Floyd v The State of Western Australia

[2013] WASCA 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FLOYD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 33

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   5 NOVEMBER 2012

DELIVERED          :   8 FEBRUARY 2013

FILE NO/S:   CACR 105 of 2012

BETWEEN:   MATTHEW GEORGE FLOYD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 1318 of 2011

Catchwords:

Criminal law - Appeal against conviction - Offer to sell MDMA - Whether misdirection on the elements of the offence - Meaning of 'offer'

Criminal law - Defences - Sudden or extraordinary emergency - Whether error in failure to put defence to the jury

Criminal law - Evidence - Admissions - Conversation with detective - Audiovisual recording poor quality - Oral evidence of detective - Admissibility - Criminal Investigation Act 2006 (WA), s 118 - Meaning of 'malfunction'

Criminal law - Evidence - Admissions - Admissibility under Criminal Investigation Act 2006 (WA), s 155

Legislation:

Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 25, s 32
Criminal Investigation Act 2006 (WA), s 118, s 155
Evidence Act 1906 (WA), s 50A
Misuse of Drugs Act 1981 (WA), s 6

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr A L Troy

Respondent:     Mr B Fiannaca SC

Solicitors:

Appellant:     Perrella Legal

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Ajayi v The Queen [2012] WASCA 126

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138

R v Addison (1993) 70 A Crim R 213

R v Dendic (1987) 34 A Crim R 40

R v Rogers (1996) 86 A Crim R 542

R v Swan (2003) 140 A Crim 243

Rogers v The State of Western Australia [2008] WASCA 201

Tsagaris v The Queen  (Unreported, WASCA, Library No 980721, 14 December 1998)

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Wright v The State of Western Australia [2010] WASCA 199

1. McLURE P: This is an appeal against conviction. On 6 March 2012, following a six‑day trial, the appellant was found guilty of the offence that, between 14 and 22 December 2010, with Sam Reinsma and Dean Pantaleo, he offered to sell MDMA, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act).

2. The two co‑offenders had pleaded guilty on an earlier occasion.  They were not called as witnesses by either the State or the defence.

3. A summary of the background facts is as follows.  Prior to 21 December 2010 a police undercover operative known as 'Cassie' reached an agreement with the two co‑offenders to sell her 500 MDMA tablets at $26 per tablet.  The co‑offenders did not know she was a police officer.  To the appellant's knowledge, Pantaleo was a drug dealer.  He did not know Reinsma.

4. On 21 December 2010 Cassie and Pantaleo drove to the appellant's house in Harrisdale.  The appellant came out to meet them.  The appellant's conversations with Cassie were covertly recorded.  Having been introduced, the appellant said to Cassie, 'It will be alright …  I'll make it so I can grab them and bring them out to you'.  He asked her if she had a pill tester.  He told her that 'this guy [had] different batches', and '[this guy had] the green ones that [Cassie was] getting now'.

5. After some to-ing and fro-ing between Cassie's vehicle and his house, the appellant left his house and went with Cassie in her vehicle to Race Street, Willagee.  During the journey the appellant told Cassie that he had been 'moving, like, a tiny bit of gear (methylamphetamine, on the prosecution case)' but that 'it's (selling MDMA, on the prosecution case) so much easier than selling gear'.  The appellant also said 'pills are the easiest' and that $26 per tablet for a batch of 500 tablets was 'a lot'.  He said he only charged an extra dollar for what he did. 

6. The appellant went into a house in Race Street.  He emerged with a bag containing 297 green pills weighing 100 g.  None of the pills contained prohibited drugs.  The appellant said to Cassie 'So they're in here now … the green ones.  That's what he had.  Do you want to open them?'.  The appellant asked if they were meant to be dark green and said he would happily give them back.  Cassie said she would go and get the cash.  At that stage police officers, who had been covertly observing events, moved in.

7. The appellant was arrested and taken to Cannington Police Station.  He did not participate in a formal record of interview.  However, at trial Detective Blake Henry gave viva voce evidence of a conversation he had with the appellant in the lockup area where the processing of prisoners occurred.  There was common ground between the appellant and Detective Henry about large parts of the conversation.  Other parts were disputed.

8. According to Detective Henry, the appellant said he had received a phone call from a male who had asked him to get him an amount of ecstasy; people would ring him up, he would ring other people and they would hook up; he did not take money from them, he just connected one person to another; the reason why he and his friend had made the tablets was to make a lot of money; and he had a friend who sold them for a lot more than he did.

