Finn v The Queen
[2012] VSCA 46
•16 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0156
| WAYNE PATRICK FINN | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, MANDIE and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2012 | |
DATE OF JUDGMENT: | 16 March 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 46 | |
JUDGMENT APPEALED FROM | R v Finn and Finn [2011] VSC 253 (Nettle JA) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Whether verdicts of guilty on two counts of possession of more than a prescribed quantity of a precursor chemical without lawful excuse and one count of possession of a drug of dependency were unreasonable because they were inconsistent with acquittals of co-accused and/of applicant on various charges – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D P Sheales | G W Lawyers |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
MANDIE JA
HARPER JA:
On 3 June 2011, the applicant[1] was found guilty by a Supreme Court jury of three drug offences under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Act’), namely possession of more than a prescribed quantity of a precursor chemical (formaldehyde) without authorisation or lawful excuse[2] (Count 7), possession of more than a prescribed quantity of a precursor chemical (ammonia) without authorisation or lawful excuse[3] (Count 8) and possession of a drug of dependence (phenyl-2-propanone)[4] (‘P2P’) (Count 11). The applicant seeks leave to appeal against conviction on the ground that these verdicts are unreasonable as they are inconsistent with the jury’s acquittal of the applicant and of a co-accused on a number of other charges.
[1]The application for leave to appeal was referred to a full bench of the Court by Bongiorno JA on 8 December 2011.
[2]Section 71D of the Act.
[3]Section 71D of the Act.
[4]Section 73(c) of the Act.
The applicant and his brother, Matthew Finn (‘the co-accused’), were jointly tried on a number of charges including the above Counts 7, 8 and 11. The other relevant counts were trafficking in methyl-amphetamine by manufacture (Count 3), trafficking in MDMA by manufacture (Count 4), trafficking in P2P in a large commercial quantity[5] (Count 5) and possession of equipment being glassware and scientific apparatus with the intention of using the items for the purpose of trafficking in a drug of dependence (Count 6). There was in effect an alternative (and lesser) charge to Count 5, namely trafficking in P2P by having it in possession for sale.[6] Count 11 (possession of P2P) was in effect a further (and lesser) alternative to Count 5. The applicant was acquitted on Counts 3 to 6. His co-accused was acquitted on all relevant charges (i.e. Counts 3-8 and 11). In the above summary, we have referred to ‘the other relevant counts’. Counts 1 and 2[7] related to other premises and we are satisfied that the acquittals of the applicant and the co-accused on Counts 1 and 2 have no bearing on the issues now raised before the Court. Some reference was made to them in the course of argument but it is clear to us that these acquittals are presently irrelevant and we will not further refer to them. We take the same view of the acquittal on Count 10.[8]
[5]Section 71 of the Act.
[6]Section 71AC of the Act.
[7]These charges related to the alleged involvement of the applicant in the manufacture of drugs at some other premises in Toolern Vale.
[8]Which was a charge of possessing the proceeds of a crime being a substantial amount of cash.
The offences of which the applicant was convicted were committed at factory premises in Westall Road, Springvale (‘the premises’) in November 2007. The factory was leased to a company, Strata Plumbing Pty Ltd, of which the co-accused was a director. In late 2004, the applicant obtained the landlord’s approval to construct two internal rooms, within and at the rear of the premises. One of the rooms was fitted with a flue which vented through the roof. In July 2007, police covertly took samples from the flue and these samples were found to contain traces of methyl-amphetamine and MDMA. On 7 November 2007, police executed a search warrant on the premises and found a number of items including five litres of P2P in a freezer in one of the two internal rooms (Count 11), 20kg of ammonia (Count 8) and 20 kg of formaldehyde (Count 7). A number of other items and chemicals used for the manufacture of formaldehyde and MDMA were found.
A number of businesses were operated from the Springvale factory, including a plumbing business conducted by the co-accused and two businesses operated by the applicant, one involving the development of high performance motorcar engines and one proposed business involving gene technology. At trial, it was accepted that the applicant (as well as the co-accused) was in occupation of the premises. In respect of Counts 7, 8 and 11 the Crown did not rely upon common law possession but relied exclusively on ‘deemed possession’. Section 5 of the Act provides that ‘…any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.’
