Cotic v The Queen
[2003] WASCA 14
•19 FEBRUARY 2003
COTIC -v- THE QUEEN [2003] WASCA 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 14 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:174/2001 | 19-22 & 25 NOVEMBER 2002 | |
| Coram: | MALCOLM CJ STEYTLER J OLSSON AUJ | 19/02/03 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions dismissed Leave to appeal against sentence refused | ||
| B | |||
| PDF Version |
| Parties: | STEVEN PETER COTIC THE QUEEN |
Catchwords: | Criminal law and procedure Drug offences Possession of amphetamine and heroin with intent to sell or supply Conviction on retrial after successful appeal Whether admission by appellant of possession of cocaine was admissible to prove the reliability and credibility of a record of interview by police Directions to jury regarding use of evidence of possession of cocaine not adequate Whether statements made by the appellant in open court in relation to sentence after conviction at first trial were admissible against him at his retrial Appellant objected to analysis certificate that heroin was 68 per cent pure saying that it was in fact "cut heroin" Evidence to that effect led over objection at the retrial that the complaint was justified and heroin was 14.7 per cent pure Appellant's knowledge of purity of the heroin was evidence of guilty knowledge While directions regarding possession of cocaine not adequate, there was no substantial miscarriage of justice Criminal law and procedure Sentencing Possession of 5.47 grams of cocaine with intent to sell or supply Possession of 69.4 grams of heroin with intent to sell or supply Sentence of imprisonment for 10 years for possession of heroin and concurrent sentence of imprisonment for 7 years for possession of cocaine not excessive |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a) |
Case References: | BRS v The Queen (1997) 191 CLR 275 Doggett v The Queen (2001) 182 ALR 1 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen (2001) 76 ALJR 291 Fleming v The Queen (1998) 197 CLR 250 Gipp v The Queen (1998) 194 CLR 106 Glennon v The Queen (1994) 179 CLR 1 R v Cotic (2000) 118 A Crim R 393 R v Grech [1997] 2 VR 609 R v Mantini [1998] 3 VR 340 Wilde v The Queen (1988) 164 CLR 365 Zoneff v The Queen (2000) 200 CLR 234 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : COTIC -v- THE QUEEN [2003] WASCA 14 CORAM : MALCOLM CJ
- STEYTLER J
OLSSON AUJ
- CCA 175 of 2001
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Drug offences - Possession of amphetamine and heroin with intent to sell or supply - Conviction on retrial after successful appeal - Whether admission by appellant of possession of cocaine was admissible to prove the reliability and credibility of a record of interview by police - Directions to jury regarding use of evidence of possession of cocaine not adequate - Whether statements made by the appellant in open court in relation to sentence after conviction at first trial were admissible against him at his retrial - Appellant objected to analysis certificate that heroin was 68 per cent pure saying that it was in fact "cut heroin" - Evidence to that effect led over objection at the retrial that the complaint was justified and heroin was 14.7 per cent pure - Appellant's knowledge of purity of the heroin was evidence of guilty knowledge
(Page 2)
- While directions regarding possession of cocaine not adequate, there was no substantial miscarriage of justice
Criminal law and procedure - Sentencing - Possession of 5.47 grams of cocaine with intent to sell or supply - Possession of 69.4 grams of heroin with intent to sell or supply - Sentence of imprisonment for 10 years for possession of heroin and concurrent sentence of imprisonment for 7 years for possession of cocaine not excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal against convictions dismissed
Leave to appeal against sentence refused
Category: B
Representation:
Counsel:
Applicant : Mr P B Tehan QC
Respondent : Mr D Dempster
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
BRS v The Queen (1997) 191 CLR 275
Doggett v The Queen (2001) 75 ALJR 1290
Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen (2001) 76 ALJR 291
Fleming v The Queen (1998) 197 CLR 250
Gipp v The Queen (1998) 194 CLR 106
(Page 3)
Glennon v The Queen (1994) 179 CLR 1
R v Cotic (2000) 118 A Crim R 393
R v Grech [1997] 2 VR 609
R v Mantini [1998] 3 VR 340
Wilde v The Queen (1988) 164 CLR 365
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: In my opinion, this appeal by the appellant against his conviction on one count of possession of amphetamine with intent to sell or supply and one count of possession of heroin with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) should be dismissed. I have reached this conclusion for the reasons to be published by Olsson AUJ with which I agree entirely. In particular, I agree for the reasons he has stated that this is an appropriate case for the application of the proviso in s 689 which entitles the Court to dismiss the appeal on the ground that no substantial miscarriage of justice has actually occurred even though a point raised in the appeal might be decided in favour of the appellant. I am also of the opinion that the appellant's application for leave to appeal against the sentence of 10 years in respect of the amphetamine and 7 years in respect of the heroin should also be dismissed for the reasons to be published by Olsson AUJ.