9. The appellant gave evidence at his trial and called a number of witnesses.  In broad terms the defence case was as follows.  The appellant was a professional boxer who also worked as a personal trainer at a gym whose clientele included bikies and their associates.  Pantaleo had contacted the appellant, and others who knew the appellant, seeking to source 500 ecstasy tablets for a customer.  The appellant and others decided to play a prank on Pantaleo whereby they would use clay to make fake ecstasy tablets which the appellant would supply to Pantaleo who, believing them to be ecstasy, would sell them to his customer (ts 298 ‑ 299, 501).  However, the appellant provided the fake tablets directly to Cassie because he thought she was a bikie or connected with bikies and would, having regard to the amount of money she would have to be carrying to pay for 500 ecstasy tablets, have back-up (ts 308 ‑ 310).  The appellant testified that he pretended to talk to Cassie like a bikie with knowledge of the drug scene 'lingo' (knowledge which he said he obtained from third parties and television) so as to suggest that his supplier was also to be feared (ts 311, 314).

10. The appellant relies on three grounds of appeal. He contends the trial judge erred (1) by misdirecting the jury on the elements of the offence of offering to sell or supply a drug contrary to s 6(1)(c) of the Act; (2) in failing to explain to the jury a defence available to the appellant, being sudden or extraordinary emergency under s 25 of the Criminal Code (WA) (the Code); and (3) in failing to exclude evidence of admissions made by the appellant in his conversation with Detective Henry.

11. Leave to appeal was granted on grounds 1 and 3.  The application for leave to appeal on ground 2 was referred to the hearing of the appeal.

The alleged misdirection (ground 1)

1. Section 6(1)(c) of the Act relevantly provides that 'a person who … offers to sell or supply, to another, a prohibited drug commits a crime'. The parties, both at trial and in the appeal, accepted the correctness of the direction approved by the Court of Criminal Appeal in Tsagaris v The Queen (Unreported, WASCA, Library No 980721, 14 December 1998) which was as follows:

   As to what is meant by offer in law I don't need to say much about that because you have all had experience of dealing with offers to buy things, by [sic] goods and so on, you know what an offer is. 

   It's a very simple concept of law, but I do need to tell you that for the purpose of the criminal law an offer must be an offer that is a serious offer to sell which is intended to be taken seriously by the person it is made to, so in this case the Crown must satisfy you beyond reasonable doubt … that firstly there was an offer and that the offer was an offer in the sense that the accused intended it seriously and that in that sense it was a serious offer which the accused intended would be taken seriously by the undercover officer.

2. Thus the offence is complete even if the offeror did not, or did not intend to, sell or supply prohibited drugs.  The offence is complete on the making of an offer to sell or supply prohibited drugs with the intention by the offeror that the offer be regarded as genuine by the offeree:  R v Dendic (1987) 34 A Crim R 40; R v Addison (1993) 70 A Crim R 213; R v Swan (2003) 140 A Crim 243.

3. It is not contended that there is anything objectionable in the trial judge's summing up as to the elements of the offence. The complaint relates to the trial judge's response to a jury question about what constitutes an 'offer' for the purposes of s 6(1)(c) of the Act. The jury asked:

   If an offer is received as serious, despite the true intentions of the individual making the so‑called offer, is this considered an offer by law?

4. The trial judge informed counsel, in the absence of the jury, of his intended response to the question.  Both counsel agreed with the proposed course.  The trial judge answered the question in the following terms:

   I'll go over what I said to you earlier about an offer.  I began by saying the dictionary definition of offer is to present for acceptance or refusal or consideration and includes making something available for sale.  The purpose of the criminal law ‑ for the purpose of the criminal law, I said, an offer must be a serious one.  That is one.  That is one intended to be taken seriously by the person to whom the offer is made.  The State must in this case satisfy you beyond reasonable doubt that an offer was made and that it was a serious offer.  In other words, an offer intended to be taken seriously.  The State case is that [the appellant] offered to sell ecstasy and that he did so seriously and intending that his offer be taken seriously.  It is in this case on the face of it, as I said earlier, within a commercial context in that there was somebody prepared to pay and apparently somebody prepared to sell … The offence as I say is complete if the offer is to sell a prohibited drug and its an offer seriously made and intended to be seriously understood as such.  Motive plays no role.  The State's not required to prove a motive (ts 526 ‑ 527).  (emphasis added).