Directions to the jury
Before considering the parties’ submissions, it is convenient to outline the background to them by referring first to the relevant directions to the jury by the learned trial judge. We note that the jury was supplied with a document setting out the elements of each offence charged and the judge to some extent explained the law by reference to that document. The judge explained the concept of deemed possession to the jury and in the course of doing so said:
It is enough for the Crown to establish deemed possession that something was in premises which were occupied by the accused. Putting it another way, if the Crown persuades you beyond reasonable doubt that an accused occupied premises in which the substance was kept, then there is deemed possession subject to one exception that I will mention in a moment.
…
In this case the Crown allege that Wayne Finn was in occupation of the Springvale factory premises because he had keys to it and carried on business in it and indeed, it is not disputed that he was an occupier of the Springvale property.
In the case of Matthew Finn, the Crown relied on the fact that he was a director of the lessee company, along with his sister or wife, I forget which it was but it matters not, that he carried on his trade as a plumber from it, that he had access to it and control over it by reason he had the keys and again, it is not disputed that Matthew Finn too was an occupier of the Springvale premises.
So you should have no difficulties in concluding, I suggest, that each accused man occupied the premises at Springvale where the P2P was located. If you do, if you are persuaded that the accused was an occupier of those premises where the P2P was located, then that is sufficient basis for you to conclude that he was in possession of the P2P which was present in those premises. You know from the evidence which was given by the photographs, Mr Perkal and such like, that there was P2P of some five litres in that back room at the premises - was within the premises.
As I said to you, that, however, is subject to one possible exception, and that is that if the accused is able to satisfy you on the balance of probabilities that although the P2P was in the premises he, the accused, did not know of the drugs' presence in the premises or he did not know that it was the drug or he did not intend to exercise control over it or the place in which it was kept or have effective actual or control over the drug itself.
There is a point of distinction here, which it is important for you to understand. Thus far in each of the elements to which I have been going in the offences, I have been saying to you, and I think that you have been comprehending, if I may say so respectfully, that the Crown must establish each one of those elements to your satisfaction beyond reasonable doubt. The burden is upon the Crown to persuade you of the element beyond reasonable doubt. Here we come to something of a reversal. The Crown must establish to your satisfaction beyond reasonable doubt, occupation, and that is not disputed, and it follows as a matter of law that there is therefore deemed to be possession of the P2P in the occupied premises, but it is subject to an exception where the burden is upon the accused rather than the Crown, to persuade you. If therefore you come, as you may, to the conclusion that an accused occupied the premises and the P2P were in it, then there will be deemed possession and the first element of this Count 5 will be satisfied unless the accused persuades you, on the balance of probabilities, that he did not know it was there, he was not exercising control over it, he was not physically in possession of it. It is one of the rare - relatively rare, circumstances in which a burden of proof is put on an accused rather than on the Crown. Note, however, that whereas the Crown has had to prove each of the elements beyond reasonable doubt, the accused merely needs to persuade you on the balance of probabilities that he did not know of the drug's presence or know that it was a drug or intend to exercise control over it or the place where it was kept or have effective control over the drug.
That means that before this exception to deemed possession could apply you would have to be persuaded by what the accused has said through their counsel, by reference to the evidence, that the accused did not know the drug was there, did not know it was a drug, did not exercise control over it or the place where it was kept, or have effective control over it.
As I understood defence counsel's cases, counsel for each accused submitted to you that because of Graeme Smith's involvement at the premises and what they suggested was the possibility that he was, as it were, acting on his own, you should be satisfied on the balance of probabilities that the accused did not know or believe or was not aware that he had in his possession not less than one kilograms of P2P.
If the Crown satisfies you, as I daresay it will, that there was occupation and thus there was deemed possession subject to the exception, it will be necessary for you to decide whether the fact that [Smith] had access to the premises and had fingerprints on equipment and was obviously present at the premises for some considerable periods of time, is enough to persuade you, on the balance of probabilities, that the accused did not know that the substance was a drug or did not know it was there, intend to exercise control over it or the place where it was kept or have effective or actual control over it.
If the Crown persuade you of occupation, which is not disputed, and thus deemed possession, but Wayne Finn[9] fails to satisfy you on the balance of probabilities that he did not have possession because he did not know it was there, was not exercising control over it or the place was there and so on, then possession will be made out.
