Davis v The State of Western Australia
[2007] WASCA 267
•11 DECEMBER 2007
DAVIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 267
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 267 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:143/2006 | 21 SEPTEMBER 2007 | |
| Coram: | STEYTLER P BUSS JA MURRAY AJA | 10/12/07 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | COLIN JOHN DAVIS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction Whether consciousness of guilt warning required in relation to alleged lies by the appellant Whether prosecution failed to disclose content of police interview with defence witness Whether miscarriage of justice resulted |
Legislation: | Nil |
Case References: | Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273 Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 Edwards v The Queen (1993) 178 CLR 193 Gavin v The Queen (1992) 6 WAR 195 Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 Lawson v The Queen [2004] NTCCA 7 Liberato v The Queen (1985) 159 CLR 507 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 R v Chang [2003] VSCA 149; (2003) 7 VR 236 R v Shiers [2003] VSCA 179; (2003) 7 VR 174 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 White v The Queen [2006] WASCA 62 Zheng (1995) 83 A Crim R 572 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DAVIS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 267 CORAM : STEYTLER P
- BUSS JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : DAVIS -v- THE STATE OF WESTERN AUSTRALIA
File No : BRO 34 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Appeal against conviction - Whether consciousness of guilt warning required in relation to alleged lies by the appellant - Whether prosecution failed to disclose content of police interview with defence witness - Whether miscarriage of justice resulted
Legislation:
Nil
Result:
Extension of time refused
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr D Dempster
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Edwards v The Queen (1993) 178 CLR 193
Gavin v The Queen (1992) 6 WAR 195
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Lawson v The Queen [2004] NTCCA 7
Liberato v The Queen (1985) 159 CLR 507
(Page 3)
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
R v Chang [2003] VSCA 149; (2003) 7 VR 236
R v Shiers [2003] VSCA 179; (2003) 7 VR 174
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62
Zheng (1995) 83 A Crim R 572
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
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1 STEYTLER P: I have had the advantage of reading the judgment of Murray AJA. It is consequently unnecessary for me to restate the facts, other than those that are material to the conclusions at which I have arrived.
2 The appellant's appeal against his conviction on two charges of possession of MDMA (ecstasy) with intention to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) gives rise to two issues. The first is whether a so-called 'Edwards direction' (Edwards v The Queen (1993) 178 CLR 193) should have been given by the trial judge. The second is whether the prosecutor breached his duty of disclosure in a material way.
The Edwards issue
3 The facts relevant to the first issue are these.
4 After the appellant had collected a box, in suspicious circumstances, from a depot in Broome, the police followed him to his home. They took possession of the box. Inside it were 200 ecstasy tablets wrapped in a piece of paper with the word 'Col' written on it (the appellant's first name is Colin). This gave rise to the first of the two charges upon which the appellant was convicted.
5 Later that day, detectives returned to the appellant's home in order to search it. He was present during the search. When asked if he had cash in his bedroom he directed the police to a plastic bag under a mattress. It contained $9,810. The police found another $19,495 in cash in a drink container or flask on a shelf in a wardrobe. They also found 25 ecstasy tablets in a film canister, which was hidden in a rolled up poster. Finally, they found a tobacco tin containing a note which read as follows:
Hey, supergroover, here's all the money, $1,140. Kim had one so it's $50 short. Me and Nev had 2 x [picture of smiling face] plus $250. Thanks a lot, supergirl and superhunk.
- The police suggested to the appellant that the smiling face symbol was a reference to ecstasy tablets and that the note recorded payment for drugs supplied. The appellant made no comment. His possession of the 25 ecstasy tablets gave rise to the second charge on the indictment.
6 After the police had counted the money in the plastic bag under the bed, a detective had asked the appellant, 'Colin, is there any other cash?' He made no audible response. However, he appeared to shake his head so as to give a negative response. Later, after the flask with the second
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- quantity of money had been found in the wardrobe in his bedroom, it was put to the appellant by a detective that, after the money found under the mattress had been counted, the appellant had 'explained that was all the money that [he] had in the house'. The appellant agreed that this was so. He admitted that the money was his (he said that it was mostly from a business operated by him) but said that he had forgotten that it was 'up there'. Also, when asked how much money there was in the flask, the appellant said that he thought there might be $4,000. As I have said, it contained $19,495.
7 In his evidence at the trial, the appellant said that he had thought that the flask containing the $19,495 was hidden in the laundry. He said that he was shocked to see it in his bedroom and did not know how it came to be there. Later in his evidence he said that he had forgotten that the money was in the bedroom. He said that he did not know what to say or do during the search and that he could not think clearly. He was examined, at length, by his counsel with respect to the origin of the cash. He explained that it had been received from his business.
8 In the course of cross-examination, the prosecutor suggested to the appellant that he must have remembered the money in the flask, once the money under the bed had been found, and that he knew that it was in his room. He denied that this was so. It was put to him that he was lying. He denied this, too. The following exchange then took place (ts 180):
[S]o why would I lie about $4000 when they had it in their hands.
Because, Mr Davis you knew it was drug money?---That had nothing to do with it.
You knew that money was found in the same room where 25 ecstasy tablets were found and it was found on the same day that the police found in your possession 200 ecstasy tablets?---That is so not true. They found $10,000 already, then they found the flask. They were going to count the money. Do you understand that? They were going to count the money so whether I'd lied whether it was $4000 or whether I said it was $30,000 it made no difference. They were going to count the money. I had no idea what was in there. I couldn't think straight. I didn't know.
9 The prosecutor then suggested to the appellant that he had sold ecstasy tablets for cash and that this explained the large amounts of money found in his room. The appellant denied that this was so. He also said, during the course of his evidence, that he had had no idea that the box collected by him had contained drugs and that he did not know anything about the ecstasy tablets found in the canister. He said that he
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- knew nothing about the note other than that 'supergroover' was a nickname used by an acquaintance of his, Christian Daxbock. Mr Daxbock gave evidence at the trial. He said that the 25 ecstasy tablets found in the bedroom belonged to him. Each of the appellant and Daxbock denied any knowledge of a set of scales that had been found in the bedroom.
10 In his closing address, the prosecutor suggested to the jury that the cash found in the appellant's bedroom represented the proceeds of sales of ecstasy tablets. He said, in this respect (ts 231):
What else do they find in the bedroom? Well, blow me down, under the mattress they find $9810 in cash and he tells you that this money is from the business and that's the money he pays wages and business expenses out of. Well, members of the jury, the State asks you to reject everything that he has told you about this cash money. It is a nonsense. It's fanciful. The State says you could easily draw an inference that that money that was secreted in that bedroom is money from drug sales and the State can say that because there is this note, this Super Groover note, which the State says clearly shows he's dealing in drugs, and really do you accept his explanation about that money under the mattress and even more surprisingly the money inside the water bottle that is found in the wardrobe? How much money was found in that bottle in the wardrobe? $19,495, and look at his reaction when that's found.
- Later he said (ts 232):
That's what he said to the police and he said, 'Oh, the reason I said that to the police is because I was so nervous. I was in shock.' Well, you have a look at the video, members of the jury, and you make up your own mind how nervous and how shocked he was. He wasn't nervous and he wasn't in shock. He was busted well and truly. He had gone to Broome Freightlines to pick up some more ecstasy tablets. The police had strategically placed themselves in a position where they could watch what he was doing. They followed him to 22 Herbert Street and he was busted.
