Fowler v The Queen - [2001] WASCA 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: FOWLER -v- THE QUEEN [2001] WASCA 130

CORAM: MALCOLM CJ
MURRAY J
STEYTLER J

HEARD: 21 MARCH 2001

DELIVERED : 24 APRIL 2001

FILE NO/S: CCA 186 of 2000
CCA 232 of 2000

BETWEEN: DESMOND FOWLER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction and application for leave to appeal against sentence - Possession of cannabis with intent to sell or supply it to another, cultivating cannabis with intent to sell or supply it to another - Necessary to consider evidence on each charge separately - Directions to jury as to credibility of the accused - Jury told that certain matters of logic apply - One of these is that it would be unusual for one conclusion as regards accused's credibility to be reached on one count and a different conclusion to be reached on another - Whether jury misdirected

Legislation:

Criminal Code, s 689(1)

Misuse of Drugs Act 1981, s 11

Result:

Appeal allowed
Conviction quashed
Retrial ordered

Representation:

Counsel:

Applicant: Mr R A Mazza
Respondent: Mr K P Bates

Solicitors:

Applicant: Alex Palumbo
Respondent: State Director of Public Prosecutions

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

Duke v The Queen (1989) 180 CLR 508
R v Boykovski (1991) 58 A Crim R 436
R v Dee (1985) 19 A Crim R 224
R v Durham (2000) 110 A Crim R 92
Robinson v The Queen (1991) 180 CLR 531
Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985
Stafford v The Queen (1993) 67 ALJR 510
Wilde v The Queen (1988) 164 CLR 365

Case(s) also cited:

Evans v The Queen [1999] WASCA 252
Fazari v The Queen, unreported; CCA SCt of WA; Library No 960651; 14 November 1996
Giowkos v The Queen, unreported; CCA SCt of WA; Library No 980224; 5 May 1998
Harriman v The Queen (1989) 167 CLR 590
Jarvis v The Queen (1993) 20 WAR 201
R v Collins (1993) 67 A Crim R 104
R v Jankovic (1995) 81 A Crim R 14
R v S (1989) 45 A Crim R 221
R v Schlaefer (1984) 12 A Crim R 345
R v Shaw (1989) 39 A Crim R 343
R v Ward (1999) 109 A Crim R 159

MALCOLM CJ: In my opinion, this appeal should be allowed, the convictions on both counts quashed and a new trial ordered. I have reached that conclusion for the reasons to be published by Steytler J with which I agree.
MURRAY J: In this matter I have had the considerable advantage of reading in draft the reasons for decision published by Steytler J in which his Honour sets out the factual background and discusses what was in fact ground 2 of the appeal against conviction. In view of his Honour's conclusion, as I understand it, that both convictions should be quashed and a re‑trial of both counts in the indictment should be ordered, his Honour finds it unnecessary to consider any other of the five grounds of what I take to be an application for leave to appeal against conviction (because not all of the grounds involve questions of law alone: Criminal Code(WA), s 688(1)(a)) or the merits of the application for leave to appeal against the sentences imposed. As to the matter dealt with by his Honour, I regret to say that I find myself in disagreement with the views he expresses.
Steytler J has set out the two charges in the indictment. Count 1 was that which charged the applicant with possession of cannabis with intent to sell or supply at his home in Armadale, and count 2 was that which charged him with cultivation of cannabis with intent to sell or supply at the plantation in the forest of the catchment area of Canning Dam at Karragullen. Those charges were tried jointly before a District Court Judge and jury: Criminal Code, s 585.
Ground 2 is in the following terms:
"2.The learned trial judge erred in law in directing the jury as to the credibility of the accused when he stated that it would be '…unusual if a jury were dealing with an accused person and there were several counts and they came to a certain conclusion as to the veracity ‑ that is, the credibility of that person in relation to one count and then suddenly turn around and go to the opposite view in relation to the other.' (transcript 398).
Particulars
The learned trial judge should have informed the jury that it could accept any witnesses' testimony in full or in part or not at all. It is incorrect to state that it would be

'unusual' for a jury to have a different view of the credibility of a witness on different counts. The direction, in effect, directed the jury that if it disbelieved the appellant with respect to his testimony in relation to count 1 it should disbelieve the appellant with respect to his testimony on count 2. Further, the direction was expressed in such a way as to suggest that an accused's evidence had to be seen in a different light to the evidence of other witnesses."

