue was whether those circumstances were such as would entitle the jury to draw an inference of guilt. In my opinion they were so entitled, on the basis that the evidence was sufficient to exclude beyond reasonable doubt any explanation consistent with the innocence of the applicant. It follows that ground 1.3 fails.
Ground 2.1: Error by trial Judge in directions to the jury about how many times the applicant returned to the park.
Ground 2.2: "Intent to make an error before give directions in law"
49 As to ground 2.1, contrary to the assertion in the ground, the learned trial Judge did not direct the jury that the evidence showed that:
"During the day he [the applicant] goes back there [ie, the park where the film canister containing heroin was buried] three or four times … or a couple of times the day and then several times at night."
50 It is the case that, in the absence of the jury, the trial Judge, in discussion with counsel, summarised his understanding of the Crown case, as appears from pp 49 - 50 of the transcript, where the following exchange occurs:
"VIOL DCJ: … I understand the Crown's case is this: the accused is seen going towards a tree and he's seen digging near a tree and he's - after that, the police go to that position and they find heroin, an amount something like 10 grams, and they
(Page 22)
- substitute that heroin for another innocuous substance, as it was described, and then during the day he goes back there three or four times - - -
QUAIL, MR: Couple - two times - - -
VIOL DCJ: - - - or a couple of times during the day and then several times at night …"
51 In his summing up to the jury the learned trial Judge said:
"In relation to this matter it is said on behalf of the Crown that you will have little difficulty concluding that the accused possessed this drug and with the required intent for the reason, the Crown prosecutor said, that he, namely the accused, was seen going towards this tree from his [sic this] house into the park, he was seen to get down - crouch down and start digging in an area - a particular spot, and it was said that in fact he was burying something and the something, it is said, was heroin in the manner and - packaged in the manner you saw in the - in a small film case, and that he left that area after a while and the police then went to that particular spot and dug in the area and found the capsule, removed the heroin and replaced it with an innocuous substance, it's called - something non-narcotic, and ultimately the accused came back to that place on several occasions on the same day."
52 Surveillance Operative 12 gave evidence that the applicant was seen attending the tree in the park at the base of which the heroin was found on three occasions on 12 January 1999, namely, 3.40 pm, 9.40 pm and 12.20 pm on the day. While the use of the expression "several" was inaccurate and something of an exaggeration, I do not consider that, given the simplicity of the case generally and the issues which the jury were called upon to determine, the terminology used by the learned trial Judge was productive of any miscarriage of justice. This was a relatively simple case in which the applicant was arraigned at 10.08 am on 30 August 2000, the substantive part of the trial commenced at 10.28 am and the evidence was completed just under two hours later at 12.13 pm. There was then a brief discussion between the Judge and counsel until 12.26 pm, when the jury returned. The addresses of counsel were completed by 1.00 pm. The summing up was from 2.18 pm to 2.47 pm. The jury returned a verdict of guilty after a retirement of approximately 55 minutes.
(Page 23)
53 As to ground 2.2 the applicant submitted, in effect, that the learned trial Judge made an error prior to giving his directions to the jury on the relevant law. The applicant's outline of submissions referred to the portion of the transcript, afer the conclusion of the evidence, where his counsel raised an objection to any direction being given to the jury about alleged lies told by the applicant when he participated in a video record of interview. Counsel submitted that the various replies made by the applicant to questions put in the interview, such as "I don't remember", "I can't remember the day", and "I can't remember", could not be left to the jury as lies. Counsel for the applicant did not object to counsel for the Crown commenting on the applicant's responses, but did object to any directions to the effect that the jury could consider whether any lies were told out of a consciousness of guilt.
54 In the result, there was no reference to any alleged lies by the applicant in the directions to the jury by the learned Judge. In my opinion, none were necessary. His Honour referred to the existence of the video record of interview and left it to the jury on the basis that:
"… you can have regard to it … and you can give what weight to it you consider appropriate in the case. It is not evidence on oath and … was not subject to cross-examination … and … it is necessary for you to consider that in the light of other evidence which has been led …"