He was busted with 200 ecstasy tablets in the box; 25 in his bedroom; about $30,000 cash which he really at the end of the day hasn't accounted for; a set of scales which appears on all the evidence has just appeared in his room out of the blue. Old Mr Daxbock couldn't tell you where they came from. They certainly weren't his. Well, isn't that odd?
And soon after (ts 232):
All of you have different experiences in life and all of you can combine those worldly experiences and your commonsense together and then you look at this in a commonsense way. What's happened on 28 November 2003 is that this person got busted. He got busted. He was dealing in drugs and this was the end of the road.
- That explains the huge quantity of unaccounted for cash because this story of the cash being from the business is, of course, a nonsense.
11 In his directions to the jury, the trial judge warned them that they should not convict the appellant simply because they rejected his evidence. He reminded them that the State was required to prove its case beyond reasonable doubt. He said (ts 265) that the State relied on the money found at the appellant's house as evidence of the fact that he was selling drugs, but told the jury that they must be satisfied that the money was the proceeds of drug sales before they could use the evidence in this way. He later gave the following direction (ts 269):
During the search the accused initially stated that there was no other cash in the room other than the cash found under the bed. The police then located a further $19,495 in the drink container. The state says that you should reject the accused's explanation that he had forgotten about this amount. Mr de Vries [the prosecutor] submits that it is incredible to suggest that the accused would forget a container containing almost $19,000 in his house.
…
The state submits that it is not credible that a person would hold $30,000 in their bedroom if it was proceeds of a legitimate business. The State further submits that the accused was deliberately coy in admitting to the police the amount of money in the bedroom because he knew the money was the proceeds of drug trafficking. Now, the accused denies that the money was the proceeds of drug dealing. His evidence was that he operated a very successful business in Broome and often received large payments in cash. He said he banked cheques and processed EFTPOS transactions but the cash he kept so as to avoid taxation and also to pay expenses in the course of his business.
He stated he was not aware the plastic drink container was in the bedroom as he said that he had previously hidden it in the laundry. He stated that he and Mr Miller [an acquaintance of the appellant] had entered into an arrangement that payments be made to Mr Miller so as to create a false impression to the bank that Mr Miller was running a successful business so that Mr Miller could obtain loans from the bank.
12 The trial judge also reminded the jury of the appellant's evidence that he had forgotten about the $19,495 found in his room and that he was under stress during the search of his home.
13 No redirection was sought.
14 For a lie to be evidence of guilt, rather than merely a matter going to credit, it must be deliberate. The accused must have told the lie because
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- he perceived that the truth was inconsistent with his innocence. It must be a lie that an innocent person would not have told: Edwards, 209 (Deane, Dawson & Gaudron JJ). The lie must reveal knowledge of the offence, or of some aspect of it, and the jury may only use the lie as evidence of guilt if satisfied that the accused knew that telling the truth would implicate him or her in the offence: Edwards, 210 - 211 (Deane, Dawson & Gaudron JJ). It is important that this should be explained to the jury. In the course of giving this explanation, the lie should be precisely identified by the trial judge as should the circumstances and events that are relied upon as indicating that the lie amounts to an admission against interest. The jury should be told that there are many reasons why people lie, and that if they accept an explanation of the lie that is consistent with innocence, they cannot use the lie as evidence against the accused: Edwards, 211 (Deane, Dawson & Gaudron JJ).
15 Where a lie is relied upon, not merely to strengthen the prosecution case, but as corroboration of the evidence of a witness, there is an additional requirement that must be satisfied. This is that the untruthfulness must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. That is because, if the evidence of the witness who is required to be corroborated is believed in preference to the evidence of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself or herself: Edwards, 211 (Deane, Dawson & Gaudron JJ).
16 Also, mere disbelief of an accused person's denial that he committed the offence cannot be used as evidence of consciousness of guilt because the lie alone is insufficient to prove the positive of what was denied: Edwards, 201 (Brennan J), 208 (Deane, Dawson & Gaudron JJ); Liberato v The Queen (1985) 159 CLR 507. The case of Zheng (1995) 83 A Crim R 572 provides an example. The appellant was charged with supplying heroin. In order to convict him the Crown had to satisfy the jury that it had been the appellant who, on two separate occasions in a carpark, had received a plastic bag containing heroin from some other person and placed it in the boot of a car. The only evidence of this came from police officers who had observed the appellant in the carpark. In an unsworn statement, the appellant said that he had been in the carpark only for the purpose of cleaning cars and that he had spoken casually to another person who had previously been unknown to him. The prosecutor contended that, if the jury accepted the evidence of the police officers, they could be satisfied that the appellant had lied in this respect and that his lies were 'Edwards lies'. This contention was rejected by the court. Hunt CJ (with whom Smart and Studdert JJ agreed) said (577):
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- [T]he appellant's lies as to what he did in the car park could not logically be established without first reasoning that the appellant had in fact done in the car park what the Crown's witnesses said that he did, where their evidence was the only evidence that he so conducted himself. This circular process of reasoning was necessarily erroneous in relation to the second and third counts [concerning the events in the carpark], where that was the only conduct concerning the appellant which the jury had to consider.
- (See also Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [64] - [71] (McLure JA, Roberts-Smith & Buss JJA agreeing.))
17 An Edwards direction is given in order to protect the accused from fallacious reasoning by the jury. In Edwards, Deane, Dawson and Gaudron JJ said (211):
It should be recognised as a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to such matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told.
18 There are no rigid prescriptive rules as regards when, and in what precise terms, an Edwards direction should be given: Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 [15] (Gleeson CJ, Gaudron, Gummow & Callinan JJ). However, the majority in Zoneff gave some guidance in this respect, as follows [16] - [20] (footnotes omitted):
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt …
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
This was an unusual case. The prosecutor did not, during cross-examination, in terms, or in our view, by implication, suggest that any answer given was a lie, told out of consciousness of guilt (a phrase we use for convenience). Moreover, as the prosecutor did not address the jury, no such suggestion was made at any later stage of the trial.
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- In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.
It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant.
19 It appears from this passage that the majority accepted that, during cross-examination, the prosecutor might suggest, by implication, that an answer given was a lie told out of consciousness of guilt. Also, as Kirby J pointed out the ultimate question is what the jury would have made of the evidence [71]. Similar comments have been made in other cases. For example, in R v Chang [2003] VSCA 149; (2003) 7 VR 236 [5] Ormiston JA said:
Although a prosecutor's failure to use the conventional expression 'consciousness of guilt' may serve to take some of the sting out of its case, the need for appropriate direction cannot be averted merely by giving it a less colourful description. If the evidence and its use by the prosecution is intended to show that such lies or other acts could not have been perpetrated unless the accused was implicitly admitting his or her guilt, then the need for the warning remains. If a lesser use of that evidence by the jury is intended and sought by the prosecution, then the absence of a warning will ordinarily cause no harm.
- (See also Lawson v The Queen [2004] NTCCA 7 [43] - [44].)
20 As the majority pointed out in Zoneff, it is always necessary to consider whether an Edwards direction is justified in the circumstances of the case [20]. That is because a direction of that kind is capable of raising an issue or issues upon which the parties were not joined, and highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant. Also, in Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, Gleeson CJ and Hayne J said [34]:
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the
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- prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.