Although the ground is formulated in terms of an asserted error of law, it seems to me that it raises a matter of fact. The complaint is about the terms in which the trial Judge commented to the jury in the course of his summing up about the credibility of the accused as a witness in his own behalf, the comment being particularly concerned with the veracity or truthfulness of the witness' evidence rather than with respect to issues touching upon credibility more generally in the sense of the capacity of the applicant to command acceptance of, and reliance upon, the account given by him in his evidence at the trial.

Steytler J has concluded that the ground is made out in that the comments made by the trial Judge might be construed by the jury as a direction that if they came to an adverse conclusion about the applicant's credibility in respect of his evidence about count 1, they should come to a similar conclusion about his credibility in respect of his evidence about count 2. As I understand his Honour's reasons, it is considered that the applicant may have been deprived of his entitlement to the jury's assessment of his credibility in respect of each count. His Honour concludes that there has been a fundamental flaw in the trial process and for that reason would quash the convictions and order a re‑trial.
I should say at once that if the direction was flawed generally in the way described, then in my view the appropriate question would be whether the comment made was such as to cause a miscarriage of justice by depriving the applicant of a chance of acquittal of one or other or both of the counts on the indictment, or whether, alternatively, the proviso might be applied upon the ground that no substantial miscarriage had occurred because properly directed, the jury would certainly have come to the same conclusion, but, as will be seen, I do not rest my opinion about the matter at issue upon the application of the proviso.
The crucial point, of course, is that the jury were to be left with a clear understanding that it was their task to decide the facts of the case so that they might apply to the facts as they found them to be the directions of law given to them by the trial Judge, which may for present purposes be taken to have been correct, so as to arrive at their conclusion as to whether or not they were satisfied of guilt of either or both counts beyond reasonable doubt.
In that regard it is to be noted that the credibility of the applicant was a central issue, not only because he denied implication in the cannabis cultivation, but also because, with respect to both counts, the quantity of drug and the number of plants were such as to give rise to the operation of the Misuse of Drugs Act 1981 (WA), s 11, deeming the possession of cannabis and the cultivation of cannabis plants to be with the intention to sell or supply "unless the contrary is proved". It has been held that the effect of this provision is not to displace the onus resting upon the Crown to prove guilt of such an offence beyond reasonable doubt, but in a case to which s 11 applies it may discharge that onus by proving beyond reasonable doubt possession of at least the prescribed quantity of a prohibited drug or the cultivation of at least the prescribed number of prohibited plants. Conviction will follow unless, upon the whole of the evidence, the jury think it more probable than not that the accused had no such intention to sell or supply: Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985.
I should mention in passing that there is a complaint in ground 3 about the direction of law given in this regard to the jury in respect of count 2, but in my opinion there is no substance in this ground. The trial Judge directed the jury specifically and correctly with respect to the operation of s 11 in the context of his directions about count 1. When, immediately thereafter, his Honour came to count 2 he reminded the jury that s 11 might have a similar operation in respect of the intention with which there had been cultivation of prohibited plants. In effect, his Honour told the jury that the operation of s 11 with respect to the proof of intention in respect of that count was as it was in respect of the proof of intention with respect to count 1.
Returning to the discussion of ground 2, provided the jury were given a clear understanding that it was for them to decide the facts in respect of both counts, the trial Judge was entitled to make "such observations upon the evidence as the court thinks fit to make": Criminal Code, s 638. In Duke v The Queen (1989) 180 CLR 508 at 517 Brennan J said:
"So long as the jury clearly understands that it is their duty and prerogative to decide the facts, evidence of doubtful weight and comments by the trial Judge or by counsel will be accorded such respect as the jury, in its collective experience and robust wisdom, thinks appropriate. Juries have and exercise a lively critical capacity."
I am sure that would accord with the experience of trial Judges generally and the point to be made is that to make out this ground, in my opinion, it would be necessary to satisfy this Court that in the remarks made by the trial Judge about the truthfulness of the applicant, there was a danger that his Honour might be thought by the jury to be giving them a direction of law and taking from them the capacity to decide the facts about both charges.
It is convenient that I should say at the outset that in my opinion there is no force in that part of the particulars of the ground which complains that his Honour's "direction" was expressed in such a way as to convey to the jury the impression that the applicant's evidence was to be "seen in a different light" to that of other witnesses; to be scrutinised with greater care because of the applicant's particular interest in the outcome of the trial: cf Robinson v The Queen (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510. There was no suggestion in the observations of the trial Judge that the accused as a witness was in a special class who should be viewed with more suspicion and whose evidence should be scrutinised with greater care than that of other witnesses.
Nor is this a case where the applicant complains that the observations of the trial Judge were, although expressed with some strength, unfair or lacking in balance: cf R v Durham (2000) 110 A Crim R 92, 98.