5. The claim made on behalf of the appellant is that the trial judge ought to have prefaced his direction with an express negative answer to the question.  That is, the trial judge should have said 'no' before proceeding to give the answer he gave.  No objection was made at trial to the answer, which is not ambiguous.

6. The trial judge's response to the question makes it plain that a serious offer is one intended by the appellant to be taken seriously by the person to whom the offer is made, in this case Cassie.  It was important in this case to distinguish between the appellant's intention when he made the offer and his motive in doing so. 

7. In any event, in practical terms the appellant's 'prank' defence was no defence at all.  As is apparent from the appellant's own evidence, for the prank to be effective the appellant must have intended that the offer be taken seriously.  Further, the appellant's evidence relied on to support the emergency defence is only consistent with the appellant's intention, being that his offer to Cassie be taken seriously by her.  I would dismiss ground 1.

The emergency defence (ground 2)

1. Emergency was not referred to or relied on by the defence at trial.  However, a judge must put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it:  Braysich v The Queen (2011) 243 CLR 434 [32]; Van Den Hoek v The Queen (1986) 161 CLR 158, 161; Rogers v The State of Western Australia [2008] WASCA 201 [25].

2. Section 25 of the Code relevantly provides:

   (2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).

   (3)A person does an act or makes an omission in an emergency if ‑ 

   (a)the person believes ‑ 

   (i)circumstances of sudden or extraordinary emergency exist; and

   (ii)doing the act or making the omission is a necessary response to the emergency;

   and

   (b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

   (c)there are reasonable grounds for those beliefs.

3. A defendant carries the evidential burden of raising the defence of emergency.  In that regard, the test is whether there is evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived:  Braysich [36].

4. The appellant's evidence was that he saw the vehicles driven by Pantaleo and Cassie arrive at his house (ts 307 ‑ 308).  He went outside and spoke to Pantaleo. The appellant was angry because Cassie's arrival was unexpected.   The examination‑in‑chief continued:

   Why were you angry---Because he bought someone else to my house.  I ‑ the prank was on Dean.  This is ‑ arguing and the first thing he said to me was ‑ he was talking about her say ‑ saying, 'Don't worry, like, she's pretty connected, like with bikies.'  And ‑ and I'm thinking in my head, because he said something about ‑ I don't know how much money it was that he was selling them for, whatever, but he said something ‑ whatever deal he had with her was between them.  And I'm thinking in my head, 'Well, this chick's got like whatever it is amount of money on her, as if she's just going to go to some random guy's house with all this money and not have like back-up.'

   How did you - - ----Like I thought there was bikies, all this, because he told me she was a bikie (ts 308).

5. Later in his examination‑in‑chief the appellant returned to the unexpected arrival of Cassie:

   What did that make you think---I just thought this dick head Dean brought someone to my house and I don't know what's going to happen.  I don't know what to expect.  Then she knew where I lived and they thought that ‑ they either thought that I had drugs or they thought they ‑ I could get drugs.  I don't know what they thought.  And they weren't going to leave until they got some.  I don't know whether they wanted me just to give them something and then take more or go there after or what.  What their plan ‑ I don't know how they ‑ what they wanted to do (ts 310).

6. After speaking to Pantaleo, the appellant spoke to Cassie who he described as very agitated (ts 310).  The appellant kept Pantaleo and Cassie waiting outside in their vehicles for about 45 minutes to an hour before going with Cassie to Willagee (ts 315 ‑ 316).  He wanted to get them away from his house where his mother and partner were (ts 313, 317).  He pretended to Cassie that he had bikie connections of his own (ts 312, 314).

7. The defence of emergency, like that of duress in s 32 of the Code, exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law: R v Rogers (1996) 86 A Crim R 542, 546; Ajayi v The Queen [2012] WASCA 126 [52].

8. On the evidence as a whole, it was not open to the jury to find, as a reasonable possibility, that when the appellant made the offer to Cassie:

   (a)there were reasonable grounds to believe that circumstances of sudden or extraordinary emergency existed;

   (b)even if there was evidence capable of constituting a relevant emergency: 

   (i)there were reasonable grounds for believing that making the offer was a necessary response to the emergency;

   (ii)the appellant's offer to sell prohibited drugs was a reasonable response to the emergency in the circumstances as the appellant believed them to be.