Similarly, in the case of Wayne Finn, if you establish that occupation, which is not disputed, and that the chemical was there, then there is deemed possession unless he persuades you on the balance of probabilities he was not exercising control, did not know of the existence of the drug, did not know where it was, was not exercising control over the place and so forth. If he fails to persuade you of that on the balance of probabilities then there is deemed possession, and that first element of the Count 5 will have been satisfied.
[9]The transcript has the judge referring to Wayne Finn twice, in this and the subsequent paragraph, but if the transcript is accurate, the jury would no doubt have appreciated that the judge was intending to refer to make separate reference to each of the accused.
Immediately after the above directions, the judge told the jury that when they came to consider the question of possession, they would have to bear in mind the possibility, by reference to a number of considerations, that Wayne Finn alone may have had possession of the P2P, rather than he and Matthew Finn, adding that:
I simply mention the possibility that one might have had possession rather than both is something that you need to bear in mind.
After dealing with the elements involved in Count 5 (and the alternative to Count 5), the judge told the jury that there was a further alternative to Count 5 involved in Count 11 and that some of the same considerations applied. His Honour repeated the direction about deemed possession and said that unless the accused persuaded them on the balance of probabilities that they did not possess P2P because they did not know of it or did not know it was a drug or did not exercise control over it (and so on), then they were deemed to possess it.
When his Honour came to Counts 7 and 8, he said that the jury would see from the ‘elements of the offence document’ that each of Counts 7 and 8 was comprised of three elements:
First, that the accused had the precursor chemical in his possession. Secondly, that he had in his possession not less than the prescribed quantity which is applicable to it. Thirdly, that he was not authorised under the Act to possess it and he possessed it without lawful excuse.
The judge again explained that deemed possession was involved and repeated:
If you are persuaded that the accused was an occupier of the premises, then he is deemed to possess the substance, unless the accused persuades you on the balance of probabilities that he did not possess it because he did not know of its existence, did not know what it was, did not intend to exercise control over it, or the place in the building where it was contained.
After referring to the second element (‘prescribed quantity’), the judge said:
Thirdly, you will need to be persuaded that the accused was not authorised under the Act and did not have a lawful excuse for the possession of the chemical.
In this case there is no suggestion that either accused was licensed under the Act, so you can exclude that as a possibility. The question which you do need to decide is whether you are satisfied beyond reasonable doubt that there was not a lawful excuse for the possession of the chemical.
In this case there was cross-examination to the effect that formaldehyde did have some legitimate commercial uses, such as a cleaning agent or a product which a plumber might use or perhaps as a cleaning agent which might be used in activities such as genetic research of the kind which it was said was contemplated would be set up under the new business of Medigene.
It is for you to consider whether the existence of that evidence allows you to conclude nonetheless that you are satisfied beyond reasonable doubt that there was not a lawful excuse for the possession of that 20 kilograms of formaldehyde. The Crown contends that there was so much formaldehyde here, 20 kilograms of the stuff, that you would have to be satisfied beyond reasonable doubt that it was not for a legitimate purpose. The defence respond that the Crown did not adduce any evidence - that is to say call any evidence - or cross-examine any of the witnesses as to the sorts of quantities that you would expect for the legitimate purpose of use as a cleaning agent or in plumbing practice.
It is for you to determine based on all the evidence whether you are persuaded beyond reasonable doubt that there was not a lawful excuse for the possession of this 20 kilograms. Occupation is established or at least accepted. There is deemed possession unless the accused have persuaded you on the balance of probabilities they did not know of the existence of where the formaldehyde was, did not intend to exercise control over it and suchlike. It is then a question of whether or not you are satisfied beyond reasonable doubt there was not a lawful excuse for the possession of that 20 kilograms of formaldehyde.
Having referred specifically to formaldehyde (Count 7), his Honour then referred to ammonia (Count 8) and in substance repeated the same directions, in the course of which he said:
The same question as to whether the accused persuaded you on the balance that they were not exercising possession and then the question of whether or not you are persuaded by the Crown beyond reasonable doubt that there was not a lawful excuse for the possession of the ammonia. The accused again rely on evidence which was adduced in the course of cross-examination that ammonia does have industrial uses and commercial uses, as amongst other things a cleaning agent, as I daresay we all know.