Not to put too fine a point on it, the complaint here is that the trial Judge might have overborne the jury and dictated their conclusion about the credibility of the applicant, at least in respect of his evidence about count 2. I find it difficult to see how, on any view of it, their deliberations could have been adversely affected in respect of his evidence about count 1. In R v Dee (1985) 19 A Crim R 224 at 227 Thomas J, as his Honour then was, said in the Qld Court of Criminal Appeal that:
"…a trial Judge in summing up at a criminal trial has a very wide discretion to comment upon the facts. He may express his own views: he may do so in forcible language. In an appropriate case a Judge may even express his opinion to the jury as to the appropriate verdict.... . Further, it is necessary for the Court, where improper judicial conduct is relied upon as a ground of appeal, to discern that the jury has probably been improperly overborne by the Judge's comments."
See also R v Boykovski (1991) 58 A Crim R 436.
At the outset of his charge to the jury the trial Judge told them that they were bound by his directions of law, but that the facts were their sole province; they were the judges of the facts and no‑one could tell them how to determine the facts. Anything his Honour said about the facts, the jury was "not obliged to follow". His Honour likened his position to that of counsel who had commented about the facts. Such comments might be accepted or rejected as the jury thought fit.
His Honour then went on to mention other general matters, including the fact that there were two counts on the indictment, resulting in there having been effectively two trials conducted simultaneously, and his Honour referred to the applicant's entitlement to separate consideration of each count and the evidence as to each count so that a separate verdict could be returned in respect of each count. His Honour suggested to the jury that they might start with a consideration of count 1 and determine whether they were satisfied beyond reasonable doubt that the accused committed that offence. His Honour continued:
"Then you move onto the second charge and you consider the evidence on that matter and determine independently of your decision in relation to count 1 whether or not you are satisfied to the required degree that that charge has been made out. It is, as I say, necessary for you to bring in a separate verdict in relation to each matter, but there are certain matters of logic that apply and it involves this: that in relation to dealing with one count ‑ for example, count 1 ‑ you will be making certain decisions, one of which, of course, is as to the credibility of the witnesses and in particular the credibility of the accused, and you will be making other findings in relation to count 1 at the same time.
Some of those findings would obviously flow over to the other matter. It would be, for example, and this is a hypothetical situation I'm dealing with, unusual if a jury were dealing with an accused person and there were several counts and they came to a certain conclusion as to the veracity ‑ that is, the credibility ‑ of that person in relation to one count and then suddenly turn around and go to the opposite view in relation to the other. You will see there is a certain logic that applies.
So there will be some part of the work you deal with in relation to count 1, for example, which could well flow over to count 2 and, as I will be explaining to you in due course, there may be some matters of evidence or fact which you conclude about in relation to count 1 which may well be applicable to your process of determining whether or not count 2 has been made out. That is to say, you will be dealing with the question of the existence in the accused's house of the scales, the plastic bags, and you will be making determinations in count 1 as to whether or not those matters can assist you or do assist you in relation to whether or not the accused had knowledge of the drug scene and was in a position or did in fact become involved in some way in the dissemination of cannabis.
Now, if you come to a conclusion, for example, that that is in fact the case, then it may well be used by you in relation to determinations you make in relation to count 2 so that you will see there is a certain logic that applies; but nevertheless you must always bear well in the back of your minds that each count deserves and requires a separate determination on the evidence in relation to those other matters."
In my respectful opinion these were obviously comments on the fact‑finding process and how the jury might go about it. Later, in discussing particular matters of evidence and the evidence of the applicant, his Honour observed that, "it is inherent in the accused's defence that you should rely upon and accept him as a witness of truth." His Honour made some observations then which made it clear to the jury that it was for them to consider and decide upon "matters of credibility" and he again said that logically a decision that the accused was not to be believed would make it more readily open for the jury to draw the inferences of fact urged by the Crown. In my opinion, none of his Honour's comments were reasonably productive of a miscarriage of justice by overbearing the jury in a way which deprived the accused of the jury's decision about credibility and the facts of the case.
In my opinion the jury was not directed that if they disbelieved the evidence of the applicant about count 1, they should disbelieve him with respect to count 2. It was productive of no miscarriage for the trial Judge to say, in effect, that if the jury, considering the evidence about count 1, including that given by the applicant, took the view that the applicant was not to be believed when he said upon his oath that the cannabis in his

house was for his own use and that he had no intention to sell or supply it to another, then logically it would be difficult to accept him as a witness of truth when he said in relation to count 2 that although he knew about the cannabis plantation in the forest, it was only an innocent association which he had with it, despite its identification on the map found under his mattress, for which he said he had no explanation, and despite his fingerprint on a can found at the scene, which by implication he attributed to his innocently handling rubbish while in the area. In short, it was suggested to the jury that if they did not accept the applicant to be a witness of truth in respect of his evidence about count 1, it would be unusual to consider him to be a truthful witness about count 2.