9. At no material time did the appellant intend to sell or supply prohibited drugs to Pantaleo or Cassie.  The appellant knew Cassie to be Pantaleo's client.  Accepting the appellant's evidence at its highest (that he believed Cassie was a bikie and had back‑up), it was not open on the evidence to reasonably believe that circumstances of emergency, sudden or extraordinary, existed.  The unexpected arrival of the customer with the drug dealer who was the intended victim of the prank is not capable of constituting a statutory emergency.  The most obvious and objectively reasonable alternative course of action available to the appellant underpins the conclusion of no arguable emergency.  That alternative was not to make any offer to Cassie but instead give her details of his intended prank on Pantaleo. 

10. Another alternative was for the appellant to inform police of his situation in the long delay between Cassie's arrival and them setting off for Willagee.  The alleged basis for the emergency is the perceived threat posed by the thwarted bikie.  However, as the appellant implicitly acknowledged in his evidence, supplying fake drugs to a person thought to be a bikie might delay but not avoid the perceived threat. 

11. Accepting the appellant's case at its highest, it was not open to the jury to find as a reasonable possibility that there were reasonable grounds to believe that the appellant's offer to Cassie was a necessary or reasonable response in the circumstances. 

12. Ground 2 has no reasonable prospect of succeeding.  Accordingly, leave to appeal should be refused.

Evidence of admissions (ground 3)

1. Detective Henry gave oral evidence of a conversation that took place between him and the appellant in the course of the appellant's processing in the lockup at Cannington Police Station.  The area in which the conversation took place was equipped with audio‑visual recording equipment. 

2. The prosecution and the appellant each produced from the audiovisual record a transcript of the conversation alleged to have taken place.  The appellant intended to rely on exculpatory parts of the exchange.  Although some portions were agreed, there remained areas of contention around the admissions allegedly made by the appellant.  An attempt to have a better quality transcription produced by an independent body (the National Transcription Service) was unsuccessful. 

3. The State proposed to tender the audiovisual recording together with a transcript of the recording prepared by Detective Henry and certified under s 50A of the Evidence Act 1906 (WA) (ts 137 ‑ 139). However, the trial judge ruled that neither the audiovisual record nor the transcript prepared by Detective Henry should be adduced in evidence as material parts of the audio content involved improper speculation (ts 196 ‑ 197).

4. Counsel for the appellant then objected to Detective Henry giving oral evidence of the conversation on the basis that there was a contravention of s 118 of the Criminal Investigation Act 2006 (WA) (CIA) (ts 191 ‑ 192). Section 118(3) provides:

   On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless ‑ 

   (a)the evidence is an audiovisual recording of the admission; or

   (b)in the absence of an audiovisual recording of the admission ‑ 

   (i)the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or

   (ii)the court decides otherwise under section 155.

5. Under s 118(1), reasonable excuse for the absence of an audiovisual recording of an admission, includes:

   (a)the admission was made when it was not practicable to make an audiovisual recording of it;

   (b)equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;

   (c)the suspect did not consent to an audiovisual recording being made of the admission;

   (d)the equipment used to make an audiovisual recording of the admission malfunctioned.

1. Section 155 of the CIA relevantly provides:

   (2)The court may  …  decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

   (3)In making a decision under subsection (2) the court must take into account ‑ 

   (a)any objection to the evidence being admitted by the person against whom the evidence may be given;

   (b)the seriousness of the offence in respect of which the evidence is relevant;

   (c)the seriousness of any contravention of this Act in obtaining the evidence;

   (d)whether any contravention of this Act in obtaining the evidence ‑ 

   (i)was intentional or reckless; or

   (ii)arose from an honest and reasonable mistake of fact;

   (e)the probative value of the evidence;

   (f)any other matter the court thinks fit.

   (4)The probative value of the evidence does not by itself justify its admission.

2. The trial judge ruled that there was a reasonable excuse for the absence of a recording of the admission by reason of a malfunction of the equipment.  Accordingly, the trial judge allowed Detective Henry to give evidence of his recollection of the conversation with the appellant at the lockup.  In concluding that the audiovisual equipment malfunctioned the trial judge said:

   It is clear when watching the recording that there was a conversation and one as has been proved by the attempted transcription is able to garner some of the words used, and perhaps some of the sentences used by the two parties to that conversation.  The Oxford Dictionary describes malfunctioning in these terms:  Bad or faulty functioning.  In those circumstances, we are not here, necessarily talking about faulty functioning, but we are talking about bad functioning.  As such it seems to me that the equipment that was placed in the lockup designed for a particular purpose, that is to record both in an audio and visual way what happens in the lockup, is badly functioning.  And as such it is, in my view, malfunctioning (ts 198).