2 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Olsson AUJ. I agree with them. There is nothing I wish to add.
3 OLSSON AUJ: The appellant appeals against his convictions, by verdicts of a jury returned on 21 November 2001 on his trial, of one count of possession of amphetamine with intent to sell or supply and one count of possession of heroin with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He complains that the verdicts were unsafe and unsatisfactory by reason of what, he says, was the inappropriate admission of certain evidence at trial and, alternatively, the failure of the learned trial Judge to give specific directions and warnings as to its permissible use.
4 There is also an associated application for leave to appeal against the severity of the sentences imposed in consequence of the convictions, in the sense that it is said that they should have been made fully concurrent with lengthy sentences already being served by the appellant.
5 It is to be noted that the above verdicts were the outcome of a retrial of the appellant. He had, in early 2000, previously been convicted by verdicts of a jury of both those offences and also an associated conviction for simple possession of a quantity of cocaine. However, such convictions were subsequently set aside by this Court because of deficiencies in the directions given to the jury: R v Cotic (2000) 118 A Crim R 393.
(Page 5)
The factual circumstances
6 On 12 June 1996 the appellant was residing at premises at 205 Elliott Road, Mount Helena. Police officers attended the property in pursuance of a search warrant. They entered and searched it and the house. They were assisted by a sniffer dog. The appellant and two other persons were in the house, although these persons were said to have been visitors rather than residents.
7 During the search police initially located two quantities of prohibited drugs. A total of about five ounces of methylamphetamine were found in two plastic bags on the top shelf of the kitchen pantry. Another packet containing 6.67 grams of the same substance was located in the garden, immediately outside of some sliding doors leading to a patio area.
8 At a time when the police officers were preparing to leave the property, one of them observed something white in a "black boy" bush a short distance from the carport. Further investigation revealed the presence of a large white plastic bag, together with a separate Tupperware container. Both had been hidden in or under the bush.
9 The white plastic bag had in it two tub-type KFC containers and a set of electronic scales. Inside the first container there was a plastic bag in which was stored approximately one pound of methylamphetamine. The other container had in it another plastic bag containing 12.3 grams of the same substance.
10 The contents of the associated Tupperware container were found to be:
• a KFC plastic bag, within which was a brown paper bag. The latter had 10 plastic bags in it. These were found, in total, to contain 5.47 grams of cocaine;
• a set of electronic scales;
• a plastic bag containing numerous small plastic bags and another plastic bag in which there were 10 small plastic bags. Nine of these contained white powder and the 10th two additional small bags, each with white powder in them. On analysis, a total of 69.4 grams of heroin was held in the 10 bags.
(Page 6)
11 A $5 note with traces of cocaine on it had earlier been found in the appellant's wallet.
12 It should be noted that later analysis of the various quantities of methylamphetamine revealed that they had all been derived from the same manufacturing process. Expert opinion was that they may well all have come from a common source. Evidence to that effect was placed before the jury.
A record of interview
13 Following the discovery of the various items to which I have referred, the appellant was conveyed to the Drug Squad video interview room. He was there the subject of a formal interview, the whole of which was recorded on videotape. That video (less some excluded segments) was played to the jury; who had been told by the prosecutor that it constituted "the cornerstone of the Crown case".
14 The interview occupied just over half an hour. The appellant appeared quite relaxed in the video and readily answered the questions put to him. The police evidence was to the effect that, as indicated by the transcript of the video record of interview ("VROI"), the appellant made unequivocal admissions concerning the items found by the police at the Mount Helena property.