55 In my opinion this direction was appropriate in the circumstances. This ground fails.
Ground 2.3: Failure to ensure that there is "full evidence" (etc)
56 The thrust of this ground, as I understand it, is that it is intended to contend that the learned trial Judge failed to ensure, before leaving the case in the hands of the jury, that there was sufficient evidence led by the prosecution which was capable of satisfying the jury of the applicant's guilt beyond reasonable doubt. In other words, it is, in effect, a submission of no case to answer, in that the evidence led by the Crown was such that no reasonable jury properly instructed could have returned a guilty verdict. If that is correct, there is no substance in the ground. Alternatively, if the ground relates to the issue whether the applicant lied in the course of the video record of interview, there is no substance in the point as the jury were not directed that, if they were satisfied that the applicant lied during the video record of interview, they were entitled to find the applicant guilty. This was, of course, a case in which no positive
(Page 24)
- defence was advanced on behalf of the applicant. The applicant, as he was perfectly entitled to do, declined to give evidence in his defence. The relevant passage in the summing up which follows the directions to the jury on the issue of possession, is as follows:
"It is said then also by the Crown that the video record of interview involved the accused prevaricating - in effect, not telling - in effect, according to the Crown not telling the truth and that you can't rely on anything that is said by him in that - in defence of what was obvious the Crown says, and the Crown says that there was no question of the accused being affected by alcohol, as suggested by him in the video, because of what you see on the video of him walking, etc, and the police evidence, and finally, that section 11 assists the Crown in proving the necessary intent.
So far as the accused was concerned, his counsel said that you could not conclude necessarily, or to the required degree, that what he was doing was burying anything. From the description given by the policeman [sic policemen] he appeared only to be digging and therefore it was said no inference was possible in the way that the Crown was suggesting - that there were alternative inferences possible, that is, that someone else put it there, and that the accused didn't know it was there and/or didn't know it was heroin - that there was no DNA or fingerprint evidence which was able to connect the accused with the particular article, and it was said on behalf of the accused that if you examine the evidence, you could not find it proved beyond a reasonable doubt that the accused man possessed this drug and at the same time knew it was heroin and/or had the necessary intent as alleged by the Crown."
The learned Judge then went on to deal with the evidence and the question of inferences.
57 In my opinion, this ground, as I understand it, raises no point of any substance and is without merit.
Ground 2.4: "Approach the case with respect to the actus reus"
58 The ground itself is unintelligible. However, as I understand it, the applicant's contention was that there was a failure to direct the jury regarding the actus reus, which is the physical element of an offence: Ryan v The Queen (1967) 121 CLR 205. If and to the extent that the
(Page 25)
- applicant now suggests that the actions by him relied upon by the Crown as evidence of the commission of the offence on 12 January 1999 were not voluntary, this defence was not raised at the trial. There was nothing in the evidence to suggest that the actions of the applicant were other than voluntary. The applicant's defence at the trial, insofar as it was evidenced by the video record of interview, was simply that he was not present in the park, although, as has been seen, there was some suggestion that he was under the influence of alcohol. Consequently, the issue was basically one of identity. Counsel for the defence told the learned Judge that he was under strict instructions from the applicant not to "comment on the facts". There was nothing in the evidence led at the trial to suggest that the applicant was acting under duress when he took the actions he did on 12 January 1999 which involved the commission of the offence with which he was charged. In my opinion, there is no merit whatsoever in this ground.
Ground 3: Miscarriage of justice
59 This ground contended that there was a miscarriage of justice because the learned trial Judge was in error in acting on a wrong principle, or in misunderstanding or in wrongly assessing some salient feature of the evidence. No relevant particulars have been provided in relation to this ground. As best as I can understand it, the passage which is the basis for ground 3 is the passage in the summing up to the jury where the learned Judge said:
"There is in terms of the case generally, there are questions of credibility for you to determine. Obviously there has been no suggestion that the police were not giving credible evidence … He [the applicant] is the only person - I think it is - of whom it is said that there was some doubt as to credibility and you will consider what is on the video in the light of common sense; in the light of other evidence that exists in the matter and in the light of any inconsistencies or consistencies between proven matters which you find proven."
- In my opinion, given the state of the evidence, these comments were both fair and fully justified. The learned Judge also said:
"In a criminal trial though, just because, and I am not suggesting this should happen in this case at all, it is your decision, in a criminal trial just because a jury did not believe the evidence of an accused person if such evidence was given, for example on oath, it doesn't necessarily mean that the Crown
(Page 26)
- case is automatically proved. The Crown must prove the case on all the evidence before the jury."