The question is, the Crown says, given that there is 20 kilograms of the material there, can you really think it is a realistic possibility that it was for the purposes of cleaning or for some other legitimate purpose? The Crown has got to persuade you beyond reasonable doubt that it was not for such a purpose. If it does then you will convict, if it does not then you will acquit.
The evidence in relation to legitimate uses of formaldehyde and ammonia that led to the above directions by his Honour came from cross-examination of a prosecution witness, Mr Michael Perkal. Mr Perkal had for many years worked with the Victoria Police Forensic Services Centre (including for a number of years, as a head of the unit) and held the degree of Master of Applied Science and was a member of the Royal Australian Chemical Institute. In cross-examination, Mr Perkal said that formaldehyde had legal uses and could be used in medicine related industries. He was then asked the following question:
Can you use [formaldehyde] as a cleaning agent for something like in a genetic lab for example?
to which he replied:
I’m not – I don’t – I don’t know about that, but yeah, it’s possible.
In relation to ammonia, Mr Perkal said that he found a liquid in the form of aqua ammonia and the following exchange then took place:
That’s used as a cleaning agent? -- yes. For glass and things like that? --M’mm.
We would here make the comment that the foregoing provided a somewhat weak evidential basis for the defence to agitate the issue whether whoever possessed the formaldehyde or ammonia did so ‘without lawful excuse’. Notwithstanding that, of course, the judge referred to this aspect in directing the jury and correctly outlined the legal issue and told the jury that the onus remained on the prosecution to prove that whoever possessed either substance did so ‘without lawful excuse’.
Judge’s sentencing remarks
In the course of sentencing the applicant and the co-accused, his Honour suggested some reasons for the particular verdicts of the jury. The judge relevantly stated:
11I take the jury to have acquitted both of you of Counts 3 and 4 because they were not persuaded beyond reasonable doubt that any methyl amphetamine or MDMA was manufactured at the premises, or because, if they were satisfied that it was so manufactured, they considered it was reasonably possible that it was manufactured by the late Graeme Smith, who was a friend of yours, Wayne Finn, and had access to the premises, and who, it was suggested by defence counsel, may have been acting alone.
12I think it likely that the jury acquitted you, Wayne Finn, of Count 5 on the basis that, although convinced you possessed the P2P (which is why you were convicted of Count 11), they were not satisfied beyond reasonable doubt that you intended to sell it.
…
14I think it probable that the jury acquitted you, Matthew Finn, of Counts 7 and 8 on the basis either that they were not satisfied that you had possession of the formaldehyde and ammonia - it being more likely that it was in the sole possession of Wayne Finn - or, alternatively, but less likely, that, if persuaded that you had possession of those chemicals, they were not satisfied that you did not have a lawful excuse - there being some suggestion in the course of cross-examination of some of the Crown’s witnesses that formaldehyde and ammonia may have had legitimate trade uses in plumbing practice.
Submissions
The applicant submitted that the verdicts of guilty on Counts 7, 8 and 11 were unreasonable because they were inconsistent with the various acquittals both of the co-accused and of the applicant himself. The applicant said that the verdicts of acquittal showed that the jury was not satisfied of the involvement of the applicant or the co-accused in manufacturing drugs (Counts 3 and 4) or that they possessed P2P for the purpose of sale (Count 5 and its first alternative) or that they possessed the glassware and scientific equipment for the purpose of manufacturing drugs (Count 6). The applicant submitted that these acquittals showed that the jury was not satisfied that the applicant or co-accused had engaged in drug activities in the past or intended to engage in drug manufacturing in the future and that the jury did not accept that the applicant or the co-accused were going to pass the P2P to another for gain or to use the P2P and the glassware and scientific equipment to manufacture methyl-amphetamine in the future. The applicant submitted that, given the amount of P2P, the acquittal on the first alternative to Count 5 could only mean that the jury was not satisfied that the applicant or the co-accused knowingly or intentionally possessed the P2P.