15 In the course of his summing up the learned trial Judge dealt with the record of interview in this fashion:
"Clearly the video looms large in the case and is a hotly contested piece of evidence. The prosecution has tendered the video to prove the allegation that the accused was in possession of the alleged drugs. It is important that you realise that you can only act on that video if you are satisfied that it is truthful and accurate on the issues the prosecution seeks to prove by playing it to you. I just repeat that. You can only act on the video if you are satisfied that it is truthful and accurate; satisfied beyond reasonable doubt that it is truthful and accurate. Thus here the prosecution wishes to prove that the drugs found were in the accused's possession and they rely on the video to prove that matter, an essential matter as I will shortly explain.
So you can only act on the video if you find it is truthful and accurate as to that issue, being the issue that the crown seeks to
(Page 7)
- prove or the prosecution seeks to prove. In saying you can only act on the video if you find it is truthful and accurate, I'm not saying that you must be convinced before acting on it that every fact stated by the accused in it must be truthful and accurate. Every detail. I'm not talking about that. Clearly here some of the accused's statements on the video are not accurate. What is required is satisfaction beyond reasonable doubt that the accused's statement, the prosecution relies on, as to possession of the drugs; those statements are truthful and accurate.
The defence has drawn attention to a number of the details which are allegedly wrong and inaccurate to suggest to you you can't rely on any of the video. Well, that is a logical argument that the defence can and does maintain to you, but you need to appreciate that the prosecution relies on the video to prove possession. You cannot act on that statement, the accused's statements, about possession on the video that he makes unless you are satisfied beyond reasonable doubt that those statements as to possession are truthful and accurate."
16 He later made the following points:
"The prosecution case basically recognises that the video record of interview is critical to the case and the prosecutor has emphasised to you that it reveals certain things that only the accused would have known and the prosecutor says to you that people usually don't confess to things that they haven't done unless they are true. The prosecutor seems to accept that mistakes have been made, but says to you that people do make mistakes and there is nothing of great significance about that. The prosecutor invites you to look at the video and look at the accused's behaviour on the video, the way he answers questions and offers information and reveals knowledge and things like that, and Mr Dempster said that looking at what he says, it really is inconceivable that the accused could have memorised all the detail he is suggested to have done following an alleged rehearsal.
On analysis, the prosecution says that the answers on the video are given naturally and freely and have a sort of a flow. The accused corrects the police officer on occasions and on one occasion he is philosophical about his predicament. The prosecution says you can accept the video record of interview as
(Page 8)
- truthful and reliable in its importance as a piece of evidence about possession which is the important issue, the crown says, for which the video has been put in evidence."
17 A consideration of the record of interview reveals these features:
(1) The appellant described what quantities of substance were in the various containers or packets and the nature of it in each instance with surprising accuracy on most occasions;
(2) In effect, he accepted that all of the material was in his possession and, in the case of the amphetamine, that he had personally weighed it up;
(3) He volunteered that he had thrown the bag off the patio into the garden when he appreciated that the police had arrived;
(4) He also said that he had placed the bag and Tupperware box under a "black boy" bush where they were found and that about a pound and a half of amphetamine had been delivered to him in two bags on the preceding night. After taking two separate samples, each of about an ounce, he got the bulk of it out of the house, although he did not have a big enough Tupperware container to hold it all;
(5) He asserted that the heroin belonged to another person who "got caught for a quantity of it beforehand" and had buried it in the ground. That person had told him where it was. The appellant had dug it up and put it where it was found by the police. He was, he claimed, merely holding it for the other person until he came out of prison. The appellant was aware that the substance was, in fact, cut heroin; and
(6) He told the police that the cocaine was the balance of seven grams of that substance which he had purchased for his own personal use several weeks previously. He had used a small portion of it, by using the $5 note in his wallet to sniff it.
18 The interview ranged over a number of other topics, including cost and resale prices of the various substances, but it is not necessary to recite this in detail for present purposes. The appellant said that he, personally, did not use "speed" or heroin and volunteered the comments:
(Page 9)
- "… I was probably a bit stupid to get involved in this whole matter, but, apart from that, I've got caught and now I believe there are no excuses."
19 He later said on tape that the interview was made of his own free will.
20 It is important to bear in mind that the appellant elected not to give evidence. Accordingly, there was no positive evidence before the jury to found a suggestion that they should do other than take the video record at face value.
21 Sergeant Peribonio, who conducted the interview in the presence of the witness Sergeant Parker, was subjected to a searching cross-examination by senior counsel for the appellant.