21 In the present case the prosecutor suggested, during the course of his cross-examination of the appellant, that the appellant had deliberately lied about the money found in his room only because he knew that it was derived from drug sales and (implicitly) because he knew that its presence would implicate him in the offences charged. I have said that he put to the appellant that he had lied about the money found, and that he had done so because he 'knew it was drug money'. Although the second of these allegations was not repeated in so many words in the course of the prosecutor's closing address, it might reasonably have been thought by the jury to have been implicit in what was said by him in the passages that I have extracted above. Moreover, as I have said, the trial judge told the jury that the State submitted that the accused 'was deliberately coy in admitting to the police the amount of money in the bedroom because he knew the money was the proceeds of drug trafficking'.
22 This is not a case in which the lies were relied upon to satisfy a requirement that the evidence of a prosecution witness be corroborated. Nor is it a case involving the kind of circularity discussed in Zheng. In this case there was no reliance upon the evidence of prosecution witnesses which established the offence in order to establish, also, that the appellant had lied. The untruth of the statements made by the appellant in relation to the cash was not said to have been established by evidence led by the prosecutor. Rather, it was said to have been established by the very improbability of those statements or, as the prosecutor put it, by their nonsensical or fanciful character. Also, the lies in this case were not denials of guilt of the offences charged, or either of them. They were material to those offences only because, if the money represented the proceeds of drug dealing, it was more likely that the drugs found in the box and in the appellant's room belonged to the appellant and were possessed by him for the purpose of sale.
23 However, the fact that, notwithstanding all of this, the trial judge did not give an Edwards direction must be looked at in the context of the way in which the case had been run. The motive for the alleged lies was put to the appellant in cross-examination and no express reliance was placed by the prosecutor on them as admissions of guilt: see in this respect, Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273 [135] (Basten JA). The issues of how much money was hidden in the
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- appellant's bedroom and whether he had, or had not, forgotten that most of it was there, paled into insignificance when compared with the importance of the question of where the money had come from. This is apparent from the course which both the examination-in-chief and the cross-examination of the appellant took during the trial. It is also apparent from the way in which the prosecutor framed his closing address.
24 Moreover, the trial judge told the jury that they could not convict the appellant simply because they rejected his evidence. He also identified the lies relied upon, and their significance for the State's case. He repeated the appellant's explanation for the statements made by him. Consequently, as counsel for the appellant rightly acknowledged, this ground of appeal rests only upon the proposition that the jury were not told by the trial judge that there were many reasons why a person might lie, or that they could not use the lies as evidence of guilt unless they believed the appellant knew the truth would implicate him in the offence.
25 In my opinion even if the failure to give these directions amounted to an error, which is doubtful, it did not result in a substantial miscarriage of justice: s 30(4) of the Criminal Appeals Act 2004 (WA); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. In the context of the trial, the suggestion that the appellant had lied about the money because he knew it to be drug money was not significant. It is not in dispute that the jury understood that they could not convict the appellant unless satisfied, beyond reasonable doubt, that his denials of any knowledge of the drugs found in the box or in his bedroom were untrue. It was also obvious to them that they could not use the evidence of the finding of the money as evidence of drug dealing on the part of the appellant unless satisfied that the only explanation that had been offered by him for its existence was untrue. It is true that the jury were not told that there were many reasons why a person might lie (for example, because of a fear that, although the money was innocently obtained, it might not be regarded in that way). However, the jury would have focussed, as they had been invited by the prosecutor to do, on the question whether the appellant's explanation for the existence of the money was credible. It is difficult to see how they could have come to any conclusion other than that it was not. In my opinion, it defies credibility to suggest that some $30,000 would have been concealed in the appellant's bedroom if it came from a legitimate business, even if the appellant intended to evade income tax. His evidence was that part of the money was to be used by him to pay his business expenses.
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26 More importantly, the prosecution case against the appellant was overwhelming. The appellant had collected the box, seemingly consigned to him, containing the ecstasy tablets. The prospect that he had mistakenly been given some-one else's parcel, when one of the two parcels delivered to him had not been received by him and when this was the only parcel unaccounted for, and that it should have turned out, quite by chance, to have contained drugs similar to those found hidden by some other person in his bedroom, verges on the absurd. Moreover, the appellant's name appeared on the paper in which the tablets found in the box had been wrapped. The note found in his bedroom plainly concerned dealings in drugs. Daxbock's evidence in that respect and as regards his ownership of the other tablets was rejected by the jury. Finally, the appellant had a large amount of money in his room and on his person for which there was no credible explanation, if it had been legitimately earned. In all of these circumstances the prospect that a miscarriage of justice resulted from the adoption of any impermissible reasoning in respect of the alleged lies seems to me to have been remote: cf R v Shiers [2003] VSCA 179; (2003) 7 VR 174 [47] (Vincent JA). I am satisfied, having regard for the whole of the record of the trial, and taking into account the limitations under which this court labours in not having seen and heard the witnesses, that the appellant was proved to have committed both offences charged.
The disclosure issue
27 I have said that Daxbock gave evidence at the trial. On the second day of the trial, before he had given evidence, he was arrested as he sat outside the court. He was interviewed by police on videotape from about 2.20 pm, just after the lunch adjournment. The appellant was giving evidence that afternoon. The appellant's evidence-in-chief concluded at about 3.36 pm. Daxbock's interview finished at about the same time. He had been arrested, and ostensibly interviewed, in respect of a traffic matter. However, the bulk of the interview related to his claim that the 25 ecstasy tablets found in the appellant's bedroom belonged to him.
28 The prosecutor began cross-examining the appellant at 3.48 pm. In the course of his cross-examination, he suggested to the appellant that he had conspired with Daxbock to invent a story that Daxbock was the owner of the 25 ecstasy tablets. The then defence counsel, Mr Hylton Quail, objected to this line of cross-examination. He said that it was improper, unless there was a basis for it. He said that if there was such a basis, he would like to know what it was. The prosecutor, Mr Edward de Vries, responded to the objection by saying that Daxbock had been arrested and
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- interviewed that afternoon. He said that Daxbock had told the police that he was to give evidence at the trial and that his evidence would be that the 25 ecstasy tablets that had been found in the appellant's bedroom belonged to him. The prosecutor said that the police did not believe this and that Daxbock would not be charged with the offence of possession of the tablets, despite his admissions. Having heard this explanation, the trial judge overruled the objection.
29 By ground 2 of the grounds of appeal, the appellant contends that the prosecutor failed to disclose that Daxbock had been arrested while he sat outside court, that he had been interviewed and that he had made full admissions to the police in relation to the 25 ecstasy tablets found in the appellant's bedroom. The non-disclosure is said to have resulted in a miscarriage.
30 Evidence was received in the course of the appeal from each of Mr de Vries and Mr Quail. Each swore an affidavit and was cross-examined in respect of it. The court also received the transcript of the interview of Daxbock by two police officers, Detectives Howard and Kapiteyn. The interview was conducted at the Broome detectives' office, which is across the road from the court.
31 In his affidavit, Mr de Vries said that Detective Howard told him, during the lunch adjournment, that Daxbock had been arrested and interviewed, that he had said, in the course of the video-recorded interview, that the drugs were his and that the police did not believe him and would not charge him. Plainly, Mr de Vries could not be right about the timing of the information supplied to him by Detective Howard. I have said that the interview with Daxbock did not begin until 2.20 pm, after the lunch adjournment. In cross-examination, Mr de Vries accepted that he may have been confused as to the time. However, he said that, within seconds of receiving this information from a detective, he had disclosed it to Mr Quail. He said that Mr Quail then spoke to the detective.