The applicant challenged the attempted explanations of the verdicts by the learned trial judge. The applicant submitted that, having regard to the acquittals, there was no basis for the jury to conclude that it was more likely that the formaldehyde and ammonia were in the sole possession of the applicant and, further, if the lawful excuse ‘floated’ applied to the co-accused, it had to apply equally to the applicant. The applicant added that, in any event, the potential use of formaldehyde applied to the applicant’s gene technology business not to the co-accused’s plumbing business.
The applicant submitted that the conviction of the applicant on Count 11 in the face of the co-accused’s acquittal on the same count was inexplicable because there was nothing to distinguish them meaningfully on the evidence
For those reasons, the applicant submitted that it was impossible to escape the conclusion that the guilty verdicts were ‘an affront to logic and commonsense and strongly suggest … a compromise of the performance of the jury’s duty … [or] confusion in the minds of the jury or a misunderstanding of their functions.’[10]
[10]MacKenzie v R (1996) 190 CLR 348, 360.
In oral argument, the applicant contended that the case put to the jury did not challenge the possession by the applicant and the co-accused of the relevant substances (formaldehyde and ammonia) but rather raised the issue of lawful excuse for possessing those substances. We would at once reject that contention. No concession was made by the applicant or the co-accused in relation to possession and it is apparent from the judge’s directions that possession and/or related issues were before the jury.
Before turning to the respondent’s submissions, we note that the applicant’s written case contained two other grounds of appeal but these were not mentioned or relied upon in oral argument. Apparently the respondent was advised that the applicant would not rely upon Ground 2[11] and having regard to written submissions by the respondent about Ground 3[12] and the way in which it would have to proceed, it would seem clear that this ground was also abandoned.
[11]This raised a point about the operation of s 5 of the Act and whether it related to a legal onus or an evidential onus.
[12]This raised an inconsistency argument under s 109 of the Commonwealth Constitution.
The respondent noted that the judge had given the jury a separate consideration direction and submitted that the jury acted on that consideration and that this explained the different verdicts.
The respondent pointed out that Counts 7, 8 and 11 involved no element of trafficking or intention to traffick, whereas Counts 3, 4, 5 and 6 all clearly did. More specifically, the respondent submitted that the applicant’s acquittals on Counts 3 and 4 were explicable upon the basis that the jury was not persuaded beyond reasonable doubt that any methyl-amphetamine or MDMA was manufactured at the premises or, alternatively, a jury considered that it was reasonably possible that any manufacture was carried out by one Graeme Smith who (as was repeatedly suggested by both defence counsel) may have been acting alone.
The respondent submitted that the applicant’s acquittal on Count 5 was explicable on the basis that the jury was not satisfied beyond reasonable doubt that the applicant, while possessing the P2P, intended to sell it. The respondent mentioned that the Crown case on Count 5 was that the applicant and his co-accused possessed the P2P for sale and that the applicant and the co-accused had contended that this was inconsistent with the Crown case as to manufacture (Count 6).
The respondent submitted that the acquittal of the applicant on Count 6 was reasonably explicable on the basis that the jury was not satisfied that the equipment was intended to be used to manufacture drugs.
The respondent submitted that the applicant’s submission that the acquittal on the first alternative to Count 5 could only mean that the jury was not satisfied that the applicant knowingly or intentionally possessed the P2P was incorrect because the verdict only meant that the jury was not satisfied that the applicant possessed the P2P with the intention of selling it. For example, the applicant may have knowingly and intentionally possessed the P2P as a bailee (with or without reward).
The respondent submitted that the evidence that the applicant knew of the P2P and exercised control over it was stronger as against the applicant than it was against his co-accused. There was a body of evidence, the respondent submitted, which indicated that the applicant was more closely connected to the specific location within the factory where the P2P was secreted:
- The P2P was found in three containers stored in a freezer in the back room of the factory;
- The applicant ran a pinball restoration business and there were a number of pinball machines in the back room in front of the freezer; [13]
- The P2P appeared to have been hidden away;
- Physical access to the freezers was difficult by reason of the ‘wide range of material’ blocking the freezers (including the applicant’s pinball machines);
- The back room was one of two rooms which had been constructed after the factory was leased and it was the applicant who had sought permission to have these rooms constructed;
- There was no evidence (DNA or otherwise) that specifically linked the co-accused to that room or to the P2P.[14]
[13]Counsel for the applicant suggested on appeal that the evidence did not support this contention but I am satisfied that counsel’s suggestion was incorrect – see the exhibited photos nos 42 and 43, the freezers were in fact behind the pinball machines. The informant Underwood gave evidence that appears to explain why certain of the photos showed only the freezers – other ‘stuff’ had been moved out before particular photographs (apparently photos 196 and 197) were taken. See T 731.
