Cookson v The Queen
[2001] WASCA 63
•12 MARCH 2001
COOKSON -v- THE QUEEN [2001] WASCA 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 63 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:161/2000 | 5 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J STEIN AJ | 12/03/01 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | STEPHEN RAYMOND COOKSON THE QUEEN |
Catchwords: | Criminal law Drug offences Possession of heroin with intent to supply Verdict not against evidence or unsafe Summing-up Direction that jury entitled to convict if satisfied beyond reasonable doubt that appellant was "an offender" not a misdirection No misdirection regarding evidence of claim by defence witness that heroin belonged to her No need for Manisco direction Evidence New evidence to corroborate existence of witness for the defence of purchase of heroin the previous day Evidence not sufficient to raise a reasonable doubt regarding guilt of the appellant |
Legislation: | Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 11(a), Sch V item 63 |
Case References: | Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Gallagher v The Queen (1986) 160 CLR 392 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 Manisco (1995) 79 A Crim R 213 Ratten v The Queen (1974) 131 CLR 510 Whitehorn v The Queen (1983) 152 CLR 657 Craig v The King (1933) 49 CLR 429 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : COOKSON -v- THE QUEEN [2001] WASCA 63 CORAM : MALCOLM CJ
- ANDERSON J
STEIN AJ
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Drug offences - Possession of heroin with intent to supply - Verdict not against evidence or unsafe - Summing-up - Direction that jury entitled to convict if satisfied beyond reasonable doubt that appellant was "an offender" not a misdirection - No misdirection regarding evidence of claim by defence witness that heroin belonged to her - No need for Manisco direction
Evidence - New evidence to corroborate existence of witness for the defence of purchase of heroin the previous day - Evidence not sufficient to raise a reasonable doubt regarding guilt of the appellant
(Page 2)
Legislation:
Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 11(a), Sch V item 63
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant : Mr D J O'Doherty
Respondent : Mr R E Cock QC
Solicitors:
Appellant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Gallagher v The Queen (1986) 160 CLR 392
Knight v The Queen (1992) 175 CLR 495
M v The Queen (1994) 181 CLR 487
Manisco (1995) 79 A Crim R 213
Ratten v The Queen (1974) 131 CLR 510
Whitehorn v The Queen (1983) 152 CLR 657
Case(s) also cited:
Craig v The King (1933) 49 CLR 429
(Page 3)
1 MALCOLM CJ: This is an application for leave to appeal against conviction. The appellant was convicted on 21 June 2000 on one count in an indictment which alleged that on 5 November 1996 at Mt Hawthorn he was in possession of a prohibited drug, namely, a quantity of heroin with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981.
Grounds of Appeal
2 The appellant seeks leave to appeal against his conviction on five grounds. As amended at the hearing of the appeal they were:
"1. The jury verdict is against the weight of the evidence and is unsafe.
2. The trial Judge erred in law in directing the jury that there may be more than one offender.
3. The trial Judge erred in law in directing the jury that the unindemnified witness Jones was or may be entitled to certain legal benefits. Such direction thereby having the effect of undermining the weight of her evidence.
4. The trial Judge erred in law in failing to direct the jury in accordance with the law as it existed in 1996.
5. The Applicant applies for leave to appeal against conviction on the grounds of fresh evidence of Ian Allen, such evidence not being available to the applicant at the time of trial, and when viewed in combination with the evidence given at trial it could be said that the jury would have been likely to have entertained a reasonable doubt about the guilt of the applicant if the fresh evidence had been before it."
The Crown Case
3 It is convenient first of all to summarise the Crown case against the appellant. At about 5.00 am on 5 November 1996 police officers attended at 5B Coogee Street, Mt Hawthorn in order to execute a search warrant. They were looking for firearms. There was a forced entry. The appellant and one Kathy Jones, said to be his de facto partner, were in the house. One of the police officers was Special Constable O'Hare of the Canine
(Page 4)
- Section of the Western Australian Police. With her was a dog trained to search for weapons and explosives. A search for firearms was undertaken.
4 In the meantime, Detective Senior Constable Hindriksen, who had the search warrant, met with the appellant and Ms Jones. He met with the appellant in an upstairs bedroom. Ms Jones was in an adjacent bedroom. There was also a study upstairs. One of the other police officers, Detective Sergeant Dockery found a small set of Bonso electronic scales in a desk in the study. In a bin beside the desk were some cut-out pieces of glossy magazine paper. The scales and paper were handed to the exhibits officer, Detective Sergeant Maines.
5 The appellant and Ms Jones were taken downstairs where they sat in the loungeroom with Detective Sergeant Dockery. The search with the dog failed to find any firearms. A search of the back lawn was then conducted by officers using metal probes. Some time later, Detective Sergeant Dockery was called to go into the back garden. The appellant went with him, together with Detective Sergeant Maines. Detective Hindriksen was in the garden searching in company with Special Constable O'Hare. Detective Sergeant Maines saw that a container had been dug up in the garden. Detective Hindriksen had a conversation with the appellant. Notes were taken by Detective Sergeant Dockery a short time after the conversation occurred. Detective Hindriksen pointed to the container and asked the appellant, "What's in there?". The appellant replied, "Hammer" (i.e. heroin). Detective Hindriksen asked, "How much?". The appellant replied, "About an ounce". Detective Hindrinksen then cautioned the appellant and asked him, "Steve, is there any more?". The appellant said, "You'll have to have a look".
6 Detective Sergeant Dockery and the appellant then went back into the loungeroom. Detective Sergeant Dockery wrote up the notes of the conversation which had just taken place. After some further time passed, he was called out into the garden again. He went outside with the appellant. Detective Hindriksen, Special Constable O'Hare and Detective Sergeant Maines were already there. Another container had been dug up. Detective Hindriksen asked the appellant, "What's in the jar Steve?". The appellant said, "The same stuff". Detective Hindriksen asked, "Is there any more?". The appellant shook his head indicating an answer in the negative.
(Page 5)
7 Detective Sergeant Dockery and the appellant again went back into the loungeroom. Detective Sergeant Dockery made the notes of the second conversation when they went back into the loungeroom.
8 The heroin found in the back garden of the house was in excess of 30 grams. Possession of an amount of 2 grams or more gives rise to a presumption that possession of the heroin is with intent to sell or supply: s 11(a) and Sch V item 63 of the Misuse of Drugs Act.
9 Earlier, during the search of the house, Detective Hindriksen had found a quantity of cash in a drawer in the main bedroom. The amount was approximately $1,400. When searching in the kitchen he located a white video cassette box in the pantry. Inside the video cassette box was a set of Tanita electronic scales.
10 Detective Hindriksen gave evidence that after putting the probe into the ground three or four times he found an object buried in a garden bed. He uncovered the sand and found a plastic bag. Inside the bag was a Tupperware container approximately four inches square and one and a half inches deep with a clear plastic lid.
11 When he found this object he went to the back of the house and asked either Detective Sergeant Dockery or Detective Sergeant Maines to bring the appellant out. Both Detectives came out with the appellant. Detective Hindriksen's evidence of the conversation which then took place was in similar terms to those related by Detective Sergeant Dockery. Detective Sergeant Maines collected the bag, the container and the contents and went back into the house together with Detective Sergeant Dockery and the appellant. According to Detective Hindriksen, a short time later Special Constable O'Hare located a container in the area of the garden she was probing. It was within two or three minutes of re-commencing the search. The container appeared to have something inside it. Detective Hindriksen went back inside the house and asked Detective Sergeant Dockery to bring out the appellant. Detective Sergeant Dockery and Detective Sergeant Maines came out with the appellant. There was again a conversation and notes were taken. There was reference to a spice jar with a red lid found by Special Constable O'Hare. Detective Hindriksen asked the appellant, "What's in the jar Steve?". The appellant replied, "The same stuff". Detective Hindriksen asked, "Is there any more?" The appellant shook his head indicating "no". The jar was taken into custody by Detective Sergeant Maines.
(Page 6)
12 Detective Sergeant Randall located two packages in a walk-in wardrobe. One package was in a pair of black trousers belonging to the appellant and was a plastic bag containing a small amount of powder. The other package was located on the floor of the wardrobe. It was also a plastic bag containing a small amount of powder. Detective Sergeant Maines took custody of these packages. Both quantities of powder were later found to contain heroin.