32 Mr Quail, too, recalled a conversation with the prosecutor either in the lunch break or in the break after the appellant had completed his evidence-in-chief. He acknowledged that Mr de Vries told him that Daxbock had been arrested and was being interviewed on videotape. He said that Mr de Vries did not tell him what had transpired during the interview and that he had the impression that Mr de Vries did not then know what had been said. He accepted that, once he had heard Mr de Vries' response to his objection to cross-examination of the
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- appellant concerning Daxbock, he knew that there must be a videotaped record of the interview with Daxbock. However, he did not attempt to look at the videotape, or seek any adjournment for that purpose, because the explanation given to the court by Mr de Vries had made it clear that Daxbock had said no more in the course of his interview than Mr Quail had expected him to say. When Daxbock gave evidence, it was not suggested to him, during the course of cross-examination by the prosecutor, that he had made any prior inconsistent statement in the course of the video recorded interview.
33 A prosecutor's duty of disclosure is fundamental to the existence of a fair trial. The defence should not have to 'fossick' for material to which it is entitled: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [23] (Gleeson CJ, Gummow & Callinan JJ). All relevant evidence must be disclosed by the prosecution: Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [17] (Gummow, Hayne, Callinan & Heydon JJ). There is, in this respect, a statutory obligation imposed by s 42(5)(b) of the Criminal Procedure Act 2004 (WA), in the case of indictable offences charged in courts of summary jurisdiction. This requires the prosecutor to disclose 'any evidentiary material that is relevant to the charge'. 'Evidentiary material' is defined in s 42(1) as follows:
42. Full disclosure by prosecutor
(1) In this section, unless the contrary intention appears -
…
'evidentiary material' relevant to a charge, means -
(a) a copy of -
(i) every statement that has been made in accordance with Schedule 3 clause 4 by;
(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by;
(iii) every recording that has been made under the Evidence Act 1906 of; and
(iv) every other statement by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor’s case or the accused’s defence;
- …
(e) a copy of every other document or exhibit that may assist the accused’s defence,
that is in the possession of the organisation or person who investigated the offence;
- 'serve' an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.
(2) A requirement under this section to serve evidentiary material includes a requirement -
(a) if it is not practicable to copy a document or exhibit referred to in paragraph (c), (d) or (e) of the definition of “evidentiary material” in subsection (1) - to serve a notice that describes it and states where and when it can be inspected;
(b) if a copy of a statement or recording of a person is served - to also serve a copy of any statement or recording of the person that contains material that is inconsistent with that statement or recording;
…
(9) If, after complying with subsection (6) … and before a charge is finally dealt with, a prosecutor receives or obtains -
…
(b) additional evidentiary material that is relevant to the charge;
(c) any statement or recording referred to in section 42(2)(b); or
…
the prosecutor must lodge it or a copy of it, and serve it or a copy of it on the accused, as soon as practicable.
(Page 17)
35 The Director of Public Prosecutions' approach to disclosure is contained in the Statement of Prosecution Policy and Guidelines 2005 (Guidelines) prepared by his office. It reads, relevantly, as follows:
Disclosure of State Case
101. The State has a general duty to disclose the case in-chief for the prosecution to the defence.
102. Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.
Disclosure of Information to the Defence
103. The prosecution is required to disclose to the defence a copy of every statement or deposition, obtained by the prosecution, of any person who may be able to give relevant evidence at the trial.
…
109. These details should be disclosed in good time.
36 The requirement in par 102 of the Guidelines that there be 'full disclosure of all relevant evidence' unless the circumstances are exceptional, reflects the common law stated in Grey and Mallard. In Mallard Kirby J suggested that an earlier version of the Guidelines was not intended to 'expel' the common law [63]; see also White v The Queen [2006] WASCA 62 [187]-[193] (McLure JA).
37 In this case, the fact that Daxbock had been interviewed was disclosed to the defence. Moreover, even if Mr Quail had not been told, the defence would have assumed (as Mr Quail acknowledged) that the interview had been video recorded. It is unnecessary to decide which of Mr Quail and Mr de Vries (each of whom gave their evidence honestly) has the more accurate recollection concerning the question whether Mr Quail was told what had been said by Daxbock during the course of the interview. That is because it is common cause that the broad contents of the interview were made known to him not long after it had concluded, at the time of his objection to the prosecutor's cross-examination of the appellant. It was then still open to the defence to seek an adjournment to view the videotape, had it wished to do so. As I have said, that was thought to be unnecessary. In those circumstances, nothing followed from the short delay (if there was one) in the making of disclosure.
(Page 18)
38 Counsel for the appellant contended, in this respect, that the detail that Daxbock had been able to recollect during his interview concerning his placing of the 25 ecstasy tablets in the appellant's bedroom was so significant as to have required immediate disclosure of the whole of the videotaped record of interview. There seems to me to be no substance to that contention. The fact that no details concerning the interview had been provided was obvious to defence counsel who, as I have said, could have viewed the videotape had he wished to do so. In any event, as I have also said, Daxbock was not cross-examined with respect to the contents on the videotape. It is consequently difficult to see what use might have been made of it by counsel for the defence, even if it had been available. It could not have been used to refute an allegation of recent invention. The interview with Daxbock took place after the alleged invention. Nor could the then counsel for the appellant have cross-examined Daxbock, who was a defence witness, in relation to the contents of the videotape.
39 It follows that, if there was any failure of the prosecutor's duty of disclosure (which has not been shown), it did not lead to a miscarriage.
Conclusion
40 In my opinion there is no merit in either ground of appeal. I would consequently refuse the necessary extension of time within which to appeal, having regard for the unsatisfactory explanation for the delay discussed by Murray AJA in the course of his reasons.
41 BUSS JA: I agree with the President.
42 MURRAY AJA: The appellant was indicted with two offences of possession of a prohibited drug, the name of which is usually given in the shorthand form, MDMA, with intention to sell or supply it to another, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). It will be convenient to refer to the drug by its colloquial name, ecstasy. The two charges were identical. Each alleged an offence committed in Broome on 28 November 2003.
The course of the trial
43 The appellant was presented in the District Court at Broome for trial by a judge and jury on 23 January 2006. The prosecution had some difficulty with witnesses. The trial commenced before the jury, effectively at about 1.20 pm. After the prosecution opened its case, a Mr Sheridon, an employee of Broome Freightlines, gave evidence by videolink. His evidence was concerned with the appellant's receipt at the
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- transport depot in Broome of a particular parcel, a large cardboard box. Following Mr Sheridon, evidence was given by a Detective Sergeant Black.
44 The following day was a full day of trial. The court reconvened at about 9.30 am and adjourned at about 4.30 pm. By then, the prosecution had closed its case and the appellant, having been called immediately, was in the course of giving his evidence. The trial resumed on 25 January 2006, at about 9.15 am, when the appellant resumed his evidence. At the conclusion of that evidence, the defence called a witness, a Mr Daxbock. Counsel's addresses finished at about 12.30 pm and the luncheon adjournment was then taken.
45 The trial judge commenced his summing up at about 2 pm. The jury retired to their deliberations at 3.10 pm, and having returned to the court room with a question at about 5 pm, at about 5.20 pm they returned guilty verdicts in respect of both counts. The judge proceeded immediately to hear a plea in mitigation and to pass sentence. A term of imprisonment of 32 months was imposed in respect of the offence which was count 1 on the indictment, the more serious of the two, and a term of 8 months imprisonment was imposed for the other offence. Those sentences were ordered to be served concurrently, with eligibility for parole.