22 It was variously suggested to Sergeant Peribonio that -
• he had told the appellant before the video was turned on that, if he did not co-operate and was convicted, "he would get many years' imprisonment"; and he had also said that, if the appellant assisted, at the very most, he would end up serving a couple of years and he would be right;
• the appellant was informed that the Sergeant would ensure that he would get bail if the latter assisted him but that, if he did not assist, Peribonio would do everything he could to make sure that he did not get bail;
• as a show of good faith on his part, Peribonio indicated to the appellant how he could base a defence concerning heroin on a case called Manisco;
• there was an undue, inexplicable delay between the time of arrival at the police premises and the commencement of the formal record of interview; and
• he actually took the appellant to a room where the drugs were laid out and, having got him to agree to co-operate, "gave him a dress rehearsal" for the interview by going through the weights with him.
(Page 10)
23 Having made those suggestions, counsel took the Sergeant through the record of interview in some detail and put it to him that there were instances in which the appellant had got his story wrong.
24 Some of these suggestions were also put to Sergeant Parker.
25 Both police officers unequivocally denied all suggestions of impropriety on their part. Moreover, it is fair to say that nothing emerged on the evidence to corroborate any of the assertions advanced on behalf of the appellant in that regard.
Disputed evidence
26 At trial counsel for the appellant objected to the admission of certain evidence dealing with two different topics. I will deal with each in turn.
27 First, the learned trial Judge was asked to exclude all evidence bearing on the finding of the cocaine, its analysis and any references to it in the record of interview, including the use of the $5 note to snort it.
28 It was pointed out that, not only was there no charge before the jury in relation to the cocaine, but that, on an earlier trial, the appellant had been acquitted of a charge of possessing it with intent to sell or supply, leaving only a charge of a summary offence of simple possession. Counsel argues that the evidence was no more than propensity type evidence and was highly prejudicial to the appellant.
29 It was said that the core issue in the case was whether, in the video record of interview, the appellant was truthful and accurate as to what he had said concerning the drugs the subject of the charges before the Court. A "bootstraps" argument was thus involved on the proposed Crown case. It was only if it could be shown that the appellant was telling the truth concerning the cocaine that, logically, the evidence of possession of that substance could be resorted to as a basis for suggesting that he was likely to be telling the truth concerning the other drugs.
30 Thus, the argument ran, the jury was, in effect, impermissibly being invited to pass upon an offence not charged, in a context highly prejudicial to the appellant. In any event, it was contended, the Crown assertion that if the appellant was telling the truth about the cocaine he was more likely to be telling the truth about the other drugs, was a non sequitur, because the whole of the confessional evidence was in issue.
(Page 11)
31 The learned trial Judge upheld the Crown submission that the impugned evidence was properly admissible for the limited purpose of establishing what he described as "the reliability and credibility of the record of interview", in the sense that, if it was accepted by the jury that the appellant had told the truth concerning the cocaine, then it followed that, due to the co-location of it and the other drugs in question, his statements concerning them were also truthful and accurate.
32 It is that ruling which is complained of in ground 2 of the notice of appeal. In essence, Mr Tehan, of senior counsel for the appellant, simply revisited the same arguments as were rejected by the learned trial Judge.
33 I do not consider that these contentions are of substance. It must be said that the evidence in question was never led or put to the jury on a propensity basis. It is quite clear that all that the Crown was putting, was the rhetorical question: "why would the accused truthfully admit to possession of the cocaine and not be truthful as to the other drugs found with it?" If the cocaine was, in fact, his, then it is a short step to accept that he also possessed the other, physically associated, drugs.
34 In my view, there is no impermissible circular reasoning involved in these propositions, as asserted by Mr Tehan QC. The critical issue was one of truthfulness and reliability. The overall accuracy of what was said by the appellant as to each of the physically associated items was an important consideration. It was so argued before the jury. The fact that, in the course of cross-examination, it was put to the Crown witnesses that there had been impropriety in relation to the VROI does not gainsay such a situation. I detect nothing of substance arising from that cross-examination to support the propositions put, absent positive evidence to support it and a screening of the VROI compellingly conveys the impression that, in a totally "laid back" manner, the appellant spontaneously gave true and generally accurate responses. To say that the accuracy of the whole of the VROI was contested and, thus, a circular argument arises seems to me to ignore the reality of the situation.