In my respectful opinion that was an appropriate and permissible comment which was in no way calculated to subvert the jury from their task or to remove from them the obligation to make decisions about the credibility of the applicant, but I am conscious that that is a minority view. As that is so there would seem to be little point in my discussing the other grounds of the application in respect of the convictions or the application for leave to appeal against the sentences imposed on the applicant. I content myself with the observation that I found none of them persuasive and I would dismiss both applications.
STEYTLER J: This is an appeal against conviction and an application for leave to appeal against sentence.
The appellant was convicted, after a trial by jury, on two charges. The first was that, on 17 April 1998 at Armadale, he had in his possession a quantity of cannabis with intent to sell or supply to another. The second was that, between 1 January 1998 and 14 May 1998 at Karragullen, he cultivated a quantity of cannabis with intent to sell or supply to another.
As to the first count, the appellant admitted that on the day charged he had in his possession, at his house in Armadale, a quantity of cannabis. He could not have denied this. Police officers had, on that day, executed a search warrant at his house. They found quantities of cannabis leaf in various locations on his property, both in and outside his house. Each of the quantities found was relatively small although their total was enough to raise a presumption of intent to sell or supply under s 11 of the Misuse of Drugs Act 1981. Some snap lock bags and a set of scales were also found. However the appellant denied that he had intended to sell or supply any of the cannabis to anyone else. He explained his possession of the scales by saying that he was a cannabis user and that, when he bought cannabis, he would weigh it to ensure that he "wasn't getting ripped off".

As to the second count, the police found a map in the course of their search of the appellant's home. It was secreted between two mattresses that comprised the appellant's bed. The map, which had been prepared by the Department of Conservation and Land Management, was one of the Canning Dam area located in Ashendon about 16 kilometres south east of Karragullen. On the map, marked in the appellant's handwriting, was a tree reference "BJ 682". Beneath that tree reference, in faint writing, was another mark. Curious about the fact that the map appeared to have been hidden, and about the reason for marking it, the police travelled down to Ashendon and searched the vicinity of tree reference "BJ 682". They located three areas which they identified as "Camps 1, 2 and 3". At camp 1 they found reticulation piping and valves as well as rotting vegetable matter later analysed as cannabis. At camp 2 they found a series of wire hooks suspended between two trees. These were consistent with a cannabis drying rack. At camp 3 they found reticulation hoses and valves close to a 20 square metre area which had been cleared, reticulated and fenced. Inside that area were 484 live cannabis plants. There was evidence which indicated that cannabis had been harvested prior to the police search. The fenced area was close to that which had been faintly marked on the map. Accumulated rubbish, including cans and bottles, was found at each of the three camps. On one of the cans police found a fingerprint belonging to the appellant.