The appeal against conviction
46 The appeal is against conviction. The grounds argued are as follows:
GROUNDS OF APPEAL AGAINST CONVICTION
1. The learned trial Judge erred in law by failing to direct the jury in accordance with Edwards v The Queen(1993) 178 CLR 193 in relation to the evidence of the alleged lies told by the Appellant during the course of the search of the Appellant's residence on 28 November 2003. The search was recorded on video and relied upon by the Prosecution as evidence amounting to a 'consciousness of guilt' on the part of the Appellant.
Particulars
a) The Appellant's answers that:
(i) there was no other money in the premises, and (after the police located the money),
(ii) that he had forgotten about the $19,495 located by the police.
(Page 20)
- 2. The Appellant's trial miscarried as a consequence of the learned Prosecutor's failure to comply with his obligations of disclosure in circumstances where the failure to disclose relevant material gave rise to a substantial miscarriage of justice.
Particulars
a) The learned Prosecutor failed to disclose to the Appellant that Mr Christian Walter Daxbock, a defence witness, had been arrested whilst he sat outside Court waiting to be called on behalf of the Appellant at the trial; interviewed by police on video; and had made full admissions to police in relation to the prohibited drugs the subject of count 2 on the indictment.
An extension of time is required
48 Under the Criminal Appeals Act2004 (WA),s 28(3), the appeal was to be commenced within 21 days of the date of the convictions and so it was about 8 1/2 months out of time, a very long time indeed.
49 There is an application for an extension of time. It is supported by an affidavit of the appellant. He explains that it took him until 11 February 2006 to apply for legal aid to fund the appeal. In his application, he said he wanted Mr Richter QC to represent him. On 28 February 2006, the Legal Aid Commission advised him that they required him to nominate a West Australian solicitor.
50 The appellant decided not to pursue his application for legal aid, but sought the advice of a girlfriend of a friend. She was a lawyer with the Aboriginal Legal Service. She requested transcript from the District Court. The judge's summing up was provided. The appellant asked her to send that to Mr Richter and seek his advice. It appears that advice was received that there may be grounds for an appeal, but that Mr Richter required the full transcript.
51 Meanwhile, the appellant's acquaintance had left the Aboriginal Legal Service and moved to Melbourne. She could no longer assist him. He wrote to Mr Quail, who had acted for him at the trial, and asked him how to get the balance of the transcript. Mr Quail suggested that the appellant write to the District Court. He did so twice, without a reply. Eventually he telephoned the District Court. When he finally made
(Page 21)
- contact, the court officer to whom he spoke said that the Court had not received his request for the transcript, but they undertook to send it to him, and did so by early June 2006, together with a copy of the form of notice of appeal.
52 The appellant sent these documents to Mr Richter in Melbourne. He was not heard from by the end of June, and so the appellant enlisted the aid of his sister to contact Mr Richter. She apparently did so and was told that he was too busy to handle the matter. He gave her the names of two WA solicitors who might be approached. This she did by the end of June 2006. The appellant's present solicitor agreed to act for him. By mid July, the solicitor offered the brief again to Mr Richter and asked him to prepare grounds of appeal.
53 The solicitor's office received a telephone call from Mr Richter on 7 August 2006. Mr Richter said he was too busy and could not accept the brief. But the solicitor was away until early September 2006 and nothing was done. Finally, on 7 September, the solicitor instructed the appellant's present counsel and asked him to prepared the grounds of appeal. By late September, Mr Levy contacted the solicitor, seeking to be provided with pages of the transcript which were missing. It appears that the missing pages were not initially identified, but when they were, the solicitor wrote to the District Court requesting that he be provided with those pages.
54 The missing transcript appears to have been everything apart from the arraignment, the summing up and the taking of the verdict. The District Court said they had not been asked to provide any more transcript than is usually provided in relation to country trials. A further request was made to the District Court for the whole of the transcript, and investigations were initiated in relation to matters concerned with the witness Daxbock relative to what became ground 2. The DPP commenced to make inquiries. As I have said, the solicitor was not in a position to sign and file the appeal notice with draft grounds of appeal annexed until 31 October 2006. The grounds in their final form were provided when the appellant's case was lodged. This is the ordinary procedure under the Supreme Court (Court of Appeal) Rules 2005,r 28 and r 32.
55 The grant or refusal of an extension of time for an appeal to be commenced, as in other cases where time for doing an act is limited by rule, is a matter for the exercise of the court's discretion. It is a discretion, the exercise of which will be informed by the application of well-accepted case management principles. There are good public reasons for this.
(Page 22)
- They concern the orderly disposition of the business of the court and the interests of litigants generally. A litigant who undertakes a proceeding in the court upon the grant of an extension of time, occupies time in the conduct of the business of the court which would otherwise be available to other litigants who have proceeded in time. In other words, the matters which inform the exercise of the discretion are wider than the interests of the particular litigant who seeks the indulgence of the court.
56 Time will be extended where there is good reason for the delay which could not reasonably be overcome in a more expeditious manner than occurred. Absent a ground of that kind, time will only be extended to permit a matter to be dealt with in a case where it is clear that the refusal by the court to extend time and allow the matter to proceed would leave unaddressed an evident miscarriage of justice: Gavin v The Queen (1992) 6 WAR 195, 198 - 199, 201 - 203.
57 In this case it seems to me that there is no reasonable explanation for the delay which occurred. By and large, the appellant was responsible for that delay and I would refuse the necessary extension of time unless there is substantial merit in the grounds of appeal.
58 I have set out the two grounds of appeal which were argued before us. There was originally a third, but it was abandoned and need not be further noticed. The appellant needs leave to appeal on the grounds which remain. A single judge of the court referred the applications for an extension of time to appeal and for leave to appeal to be heard by the full Court of Appeal.
The facts relating to ground 1
59 I turn to ground 1. There was evidence to establish that the appellant went to the depot of Broome Freightlines at about 8 am on 28 November 2003. He said he was expecting two boxes of goods. The depot manager could only find one marked with identification to show that it was consigned to the appellant. That box was given to him.
60 Later during the day the depot manager found a large cardboard box which contained no markings to identify the consignee. He opened it. Inside were two bricks and four roof tiles and another small cardboard box. He opened the small box. It had no markings on it. Inside was a sealed plastic bag. The depot manager continued his investigation by endeavouring to reconcile all the consignment notes against the items which had been delivered to the depot. The one consignment which was
(Page 23)
- not able to be matched to a consignee was the second box which the appellant had asked for.
61 The depot manager was suspicious about the contents of the box. He contacted the police. Detectives arrived. They left the plastic bag sealed, repacked the box and asked the depot manager to contact the appellant. That was done. At about 3 pm the appellant arrived and took possession of the box. The detectives followed him when he left the depot. He travelled to an address in Broome where he rented a room in a house. The police approached him there and asked him to go to the police station, which he did.
62 There the box was removed from the rear of the appellant's vehicle and opened. The plastic bag was opened and found to contain 200 blue-coloured tablets, in a paper wrapper on which was written the word, 'Col'. The tablets were later identified as ecstasy. The appellant was searched. He had $859 on his person and a number of deposit slips. He was interviewed on video. He declined to give any information and was charged with possession of the 200 tablets of ecstasy with intent to sell or supply. This was count 1 on the indictment.