13 After the search had been completed, the appellant was taken back to the police office at Curtin House. Detective Hindriksen asked the appellant if he was prepared to take part in a video-recorded interview. The appellant agreed to do so and an interview was recorded on video and audio tape.
14 The appellant's evidence at the trial was that, when the search of the backyard with metal probes had begun, Ms Jones had become agitated. She then told the appellant there was heroin buried in the backyard. It was something he had not previously known. His evidence at the trial was that the first time he became aware of the presence of any drugs at the premises was when he was informed by Ms Jones. After the first lot of drugs were found, Ms Jones informed him that there were more drugs, namely heroin, and she identified the location. That was said to be the reason why the appellant was able to inform the police where the material was, both when he pointed this out to Detective Hindriksen, who found the first container, and in due course also enabled Special Constable O'Hare to find the second container.
15 Much was sought to be made of an alleged conflict of the evidence between the various officers. Detectives Dockery and Hindriksen said that a gun holster had been found in a cupboard by the front door when special operations police gained entry to the premises. Special Constable O'Hare, however, gave evidence that the holster was found at the conclusion of the search. The relevance of this was said to be that the appellant had maintained at all times, including at his trial, that he had made an arrangement with the drug squad police that he would bear responsibility for the heroin that was located, despite the fact that he was unaware of its presence on the premises until such time as Ms Jones had told him about the heroin. The appellant's evidence was that it was not until the police were leaving after failing to find firearms that the gun holster was discovered. This prompted the second search.
16 The significance of this was said to be that the first search for firearms was an extensive search throughout the entire interior of the
(Page 7)
- premises which located no drugs. If Special Constable O'Hare's evidence was accepted, this would provide an explanation for the decision to extend the search into the garden using metal probes. However, during the first stage of the search for firearms, the police officers found in the house what the learned Judge described in her summing up to the jury as "very fine electronic scales and the cut-outs, paper folds, that you put the heroin in to convey it or whatever". The appellant denied that those things belonged to him. The jury were told that they could not use the discovery of these items against him unless they were satisfied that they were his. If they were, they could take it into account on the issue whether or not the appellant had knowledge of or involvement with the drugs which were found on the premises.
17 As will be seen, Ms Jones gave evidence at the trial that all the heroin and the other items found at the house belonged to her. She said that at the time she had been a heroin addict. There was evidence of the analysis both of the heroin found in the house and that found in the garden which showed that they were of differing composition. It followed, as the jury were invited to conclude, that the heroin found in the house did not come from the heroin found in the garden. The Crown said that this evidence lent weight to their case that the appellant knew about the heroin found in the garden. For this reason it was relevant to the case against the appellant in relation to the drugs found in the garden, as was the evidence of the presence of the scales and other items, together with the $1,400 cash. No complaint was made about the directions given by the learned trial Judge in relation to these matters. The learned trial Judge directed the jury that the central issue in the case was the issue of possession. There was no complaint regarding the directions given on the issue of what constituted possession.
The Defence Case
18 The defence case at the trial was that the heroin found in the garden belonged to Ms Jones and that the appellant had no knowledge of the heroin until he was told about it by Ms Jones when they were in the sitting room with Detective Sergeant Maines and Detective Sergeant Dockery after the search in the garden began.
19 According to the appellant's evidence, while the search upstairs had been in progress he and Ms Jones were upset, worried, nervous and scared, but as the operation continued, everyone became more relaxed. There was coffee and toast. Detective Sergeant Dockery was very understanding and friendly. The appellant was worried about Ms Jones
(Page 8)
- because she looked very sick. When the search of the back garden began with the metal probes, his reaction was calm and relaxed since there were no guns there and he told the police they were wasting their time. Ms Jones' reaction, however, was that there was going to be a problem. She told the appellant that there was "about an ounce" in the backyard. The appellant said he became angry, because he had no idea until then that there was a problem. He said he tried not to show that something bad had been said to him and hoped that nothing would be found.
20 When the first container was found he admitted that he told the police that it contained about an ounce of heroin. He said that he told them that on the basis of what Ms Jones told him. He presumed the drug was heroin because Ms Jones' problem was with heroin and she had been dealing with that problem for a long time. He told the police that there was no more heroin in the garden.
21 The appellant said that when he went back into the loungeroom he asked Ms Jones discreetly whether that was it. Ms Jones told him that there was more out there and indicated to him an area at the other side of the house. This was to the left hand side of the back door against the other side of the wall. His evidence was that he told Detective Sergeant Maines that he needed to go back outside. He went outside and communicated the information that he had been given to Detectives Dockery and Hindriksen. That was when the second container was found and shown to him. The appellant said that he was holding the heroin for Ms Jones, not selling it and that he wanted to take responsibility for it.
22 The appellant said that, after the second quantity of heroin had been found, Detective Sergeant Dockery told him that "someone's got to wear this", or otherwise both the appellant and Ms Jones would be charged. The appellant offered to accept responsibility for the heroin. The appellant's evidence was that he wanted to protect Ms Jones because he did not think she could handle the process of being put in gaol before getting bail. He said that the police told the appellant that if he was going to accept responsibility for the heroin it had to be "nice and neat". The appellant was told that he would be charged with possession. He asked that Ms Jones not be interviewed. When taken back to the loungeroom the appellant said he asked Ms Jones whether there were any more drugs, which she denied.
23 According to the appellant it was at this stage that there was a further search of the house and a white bag and a yellow bag were found upstairs. He presumed that the white bag contained heroin and the yellow bag
(Page 9)
- contained speed. He said he did not have any drugs upstairs in his clothing or wardrobe. He did say that he had discovered heroin belonging to Ms Jones in or about the premises over the 12 month period that she had been using heroin.
24 As to the electronic scales found downstairs, the appellant said that he used them to weigh up pot. His evidence was that they belonged to Ms Jones, but he believed they had been disposed of. As to the magazines and cut-outs from them which were found in the house, he said he did not know anything about the cut-outs. As to the $1,400 found in the drawer in his bedside table, he said that this was money from work and that he was given this money back by the police.
25 The appellant was taken into custody that day and participated in a video record of interview in which he made admissions that the heroin was his and that he was a drug addict. His evidence at the trial was that these admissions were untrue. At the time he made them he believed he was going to be charged with simple possession and not possession with intent to sell. When he was charged with the latter, he said he felt he had been double-crossed and he had contacted his lawyer, Mr Ray Burley, within a day. Mr Burley told him that he could not represent him because Ms Jones had already contacted him and admitted to being the owner of the heroin. Mr Burley said that he would speak to the police involved on his behalf.
26 He gave evidence at the trial that he had first told the police at the house that he was holding the heroin for someone and was then led to believe he would be charged with simple possession. He said that in his conversation with the police at the house he had used the word "heroin" and denied using the word "hammer". He also denied saying the contents of the jar was "the same stuff". He said that when he went out the second time he told Detective Sergeant Dockery and Detective Sergeant Hindriksen about Ms Jones' heroin addiction and told them that he wanted to take the rap for her. He did not want the police to charge Ms Jones. He did not want them to know that she owned the heroin. However, the police already knew that she was a heroin addict.
27 During the course of the video interview, he told the police that heroin was in the black pants. His explanation for this was that, because at that time he was saying he was a "junkie", he mixed speed and heroin together and he was trying to keep Ms Jones away from the drugs. He admitted to the heroin found in his pants because he had already admitted to possession of an ounce. He said that, although he was there when his
(Page 10)
- room was searched, nobody ever showed the black pants to him and there was nothing found at that time.
28 He agreed that, in the interview, he had suggested to the police that the Tanita scales were just for cooking. He explained that he said that because he was confused. When shown the scales, he said he had seen the Bonso scales before, but he had never seen the Tanita scales. He told the police that he smoked pot and that he liked to know what was in the pot he was buying. That was the reason why he had the scales.
29 In his evidence he said that the whole of the video interview was a "total sham" and done purely and simply to implement the arrangement he had already made with the police. He was trying to make it "nice and neat". He had actually said on the interview that he had buried the heroin then later denied that he had buried it. He did this because he was scared that the police would link Ms Jones to the items. Because the police had said it had to be "neat", he said, "Someone came twice in the night and put the containers somewhere in the backyard". His evidence was that he said that simply to be consistent with the fact that the police had found two things.