Evidence of all of this was led at the trial. Evidence was also led from a Mr George Van Der Meulen, a catchment ranger in the employ of the Water Corporation. He said that on the evening of 23 January 1998, a few kilometres away from tree marker "BJ 682", he intercepted the appellant's vehicle, in which there were two men. He said that he approached the two men and introduced himself. He said that they were reluctant to say anything and that one of the two men said, "He's got no powers to ask us questions". The two men then drove off.
Notwithstanding all of this evidence the appellant denied that he had had anything to do with the cultivation of the cannabis crop found by the police. He admitted that he had been in the area in which the cannabis crop was found and even that he knew of its existence. However, he said, he had come upon it by accident. He said that his interests include four‑wheel driving, marroning, fishing and pig hunting and that these pursuits often took him into the Canning Dam area. He said that when the police attended at his home he had marron in a pond which came from the back of the Canning Dam. He said that he had been given the map of the area by a friend and that he had marked the tree reference on the map because there was a big pig hole in the area, where pigs often went. He kept the map under his mattress because it was "falling to bits". He did not know who had made the pencilled cross. He had found the crop after having lost his way one afternoon. He later told his work mates of his discovery but did not tell the authorities because he "didn't want any part of it". He did not take any of the cannabis plants because, as he put it, if "you go and poke your nose in there you're liable to get shot or something". One of his friends, Robert Pingelly, gave evidence to confirm that the appellant had told him of his finding of the cannabis crop while out marroning.
The appellant also acknowledged having encountered Mr Van Der Meulan in the area. However, he said, he merely asked Mr Van Der Meulan for directions to a gravel pit. He said that Mr Van Der Meulan responded by saying that the gravel pit was further down the track and that he then drove on in that direction.
Part of the cannabis crop found by the police in the Canning Dam area was analysed, as was part of the cannabis found at the appellant's house. The analysis was done by Mr Peter McCafferty, a senior chemist and research officer employed at one of the divisions of the Chemistry Centre. In a written report Mr McCafferty concluded that it was improbable that the samples were from the same source or that they had been grown under the same environmental conditions. He was cross‑examined about that conclusion. The then counsel for the appellant asked him whether his findings were such that "the subsamples collected from location site A and the subsamples from B were not of similar nature". He answered by saying, "No, I couldn't draw that conclusion, no". There then followed this exchange between the learned trial Judge and Mr McCafferty:
"What does that actually mean, that you couldn't draw the conclusion? ... Does that mean that they are not or that you just can't say that they are? --- No. It means that they're not."
The learned trial Judge was then shown the report and the following exchange took place:
"In relation to what you have just said it says here that it's improbable that the samples are from the same source. That's what the document says. Does that mean that it's not or it's improbable? -- The technique relies on the sample being - growing at the same location and treated in the same manner in respect to potential sources of contamination and fertilisation. So if the sample, for instance, been [sic] grown at the same location but had separate ends of the crop, for instance, been treated differently it would be unable [sic] to detect that they were in fact from the same location. So it's only if they have received identical treatment that it [sic] is able to say definitely that they are the same sample.
So that you can have samples from the same area of cultivation that might not be said to be found to be the same? --- That's correct.
Depending on the soil and the particular areas and what might have been put on them, etcetera? --- Yes, Sir."
Against this background the appellant raises a number of grounds of appeal against his conviction. All of these relate to directions which were given to the jury by the learned trial Judge. It is, in my opinion, necessary to mention only one of them, being that which complains about the learned trial Judge's direction as regards the issue of the appellant's credibility.
The learned trial Judge, after explaining to the jury that each charge had to be separately considered, went on to say:
"It is, as I say, necessary for you to bring in a separate verdict in relation to each matter, but there are certain matters of logic that apply and it involves this: that in relation to dealing with one count - for example, count 1 - you will be making certain decisions, one of which, of course, is as to the credibility of the witnesses and in particular the credibility of the accused, and you will be making other findings in relation to count 1 at the same time.
Some of those findings would obviously flow over to the other matter. It would be, for example, and this is a hypothetical situation I'm dealing with, unusual if a jury were dealing with an accused person and there were several counts and they came to a certain conclusion as to the veracity - that is, the credibility - of that person in relation to one count and then suddenly turn around and go to the opposite view in relation to the other. You will see there is a certain logic that applies."
There is, in my respectful opinion, a serious problem with this direction. It is readily capable of being understood as a warning to the members of the jury that it would be inappropriate or illogical for them to arrive at one conclusion as regards the credibility of the appellant on one count and then to form a different view of his credibility on the other. That is to say, the jury might well have formed the impression, from what was said by the learned trial Judge, that if they disbelieved the appellant's evidence on one count they should, if they were to act logically, disbelieve it also in respect of the other count.
In leaving the jury with this impression the learned trial Judge was, in my opinion, plainly in error. Juries are customarily told, for good reason, that it is open to them to accept part of the evidence of a witness, including an accused person, and to reject the balance of his or her evidence, if they should consider this to be appropriate. Such a direction should, in my opinion, have been given in this case.