63 The house in Broome where the appellant lived was also occupied by three other people. At about 5.30 pm on 28 November 2003, the police, in the appellant's presence, commenced a videotaped search of the house. In his bedroom they located $9,810 in a shopping bag underneath a mattress on the floor. On a shelf in the wardrobe in the room, in a plastic four-litre container, a further $19,495 was found. In a rolled-up poster on the bedroom floor there were three plastic film canisters. One contained 25 white ecstasy tablets in a plastic ziplock bag (as opposed to the blue tablets found in the cardboard box). This was the drug which was the subject of count 2 in the indictment.
64 Before any money was found, the appellant was asked how much cash he thought he might have in his room. He said probably six to seven thousand dollars. It was money 'from work' which he had kept in his room for safety reasons. He used it to pay wages and other expenses. The appellant directed the police to the money stashed under the mattress. When it had been counted, he was asked if there was more. He intimated that that was all of the money he had in the house. When the money was later found in the wardrobe, the appellant agreed that it was his. He said he forgot it was there. He said it was 'mostly' from his business and some would be his own 'personal cash'. He did not think there would be much there, probably about $4,000.
(Page 24)
65 When the tablets were found and the appellant was asked about them, he said the canisters did not belong to him and he had no explanation as to how they got into his room and were concealed in the rolled-up poster. His attention was drawn to a rubbish bag and a set of scales which were in the room. He said they were not his. He did not know they were there. A note was found next to the bed. It read:
Hey, supergroover, here's all the money, $1,140. Kim had one so its $50 short. Me and Nev had 2 x [picture of smiling face] plus $250. Thanks a lot, supergirl and superhunk.
- It was put to the appellant that the smiling face symbol was a cryptic reference to ecstasy tablets and the note therefore recorded payment for drugs supplied. The appellant said he had no comment to make, and he had no comment when the 25 ecstasy tablets were found to be imprinted on one side with smiling faces.
66 When the appellant gave evidence, he said that when he picked up the box from Broome Freightlines he did not know what its contents were. He only picked it up because he had been told by the depot manager that it was a box for him. He had no idea that it contained drugs. He said the money under his mattress was business money, as was the money in the container found in the wardrobe. As to that, he agreed that he had estimated that there might be $4,000 there and said he had just mistaken the amount because of the pressure of the police investigation. He had hidden the container in the laundry of the house. He was shocked when it was found in his room. When he estimated how much was there, he supposed he was simply not thinking straight. The scales found in the rubbish bag were simply not his; nor did he know anything about the ecstasy found in one of the canisters. He knew nothing about the note, but he did know that supergroover was a nickname used by an acquaintance of his, one Christian Daxbock.
67 Daxbock was called by the defence. I have mentioned that on the third date of the trial, 25 January 2006, the court resumed at about 9.15 am. The appellant was being cross-examined. The jury were given a break at about 10.15 am after the appellant completed his evidence. Daxbock was called immediately upon the resumption, at about 10.40 am. He explained that he was in custody, having been arrested upon an outstanding warrant in respect of a driving charge as he came to the court on the previous day. He confirmed that supergroover was a name which people used to refer to him.
(Page 25)
68 In late 2003 he knew the appellant and he had visited the house where he lived. On one occasion he had been in the appellant's bedroom. He and the appellant were about to go out. He had a film container of ecstasy tablets on him. He did not want to take them with him because they were bulky and might be noticeable. He left them in the appellant's room while the appellant was in the shower, without the appellant's knowledge. He left them in the rolled-up poster.
69 He intended to pick them up later, but he forgot about them until, a couple of months later, he met up with the appellant who told him that he had been raided by the police and that they had found ecstasy tablets in the room. The appellant told him he had been charged with possession of those tablets. Daxbock said he told the appellant they were his. He did not go to the police, but said that if the appellant got into trouble as a result of the charge, he would come forward then and explain, which he now did.
70 When cross-examined, Daxbock said the 25 tablets were worth $40 each, a total of $1,000 worth. When asked what else he left in the bedroom, he said there was a very small amount of hashish and that, he thought, was all. He said he did not own a set of electronic scales in 2003 and those found in the room did not belong to him. Although he maintained that he was called supergroover at times, he knew nothing of a note addressed to supergroover which had been found in the room. Although he was a heavy user of ecstasy, he did not sell it. When asked if the ecstasy tablets were all that was in the film container he answered, 'Yeah - no. I could have - they could have been in a plastic bag - not in a plastic bag, like, in a bag.'
Ground 1 discussed
71 Against the background of that review of the evidence, I turn to consideration of the first ground of the application for leave to appeal. It is important to note how the issue raised by the ground was dealt with at the trial.
72 The search video reveals that after the bag containing $9,810 was found under the mattress in the appellant's bedroom and after that money had been counted, a police officer asked the appellant if there was 'any other cash'. The appellant shook his head negatively, and appears to say 'no'. After the drink container was located in the wardrobe in the bedroom, it was put to him by a police officer that after the other money had been counted, 'You explained that was all the money that you had in the house.'
(Page 26)
73 The appellant agreed, but he admitted immediately that the money found in the wardrobe was his. He said, 'I forgot it was up there.' A little later he repeated that. He said it was money from the business and before it was counted he thought there might be $4,000 there. As I have mentioned, that container proved to have $19,495 in it, a total amount in the bedroom of over $30,000, not forgetting the $859 the appellant had on his person. Although on the video the appellant said that he forgot the second container of money was in the wardrobe, in his evidence he said that he had hidden it in the laundry and forgotten that it was there.
74 Prosecuting counsel, when addressing the jury, referred first to the $9,810. He noted the explanation given by the appellant for its possession and location. He invited the jury, 'to reject everything that he has told you about this cash money. It is a nonsense. It is fanciful.' Counsel invited the jury to infer that the money was the result of dealing in drugs. He said the note addressed to supergroover confirmed that the appellant was dealing in drugs.
75 As to the finding of the larger sum of money and what the appellant said about it, counsel simply invited the jury to reject the explanation that it was money from the business and personal money which had been secreted away at some time and forgotten. In relation to that, prosecuting counsel made no comment on the difference between the appellant's statements to the police when his room was searched and his evidence at trial. It was not put to the jury by the prosecution that they should conclude that the appellant had lied to the police and indeed in his evidence at trial, because he well knew that the money was the proceeds of the sale of drugs.
76 Of course, the jury may have reached that conclusion, but if they concluded that they could not rely on the appellant's evidence that the money found in his room was honestly obtained from his business activities, rejection of that evidence, whether or not the jury went on to find that it was a lie, would leave them to consider whether, on the other evidence in the case, they were satisfied of guilt of the two charges beyond reasonable doubt. I refer particularly to the evidence of the paper with the word 'Col' on it found wrapped around the drug in the box collected by the appellant from the freight depot, the supergroover note, the hiding of the tablets found in his room and the scales.
77 Defence counsel, on the other hand, suggested that this was a lucrative business being run by the appellant, that there was evidence of dealings with it which, in whole or in part, involved the payment of cash
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- and maybe the simple explanation was that the cash was not being brought to account because he was avoiding tax. It might be the case, counsel said, that the appellant genuinely could not remember quite how much money was in the bag under the mattress and that he was being truthful when he said that he had forgotten the other sum of money found in the container in the wardrobe.