3. The function of audiovisual equipment is to capture what is said and done in the intended area of its operation.  A malfunction is a failure to function properly.  There may be a number of reasons for a malfunction.  It may be because the equipment was not suitable for the intended purpose or, if suitable, did not function as intended as a result of a fault related to the equipment itself.  Alternatively a malfunction may arise as a result of the circumstances surrounding its use.  The failure to capture what was said may result from ambient noise or the distance or position of the speakers from, or relative to, the microphone(s).

4. On the natural and ordinary meaning of par (d) of s 118(1), the malfunction must be attributable to a fault in, or in connection with, equipment that is suitable for the intended purpose. That construction is also consistent with the purpose of s 118. As to which, see Carr v The State of Western Australia (2007) 232 CLR 138 [57]; Wright v The State of Western Australia [2010] WASCA 199 [52] ‑ [53], [131].

5. There is no evidence in this case as to the reason why the equipment did not capture all of the exchanges between Detective Henry and the appellant. In those circumstances, it was not open to the trial judge to conclude that there was a reasonable excuse for the absence of an audiovisual recording of the admission under s 118(1)(d). However, that is not the end of the matter. The definition of 'reasonable excuse' in s 118(1) is inclusive not exhaustive. However, in the absence of evidence as to the reason for the defective audio recording in this case, there cannot be a finding of reasonable excuse for the absence of an audiovisual recording of the admissions. In particular, there was no evidence that the audiovisual equipment in the lockup was intended to and suitable for the capture of conversations in the lockup regardless of the location of the speakers relative to the microphones or the volume of their exchanges.

6. Thus, the trial judge made an error of law in construing s 118 of the CIA and in ruling that the evidence was admissible. However, the Court of Appeal may dismiss the appeal notwithstanding a wrong decision on a question of law if it considers that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA), s 30(4). There will be no such miscarriage if the evidence should have been admitted under s 155 of the CIA. Regard must be had to the mandatory considerations in s 155(3).

7. As to par (a) of s 155(3) the initial position of counsel for the appellant at trial was that there was no objection to the admissibility of the audiovisual recording of the conversation in the lockup (ts 150 ‑ 151). It is apparent that the appellant intended to rely on the exculpatory portions of the record. It was only after the recording and transcript were held inadmissible by the trial judge that objection was taken to its admissibility under s 118 of the CIA. The appellant's prior consistent statements in the lockup would have been inadmissible if the inculpatory material was excluded.

8. As to par (b), the offence with which the appellant was charged is very serious, having a maximum penalty of 25 years' imprisonment, although on the defence case the circumstances of the offence were at the lower end of the scale of seriousness.

9. As to par (c), the contravention of s 118 cannot be described as serious. Events in the lockup at the Cannington Police Station were the

subject of audiovisual recording.  As is apparent from the facts in Carr v The State of Western Australia [22] ‑ [24], that is not unusual in Western Australia. Detective Henry believed that his conversation with the appellant in the lockup was being recorded, both audially and visually (ts 232, 233). At the commencement of the conversation with the appellant, Detective Henry informed him of his rights and that the conversation was 'on the record' (ts 190, 200). The only evidence before the court was that the contravention was the consequence of an honest belief that the audiovisual equipment would capture the conversation.

1. As to par (e), Detective Henry had prepared an original statement as to the content of the exchange with the appellant in the lockup without any reference to the audiovisual record which was subsequently excluded.  That statement is consistent with Detective Henry's oral evidence of the admissions at trial and with the covertly recorded exchanges between Cassie and the appellant (summarised in attachment 5 to the respondent's answer).

2. The circumstances as a whole weigh clearly in favour of the desirability of admitting the evidence.

3. Although the trial judge erred in his ruling that Detective Henry's evidence of the appellant's admissions in the lockup was admissible under s 118 of the CIA, I am satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting it. But for the error, the evidence would and should have been admitted under s 155 of the CIA. Accordingly, the error occasioned no miscarriage of justice, substantial or otherwise.

Conclusion

1. For these reasons, I would dismiss the appeal.  After the hearing of the appeal the appellant wrote a letter to the coram dated 8 November 2012.  None of the matters raised in the letter justify a grant of leave to reopen the hearing of the appeal.

2. NEWNES JA:  I agree with McLure P.

3. MAZZA JA:  I agree with McLure P.