60 In my opinion, that was a proper and fair direction. It is, of course, significant that no objection was taken by counsel for the defence at the trial to the summing up, whether with respect to any aspect of the law or in relation to the evidence. In my opinion, there is no substance in ground 3 and it must necessarily fail.
61 I turn now to the second set of grounds of appeal, being those contained in the notice dated 1 January 2001.
Grounds of appeal in second notice
62 The second set of grounds of appeal dated 1 January 2001 relied upon by the applicant are as follows:
"1. The learned defence counsel, Mr Hylton Quail, made an error by:
1.1 wrongly admitted evidence such as:
1.1a exhibit F - videotape of 12 January 1999 surveillance operations
1.1b surveillance operative 12's evidence contradict Exhibits D1-3 and E1-3
1.1c prosecution's statue and evidence
1.2 Wrongly prevented evidence being given such as:
1.2a accused statue, evidence and instructions
1.2b medical drug test of Dr M Moussa
1.2c medical evidence and facts
1.2d the 22 March 1999 - events, arrest, interview under duress and intimidation
1.2e by failing to request and argue the correct original surveillance videotape of 12 January 1999
(Page 27)
- 1.2f by accused involuntary confession made under extreme duress and intimidation
1.2g by surveillance operative 32 in cross-examination
1.2h police lady officer – alcohol report
1.2i police officer Mr Lawrence – sexual abuse excuses
- 2. The learned prosecution made an error by:
2.1 Wrongly prevented evidence being given such as:
2.1a originals of 2 certificates of analysis of 29 June 1999
2.1b original surveillance videotape of 12 January 1999
2.1c the 22 March 1999 correct events, arrest, interview
2.1d additional evidence – inquiry with respect to Crown prosecutor letter and facsimile to Mr H Quail dated:
- 17 August 2000
- 25 August 2000
- 29 August 2000
2.2a surveillance operative 12
2.2b surveillance operative 32
3.1 Prima facie evidence
3.1a accused's statement of 17 November 2000 from Hakea Prison
(Page 28)
- 3.1b medical evidence:
- Dr Cris Jacklyn record
- Fremantle Hospital record
- Dr Mina Moussa record
- Medical Review – D.S.P
3.1c the honour of the law
- 3.2 Supplemental deed
3.2a 12 January 1999 – events and exhibits
3.2b 22 March 1999 – events and medical
3.2c the honour of the law
3.3 Rectus in curia
3.3a police officers
3.3b learned defence counsel
3.3c learned prosecution
3.3d learned trial Judge
3.3e there was a miscarriage of justice and honour of the law
3.3f the accused –
- Statement in Hakea Prison
- Reasonable excuses in Hakea
- Medical evidence in Hakea
- Submissions in Hakea
- the honour of the law
- 4. Reinstate the honour of the law, by Bobby Constantin Bobletec
(Page 29)
- Q1 to Q23 - Questions to answer in affidavit of BCB."
63 I shall deal with each of these grounds in turn.
Ground 1: Errors by defence counsel
64 Ground 1 contends, in effect, that counsel for the defence wrongly allowed particular evidence to be admitted and wrongly prevented evidence, presumably evidence favourable to the applicant, from being admitted. The issue in such a case is whether, assuming the conduct complained of occurred, this has resulted in a miscarriage of justice. In R v Birks (1990) 19 NSWLR 677 at 685, Gleeson CJ (with whom McInerney J agreed) said:
"1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the law in which the system of criminal justice operates.
2. As a general rule, an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
65 A miscarriage of justice will have occurred if, by reason of the conduct of his counsel, the accused may have been deprived of a chance of acquittal which was fairly open: Mraz v The Queen (1955) 93 CLR 493. It would also be a miscarriage of justice if as a result of the relevant conduct the applicant has been deprived of a fair trial: R v Glennon (1992) 173 CLR 592; and Roddan v The Queen, unreported; CCA SCt of WA; Library No 980472; 26 August 1998 per Murray J at 6 - 7. In my
(Page 30)
- opinion, assuming that counsel for the defence decided that he would not call the applicant or any other witness in the applicant's defence, that was a tactical decision made by experienced counsel in relation to the conduct of the trial. In my opinion, no relevant reason has been advanced to suggest that such decision was the result of "flagrant incompetence" or resulted in a miscarriage of justice. In my opinion, the evidence against the applicant, which by their finding, must have been accepted by the jury, meant that a conviction was virtually inevitable.