78 Not to put too fine a point on it, the issues were, of course, as to count 1, whether the jury was satisfied beyond reasonable doubt that the appellant, while in possession of the cardboard box, was in possession of the drug within it because he expected such a consignment and knew this was it. In relation to count 2, the first question of fact was whether he was in possession of the tablets hidden in the rolled-up poster because they were his and he knew they were there. If the jury was satisfied of those matters beyond reasonable doubt then, as to the intention to sell or supply, that was established for both counts by the quantity of drug involved, unless, under the Misuse of Drugs Act, s 11, the appellant was able to prove, on the balance of probabilities, that he did not possess the relevant intention.
79 The trial judge, in summing up the case to the jury, properly dealt with those matters and then reminded the jury that the defence was that the appellant was not knowingly in possession of the drugs. If, therefore, that was established to the jury's satisfaction beyond reasonable doubt, it would follow from s 11 that the necessary intention to sell or supply was established. His Honour properly told the jury that the real issue, therefore, was whether the accused knowingly had the drugs in his possession. His Honour told the jury that if they believed the appellant's denials they would necessary acquit. In addition, his Honour said, favourably to the appellant, that, 'Even if you were not to believe his evidence, you cannot find an issue against the accused contrary to his evidence, if his evidence has given rise to a reasonable doubt on that issue.' A little later his Honour said, 'Even if you do not accept the accused 's evidence, to reject that evidence does not follow automatically that you would convict him of the charges against him.'
80 Such directions certainly made it clear that the jury were not being asked to conclude that because the appellant told material lies, if that was view of the jury, they were entitled to weigh that fact as a piece of evidence against the appellant. When his Honour came to remind the jury of particular factual matters, he did so merely in the context of reminding them of the arguments presented by counsel for the prosecution and the defence.
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My conclusion about ground 1
81 Certainly no direction was given in terms of the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193. Nor, in my opinion, was such a direction required. It is significant, I think, that no such direction was sought by defence counsel.
82 The 'lie' identified in argument before us concerned the money found in the wardrobe. It is difficult to say clearly what the alleged lie was, but if it is taken to be generally that he had genuinely forgotten the container full of money and did not know that it was in the house, his answer was, in effect, that he had genuinely forgotten the money was there or, at least, that he had forgotten precisely where it was in the house. In other words, the appellant's answer to the suggestion that he had deliberately lied was to deny that he had done so. It was not his evidence that he had lied, but did so because he knew that the money was not legitimately the product of his business activities, and he did not say that he lied because although the money was legitimately received in his business, he wanted to conceal it and not bring it to account so that he could evade taxation.
83 The jury might have concluded, as they were urged by prosecuting counsel to do, that the proposition that he had forgotten the money was unbelieveable and to be rejected. That would have had the result urged by counsel that the jury would conclude that the appellant's creditworthiness as a witness was destroyed, but the jury could reach that point of assessment of the credibility of the appellant as a witness without positively concluding that he had told a deliberate lie. They may simply have been unable to accept the appellant as a witness of truth.
84 This was a case, therefore, of an ordinary kind, quite different from that discussed by the High Court in Edwards. In the first place, apart from the amount of money involved, there was nothing independently of the jury's assessment of the creditworthiness of the appellant capable of establishing that what he said was not only untrue, but a deliberate lie. This lies at the foundation of the case of Edwards: see Brennan J at 198 and Deane, Dawson and Gaudron JJ at 211; Aubertin v Western Australia [2006] WASCA 229; (2006) 33 WAR 87 at 101 [64] - [65].
85 There is a further difficulty in this case in the way of relying upon the statement identified as a lie as constituting an admission that the money was the proceeds of drug sales and therefore as evidence supporting a conclusion that the quantities of the drug ecstasy in the possession of the appellant were intended by him to be sold or supplied to others. It lies in what was said by Brennan J in Edwards at 201:
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- When the supposed admission consists in the making of a false denial of guilt, the prosecution is hard put to turn the denial into an admission. As Lowe J said in Edmunds v Edmunds and Ayscough [1935] VLR 177 at 186:
'[B]y no torturing of the statement "I did not do that act" can you extract the evidence "I did do the act."
- To the same effect is the judgment of Deane, Dawson and Gaudron JJ at 208:
There is a difference between the mere rejection of a person's account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition.
And see Aubertin at 102 [68]
86 It is often overlooked that Edwards was a case where the High Court was concerned to guide a trial judge as to the instruction which should be given to a jury in a case where there was evidence capable of establishing that the accused had told a material lie, in a statement made out of court or in giving evidence. Edwards was not concerned with the ordinary case where the rejection of evidence would have an adverse impact upon the credibility of the accused. It was concerned with a case where it would be open to the jury to conclude that the accused had told a lie - a deliberate, knowing untruth - which could be precisely identified and independently proved by evidence which the jury might accept.
87 In that event, if a lie was about a material issue in the case, if it revealed knowledge about some material aspect of the offence charged and if the jury, having considered any innocent explanation proffered for the telling of the lie, concluded that it was told because the accused realised the truth would tend to implicate him in the offence, then, and only then, could the jury use the lie as itself constituting an admission against interest by the accused.
88 The judgments in Edwards are concerned to lay down the limited circumstances in which the telling of a lie by the accused may constitute evidence against him by way of an implied admission, rather than simply having the effect that at least in relation to the subject matter of the lie, the telling of it would have an adverse impact on the accused 's creditworthiness and cause the jury to reject his evidence.
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89 It is for that reason that the High Court said in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234, that where the telling of a lie by the accused was not and could not be relied upon by the prosecution as independent evidence of guilt because told out of a consciousness of guilt, it was not only unnecessary, but undesirable, that an Edwards direction be given. In a case which would not support an Edwards direction, but where the trial judge was concerned, having regard to the conduct of the trial, that the jury might misuse the evidence that the accused had lied as positive evidence against him rather than as merely destructive of his credit, the High Court held, at 245 [23] - 24], that a direction might be given which incorporated a warning or instruction that it would be wrong to reason that because the accused was shown to have told a lie, that was evidence of guilt: cf Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1.
90 In this case there was no occasion for such a warning. The matter was appropriately handled as the trial judge did, by focusing the attention of the jury on a consideration of that evidence which might support, beyond reasonable doubt, the conclusion of knowing possession of each quantity of the drug with intent to sell or supply.
91 In essence, ground 1 cannot be made out because, even if the relevant lie could be clearly identified and even if it was capable of being independently proved, this was not a case where it could be relied upon, of itself, as an implied admission of guilt of either or both offences charged.
The facts relating to ground 2
92 I turn then to ground 2, which is concerned with the witness Daxbock, and whether a miscarriage of justice is established by the prosecutor's failure to disclose that Daxbock had been arrested while waiting outside the court to give evidence, had been interviewed by the police on video, and had told the police that the ecstasy the subject of count 2 was his, secreted away in the appellant's room without his knowledge.
93 I have said that Daxbock was called at about 10.40 am on the third day of the trial, 25 January 2006, after the jury were given a mid-morning break at about 10.15 am. I have set out the substance of Daxbock's evidence-in-chief and cross-examination. It undoubtedly had weaknesses in the way of its acceptance by the jury, but however that may be, Daxbock certainly gave the evidence that the ecstasy the subject of
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- count 2 was his and that he hid it in the appellant's bedroom without the appellant's knowledge.