30 He also told the police in the interview that he was holding the heroin for someone for $1,000. The explanation for that was that he made it up because the police had told him it would not make sense that someone would drop off an ounce of heroin in his backyard for no money, when there were thousands of other places they could hide it. He said on the video that he thought the heroin was worth about $8,000. The explanation was that he had got that idea from reading newspapers, living with a heroin addict and going to heroin meetings. He told the police that he used a mixture of drugs, which he described as a cocktail. He said he made that statement because he was shown distinct yellow powder.
31 During the course of the video interview, the applicant had a discussion with police about what his holding heroin for someone in return for a payment of $1,000 would amount to, ie, possession with intent to sell or supply or simple possession. He said, "It's up to you guys", meaning, "It's up to you guys now to make the deal work". It was then suggested to the appellant that there was no deal, he said that was not quite correct. He said that every time the police asked him anything about selling the heroin, he would have said, "No". At the end of the video he was asked if he knew the rules about dealing with drugs like that, concerning quantities, and he replied:
(Page 11)
- "Of course. I didn't put it in my backyard not knowing that there was going to be a downside if I got caught."
32 The appellant said he confessed at the scene and on the video because he was going to "wear it" for Ms Jones. He said that he changed his mind about that because, unbeknown to him, Ms Jones had been to see a lawyer and said she would go to the police at Curtin House and make a statement and because he had been double-crossed. He was prepared to "run with" simple possession, but his lawyer had told him that he could not represent him on that basis. He said the police had agreed to charge him with simple possession even though there was an ounce of heroin in the backyard. They had come looking for firearms. They were happy for the appellant to "take the rap" for the heroin because they knew that Ms Jones was "crook" and they didn't want to throw her in gaol at the end of the day.
33 Evidence was given at the trial by a legal practitioner, Raymond Alan Burley, who said that in early November 1996, as a result of a telephone call from Ms Jones, he attended the appellant's house where he was told that the applicant had been charged with a drug-related offence. Initially, he understood that the appellant had been charged with possession. Once the appellant told him the amount involved, he presumed that he had been charged with possession with intent to sell or supply. The appellant told him that he was "taking the rap" for Ms Jones.
34 As a result of the instructions which he had received from the appellant, and following another telephone call from Ms Jones, he went to the appellant's house, expecting him to be there. Ms Jones was alone in the house and she disclosed certain information to him in relation to the matter. As a result, Mr Burley met with the appellant and told him what Ms Jones had said. He explained to the appellant that he had a duty both to his client and to the court, and that he could not be a party to any arrangement under which the appellant would plead guilty to a charge, where there was evidence to indicate that he was innocent. He obtained the appellant's instructions to approach the police, which he did.
35 Mr Burley gave evidence that he knew Detective Hindriksen and he telephoned him and they arranged to meet near Curtin House. He gave certain information to Detectives Hindriksen and Dockery and invited them to interview Ms Jones about what she had told him. He indicated that Ms Jones was recovering from her heroin addiction and that an arrangement could be made for her to be interviewed in his presence. He denied proposing to police that the charges against the appellant be
(Page 12)
- withdrawn and in their place Ms Jones should be charged with possession. He told the police that the appellant thought he had been charged with simple possession. The matter was left on the basis that they would be in touch with each other later.
36 Following the meeting, Mr Burley wrote a letter to the police noting that an approach had been made to Ms Jones without him being present and requesting on behalf of Ms Jones that she not be interviewed until he returned from a visit overseas. In August 1999 he became aware that police proposed to meet Ms Jones on 27 August 1999. Ms Jones asked him if he would attend. He told Ms Jones he could not attend on that day and asked her to contact the police and make an alternative arrangement. On the day of the proposed meeting Ms Jones had telephoned him to confirm whether he would be at the meeting at Joondalup. She also spoke to Detective Dockery on the morning of the meeting. The latter had made it quite clear an arrangement had been put in place for a meeting that day and that he had come all the way from Cannington.
37 After that, Mr Burley had no further contact with the police. Mr Burley said that at the meeting with the detectives near Curtin House, the possibility of the charge of possession with intent against the appellant being dropped was discussed. However, it was clear that he would face other charges such as making a false report or attempting to pervert the course of justice. It was clarified that the purpose of the meeting was to tell police that he had received information from another person indicating that she was the true owner of the drugs.
38 As previously stated, Ms Jones gave evidence for the defence. In 1996 she was in a relationship with the appellant. She had known him since her early teenage years. She was 35 years of age at the time of trial in June 2000. She had a drug problem which mainly involved the use of heroin. As at November 1996 she had been using the drug for two or three years. She was sharing a house with the appellant. She was the one who leased the house and the relationship had been established for about a year. She had been trying to "kick the habit", but had been unsuccessful. The appellant had been her main supporter. She said that she and the appellant used to buy heroin and that he held it for her so that she would not overdose. She used heroin twice a day and had overdosed numerous times in the past. She was using about 3 grams a day. Sometimes she used it at home, but the appellant wanted her to stop.
39 Ms Jones said that on the morning of 5 November 1996 when the police came to the house, she and the appellant were living together as
(Page 13)
- partners and sharing the same bedroom. Her clothes were located in a walk-in robe in the main bedroom. She said that she had put the two containers of heroin in the backyard. She knew where they were because she had put them there.
40 During the search she had sat next to the appellant downstairs. She said that when the search with metal probes commenced in the backyard, she was scared that the heroin would be found. Until that time, she had not been concerned about the heroin being found. She told the appellant that there was about an ounce outside because he had asked her what was wrong. She told him where the first lot of heroin was buried. The appellant was then taken outside and later returned to the house. He sat down next to her again. When he came back he was visibly stressed. He said something like, "Is there any more?" and she replied, "Well, they haven't found it all". She told the appellant that it was under the tree in the other area of the backyard. The appellant went outside again. Until then, the appellant had not indicated in any way whatsoever that he was aware there was heroin on the premises. She had not taken any steps to let him know it was there.
41 Ms Jones said that the items found in the walk-in robe belonged to her as well. She said that was part of what she would be having in the morning. She said that the electronic scales were hers. The magazines were more than likely hers. The cut-out squares of glossy paper could have been hers. She said she cut bits out of magazines from time to time. She was unable to hear any conversation that took place outside between the appellant and the police.
42 Her evidence was that she became aware when he returned from the police station that he was taking responsibility for the heroin. She spoke to Mr Burley about it. She said that in August 1999 she had gone to Joondalup Police Station and spoken to police officers. She had understood Mr Burley would be present, but he was not there. As a result of a telephone call, she became aware Mr Burley would not be attending. She went in to see the detectives and another telephone call was made to Mr Burley. She spoke to him and then handed the telephone to a police officer who spoke to him. The interview did not proceed that day. She said she was prepared to be interviewed had a lawyer been present. Subsequently, no other time was arranged for an interview. In all the circumstances, Ms Jones said that she thought the best thing to do would be to go to court and tell the truth about what had happened.
(Page 14)
43 Ms Jones' evidence was that the relationship with the appellant ended in December 1996. They separated. She still intended to give evidence on behalf of the appellant. She knew when he was next to appear in court. She next saw the appellant in June or July of 1999 when her father was very ill. He died in July 1999 and Ms Jones met the appellant again probably after that. She said that no-one had put any pressure on her to come to court and give the evidence she gave. Nobody put any pressure on her to speak to Mr Burley; or to her counsellor; or to pass on the information that she had passed on to them; or to go to Joondalup Police Station in August 1999 to make a statement.
44 She said she knew of no circumstances which would give rise to the appellant having any idea about the two containers of heroin in the backyard, or having any knowledge of the existence of the two packets of heroin found in the walk-in robe, the cut-outs from the magazines or the scales. She said that during the time she was living with the appellant prior to 5 November 1996 she took steps to conceal her possession of drugs from him all the time. She said that she usually bought the heroin. She did say that the appellant would hold little doses of heroin for her so that she would not use it all at once. She said that on the couple of occasions she bought heroin she had bought 2 or 3 grams. She said that in November 1996 it was only the second time she had bought an ounce of heroin. She had bought it from a dealer named Lindsay Hayes the day before the incident. She had paid $10,000 for it.
