Constantine v The State of Western Australia
[2006] WASCA 158
•28 JULY 2006
CONSTANTINE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 158 | |
| THE COURT OF APPEAL (WA) | 07/08/2006 | ||
| Case No: | CACR:14/2006 | 28 JULY 2006 | |
| Coram: | WHEELER JA | 28/07/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN JAMES CONSTANTINE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Criminal Code (WA), s 7 |
Case References: | Nil Andrich v Page, unreported; SCt of WA; Library No 940540; 4 October 1994 Gillard v Wenborn, sub nom, unreported; SCt of Vic; 27 July 1988 King v The Queen (1986) 161 CLR 423 Re Buckley; Ex parte Lovell (1938) 38 SR(NSW) 153 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CONSTANTINE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 158 CORAM : WHEELER JA HEARD : 28 JULY 2006 DELIVERED : 28 JULY 2006 PUBLISHED : 7 AUGUST 2006 FILE NO/S : CACR 14 of 2006 BETWEEN : JOHN JAMES CONSTANTINE
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CRISFORD DCJ
File No : GER 2 of 2004
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 7
Result:
Application for leave dismissed
Category: B
Representation:
Counsel:
Appellant : Mr I Weldon
Respondent : No appearance
Solicitors:
Appellant : Altorfer & Stow
Respondent : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Andrich v Page, unreported; SCt of WA; Library No 940540; 4 October 1994
Gillard v Wenborn, sub nom, unreported; SCt of Vic; 27 July 1988
King v The Queen (1986) 161 CLR 423
Re Buckley; Ex parte Lovell (1938) 38 SR(NSW) 153
(Page 3)
1 WHEELER JA: This is an application for leave to appeal against conviction. There are two grounds of appeal, although they effectively amount to the same proposition. The first asserts that there was an error, or a miscarriage of justice, because the trial Judge directed the jury in relation to s 7(b) and (c) of the Criminal Code (WA), while the State case against the appellant was that he was a principal offender pursuant to s 7(a). The offences in question were manufacture of methylamphetamine, preparation of pseudoephedrine and possession of methylamphetamine with intent to sell or supply. The second ground is to the same effect, save that it asserts that the appellant was convicted "as an accessory" when the State's case against him was that he was "the principal offender".
2 The short answer to both grounds is that the State did not cast its case in terms of any particular paragraph of s 7 of the Criminal Code. That section does not distinguish between principal offenders and accessories, although the terminology is sometimes loosely used to describe different types of participation in an offence. Rather, it defines the ways in which a person can be found to have committed an offence.
3 The State case against the appellant, as it appears from the State's opening, was in brief terms as follows. Detectives executed a search warrant at the appellant's address at Oakabella. That property was a farm. A number of items were located and places on the farm were searched. One place which was searched was a stone building adjacent to the main home in which police located what was described as a clandestine drug laboratory. Within that was a pseudoephedrine extraction process. Also located there was a fabric sheet where several small plastic zip-lock bags containing methylamphetamine were found. A further two sites were searched where chemicals, glassware and other laboratory materials were found, together with documents explaining the recipes which could be used for the creation of methylamphetamine. A Datsun vehicle was searched and in that vehicle was found a quantity of pseudoephedrine. The State opening really said nothing in particular about the appellant and his relationship with any of these items, or with any of these places. The appellant's fingerprints were found on various items found at some of the sites. Further, certain documents seized from the property had the appellant's fingerprints on them, and the State asserted that they showed that he was in the process of producing drugs.
4 A witness, Ms Clarke, gave evidence of conversations in which she had been involved, which took place between the appellant and one Timothy Delaney, about the stone building and its contents, and about the
(Page 4)
- setting-up of a laboratory for the preparation of methylamphetamine, including discussion of what chemicals and equipment would be needed. There was a discussion between counsel and her Honour prior to the calling of Ms Clarke, in which the State made it plain that it was leaving open a possibility of the appellant having been involved in the manufacture of methylamphetamine with others; that is, that he was not necessarily conducting the enterprise entirely on his own (transcript pages 153 - 154). Although counsel at trial for the appellant objected to portions of the evidence of Ms Clarke, there was no suggestion by him that the State's explanation of its case would require him to recall witnesses or to conduct the appellant's case differently. That discussion, of course, took place before the appellant was called upon to give evidence.
5 The appellant gave evidence. His evidence was that he lived on the property, which adjoined his father's farm. His property was three and a half acres and his father's was 1000 acres. His property included a variety of buildings, including the stone shed which had no door or security. He said that certain of the items located by police were not on his property, but on his father's farm and that a number of people had access to those areas. In 2000, he met Tim Delaney. The documents found in his possession were given to him by Delaney and he simply put them aside. At some stage, he became aware that Delaney was a drug user. Delaney had access to his property and to his father's farm. He denied any conversations with Ms Clarke relating to pseudoephedrine or drug manufacture. Although the appellant, of course, said that he had no knowledge of how the drugs had come there, the obvious hypothesis consistent with innocence was that they could have been put there by Delaney (or perhaps by others).
6 The only basis of the proposition advanced by counsel for the appellant that it was not the State case at any time that the appellant was a party to the offence by reason of s 7(b) or (c) of the Criminal Code, is a passage of cross-examination of the appellant by the prosecution which reads as follows (transcript page 215):
"Mr Constantine, it was you that was manufacturing the methylamphetamine on your property?---It was not me.
It was you extracting - preparing ephedrine for the use in the manufacture of methylamphetamine and it was you that had possession and control of the methylamphetamine in your shed. I put it to you that that's the case?---That is not the case.
(Page 5)
- And the story about Tim Delaney and others and things turning up and things disappearing is just a pack of lies; a pack of lies, isn't it, Mr Constantine?---No, it's not.
I have no further questions."
7 It seems to me that in its context, those passages are plainly not intended to suggest that the appellant single-handedly had procured all the equipment, gathered all the recipes and taken every step involved in the manufacture of the methylamphetamine and in the commission of the other offences. The cross-examination was directed to the proposition that he had been manufacturing, rather than some other unknown person, or rather than that being an enterprise of Tim Delaney's which was unknown to the appellant. Not only does it seem to me that that passage of cross-examination could not be understood in the way suggested by the appellant, but I would further note that it certainly could not be understood in that way in the light of the clear indication made by the State at the time Ms Clarke was called.
8 In her direction to the jury, her Honour simply explained to the jury what the effect of s 7 of the Criminal Code was. There was a jury question directed at the "level of involvement" of an accused person required before he could be convicted. In response, her Honour again referred accurately to s 7 of the Criminal Code and said that the State's position was that the appellant was the principal offender, or, at the very least, that he provided the venue, knew what was going on, and provided assistance.
9 The proposition that the appellant was convicted of offences "different from that [sic: those] charged namely being an accessory ... " cannot be sustained. There is no separate offence of being an accessory. I accept that if the State had particularised its case in a particular way, and then had sought to have the appellant convicted on some altogether different factual or legal basis, the convictions should be quashed. However, that is simply not this case.
10 These grounds have no prospect of success and I would not grant leave.
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