66 Ground 1.1 contended that counsel for the defence wrongly allowed the surveillance video and the evidence of Surveillance Operative 12 to be admitted. The same point is also made by the applicant in ground 2.1. In my opinion, the evidence of the surveillance video and the evidence of Surveillance Operative 12 was clearly admissible. Had objection been taken to it, it would have been overruled. The applicant failed to point to any fact or circumstance which would have the result that the evidence was inadmissible.
67 Ground 1.2 contended that there were errors by defence counsel in not adducing evidence about the applicant's medical condition, in not challenging the video record of interview and not raising other issues. In his statement dated 17 November 2000 the applicant said that he had taken an excessive dose of painkillers on the day in question, which, together with fumes from the cleaning products he was using and the alcohol he had consumed, affected his memory of the events on 12 January 1999. In the same statement he raised issues regarding the voluntariness of his video record of interview having regard to the conduct of the police. He attached various doctors' reports which said that he suffered from neck pain. He also enclosed the results of a urine test which indicated no illicit drugs in his system. These were obtained some time after 22 March 1999. It was a matter for counsel for the defence to determine whether, and to what extent, he raised any of the issues which were set out in the applicant's statement. In my opinion, rightly, it was submitted on behalf of the Crown that these were tactical decisions made by experienced defence counsel in the running of the trial. There is nothing to suggest that they were the result of "flagrant incompetence" and, in my opinion, it has not been demonstrated that there was any miscarriage of justice as a result.
Ground 2: Errors by Crown Prosecutor
68 The applicant contended in ground 2.1 that an error was made by counsel for the Crown in "wrongly preventing" evidence of the original
(Page 31)
- certificates of analysis and the surveillance videotape from being admitted in evidence. It is also contended in ground 2.1 that the learned prosecutor erred by not ensuring that a correct statement of the applicant's video interview and arrest on 22 March 1999 was put forward at trial.
69 As to these contentions, a facsimile was sent from the Director of Public Prosecutions to counsel for the defence dated 25 August 2000 in which the Director indicated that the two original certificates "went astray and that replacement copies of the two certificates were re-issued on 18 August 2000". In these circumstances, there was no basis upon which to object to the admission of the evidence. Further, the Director informed counsel for the defence on 29 August 2000 that "the original surveillance videotape … cannot now be found" and that a copy of it would be played in court rather than the original. Prior to the playing of the videotape in court, Surveillance Operative 32 identified the copy of the videotape as a true copy, being one which he had made personally, and had identified this by placing his initials and marking the "SIG number" on the video. There was, in my opinion, again correctly, no objection to the admission of these exhibits at the trial. Had there been an objection, the explanation for the absence of the original would have been held to have been sufficiently explained to justify the admission of the copies: cf Brewster v Sewell (1876) 1 PD 154; Mortimer v McCallan (1840) 6 M&W 296; 106 ER 672.
70 Detective Senior Constable Hutchison gave evidence of the applicant's video interview following his arrest on 22 March 1999. Defence counsel was at liberty to cross-examine and call whatever evidence he saw fit to establish what the applicant said were the circumstances of his interview and arrest on 22 March 1999. The applicant did not give any contradictory evidence. No witnesses were called on his behalf. The prosecution did not prevent any such evidence being given. There is no substance in ground 2.1
71 Ground 2.2 contended that the prosecutor wrongly admitted evidence of Surveillance Operatives 12 and 32. Surveillance Operatives 12 and 32 simply gave evidence of their observations of the person subsequently identified as the appellant on the day in question. Their evidence was clearly admissible.
Ground 3: "Rebutting Evidence"
72 In relation to this ground which, in terms, is otherwise unintelligible, the applicant contends, in effect, that a miscarriage of justice occurred as a
(Page 32)
- result of failure of counsel for the defence to acknowledge certain "rebutting evidence". In his submissions before this Court, the applicant relied upon a document described as his "statement of 17 November 2000 from Hakea Prison". The thrust of the statement is that there were questions of credibility, inconsistency and contradiction in the interpretation of the events and statements of the events on the day in which the offence was alleged to have been committed. In my opinion, it is not necessary to refer in detail to all the points made. For example, the point is taken that, in his evidence, Surveillance Operative 12 gave evidence that he was sitting in a car near the park, when taking photographs of the applicant, but could not recall whether he was sitting in the passenger seat or the driver's seat in the car. This raises no point of relevance or substance.