45 She said that on the morning of 5 November 1996, by the time she came downstairs, she was aware that the backyard had been searched, but she did not want to tell the appellant at that stage about the heroin. She had used the scales that were found in the video case for weighing drugs, both heroin and amphetamines. She had also used amphetamines. The appellant was not aware of the scales. There was another set of scales but they were used mainly in the kitchen. She kept the scales in numerous places about the house because they were small enough to hide. She used cut-outs from magazines to hold the drugs.
46 She said the appellant knew that she was addicted to heroin and had taken steps to try and help her with it in the sense of giving her little bits of heroin from time to time, they only tried that once or twice. The appellant had never bought heroin. They had never gone together to buy heroin. She originally had lots of money saved from her business and she sold her car. She had lost everything she had. She was on 3 grams a day, but it varied, because she was trying to get off the habit. The going rate was about $500 a gram, so that it was as much as $1,500 a day. At times
(Page 15)
- over a period of two or three years she was paying that amount of money for heroin. The appellant did not give her money.
47 She said that she did not go to the police in the three and a half years between 5 November 1996 and the trial, because her record was "pretty bad". When she went to the Joondalup Police Station in 1999 she was not prepared to talk without Mr Burley present. He had ceased representing the appellant as soon as she had made the statement to Mr Burley which was two or three days after 6 November. She was unaware that Mr Burley had represented the appellant after that. At the time she gave her evidence she said that she was not addicted to drugs any more and was prepared to face what she had to face. She denied that she had come to court as a favour to the appellant.
48 It was established that Ms Jones had been convicted of many offences of dishonesty, starting in 1985 with a conviction for forgery. In 1994 she was convicted of two counts of receiving, four counts of stealing and one count of attempting to pervert the course of justice. The latter involved the witness lying to protect a friend. In 1995 she had been convicted of stealing, stealing a motor vehicle, giving a false name and fraud.
49 After the drugs had been found in the backyard, she was asked by a police officer whether she knew anything about the drugs and she denied it. Her evidence at the trial was that that was a lie. She used to be married to a man named Anderson, who was involved in the death of a police officer named Stephen Knight. She did not recall saying that she would not be involved in drugs because of Mr Anderson's involvement in the death of Stephen Knight. She denied that what she had said in her evidence at the trial was untrue. She explained that shortly after 5 November 1996 she was in very bad health. She believed at that time that she would go to gaol if she walked in off the street and told the police what had happened. Her belief had not changed at the time of trial, but she said she was then a stronger person and was prepared to face whatever was ahead of her. She had sought legal advice and the potential consequences of what she proposed to do at the trial were explained to her. She was also told that she could avoid those consequences by giving her evidence under an indemnity against prosecution. She said that she chose to give her evidence without the protection of an indemnity because she knew that her character on paper left a lot to be desired, and she wanted to come to court and be believed. She explained that when she committed the dishonesty offences in 1994 and 1995 she had been addicted to heroin and she was still struggling to run a business. She
(Page 16)
- explained that the charge of perverting the course of justice arose because a heroin dealer, from whom she got her heroin, had come to the deli she operated and asked her to cash a cheque for him. The cheque bounced. The police questioned her about the person who had brought in the cheque. They asked her to give a physical description of the person and to tell them something of the circumstances under which the cheque was cashed. She gave a false description which was ultimately discovered, following which she was tried and convicted.
50 At the time she gave evidence at the trial, she said that she had been free from heroin for nearly two years. She said that in that period she had many things to deal with which arose out of her heroin addiction but, by the time of the trial she had dealt with them all, except for telling the truth about this matter. She said that if she did not deal with this matter, it would still be a ghost in the closet and something that would eventually hurt her a lot more than whatever the consequences were going to be.
51 The evidence given by Ms Jones regarding her heroin addiction and efforts to overcome it with the help of the appellant was corroborated by a clinical psychologist, Dr Graham Roy Emery, who had become involved in counselling and treating Ms Jones following an approach by the appellant. He had contact with them both throughout 1996.
Grounds 1 and 2: Unsafe Verdict and Direction regarding more than one offender
52 It is convenient to consider grounds 1 and 2 together. In support of the contention in ground 1 that the verdict of the jury was against the weight of the evidence and unsafe, it was contended that the case against the applicant turned upon the jury accepting the evidence of the witnesses called by the Crown, and rejecting the evidence of the appellant and Ms Jones. It was contended that there were irreconcilable conflicts in the evidence of Crown witnesses in respect of central issues. First, counsel for the appellant adverted to the conflict of evidence between Detectives Dockery and Hindriksen, whose evidence was that the gun holster was found on the initial entry to the premises, whereas Senior Constable O'Hare said that it was found at the conclusion of the unsuccessful search for firearms. In my opinion, that conflict of evidence had no bearing on the central issue at the trial.
53 Another conflict was said by counsel for the appellant to be that the appellant had consistently maintained that there was an arrangement made between the police officers present, who were members of the Drug
(Page 17)
- Squad, and himself that he would bear the responsibility for the heroin, but he had been unaware of its presence on the premises until such time as Ms Jones had informed him about it. The significance of this was said to be that the intensive search of the entire interior of the premises for firearms located no drugs or other material which the police considered relevant for their purposes. It was said that later, after the gun holster was found, a second search was undertaken and it was then that the police said that they had discovered drugs and drug-related paraphenalia in the appellant's bedroom, although no such items had previously been found while searching for firearms. This was said to point to a fabrication of evidence by the police to bolster the case against the appellant, once they had reneged on an agreement which the appellant alleged he made with police that he would only be charged with simple possession. It was said that the fabrication about the timing of the finding of the holster and the finding of the drug paraphenalia was simply material introduced into the matter by police to bolster the case they wished to make against the appellant.
54 In my opinion, while the inconsistencies are somewhat puzzling, the evidence of Ms Jones, in particular, confirmed her ownership and use of the scales, the pieces of paper cut out from the magazines, and explained how the drugs may have been among the appellant's clothing on the basis that he was exercising a degree of control over her use of heroin.
55 Counsel for the appellant also submitted that, in respect of the matters to which I have referred, the learned trial Judge had wrongly given a direction to the jury on the basis that a person other than the appellant, such as Ms Jones, may have been involved in the possession of the heroin buried in the back garden. Although that is a matter which is specifically the subject of ground 2, it was argued that, although ground 2 was a separate ground, it was also one of the matters relied upon as contributing to the verdict of the jury being unsafe. At the same time, it was conceded by counsel for the appellant that the discrepancy regarding the finding of the gun holster and the allegation about the planting of evidence did not make ground 1:
"… a particularly strong ground in isolation, but when one adds to it the other circumstances to which I will be referring, ground 1 becomes a substantial ground …"
56 In essence, it was being put that ground 1, taken together with ground 2, produced the result that the guilty verdict was unsafe.
(Page 18)
57 In other words, it was contended that the error said to have been made by the learned Judge in ground 2 in directing the jury that there may be more than one offender, when taken together with the matters specifically relied upon in support of ground 1, led to the conclusion that the guilty verdict was unsafe. The learned Judge directed the jury that they had to be satisfied beyond a reasonable doubt of the elements of the offence, namely:
"… firstly, the Crown must prove that the offender was the accused. Secondly, the substance was a prohibited drug; namely, heroin. Thirdly, that he possessed it and, fourthly, that he intended to sell or supply it to another. You will find those written down there.
So far as proving that the accused is the offender - that was the first element - the Crown do not have to prove that he is the only offender, but they must prove that he is an offender."
58 The Crown case was that the applicant was the only person who possessed the heroin. After Ms Jones had given her evidence and the defence case had been closed, it was submitted, during a discussion about the directions which should be given to the jury concerning the video-recorded interview, that the case against the appellant was "an all or nothing matter" in the sense that there was no room for alternative verdicts or an alternative verdict. This was a point about which both counsel were agreed. Counsel for the Crown submitted to her Honour that the real issue in the trial was whether the admission of possession by the appellant in the video interview was truthful. At the same time, the appellant had gone into the witness box and expressly denied that he was holding the heroin for someone else. Counsel for the Crown made it clear that the Crown case was simply that the appellant was in possession of the heroin with the intent that the amount involved presumed. It was made clear that it was not part of the Crown case that all the appellant was going to do with the heroin was to control the supply of the heroin to Ms Jones in order to limit her use.