35 I would therefore reject ground 2.
36 The third ground was really advanced as an alternative to ground 2. It was submitted that, if it was concluded that the evidence as to the cocaine was properly before the jury, a specific direction should have been given to them as to its proper use. In particular, they ought to have been told that they should not reason that, because the accused had been in possession of the cocaine, he was the type of person likely to have also
(Page 12)
- been in possession of the relevant amphetamine and heroin with intent to sell or supply it. This was because there was some risk that the jury, uninstructed on the point, might resort to impermissible quasi propensity type reasoning.
37 By way of parallel conceptual example, the attention of this Court was directed to the type of direction espoused by Callaway JA in R v Grech [1997] 2 VR 609 at 614, albeit in relation to the sexual conduct there in issue.
38 In my opinion, there is some force in the criticism advanced. Strangely, the learned trial Judge did not have anything at all to say to the jury as to the use which they might properly make of the evidence related to the cocaine. Indeed, he made no specific mention of the cocaine at all. He did not go beyond the general comments which I have earlier recited and a resume of the criticisms which had been advanced by counsel for the appellant as to the content of the VROI.
39 Whilst this was not a propensity scenario at all, the fact remains that the evidence as to the cocaine was admitted for a quite limited purpose. I consider that the learned trial Judge erred in not identifying that purpose to the jury and pointing out to them that it should not be used as a basis for reasoning that, if the appellant was in possession of and used cocaine, he was obviously familiar with the drug scene and probably did have the other drugs in his possession as well. There was a degree of risk that, in the absence of such a direction, they might not appreciate the proper approach to be adopted.
40 I am, accordingly, of the view that ground 3 has been made good.
41 Ground 4 of the notice of appeal complains of the admission into evidence of certain statements made by the appellant in open court on 24 February 2000 in the course of the sentencing process that followed his previous trial.
42 It appears that, having been found guilty of the offences as to which he has now been retried, the appellant elected to make submissions as to sentence in person. An issue arose, at that stage, as to whether the learned presiding Judge ought to make an order for the destruction of the drugs found by the police.
43 The appellant, possibly having in contemplation the appeal which was, in fact, subsequently mounted in relation to his convictions, objected to the making of such an order. Inter alia, he complained that the analysis
(Page 13)
- certificate in relation to the heroin had said that the purity of the substance was 68 per cent, whereas, as said in his VROI, it was in fact cut heroin. He asked that the relevant powder be re-analysed.
44 Evidence of that situation was placed before the jury over the objection of counsel for the appellant, together with evidence that, as a matter of fact, the complaint of the appellant was subsequently found to be well justified. The Crown analyst conceded that he had made an arithmetic mistake - that the heroin was, indeed, cut heroin, as asserted by the appellant in his VROI. Its purity was only 14.7 per cent.
45 As to this, the prosecutor said to the jury, in opening:
"But the point the crown says to you about all that is this: the accused knew that it was cut heroin and asked for a reanalysis because the percentage was 68 per cent, and indeed the accused man was correct, the analyst had made a mistake, and the crown says to you that that simply shows that when the accused in the video said it was cut heroin, he indeed was speaking from his knowledge; that was correct, the accused ultimately was proved correct, and we say that's simply another indication that when the accused made what we say a free admission on the video, he was indeed telling the truth and he was accurate."
46 During the course of the evidence, by agreement between counsel as to its form, the following information was placed before the jury:
"… on 24 February of last year an application was made for destruction of the drugs, but the accused asked that that not happen and that the heroin be reanalysed, pointing on that [sic] on the video he said the heroin was cut heroin, although it has come back at 68 per cent."
47 Mr Tehan QC submitted that, in the exercise of his discretion, the learned trial Judge ought to have excluded this material for two reasons. First, the statement actually made by the appellant was said to be equivocal as to whether or not it was an implied admission of guilt, demonstrating guilty knowledge of the actual purity of the subject heroin. Second, it was made at the time when the appellant was unrepresented. Those two factors combined to constitute a degree of unfairness warranting exclusion.
(Page 14)
48 All that need be said concerning these arguments is that it is impossible to perceive how the admission of the material could possibly have given rise to unfairness.