94 This Court admitted affidavits by counsel involved in the trial. Mr De Vries was the prosecutor and Mr Quail was defence counsel. Both attended before the Court of Appeal and were cross-examined. In addition, the court received in evidence, the transcript of the interview of Daxbock by Detectives Howard and Katipeyn, conducted on the second day of trial, 24 January 2006, commencing at 2.20 pm and concluding at 3.39 pm, although the counter on the tape shows 3.33 pm. The interview was conducted at the Broome detectives office, which is at the police station, just across the road from the courthouse.
95 Meanwhile, at the courthouse, the prosecution case was continuing. The case was closed during the afternoon and the appellant was immediately called. His evidence-in-chief concluded at about 3.36 pm, almost precisely the time when Mr Daxbock's interview concluded. The trial judge then gave the jury a break, and the transcript shows that the court resumed at 3.48 pm with the cross-examination of the accused by prosecuting counsel. As I say, the court was adjourned for the day at about 4.30 pm and resumed at 9.15 am on the following morning, at which time prosecuting counsel continued his cross-examination of the appellant. Mr Daxbock was called at the conclusion of that evidence.
96 The evidence of Mr De Vries by his affidavit and orally to the Court would support the conclusion that on 24 January 2006, when the afternoon break occurred, and so immediately upon concluding Daxbock's videoed interview, Detective Howard came to the courthouse and told Mr De Vries that Daxbock, who was thought to be the witness who was to be called by the defence, had been interviewed and had said that the drugs the subject of count 2 on the indictment were his and did not belong to the appellant. However, Howard said, the police did not believe that story and did not propose to charge Daxbock with the offence.
97 Mr De Vries says that he immediately told Mr Quail what Howard had said. He invited Mr Quail to speak to Howard about it, and his recollection is that Mr Quail did that. Mr Quail had been in the vicinity when Howard spoke to Mr De Vries.
98 Shortly after the court resumed and Mr De Vries commenced his cross-examination of the appellant, he put to the appellant that he had spoken to a person about the 25 tablets found in the appellant's bedroom and, 'asked that person to take the rap for him'. The appellant denied that
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- suggestion, but there was, belatedly, an objection by Mr Quail. In the absence of the jury and the appellant, the matter was debated by counsel before the trial judge. Mr Quail submitted that it was improper to put such a proposition, having regard to the prejudice which the question carried, whatever was the answer, unless there was a basis for it. If there was such a basis, Mr Quail said he would like to know what it was.
99 Mr De Vries replied by telling the court that Daxbock been arrested, that he had been interviewed, that he had told the police that he was to give evidence at the trial, and that his evidence would be that the 25 tablets found in the bedroom belonged to him. Mr De Vries said he was instructed that the police did not believe his story and that he was not to be charged, despite his admissions. Mr Quail did not say that he already had that information from Mr De Vries. The trial judge overruled the objection.
100 Mr Quail, in giving evidence by affidavit and orally, agreed that he had spoken to Mr De Vries, probably during the afternoon adjournment, and he had been told, as he recalled it, that Daxbock was in the process of being interviewed. He did not recall that he was told anything that Daxbock had said, hence the objection that he took.
101 He did recall that after the court adjourned for the day, he spoke to a police officer and that was, of course, before Daxbock was called. Mr Quail said that he learned that what Daxbock had told the police officers was consistent with the instructions he had received and with the evidence which he expected Daxbock would give. He was therefore not concerned to obtain a copy of the video record of interview, but was content to call Daxbock in accordance with his instructions on the following day.
My conclusion about ground 2
102 The disclosure obligations of the prosecution and the rather more limited disclosure obligations of the defence are dealt with in the Criminal Procedure Act2004 (WA). So far as indictable offences are concerned, for the prosecution the disclosure obligations at the summary level are dealt with in s 42. By s 42(5)(b), the prosecutor must disclose 'any evidentiary material that is relevant to the charge'. Section 42(1) defines 'evidentiary material' as follows:
'evidentiary material' relevant to a charge, means -
(a) a copy of -
- (i) every statement that has been made in accordance with Schedule 3 clause 4 by;
(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by;
(iii) every recording that has been made under the Evidence Act 1906 of; and
(iv) every other statement by,
- any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence;
(b) if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person;
(c) a copy of any document or exhibit to which a statement or recording referred to in paragraph (a) refers;
(d) a copy of every other document or exhibit that the prosecutor intends to tender in evidence at trial; and
(e) a copy of every other document or exhibit that may assist the accused's defence,
- At summary level, s 42(6) makes it clear that the disclosure obligation is an ongoing one, requiring service of any material which needs to be disclosed upon the accused 'as soon as practicable'.
103 When a matter is before a superior court, the Supreme Court or the District Court, and is being prosecuted upon indictment, the disclosure obligations of the prosecutor are provided in similar terms by s 95, and again, s 95(9) makes it clear that the obligation is a continuing one which would require any additional evidentiary material relevant to the charge to be lodged in the court and served on the accused 'as soon as practicable'. In this case, it is clear that what Daxbock said on video when interviewed by the police on 24 January 2006 was additional evidentiary material which the prosecution was obliged to serve on the accused as soon as practicable after it came into existence.
104 I would accept the evidence of Mr De Vries as to what was done. His recollection as to what occurred was, in my view, more certain than that of Mr Quail, although his recollection as to precisely when the disclosure was made was rather less certain. I think it is clear that Mr De Vries was told what had transpired in the interview with Daxbock,
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- probably by Detective Howard, one of the officers who conducted the interview, as soon as the interview concluded. I would be satisfied that that was during the break of 10 minutes or so between about 3.36 pm on 24 January and 3.48 pm, immediately before cross-examination of the appellant commenced.
105 I am also satisfied and would find that immediately after he was told, Mr De Vries told Mr Quail, not only about the interview with Daxbock but also, in general terms, what Daxbock had said. Mr Quail appears not to have quite understood what he was being told. He was under the impression that he was being told that the interview was taking place at that time, and he does not appear to recollect that he was told anything about what Daxbock had said. As Mr Quail says, he did not grasp that until he listened to Mr De Vries' response to his objection to the questioning of the accused. But in any event, whenever he first learned that Daxbock had said nothing to the police during this interview which was different from the instructions he had received, I would conclude that Mr Quail was fully informed and the disclosure obligation was complied with as soon as practicable.
106 The failure to comply with the disclosure obligation of which ground 2 complains is, in my opinion, not made out. The ground (rightly, in my view) does not complain about the prosecutor's line of cross-examination of the appellant when it was suggested that he had arranged for Daxbock to give false evidence in relation to count 2. It was open to Mr Quail to proof Daxbock after the adjournment of the trial on 24 January 2006, in the full knowledge of what Daxbock had said to the police, before the decision was finally made whether Daxbock should be called by the defence on the following day. The defence lost no advantage in respect of leading evidence from Daxbock or in ascertaining what he might say.
107 Putting to one side the discussion about the prosecution's disclosure obligations, if what occurred in relation to Daxbock is established to constitute a miscarriage of justice, then, of course, the appeal would be allowed on that basis: Criminal Appeals Act, s 30(3)(c). But in the circumstances to which I have referred, I am quite unable to discern any element of miscarriage of justice. There being no merit in either ground of appeal, in my opinion the necessary extension of time should be refused, as should leave to appeal be refused.
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