59 It was submitted on behalf of the appellant that, by directing the jury that the Crown did not have to prove that the appellant was the only offender, but must prove he was "an offender", her Honour misstated the Crown case and provided an alternative basis of liability on the part of the appellant. A little later, having reviewed the evidence in the case against the appellant, the learned trial Judge said to the jury:
(Page 19)
- "The central issue, it would seem to me, is this issue of possession; that is, control with knowledge and whether he is an offender, but the final element is an intention to sell or supply."
- Her Honour then went on to draw attention to the presumption of intention to sell or supply where a person had in his possession 2 grams or more of heroin by virtue of s 11(a) when read with Schedule V of the Misuse of Drugs Act.
60 It was submitted on behalf of the appellant that the Crown at no stage put its case on the basis that the appellant was involved with Ms Jones and/or the person who was alleged by the appellant to have delivered the heroin to him the night before. It was also submitted to the learned trial Judge by counsel for the appellant that it was not appropriate for her Honour to have directed the jury that the central issue was the issue of possession and whether the appellant was "an offender", implying that the Crown did not have to prove that the appellant was the only offender. It was further submitted to her Honour that the Crown had put their case on the basis that the appellant was the only offender and that there was no scope for the jury to consider that the appellant and Ms Jones were both possessors because counsel for the Crown had put to her that she was not telling the truth at all. Reliance was placed upon the following passage in cross-examination leading up to the issue of honesty:
"You're also coming along here, aren't you, simply to do a favour to the accused, aren't you?---To put myself in this position as a favour to somebody?
Yes?---I don't think so.
Would you say you're an honest person?---Yes. I haven't been but - - -
Well, you are not being honest about this, are you?"
- Ms Jones replied that she was.
61 It was submitted that it was the Crown case that her claim to be a possessor was untrue. Counsel for the appellant also relied upon the last two questions put to Ms Jones in cross-examination, namely:
"It would have been easier to have told the truth, as you said, in the last 3 and a half years, wouldn't it?---No.
(Page 20)
- But the reason is it is not the truth; that's the real reason, isn't it?---No, it is the truth."
62 It was on this basis that objection was taken to the learned Judge telling the jury, in effect, that the Crown did not have to prove that he was the only offender.
63 The learned Judge then pointed out that the appellant had told the police that somebody else had brought the heroin to the house and he had allowed that person to bury it in the garden in return for a payment of $1,000. Consequently, the reference to the fact that the Crown had to prove that he was the only offender did not necessarily refer to Ms Jones.
64 It was contended in this Court by counsel for the appellant that the Crown case was that there was no other person. The Crown case was that there was no such other person. Further, it was no part of the Crown case that Ms Jones was a possible co-offender. Consequently, the direction which suggested that the jury only had to be satisfied that the appellant was "an offender" was a misdirection.
65 In my opinion, the learned trial Judge was required to direct the jury in accordance with the evidence which was given in the case. First, having regard to what the appellant had told police, the evidence raised the possibility of the involvement of a third party who had brought the heroin to the house on the previous night. Secondly, the reliance by the defence on the evidence of Ms Jones that the heroin was hers left open an intermediate possibility that both the appellant and Ms Jones were involved in the possession of the heroin together. In those circumstances, I consider it was entirely proper and appropriate for the learned trial Judge to address the jury in the way in which her Honour did.
66 At all times during the search in the back garden, the appellant and Ms Jones were being observed by police officers. They were not left on their own at any time. Detective Maines' evidence was that there was a relaxed atmosphere during the search for firearms. The appellant gave evidence that he had no concerns during that search because, as far as he was concerned, there was nothing to be found. It was contended by counsel for the appellant that once the search in the back garden with the metal probes commenced, Ms Jones became visibly agitated. This prompted the appellant to ask her what the problem was and it was at that point that she told the appellant what was buried in the back garden. It was submitted that Detective Maines did not know what was said, but that
(Page 21)
- he perceived a very significant change in the attitude between the appellant and Ms Jones at that point.
67 Detective Maines' evidence was that the appellant and Ms Jones were sitting side by side on a two seater couch in front of the window. At that time, "it was quite a relaxed situation", but probably the appellant was a bit more relaxed than Ms Jones. At that stage, officers were moving around on the ground floor. There was some conversation between the appellant and Ms Jones while they were seated. It was suggested to Detective Maines that he was not paying any particular attention to what was being said by either of them. Detective Maines said that for some time there was a three-way conversation. From time to time he was talking to them and they were talking to each other. He was aware that a search was going on in the back garden with the metal probes. Before the appellant was asked to go outside into the garden, Detective Maines had considered that the appellant and Ms Jones were in a relationship and, from what he saw and heard, there appeared to be some sort of problem in the relationship. He thought Ms Jones was "a bit upset about the police actually being in the house". He did not recall anything being said that would give any indication what it was that had caused any upset on Ms Jones' part. Detective Maines said that at that stage the appellant was quite affable, but he thought that Ms Jones was "probably a little upset".
68 It was put to him that for most of the time Ms Jones was perfectly normal and outwardly appeared relaxed for most of the time. Detective Maines did not recall that. It was put to him that there was one particular point in time that she did become agitated. Detective Maines' response was, "No, I couldn't be that specific, sir". The following passage then appears in his cross-examination by counsel for the appellant:
"Let me put this to you: just prior to Mr Cookson going out to the back garden for the first time, just shortly prior to that, is when Ms Jones demonstrated some degree of agitation which led you to believe that there was a problem in this relationship?---No, I'm sorry, I don't recall that.
You are unable to tell us what sort of things Mr Cookson might have been saying to comfort her?---I think it was just comfort. There was just sort of like an offer of comfort."
69 Detective Maines said that after the first container of heroin had been found, the appellant went back into the house and sat down on the couch with Ms Jones and Detective Maines resumed his seat where he had them
(Page 22)
- under observation. After the appellant's return he did not observe any particular reaction. The cross-examination then proceeded as follows:
"You're not paying any particular attention to what sort of reaction is going on between them?---I didn't observe any particular reaction.
And you're unable to say what was said by either of them to each other?---I don't know if they - there was a conversation, sir.
You don't know?---Well, where you're sort of like, you know, in a speaking environment - I would've presumed I would've heard something. If they were having a conversation, I would've presumed I would've heard it, sir.
Yes, I understand that, but if they were talking in a way that was designed to prevent you from hearing, you obviously wouldn't know whether they were talking or not?---It's very difficult to say, sir. If they were whispering sort of, I probably wouldn't be able to hear what they were saying, but I don't recall any whispering going on."
71 Detective Hindriksen's evidence was that, within two or three minutes of recommencing the search of the backyard, Constable O'Hare located a second container. Detective Hindriksen went back to the house and asked Detective Dockery to bring out the appellant. Detective Dockery and Detective Sergeant Maines came out with the appellant. The conversation to which I have referred had already taken place. This evidence was corroborated by Special Constable O'Hare, Detective Maines and Detective Dockery.
(Page 23)
72 Detective Maines' evidence did not support the appellant's evidence at the trial that Ms Jones first told him of the existence of the heroin in the back garden prior to him first going outside. Importantly, Detective Maines did not accept that there was any whispering going on between the two of them either before the appellant first left the room to go outside into the back garden or after he returned. Had there been any whispered conversation, one would have thought Detective Maines would have been alert to it because of what had been found the first time that the appellant went outside. Because they were all in close proximity (what Detective Maines referred to as "a speaking environment"), he presumed that if something had been said, he would have heard something. In particular, he did not recall any whispering "going on" and did not observe any particular reaction when the appellant returned. It is clear from the evidence that the three persons present were in close proximity to one another.
73 The evidence by the appellant regarding how he came to go back out into the garden in relation to the second quantity of heroin was not supported by Special Constable O'Hare. She did say, however, that she was given the probe by Detective Hindriksen and there was a conversation between the appellant and the two police officers outside, shortly after which Detective Hindriksen directed her to a specific area in the yard to search for the second container. This was consistent with the evidence that the appellant gave at the trial.