[14]T 731-732.
The respondent said that there was a variety of other evidence (direct or inferential) that might well have persuaded the jury that the applicant knowingly possessed the P2P whereas there was no such evidence in the case of his co-accused.
We interpolate here that counsel for the co-accused in his closing address to the jury emphasised the absence of evidence that specifically linked the co-accused to the room where the P2P was stored:[15]
[15]T 1067-68, 1072 and 1078-79.
You've heard about the room down the back. You've heard about the left-hand room and the right-hand room. … The left-hand side is depicted in Photograph 43, …. The left-hand side is that dark room down the back. … just for the moment let's look at that left-hand room down the back.
In that photograph, Photograph 43, you will see in the background of that photograph the freezer bins that have been talked about at Photograph 196 and 198. Everything else has been moved out and you could see those bins down the back. You heard me ask the police officer, Kate Underwood, if there was any fingerprints or DNA of Matthew Finn found on those fridges, those freezers down the back, and she said, no, there wasn't. You also heard me ask her, was there any DNA or fingerprints on any of these items blocking those bins off that was associated with Matthew Finn, and she said, no, there wasn't.
So did Matthew Finn occupy that room down the back? Was he in control of what was in that room down the back? Was Wayne Finn in control? Was Graeme Smith in control? Is there anything about that room or anything in it that links Matthew Finn to what anyone else was doing down in that room? There's not. Those bins down the back are where that P2P was found. Is there any evidence on the bottles of P2P, fingerprints or DNA, that link to Matthew Finn? No, there's not. Was he in control of what was in that room?
…
He's been added onto this. Matthew Finn has been added on to this, simply because he's there.
…
Matthew Finn is a plumber. The problem that Matthew Finn has, so the Crown say, is he's related to Wayne Finn. The problem that Wayne Finn, so the Crown says to you, is that he may know Tony Mokbel. That's it. Matthew Finn is a plumber and you’ve seen him on video going about his normal business. There is nothing else in this, that he leases the factory, he's got a key to a padlock [to the trailer]. His fingerprints have been found on two moveable items in a box. He's got DNA on a pump … and no-one has told you how it's involved at Springvale to manufacture drugs.
We further note that, in contrast, the respondent submitted that there was ample evidence that the applicant knew of the source and illicit purpose of the equipment and substances he possessed:
- Evidence that the drums of the methanol located amongst pinball machines and car engine parts came from Tony Mokbel;[16]
- Evidence that the applicant was an associate of Tony Mokbel, who, on the evidence, was a drug manufacturer;[17]
- SMS text messages from the applicant’s phone ‘…They found the stuff of you know who’[18] and ‘in a trailer and some other crap of his’;[19]
- A telephone intercept of the applicant saying ‘they used the fuckin joint – left their trailers and shit in (inaudible) alright. Did we pack it up put it away? Yes we did. They just didn’t bother coming’;[20]
- Evidence that Graeme Smith was an old friend and business colleague of the applicant and that he was a drug manufacturer.[21]
[16]T 439-440: evidence of Darren Joseph Bednarski.
[17]The respondent referred to Call no 2346, 7/11/07, 22:43 (p. 6 of transcript); T 705-7, made on the day of the arrest where Khoder told the applicant ‘that’s what happens when you’re friends with the Mokbels, buddy’. The respondent also referred to evidence of Simon Sayfe as to a black Mercedes Benz being transferred to the applicant as directed by Tony Mokbel or his friend Amedio: T 479.
[18]Call no 2271, 07/11/07, 15:54:31.
[19]Call no 2272, 07/11/07, 15:56:13.
[20]Call no 2332, 7/11/07, 18:36:28.
[21]T 735.