49 It was, of course, entirely for the jury to decide what weight should be attributed to the facts put before them, but, on the face of the situation revealed by the evidence generally, it is difficult to see how it could fairly be said that the appellant's statement was equivocal to the degree that it ought not to have been put before the jury. It was plainly open to the jury to infer from it that the appellant did exhibit guilty knowledge of the purity of the heroin. Having regard to the evidence as a whole, such an inference was really the only logical, common sense conclusion to be drawn. The fact that the appellant was unrepresented at the time is scarcely a reason to exclude a statement volunteered by him in open court concerning a matter of considerable practical importance to him - the more so as he himself was really insisting that the statement which had been made by him in his VROI was correct. That was an aspect which strongly undermined the contentions sought to be advanced by his counsel as to the validity and accuracy of the other content of the record of interview.
50 There is no substance in ground 4.
51 Ground 5 in the notice of appeal contends that the learned trial Judge erred in failing to give the jury any specific direction as to the proper use of the statements the subject of ground 4. It was said that he ought to have directed the jury that they could only use the evidence to reason towards guilt if they were satisfied that, in making the statements in question, the appellant was in fact demonstrating guilty knowledge as to the purity of the heroin; and that, before they could come to such a conclusion, they would have to reject innocent explanations for the statements "such as it being no more than a call for re-analysis or a claim that the interview on this score was in fact false".
52 Mr Tehan QC went so far as to suggest that, because the Crown contention raised what was essentially a consciousness of guilt issue, some warning conceptually consistent with that adverted to by the High Court in Edwards v The Queen (1993) 178 CLR 193 or at least a warning in the form indicated in Zoneff v The Queen (2000) 200 CLR 234 was required.
53 The short riposte to that suggestion is that nothing that was ever said to the jury invited them to embark on a process of reasoning which,
(Page 15)
- conceptually, necessitated a direction of the nature contended for. The evidence was not relied upon to demonstrate any falsity, as in Edwards. It was made quite plain to the jury that the specific relevance of the evidence was that it went to establish the fact that the appellant obviously knew that the heroin had been cut. Accordingly, it was cogent evidence going to establish the truth and accuracy of what he said in the VROI. No particular direction was required. Had the present contention of the appellant been given effect to, it could well have had quite counter-productive consequences, by distracting the attention of the jury from the real significance of the evidence, towards somewhat undesirable and dangerous conceptual ground.
54 I would, therefore, reject ground 5.
Did the error identified in ground 3 result in a miscarriage of justice?
55 It is trite to say that if error on the part of a trial Judge results in a substantial risk of a miscarriage of justice, then it is not appropriate to resort to the proviso to s 689(1) of the Criminal Code. That proviso entitles this Court to dismiss an appeal if it considers that, despite error on the part of a trial Judge, no substantial miscarriage of justice has actually occurred. The High Court has consistently pointed out that such a provision can only be availed of if the appellate court is satisfied that, notwithstanding demonstrated error, the appellant has not been deprived of any chance of acquittal which was fairly open or, as it has sometimes been expressed, "a real" chance of acquittal.
56 Mr Tehan QC went so far as to submit that, regardless of how strong a Crown case might be, the proviso can have no application in a case where an accused has been denied directions to which he was entitled as a matter of law. Whilst that may often be the practical situation, it cannot be said that such a proposition is absolute. It remains a question of the importance of a failure to give a specific direction in the particular case (Fleming v The Queen (1998) 197 CLR 250 at 265.)
57 The approach to be adopted is that recently discussed by the High Court in Festa v The Queen (2001) 76 ALJR 291. As was stressed by the majority in Glennon v The Queen (1994) 179 CLR 1, an assessment of whether the proviso should be applied depends on the circumstances of each case. It is not, for example, the situation that the proviso will never be applied when there is a misdirection going to the issue of credibility of an accused.
(Page 16)
58 The High Court pointed out in Glennon that there is no mechanical formula or rigid test to be applied in determining whether an irregularity constitutes such a departure from the essential requirements that it goes to the root of the proceedings, thereby producing the consequence that an accused has not had a proper trial. Each case depends on its own circumstances and it is "appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error".
59 Unless there was a fundamental error of the nature described in Wilde v The Queen (1988) 164 CLR 365, a Court of Criminal Appeal is justified in applying the proviso if it is satisfied that, notwithstanding the error, the jury would inevitably have reached the same verdict (Festa).