74 In my opinion, the contention that it was a misdirection for the learned Judge to tell the jury that the Crown did not need to prove that there was another offender or other offenders involved, they only had to prove that the appellant was in possession of the heroin should be rejected. The evidence did raise the possibility that one or other of Ms Jones or the third person mentioned who the appellant said had come the previous night with the heroin and could also be involved in the possession. That direction did not in any way prejudice the appellant's case. In my opinion, there was no substance in ground 2, whether standing alone or taken together with any other ground. The direction was correct as a matter of law and did not in any way detract from the earlier direction given by the learned trial Judge that the Crown had to prove beyond reasonable doubt every element of the offence alleged against the appellant. It follows that ground 2 of the grounds of appeal must fail. Further, it follows that there is nothing in ground 2 which adds any strength to ground 1. When one looks at ground 1 standing alone, I do not consider that there is any merit whatsoever in the contention that the verdict of the jury was unsafe. In my opinion, ground 1 also fails.
(Page 24)
Ground 3: Direction regarding evidence of Ms Jones
75 Ground 3 contended that the learned trial Judge erred in law in directing the jury that the unindemnified witness, Ms Jones, was or may be entitled to certain legal benefits and that the direction had the effect of undermining the weight of her evidence. So far as Ms Jones' evidence was concerned, after directing the jury on the issue of possession so far as the appellant was concerned, the learned Judge said to the jury:
"I want to go back, if I can, to Ms Jones because her evidence is very, very significant and it's a matter that you just consider very carefully it would seem to me."
76 Her Honour went on to say that Ms Jones did not ask for an indemnity certificate. Her Honour then referred to s 11(1) of the Evidence Act 1906 which provides that:
"Whenever in any proceeding, any person called as a witness … declines to answer any question … on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question …, tell such person that, if he answers such question … in a satisfactory manner, he will grant him a certificate."
77 The learned Judge went on to direct the jury as follows:
"Then the next paragraph tells you that the certificate is that the person gave this evidence and then the next paragraph tells you the effect of that, and the effect is a person is given a certificate. A statement made by him as part of that evidence is not admissible in evidence in criminal proceedings against the person, so if she asked for a certificate of indemnity and she gets a certificate of indemnity, she cannot be prosecuted.
Now, you may have noticed there it says that the judge may give the certificate. Well, 'may' really means 'must' in these circumstances provided the person gives their evidence satisfactorily. The judge really doesn't have a choice about the matter and there's good reason for that and the reason is that you want people if they have actually committed the crimes to come forward so that the truth can be known, so it is a significant matter that she has not asked for an indemnity certificate and
(Page 25)
- she did not ask for an indemnity certificate, and she knew about that yesterday and she was asked about that.
On the other side of it of course, it's true that she runs a very grave risk of being charged and being charged with possession with intent to sell or supply and that she has a right to a jury trial and she has a right to tell the jury that she possessed it for her own use, not to sell or supply, and to hope - and that's all it is, a hope - that the jury would accept that and convict her of the lesser charge of simple possession and to hope that since it's 6 years down the track and she is now a reformed addict the treatment that she would get would be more lenient than it would be for someone else.
However, no-one could guarantee that to her and I'm sure when she had independent legal advice yesterday these various matters would have been pointed out to her, but no-one would guarantee anything and she certainly put herself at risk of either gaol or at least having to go through the system for a period of time in a much more demanding and intense way than she has in the past. It's significant and you will obviously give her evidence very grave consideration in all the circumstances of the particular case."
78 The learned Judge pointed out to the jury that when Ms Jones gave her evidence she said that the heroin in the case was an issue to be dealt with by her and that she wanted to deal with it. As Ms Jones put it in her evidence:
"It's a knowing step that I take. If I don't take it I just feel that there's - you know, there's still a ghost in the closet and something that will hurt me anyway a lot more than whatever the consequences are going to be …"
79 Reference was made to a passage in her cross-examination (during which the court was closed) as follows:
"It must have been difficult for you after all this time, 3 and a half years on. Didn't it occur to you at some stage you could just go into a police station and say you wanted to make a statement?---No, and I didn't think that was the best anyway.
There was no pressure on you, was there?---No. I didn't think that was the best option anyway.
(Page 26)
- KENNEDY DCJ: Why not?---Well, if I went in and made a statement confessing, I believe that I would have gone to court straight away and maybe to gaol, but that gave me no security that they were going to drop the charges against [the appellant].
So what do you think is going to happen now?---I'm really not sure. I have been told the consequences by a lawyer so I know, not exactly, what - - -
So you believe it's no different now than it would have been if you had gone to the police 18 months ago or do you think you are in a stronger position?---I think so, yes.
Why is that?---Well, because I'm not addicted to drugs any more and I'm a much stronger person. I have overcome a lot so to now face what I've got to face, it's a lot easier for me.
DEMPSTER, MR: You are also coming along, aren't you, simply to do a favour to the accused, Stephen, aren't you?---To put myself in this position as a favour to somebody?
Yes?---I don't think so.
Would you say you are an honest person?---Yes. I haven't been but - - -
Well, you are not being honest about this, are you?---I certainly am.
You have been convicted of many offences of dishonesty, haven't you?---Yes."
80 A number of convictions were then put to her, including forgery in 1985, two counts of receiving and a conviction for stealing in July 1994, three counts of stealing in August 1994, attempting to pervert the course of justice in October 1994, when she was lying to protect a friend, stealing and stealing a motor vehicle in June 1995, giving a false name, fraud and stealing in September 1995. She admitted that she lied to police when they asked her if she knew anything about the drugs in the back garden the subject of this case when she was questioned at the time. In re-examination, she said that the prior offences to which reference had been made were committed when she was addicted to heroin except in the case of the attempt to pervert the course of justice for which there was an
(Page 27)
- explanation which involved her making a false statement to the police. It was against this background that the direction complained of was given.
81 In my opinion, while the learned Judge pointed out that she had not asked for an indemnity certificate and that was significant, this was balanced by the direction that she ran a very grave risk of being charged with possession with intent to sell or supply. In my opinion, it was appropriate, in the light of the evidence that had been given about the indemnity certificate, to make it clear to the jury what the situation was and to avoid any confusion on the part of the jury about the significance of such a certificate. It was contended that the learned trial Judge wrongly speculated about what may have motivated Ms Jones to give the evidence that she gave. In my opinion, the direction was both balanced and fair and did not in any way result in any unfairness so far as the appellant was concerned. It is significant that no objection was taken to this part of the directions to the jury at the trial. In my opinion, there is no substance in ground 3.
Ground 4: Misdirection by failure to give Manisco direction
82 It was contended in support of ground 4 that, because the Crown case was that the appellant possessed the heroin and the defence case was that the heroin was possessed by Ms Jones, the appellant did not contend that a direction should be given in accordance with Manisco (1995) 79 A Crim R 213. It was contended by counsel for the appellant that, at the trial, the defence disavowed any reliance upon the involvement of the person whom it was said had come the night before and allegedly asked the appellant to mind the heroin. It was said that during the course of the trial the Crown had accepted that the appellant had disavowed that version of the events. In particular, the appellant had disavowed what he had said about the involvement of another person during the course of his video interview. In essence, the contention was that, while it was not a case in which a direction of the kind referred to in Manisco was necessary, then, because her Honour had made reference to the jury being entitled to convict if they were satisfied that the appellant was "an offender", this implied the possibility that there was another offender or other offenders. Consequently, in the end, her Honour should have given a Manisco direction. It was also submitted that, if her Honour considered that the evidence raised the possibility that Ms Jones was involved in the possession of the heroin, a Manisco direction should have been given.
83 A Manisco direction is one which recognises that the word "supply" in s 6(1) is not appropriate to include the mere return of physical control
(Page 28)
- of drugs from a person with whom they have been temporarily deposited by their owner, to that owner. It is a defence to a charge of the possession of a drug with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act for an accused to show that he obtained the drug from the ostensible owner for a temporary purpose and was holding the drug only for the purpose of giving it back to that owner.
84 This was not a point which was taken at the trial. In my opinion, counsel for the Crown rightly submitted in this Court that there was no need for the learned trial Judge to give such a direction, in accordance with the law as it existed in 1996, because the appellant had disavowed the Manisco defence. Counsel for the prosecution and the defence were in agreement on this matter. Quite apart from that, I do not accept that the learned trial Judge, by giving the direction that her Honour did, introduced into the case the possibility of other offenders. The direction was no more or no less than a direction that as a matter of law the Crown did not have to prove that the appellant was the only offender, but only that he was an offender. That was a correct direction. It follows that ground 4 fails.