The respondent also submitted that the judge ‘as a matter of balance’ drew the jury’s attention to the applicant’s conversation with one of his associates (Karl Khoder) where the applicant told Khoder that the co-accused had been charged with trafficking drugs and possession and said: ‘you know Matthew's never done a fuckin’ bad thing in his fuckin’ life mate and you know’ and Khoder responded ‘I know Mattie hasn’t’.[22]
[22]Call no 2346, 07/11/07, 22:34., T 1250-1251 and 1256.
The respondent submitted that the acquittal of the co-accused on Counts 7 and 8 was explicable on the basis that the jury was not satisfied that he had possession of the formaldehyde and ammonia, it being more likely that it was in the sole possession of the applicant (as the learned trial judge suggested). Alternatively, the respondent submitted that the jury may not have been satisfied beyond a reasonable doubt that the co-accused did not have a lawful excuse to possess the formaldehyde and ammonia but was satisfied that the applicant did not have such a lawful excuse.
The respondent submitted that the applicant’s argument that any lawful excuse applied equally to the applicant and to the co-accused was a flawed argument because, assuming that they were in joint possession, they may have been in possession for different purposes. The argument also wrongly assumed that the jury must have made a positive finding of a lawful excuse in favour of the co-accused whereas they may simply have had a reasonable doubt in relation to him on this question. Moreover, and despite the emphasis put by counsel for the co-accused in his closing address on lawful excuse, the jury may simply have been persuaded of the co-accused’s lack of knowledge of and connection with the substances, but not so as regards the applicant.[23]
[23]Compare the judge’s charge quoted at [9] above.
Resolution of the application
As can be seen, the applicant did not suggest that there was any legal inconsistency between the verdicts of acquittal of the applicant and his co-accused and the verdicts of guilty against the applicant. Rather, the applicant contended that there was factual inconsistency and/or that the guilty verdicts were unreasonable having regard to the way that the case was conducted and the issues that were put to the jury.
In MacKenzie v R,[24] Gaudron, Gummow and Kirby JJ said that suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused. Their Honours said that the test was one of logic and reasonableness, citing what was said by Devlin J in R v Stone:
He must satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions can not stand.
[24](1996) 190 CLR 348, [366]-[368].
Their Honours went on to say that the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly a reluctance to accept a submission that verdicts are inconsistent in the relevant sense:
Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court … to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judges instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond a reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
Their Honours went on to refer to the often cited passage in R v Kirkman[25] to the effect that juries cannot always be expected to act in accordance with strictly logical considerations and courts must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts reached by the jury with respect to other charges and that sometimes a jury might consider that justice was sufficiently met by convicting an accused of less than the full number of charges although that might not be logically justifiable in the eyes of the judge.
[25](1987) 44 SASR 591, 593.
Their Honours went on to say that there would be a residue of cases where the different verdicts returned by the jury represented an affront to logic and common sense which was unacceptable and strongly suggested a compromise of the performance of the jury’s duty or some other confusion or misunderstanding by the jury. It was only where the inconsistency rose to that point that intervention was necessarily required – it all depended on the facts of the case – and the obligation to establish inconsistency rested upon the person making the submission.
An application of the foregoing principles to the circumstances of this case, as outlined above, leads us to the conclusion that the applicant has failed to substantiate that the jury’s verdicts were unreasonable or inconsistent with the jury’s acquittals on the various other charges against the applicant and/or the co-accused. Subject to what follows below, we accept the respondent’s submissions.
In our opinion, it was open to the jury, on the evidence and in the light of the judge’s directions, to reject the case suggested or ‘floated’ on behalf of the co-accused and the applicant based on the potentially legitimate uses of formaldehyde and/or ammonia and open to the jury, instead, to conclude that the co-accused did not have possession of either the formaldehyde or the ammonia for any purpose but that the applicant did have possession of both without lawful excuse. We think that it is unlikely that the jury would have put any weight on the evidence of Mr Perkal about the potentially legitimate uses of either substance.
Next, we would accept the respondent’s submissions about the strength of the evidence implicating the applicant in the possession of the P2P and the relative weakness of the evidence implicating the co-accused in that regard. It was open to the jury to conclude that the applicant was in possession of the P2P but to be satisfied on the balance of probabilities that the co-accused was not.
For the foregoing reasons, we would dismiss the application.
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