73 Surveillance Operative 12 also gave evidence that the applicant subsequently walked away from the park. The evidence was that the photographs were taken approximately 40 metres from where the applicant was sitting and crouching. It was suggested by the applicant that there could not have also been correct observation of the house at 93 Aristride Drive.
74 A series of points of this nature are made in the document of which, in my opinion, none are of any substance. In any event, had defence counsel regarded any of these matters of significance, no doubt they would have been raised in cross-examination. In my opinion, there is nothing in any of the materials referred to in relation to ground 3 to suggest that there was anything not raised or not put forward by counsel for the applicant at the trial which resulted in a miscarriage of justice by depriving the applicant of a chance of acquittal or otherwise.
75 In the statement from Hakea Prison the applicant gives an account of his movements on 12 January 1999. In that statement he refers to the various activities that he said he engaged in on that day. He said he was suffering from considerable pain because he had two broken ribs and a disability involving his neck, spine and wrists. Nonetheless, according to the statement, he was performing housework and shopping as well as washing and ironing. Apparently this was in the morning. When he was shopping in the afternoon, he went to the Mullaloo Tavern, played pool and had a number of "middies". He then purchased two cartons and three packs of beer. He returned to 93 Aristride Drive where he opened a bottle of beer, but could not remember finishing it. He said "I cannot understand what happened in that time". He said he did not remember to telephone
(Page 33)
- for his taxi which he usually did if he did not have a lift to the Whitford train station.
76 The implication in the statement was that either he was not at the park on that day or, if he was, he had no recollection of being there. If this statement accords with the instructions which he gave to his counsel, it is hardly surprising that he was not called to give evidence.
77 The applicant also sought to rely in support of his application upon medical evidence relating to the injuries to which I referred. It is not clear what purpose was thought to be served by such evidence. Even on his own account they did not prevent him from walking to the Mullaloo Tavern from 93 Aristride Drive. Consequently, there was nothing to prevent him from walking to and from the nearby park as observed by police officers.
78 Having reviewed all of the materials included in the appeal books, I am satisfied that there was nothing in the "Rebutting Evidence" sought to be relied upon by the applicant which was of any real assistance to his defence by way of contradicting the evidence for the prosecution or suggesting that there was a miscarriage of justice, whether by depriving the applicant of a chance of an acquittal or otherwise.
Ground 4: "Reinstate the honour of the law"
79 This ground is supported by an affidavit of the applicant dated 8 January 2001. The affidavit contains a number of statements which are unintelligible and otherwise contains nothing of relevance in support of any of the grounds of appeal.
80 For these reasons, while I would grant the extension of time, I would refuse the application for leave to appeal against conviction.
Application for leave to appeal against sentence
81 The sentencing remarks of the learned Judge were relatively brief and were as follows:
"Yes, stand please Mr Bobletec. You, on 30 August 2000, were found guilty by a jury of a charge that on 12 January 1999 at Kallaroo you had in your possession a quantity of a prohibited drug, namely heroin, with intent to sell or supply it to another. The evidence which was supported by a video of you in effect in action, was that you were seen going to a spot next to a tree
(Page 34)
- in a park and burying something, found obviously by the jury to be heroin, and you returned several times to that place.
Later that drug was dug up by the police. There was a film canister with 11 plastic containers in it, each of which contained heroin. The total weight of the heroin was 10.67 grams with a purity of 50%. You elected not to give evidence and relied on a video record of interview in which you clearly prevaricated at least, and obviously the jury was in a position not to accept what you said to the police. It was a strong Crown case and the verdict did not surprise me.
The method of packaging and the amount must raise the question of whether you intended to get some financial gain from the heroin, particularly in view of your information to the Community Corrections Officer during the pre-sentence report that you do not use drugs, although you have a previous conviction for possession of [cannabis] in August 1999 after your apprehension on this charge.
There is clearly no remorse shown by you at all and there were no real mitigating circumstances, save for your work history and of course what's contained in the references which I have just read. Gaol is inevitable, particularly because of the drug involved, a terrible drug with terrible consequences in the community and of course the amount which is some 10 times the prescribed amount. The sentence I have decided on is 5 years' imprisonment. You will be eligible for parole and that is to commence from 17 August 2000.
I make orders for the destruction of the seized drugs and forfeiture of the film canister and the bags in this particular matter."