Ground 5: Fresh Evidence
85 Ground 5 of the grounds of appeal constituted in effect an application for leave to appeal against conviction on the grounds of the fresh evidence of one Ian Allen which, it was said, was not available to the appellant at the time of trial, but when viewed in combination with the evidence given at the trial, would have had the result that the jury would have been likely to have entertained a reasonable doubt about the guilt of the appellant if that evidence had been before them. Counsel for the appellant contended that the appellant and his advisers had not attempted themselves to interview Ms Jones as they regarded Ms Jones as a proper prosecution witness. The deponent, Mr Ian Allen, and Ms Jones were said to be the only persons who knew the identity of the supplier of the heroin.
86 According to counsel for the appellant, who was counsel for the defence at the trial, no proof of evidence was obtained from Ms Jones by the defence. Counsel was not aware whether her solicitors had been asked to agree to an interview or any other means of obtaining a statement from her. Her solicitor did not provide a statement. It appears that the defence were simply informed that Ms Jones would be prepared to give her evidence along the lines that she had disclosed to Mr Burley in the terms of a letter which was produced in court. If such a letter was produced, it was not tendered in evidence and did not become an exhibit. A copy of the letter was not produced in this Court, but we were told that the letter
(Page 29)
- contained an assertion by her solicitor that she was the person who had acquired the drugs, that they belonged to her and that the appellant knew nothing of them. No other information was provided. Counsel for the defence sought an order or direction from the learned trial Judge that Ms Jones not be required to disclose the identity of the supplier of the heroin. In the result, her evidence was taken in closed court.
87 Counsel for the appellant told the court that the decision was made to call Ms Jones to give evidence for the defence during the course of the trial. It appears that Ms Jones was not served with a subpoena to give evidence. It had been thought that the Crown may call her. It was not clear, in any event, whether or not she would give evidence as an indemnified witness or an unindemnified witness. It was not altogether clear that she would attend the trial. Counsel was not sure whether her solicitors were asked to agree to an interview or some other means of obtaining a statement from her. As far as counsel for the defence was concerned, the position was simply that Ms Jones would be prepared to give evidence along the lines that she had proposed to Mr Burley in terms of a letter which was produced in court. The letter does not appear in the exhibit list. Neither the original nor a copy of it is on the court file. This Court was informed that it was a letter that Mr Burley had written to the police who were investigating the matter which was produced to the court either by Detective Hindriksen or Detective Dockery. The substance of the evidence was an assertion by her solicitor that she was the person who had acquired the drugs. They belonged to her and the appellant knew nothing of them.
88 In the result, the evidence of Ms Jones was that this was the second time she had bought an ounce of heroin. She said she obtained the heroin the day before the police attended. She said that both pairs of scales found in the house were hers. She admitted that the magazines were hers and that she cut parts out from them. She said there were two occasions when she bought some heroin and the appellant had held it for her in the sense of giving her little bits at a time. She said that they never went together to buy heroin. He was holding small quantities for her because she had been overdosing quite a lot. She had not made a statement to the police by way of a confession because she believed that she would have gone to court straight away, maybe gone to gaol and had no security that the police would drop the charges against the appellant. She said, in effect, that she was ready to speak because she was not addicted to drugs any more and was a much stronger person. She denied that she was coming along simply to help the appellant and that she was not being honest about the matter.
(Page 30)
89 The fresh evidence upon which the appellant sought to rely was contained in an affidavit of one Ian Allen sworn 31 January 2001. The Director of Public Prosecutions, who appeared as counsel on the appeal, did not object to the affidavit being read. The essence of the evidence was that on the Monday morning prior to the Melbourne Cup in 1996 (ie, 4 November 1996, the day before the heroin was found by police) Mr Allen arranged to go for coffee and a meal with one Lindsay Hayes. That morning he received a telephone call from Mr Hayes requesting that he be picked up in Scarborough to go to Northbridge. When he picked up Mr Hayes he said he had to call and see someone in Mt Hawthorn. When they arrived at a park in Mt Hawthorn, Mr Hayes told him to pull up and a woman he recognised walked over and got into the back seat of the car. The woman was Ms Jones whom Mr Allen had known for six or seven years. He said "hello" to her. Mr Hayes passed her a plastic container containing powder and Ms Jones passed him a wad of cash. Mr Allen asked what was going on and Ms Jones said, "please don't tell Cookie", referring to the appellant who Mr Allen also knew. Mr Allen agreed not to tell the appellant. According to Mr Allen, when they got to Oxford Street in Leederville, Mr Hayes told him, "I just sold her over an ounce of heroin for this $10,000 as I have done before".
90 Mr Allen said in his affidavit that:
"I left for the Eastern States on the Wednesday morning and never thought any more of the matter until I found [the appellant] had been arrested for it and that Kathy Jones had admitted it was hers. I found this out late last year and for personal reasons was unable to come forward until now."
91 In his oral testimony to this Court Mr Allen said that his affidavit had been prepared by the Aboriginal Legal Service and had been sworn by him before a Justice of the Peace. In his oral testimony Mr Allen gave evidence consistent with his affidavit. In his oral evidence, he explained that he left Perth on the Wednesday morning to go to Brisbane because he was on the run from the police at the time. He came back to Western Australia in March 2000 for a funeral. In August 2000 he found out that the appellant had been "charged with having the stuff". He did not say anything then because he would have "had to give up my friend to the police".
92 He said that he had been prepared to swear the affidavit because "I'm not breaking my friend's trust". He explained this on the basis that Ms Jones:
(Page 31)
- "… trusted me with my promise not to say anything about what transpired. There's only certain things you can keep in life and that's friendship and honour. So you've got to stick with them, so yeah, if she hadn't have been to court and said what she said, there's no way I would've said what I said, because I wouldn't have incriminated her."
93 He explained that he was referring to her admission that the heroin was hers and not the appellant's. He also explained that between August 2000 and January 2001 he was in gaol. He had been released on 26 January 2001. He had decided to swear an affidavit at the end of November 2000, when he found out "for sure" that Ms Jones had made a statement saying that the heroin was hers. Further, he was not prepared to make a statement while he was in prison.
94 After his release he went to see the appellant's solicitor, but he did not want to take the statement because "it may be viewed as a conflict of interest or something". He was told to go away and see an independent person. He went to the Aboriginal Legal Service the next day.
95 When cross-examined, he said that the police caught up with him on 9 June 2000. He was taken into custody. In late October, while still in gaol, he wrote a letter to a friend and asked him to see Ms Jones and tell her where he was. He said that Mr Hayes had told him that he had sold Ms Jones "30-something" but he could not remember the exact figure. He said it stuck in his memory because an ounce weighs 28 grams. He added that Mr Hayes had said that he had also sold to her on a previous occasion. He said the heroin was provided to Ms Jones in a clear plastic bag and the heroin was "a funny-looking colour like - I don't know, a beigy sort of a colour". He was unable to say whether it was in powder form or rock. He said he had been to Ms Jones' home once and had met the appellant. He had only met the appellant once, but he had seen Ms Jones quite a few times because her family used to own a deli where he used to go and "get a feed".
96 It was submitted that the evidence of Mr Allen was fresh evidence on the basis that, unless Ms Jones had volunteered the identity of Mr Allen, the appellant would not have known of his existence or involvement. Although he was in the State in gaol at the time of the trial in June 2000, he would not have been prepared to make a statement to anyone unless and until Ms Jones had given the evidence which she did.
(Page 32)
97 It was a matter of some concern to the Court that there was no affidavit from the appellant's solicitors regarding the circumstances under which they became aware of the existence of Mr Allen and what he was prepared to say.
98 We were informed by the Director that the certificates of analysis of the heroin which was found on 5 November 1996 demonstrated that the heroin that was found in the back garden was a white powder, not a beige powder. The certificates of analysis are exhibits 15(1) to (4), two of which relate to the heroin found in the two containers in the garden.