60 I do not consider that the failure of the learned trial Judge to give that type of direction which was here called for was, in the circumstances of this case, so fundamental as to go to the root of the proceedings and produce the result that the appellant has not had a proper trial. As has been demonstrated, this was not a propensity case such as to attract the critically important types of direction discussed in BRS v The Queen (1997) 191 CLR 275 and Gipp v The Queen (1998) 194 CLR 106. Rather, it was a situation in which it was desirable that the jury be reminded of the limited scope and purpose of the relevant evidence.
61 The fact of the matter is that, absent any positive evidence on the part of the appellant or any patent destruction of the veracity of the prosecution witnesses by cross-examination, the Crown case against the appellant was overwhelming. Not only were the drugs found on the property occupied by him, but his VROI contained unreserved admissions on his part as to both possession and his role in the relevant factual scenario.
62 The members of this Court have had the benefit of reviewing the videotape placed before the jury. It is truly compelling. There is no apparent reason to suspect that what was said was other than the voluntary and substantially accurate narration of the facts by the appellant. He projects as a self-possessed person who accepts that he has been caught red-handed, his responses are appropriate and spontaneous, the information given was surprisingly accurate for the most part and, on at least one occasion, he actually corrected something said by the police officer.
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63 Quite apart from any reference to the cocaine, it is difficult, if not impossible, to envisage how a jury could logically or reasonably have rejected the substance of what was said in the VROI concerning the heroin and the amphetamine as untruthful or inaccurate. The risk of impermissible reasoning was minimal, given the specific basis on which the evidence was placed before them. The absence of any complaint by experienced counsel for the appellant at trial strongly reinforces that conclusion.
64 In short, this was a classic illustration of the type of situation adverted to by Kirby J in Doggett v The Queen (2001) 75 ALJR 1290, at [154]. It was not merely that the Crown case was a strong one. The conviction of the appellant was truly inevitable on the evidence. It was unrealistic to believe that the giving of the direction which should have been given might possibly have led to a different outcome.
65 I conclude that this is a case in which the proviso can and should be applied. It would be an affront to common sense not to do so. I would therefore dismiss the appeal.
Application for leave to appeal against sentence
66 The appellant was sentenced to 10 years' imprisonment in respect of count 1 and 7 years' imprisonment in respect of count 2, to be served concurrently, with parole eligibility. Two years of the sentences were to be served cumulatively upon a sentence then being served in respect of quite separate offences.
67 Mr Tehan QC urged upon the Court that the manner in which the sentences were structured, so as to have the practical effect of extending the 13-year sentence then currently being served by two years, breached the totality principle and brought about the practical result that the appellant was subjected to a crushing sentence. He drew attention to the provisions of s 88(1) of the Sentencing Act 1995 and suggested that it exhibited a clear policy that sentences imposed on a person already serving a term of imprisonment should normally be made concurrent (cf R v Mantini [1998] 3 VR 340 at 347).
68 As to the last-mentioned point, all that need be said is that the structure of the section is such that it does no more than confer an unfettered discretion on the Court to fashion sentences in a flexible manner, as the circumstances require.
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69 There can be no doubt that what the learned sentencing Judge set out to do was to construct a sentencing strategy which, at the same time, both recognised the gravity of the offending conduct, but also made due allowance for the operation of the totality principle.
70 It is not to be forgotten that the serious offences which gave rise to the earlier 13-year sentence were also drug offences and were committed while the appellant was on bail in respect of those under review in these proceedings. It was entirely appropriate that some term, in extension of the term already in force, be served. To do otherwise would not satisfy the factors of personal and general deterrence. It would send an inappropriate message to others who might contemplate continuing to commit further serious offences during the pendency of other charges.
71 Whilst the total sentences being served are undoubtedly severe, the circumstances giving rise to them well warranted such severity. It has repeatedly been said that the type of personal circumstances of an offender identified by Mr Tehan QC in this case can only attract limited recognition in the development of a sentencing strategy for the commission of serious drug offences. Although the drugs were in "street" level concentrations, there was a large quantity of them. The appellant was patently involved in a substantial drug reselling activity.
72 True it is that there has been delay in bringing the whole forensic process to a conclusion and that the appellant was shown to be correct in his criticism of the evidence of the heroin level of purity. However, full credit has been given for time spent in custody prior to that trial and, in my opinion, the learned sentencing Judge has, if anything, been quite lenient in the degree of cumulation ordered.
73 I see no basis for contending that there has been any error of principle in the sentencing process. I would refuse leave to appeal against sentence.
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