It is, of course, true that there was evidence which linked the appellant with both offences. I have mentioned that, in the course of executing the warrant which led to the finding of the cannabis the subject of count 1, the police had found the map pointing to the location of the cannabis the subject of count 2. The appellant had also been seen in the vicinity of the crop the subject of count 2 in what, on the Crown case, were suspicious circumstances and, of course, his fingerprint had been found on the can to which I have earlier referred. However it was always open to the jury, even if they disbelieved the appellant as regards his intentions in respect of the marijuana found in his home, to accept his evidence to the effect that he had had nothing to do with the cannabis crop the subject of count 2 and to the effect that his reasons for having been in the vicinity were entirely innocent. It could, in this respect, take into account Mr McCafferty's evidence to the effect that the tested sample of the cannabis found in the appellant's house was different from the tested sample of the cannabis crop. It was, for that matter, also open to the members of the jury, if they thought fit, to disbelieve the appellant about his relationship with the cannabis crop in the Canning Dam area but to accept his evidence that the particular cannabis found in his house had been for his own personal use.
While it might be said, with some force, that the case against the appellant on each count was strong and that it was, on the whole of the evidence, very unlikely that a jury, even if properly directed, would come to different conclusions as regards the credibility of his evidence on each count, the fact remains that it was exclusively for a jury, properly directed, to make this assessment. That was the appellant's entitlement under our system of justice. Instead, the appellant was left with a jury which had, as I have said, been told that one of "the matters of logic that apply" was that it was unusual for a jury to come to a conclusion as regards an accused person's credibility on one count "and then suddenly turn around and go to the opposite view in relation to the other".
Counsel for the respondent, while acknowledging that the learned trial Judge's direction in respect of the appellant's credibility was deficient, contended that the deficiency was effectively cured by other directions given by the learned trial Judge.
He pointed, first, to directions which immediately followed those which I have quoted above. His Honour said:
"So there will be some part of the work you deal with in relation to count 1, for example, which could well flow over to count 2 and, as I will be explaining to you in due course, there may be some matters evident of fact which you conclude about in relation to count 1 which may well be applicable to your process of determining whether or not count 2 has been made out. That is to say, you will be dealing with the question of the existence in the accused's house of the scales, the plastic bags, and you will be making determinations in count 1 as to whether or not those matters can assist you or do assist you in relation to whether or not the accused had knowledge of the drug scene and was in a position or did in fact become involved in some way in the dissemination of cannabis.
Now, if you come to a conclusion, for example, that that is in fact the case, then it may well be used by you in relation to determinations you make in relation to count 2 so that you will see there is a certain logic that applies; but nevertheless you must always bear well in the back of your minds that each count deserves and requires a separate determination on the evidence in relation to those other matters."
I am unable to accept that there is anything in these directions which cures the problem to which I have referred. As I read what was said by his Honour, he had moved from the question of credibility to considering particular matters of fact which might be of assistance in determining both counts. His Honour said nothing, as I read his comments, to detract from what he had earlier said in respect of the appellant's credibility.
Next, counsel for the respondent relied upon the following direction:
"Of course, it is the case that - and I'm not making any comment one way or the other in relation to this matter, but in any jury trial, even if a jury were to find that they disbelieve the evidence of an accused person, that doesn't necessarily and automatically mean that that person is to be found guilty of a particular charge. The crown always bears the burden of proving the charge beyond reasonable doubt.
Nevertheless there is another matter of logic that applies in this situation: if a jury on a particular matter were faced with the situation of determining whether to accept a matter as proved or not and there was evidence from a crown witness as to the matter to a certain position and the evidence of an accused was to the contrary and they disbelieved the evidence of the accused on that matter, then, of course, the jury would be more readily able to find the fact proved as the crown suggests rather than the defence. That is simply a matter of logic, but nevertheless on questions of credibility you should bear in mind what I have mentioned."
Once again, with due respect, it seems to me that this direction does nothing to cure the problem which I have identified. Rather, it relates to an entirely different issue, being that to the effect that disbelief of the evidence of an accused person is not, of itself, sufficient to prove the charge.
Next, counsel for the respondent referred to the Judge's summing up of material aspects of the evidence. A careful reading of that summing up, however, discloses nothing, in my opinion, to cure the deficiency to which I have referred. While it is true that the learned trial Judge did mention various matters which would have to be considered by the jury in considering the credibility of the appellant's version of events, he did not, in the course of so doing, say anything to depart from his earlier direction as regards the proposition that it would be unusual for a jury to arrive at different conclusions as regards an accused person's credibility on different counts.
It consequently seems to me that the misdirection was nowhere cured. Moreover it was one which, in my opinion, went to the very root of the proceedings with the result that the appellant has not had the proper trial which was his entitlement.
Once this conclusion is arrived at it follows, inevitably, that there was a substantial miscarriage of justice and that there is no room for the operation of the proviso to s 689(1) of the Criminal Code. (See Wilde v The Queen (1988) 164 CLR 365 at 373.)
I would accordingly allow the appeal, quash the conviction and order a retrial.
This conclusion makes it unnecessary for me to consider the other grounds of appeal against conviction or the appeal against sentence.