99 In Gallagher v The Queen (1986) 160 CLR 392 at 395 - 396, Gibbs CJ said:
"The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict … The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 as follows:
'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, we of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative
(Page 33)
- force and the nature of the evidence already adduced at the trial must be a matter of great importance.' "
100 See also Gallagher at 400 - 402 per Mason and Deane JJ, at 407 - 410 per Brennan J, and at 412 - 421 per Dawson J.
101 At the hearing, the Court also expressed concern that there was no affidavit from the appellant's solicitors regarding the circumstances under which they became aware of the existence of Mr Allen and the evidence which he was able to give.
102 Counsel for the appellant sought leave to file any necessary affidavit and the Court actually directed the filing of any necessary affidavits. Counsel expressed the hope that the affidavits would be filed a day after the hearing, namely, on 5 February 2001. In the result, an affidavit sworn by David Charles Manera, Barrister and Solicitor, who acted for the appellant, was filed on 19 February 2001. Mr Manera states that he became aware that the appellant's former de facto, Ms Jones, had made admissions to a solicitor, one Raymond Burley, to the effect that the heroin, the subject of the charge, belonged to her and not to the appellant. Mr Burley informed Mr Manera that Ms Jones was prepared to be interviewed by the police in his presence concerning the matter. On 30 July 1999 an application to stay the trial until the prosecution interviewed Ms Jones was made before his Honour Judge O'Sullivan in the District Court. The Judge did not rule on the application, as the Crown agreed that an interview be conducted. The interview with Ms Jones in fact occurred. Shortly prior to the commencement of the trial, Ms Jones approached the defence and was referred to another solicitor.
103 Mr Manera deposed that during the course of the trial he was advised by Ms Jones' solicitor that she was prepared to give evidence to the effect that the heroin belonged to her, that she was in possession of it and that the appellant had no knowledge of it. It was on the basis of this information that Ms Jones was called to give evidence for the appellant.
104 Mr Manera also said that on or about 31 January 2001 he was contacted by Mr Allen who advised him that he had information that may be relevant to the appellant's case. Mr Manera says he informed Mr Allen that he should obtain independent advice concerning the matter. He was subsequently provided with an affidavit sworn by Mr Allen which had been filed in support of the appellant's application for leave to appeal. Mr Manera says:
(Page 34)
- "I verily believe that the [appellant] and those advising and acting for him did everything which was reasonable to obtain all evidence available for his defence."
105 Essentially, the evidence of Mr Allen does no more than corroborate the evidence of Ms Jones at the trial that she had purchased the heroin and that it belonged to her. More significantly, the evidence might be said to tend to show that she did not wish the appellant to know that she had purchased the heroin. Assuming, without deciding, that the jury would regard Mr Allen's evidence as credible, it does not foreclose the possibility recognised by her Honour that the appellant was in possession of the heroin. He was a joint occupant of the premises with Ms Jones. If the jury were satisfied beyond a reasonable doubt that the appellant, who occupied the house together with Ms Jones, knew exactly where the heroin was located in the garden and was able to point out to police where to find it, there would be such evidence of control with knowledge in order to convict him, even though Ms Jones may also have jointly possessed the heroin with him. That Ms Jones had purchased the heroin and may be taken to be the owner of it was not an answer to the charge against the appellant that he was in possession of it.
106 If it is established that the jury did not have before it evidence not available at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not having been satisfied of his guilt, the appellant will not have had a fair trial: Ratten v The Queen (1974) 131 CLR 510 per Barwick CJ at 516. However, the trial will not be unfair because the accused has not called evidence which was available to him at the trial, or of which, bearing in mind his circumstances as an accused, he could not reasonably have been expected to have become aware and which he could have been able to produce at the trial: Ratten at 517 per Barwick CJ. The Chief Justice also said at 517:
"Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence."
107 The test has been put in different ways. In Gallagher v The Queen, supra, at 395, Gibbs CJ, absent any other ground, where fresh evidence is relied upon, said:
(Page 35)
- "… the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence was not called at the trial."
108 The Chief Justice went on to say that the conviction will not usually be set aside if the evidence could with reasonable diligence have been produced at the trial. Importantly, his Honour noted at 395 that this was not an inflexible requirement because the strength of the fresh evidence may be such as to justify interference with the verdict, even though the evidence might have been discovered before trial. In the present case, the fact that Mr Allen was a potential witness for the defence would only have become known to the defence if it was disclosed by Ms Jones in her evidence at the trial, which it was not.
109 Given that Ms Jones was prepared to identify Mr Hayes as the person who sold her the heroin, there was no reason why she would have refrained from giving evidence that the purchase had been witnessed by Mr Allen, who was an innocent third party. This issue was not explored at the trial. In any event, had the evidence been led, there is a question whether it would have raised a reasonable doubt about the guilt of the appellant: Gallagher v The Queen, supra, at 397 - 398 per Gibbs CJ.
110 A verdict will be unsafe or unsatisfactory if the appellate court concludes that the jury, acting reasonably, ought to have entertained suffiicent doubt about the guilt of an accused so as to have entitled him to an acquittal: Whitehorn v The Queen (1983) 152 CLR 657 at 687 per Dawson J; and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 534 per Gibbs CJ and Mason J; and at 603 - 604 per Brennan J; Knight v The Queen (1992) 175 CLR 495 at 504 - 505 per Mason CJ, Dawson and Toohey JJ; and at 511 per Brennan and Gaudron JJ; and M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, at 501 - 503 per Brennan J; at 509 per Gaudron J; and at 523 - 525 per McHugh J.
111 The critical question for the jury was whether the evidence of the appellant and Ms Jones that the appellant had only been told of the existence and location of the heroin after the search of the back garden with the metal probes had commenced, raised a reasonable doubt in the minds of the jury. I do not consider that proof of the purchase the day before by Ms Jones, under the circumstances recounted by her and corroborated by Mr Allen, would have raised a reasonable doubt in the minds of the jury.
(Page 36)
112 It was submitted by the Director that it was not properly demonstrated that a reasonable enquiry would not have found Mr Allen, if he was thought to be of any value at the trial. It appears to have been a tactical decision not to pursue any enquiries relating to the supply of the heroin to Ms Jones. Indeed, an objection was taken at the trial by counsel for the appellant to the introduction of evidence relating to the source of the supply of the heroin which she said was hers. The objection was properly overruled.
113 In my view the evidence should be regarded as new in the sense that it was not produced at the trial because a deliberate decision was apparently taken not to seek information regarding the source of the heroin that Ms Jones may have obtained. The evidence given by Ms Jones that she had purchased the heroin from Mr Hayes the day before was not seriously challenged. There was no suggestion that she was not telling the truth about the source of the heroin. The only challenge to her evidence was the suggestion at the end of her cross-examination that she had come to give evidence simply as a favour to the appellant.
114 In substance, the evidence of Mr Allen went to a collateral issue and would only have served to bolster her credit in relation to her evidence that she had purchased the heroin the previous day. Ms Jones could not have given evidence of any conversation she had with the supplier or Mr Allen as evidence of what she said to them of what either of them had said to her would have been inadmissible hearsay and merely collateral. The fact that the powder in the plastic bag handed by Mr Hayes to Ms Jones was described as beige in colour, as distinct from the white powder in the back garden, suggests that the heroin obtained by Ms Jones the day before may not have been the same as that which was found as a result of the search. The only beige coloured heroin found at the house was that which was in the appellant's trousers.
115 Even if the evidence now sought to be adduced could properly be characterised as fresh evidence, I do not consider that its introduction would have created a reasonable doubt in the minds of a reasonable jury of the appellant's guilt of the offence with which he was charged. The issue at the trial was not about who had purchased the heroin or who was the owner of it, but whether the appellant as a co-occupier of the house with Ms Jones had the requisite knowledge of the location of the heroin and sufficient control over it to justify a finding that he was in possession of it. In my opinion, the jury were entitled to find that the appellant was in possession of the heroin as charged in the indictment.
(Page 37)
116 For these reasons, while I would grant the appellant leave to appeal against his conviction, I would dismiss the appeal.
117 ANDERSON J: I have had the advantage of reading in draft the Chief Justice's reasons for judgment in this matter. I agree with those reasons and the orders proposed.
118 STEIN AJ: I have read the reasons of the Hon the Chief Justice. I agree with them and with the orders which his Honour proposes.
0
10
1