82 The learned Judge had the benefit of a pre-sentence report. This indicated that the applicant denied the charge and considered it was a "set-up". The report noted that the applicant was the youngest of three children born in Romania. His parents are not living, but he had two elder sisters living in Romania. He came to Australia in 1987. His father died later that year. In 1997 he went back to stay with his mother for about six months prior to her death. He says he has a good relationship with his elder sisters.
(Page 35)
83 After completing his Junior College education the applicant worked for about two years before serving in the army for two years. He then worked in the mining industry for four and a half years. In the meantime he completed a machine engineering course on a part-time basis.
84 After he came to Australia in 1987, he went up to the North of Western Australia and worked mainly in the mines. He suffered a serious accident in 1995. This meant he was unable to undertake any form of heavy labouring work. He received workers' compensation. He purchased a computer, studied graphic design and intended to start his own business. The computer was stolen some time after his house was raided by police. He had taken up odd cleaning jobs to supplement his income. He had been in receipt of sickness benefit of $430 per fortnight since 5 February 1998. As at September 2000 he had been living in a Salvation Army Hostel for about 12 months. A worker at the Hostel informed the author of the pre-sentence report that the applicant was a "nice person" who related well with both staff and other residents.
85 The applicant told the author of the report that he only drank about one can of beer a day and did not use drugs. That statement needs to be looked at in the context of all of the evidence at the trial and the plea in mitigation. He was not prepared to discuss the offence and appeared bitter with the Criminal Justice System. The report stated that he was not considered suitable for community based supervision at that stage, but he was considered suitable for parole at a later stage if a custodial sentence was imposed.
Application dated 8 October 2000
86 The grounds upon which the applicant relied in his application for leave to appeal against sentence dated 8 October 2000 were that:
"The Learned Sentencing Judge imposed a sentence which was excessive because [he]:
1. Made an error by assessing incorrect evidence of the accused previous record
2. Failed to take into account accused's last 12 months, home and work record."
87 It is well established that a Court of Criminal Appeal will not substitute its own opinion for that of the sentencing Judge merely because
(Page 36)
- the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. Some error of fact or principle causing the discretion to miscarry needs to be identified: Lowndes v The Queen (1999) 195 CLR 665. It needs to be borne in mind that the learned sentencing Judge was in the unique position of having presided over the trial and that his findings and decision were made with this advantage: Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 per Kennedy J at 5; and Scott J at 12 (with whom Pidgeon J agreed).
Ground 1: Incorrect "evidence" of previous record
88 This appears to refer to an alleged error made by the learned trial Judge on 29 September 2000 in reference to the applicant's previous conviction for possession of a prohibited drug. The learned Judge said:
"The method of packaging and the amount must raise the question of whether you intended to get some financial gain from the heroin particularly in view of your information to the Community Corrections Officer during the pre-sentence report that you do not use drugs, although you have a previous conviction for possession of heroin in August 1999 after your apprehension on this charge."
89 As a matter of fact the applicant had been convicted on 18 August 1999 of possession of a small quantity of cannabis. This was pointed out to the learned sentencing Judge by counsel for the Crown and the learned Judge immediately corrected himself as appears from the following passage in the transcript:
"DEMPSTER, MR: I just noticed your Honour inadvertently mentioned a conviction for possession of heroin.
VIOL DCJ: I'm sorry.
DEMPSTER, MR: It was possession of cannabis in fact.
VIOL DCJ: Cannabis it was. Yes, I'm sorry that's in fact what it is.
DEMPSTER, MR: Thank you your Honour.
VIOL DCJ: Yes a possession of cannabis. I just misread it."
(Page 37)
90 Clearly, the error made by his Honour in relation to the previous conviction was an oversight which was corrected. There is nothing to suggest that this made any difference to the sentence imposed, or was the basis for any error in the exercise of discretion.
Ground 2: Failure to take into account home and work record
91 Ground 2 contends that the sentenced imposed was excessive because the sentencing Judge failed to take into account the applicant's "last 12 months, home and work record". It would appear that the applicant was relying on the three references which were submitted to the sentencing Judge on his behalf detailing his work history and his accommodation at the Lentara Men's Hostel. These references were handed to the learned Judge at the time of sentencing. The references and other documents relating to the applicant's work history were taken into account by the learned Judge when sentencing the applicant.
Application dated 17 January 2001
92 The grounds of the application for leave to appeal against sentence dated 17 January 2001 are:
"1. The learned sentencing Judge made an error by assessing incorrect evidence of the accused's previous criminal record.
2. The learned sentencing Judge imposed a sentence that was manifestly excessive having regard to my lack of prior convictions and my antecedents."
- Ground 1: Incorrect evidence of previous record
93 It was not clear whether the grounds in the notice dated 17 January 2001 were intended to amend or replace the grounds in the notice dated 8 October 2000. In the circumstances, particularly having regard to the applicant's difficulties in representing himself, the only fair course to adopt is to consider the grounds in the second notice dated 17 January 2001 separately and on their own merits.
94 In my opinion, however, this ground fails for the same reasons as the related ground in the earlier notice.
95 Ground 1 was based upon the error, immediately corrected, made by the learned Judge with reference to the prior conviction. There is nothing
(Page 38)
- to suggest that this error in any way influenced the learned Judge in imposing the sentence he did.
Ground 2: Sentence excessive
96 Ground 2 appears to be based upon the references which the applicant submitted to the learned Judge in relation to his work history and his accommodation at Lentara Men's Hostel from 28 July 1999 until trial. In addition, counsel for the defence handed up three references to the sentencing Judge on the morning of sentencing which, as has been seen, were specifically taken into account. The personal circumstances of the applicant were canvassed in detail in the plea in mitigation. However, in relation to serious drug offences, personal mitigatory factors are of far less significance in determining the sentence to be imposed. The emphasis is on punishment and deterrence in such cases: cf Tsagaris v The Queen, supra, per Scott J at 13 - 14 (with whom Pidgeon J agreed). As Ipp J said in Quach v The Queen [1999] WASC 210 at [7]:
"The prevalence and seriousness of criminal heroin use make deterrence the principle consideration in sentencing for heroin related offences. The terrible consequences to the community for trafficking in this drug are notorious. When an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force.
The offence of possessing a prohibited drug with intent to sell or supply carries a maximum penalty of imprisonment for 25 years or a fine of $100,000 or both: s 34(1)(a) of the Misuse of Drugs Act 1981 (WA). While there is no tariff for such sentences the sentences which have been imposed or upheld by the Court of Criminal Appeal for offences involving the possession of similar quantities to that in the present case leads me to the conclusion that the sentence imposed was well within the range of a sound exercise of the sentencing discretion although to be of the upper end of the range: cf Winto v The Queen, unreported; CCA SCt of WA; No 94 of 1990; 16 November 1990; Lowe v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994; R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 and R v Ruich [2000] WASCA 84."
(Page 39)
97 At the time of sentencing the applicant was aged 42. He was born in Transylvania in northern Romania and arrived in Australia when he was about 27 years of age. Since moving to Australia he has remained a single man. He started work immediately when he arrived in Australia in the mining industry. He acquired mining, fitting and mechanical qualifications from his time in Romania. He spent some seven to eight years working in the Pilbara and the Goldfields areas of Western Australia.
98 In 1995 the applicant was involved in an accident at work which resulted in a serious injury to his neck, back and wrist. As a result of these injuries he was unable to return to work involving heavy labouring. He received workers' compensation entitlements as a result from 1998. He used this money to buy a computer and enrol himself in a graphic design course. This was commendable. In these circumstances, however, personal circumstances count for considerably less because of the emphasis on deterrence and punishment as the cases to which I have referred indicate. In Jarvis v The Queen (1998) 20 WAR 201, Ipp J at 205 and Murray J at 212 made it clear that the sentence imposed should be proportionate to the degree of criminality involved. While there is no established "tariff" for sentences imposed for possession of heroin with intent to sell or supply, a review of the sentences considered by the Court of Criminal Appeal indicates that the sentence imposed in the present case was within the range of a sound discretionary judgment: cf Rintel v The Queen, unreported; CCA SCt of WA; Library No 8594; 16 November 1990; Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 2 June 1994; R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998; R v Ruich [2000] WASCA 84.
99 In my opinion, there has been no error demonstrated in the exercise of the sentencing discretion in this case, although I accept that the sentence imposed was towards the upper end of the range.
100 For these reasons, while I would grant the applicant leave to appeal against sentence, I would dismiss the appeal.
101 WALLWORK J: I agree with the reasons for judgment and the orders proposed by Malcolm CJ. There is nothing I wish to add.
102 STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. I agree with them and have nothing to add.
0
22
1