Fragomeni v The State of Western Australia

[2011] WASCA 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FRAGOMENI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 67

CORAM:   McLURE P

BUSS JA
HALL J

HEARD:   28 JANUARY 2011

DELIVERED          :   23 MARCH 2011

FILE NO/S:   CACR 161 of 2010

CACR 162 of 2010

BETWEEN:   CLINT ALWYN FRAGOMENI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KEEN DCJ

File No  :IND 519 of 2010

Catchwords:

Criminal law - Appeal against conviction - Lies - Whether capable of amounting to implied admissions of guilt - Direction that lies relevant to credibility - Whether failure to give adequate directions

Criminal law - Appeal against sentence - Possession of 845 g methylamphetamine with intent to sell or supply - Part of commercial distribution chain - Also convicted of other drug offences - Sentence of 10 years not manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)
Misuse of Drugs Act 1981 (WA), s 6(1)
Sentencing Act 1995 (WA), s 32

Result:

Applications for leave to appeal refused
Appeals dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Basilio v The State of Western Australia [2010] WASCA 202

Cameron v The Queen [2000] WASCA 286

Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389

R v Chang [2003] VSCA 149; 140 A Crim R 573

R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stapleton v The Queen [2004] WASCA 130

The Queen v Renzella (1997) 88 A Crim R 65; [1997] 2 VR 88

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

1. McLURE P:  I agree with Hall J.

2. BUSS JA:  I agree with Hall J.

3. HALL J: The appellant was tried in the District Court on three counts of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). He was acquitted of the first count and found guilty of the other two. He was sentenced to 2 years' imprisonment on count 2 and 10 years' imprisonment on count 3. He seeks leave to appeal against both his convictions and sentence.

4. The prosecution case was that as a result of a search warrant executed by the police three quantities of methylamphetamine were located at premises in Sorrento that were occupied by the appellant.  The premises consisted of a small converted garage which the appellant had been renting for about three weeks at the time of the search.

5. A quantity of 22.7 g of methylamphetamine was found in a black 'bumbag' inside the premises.  This quantity related to count 1 of the indictment, in respect of which the appellant was acquitted.

6. A second quantity of 14 g of methylamphetamine was found in the pocket of a pair of denim shorts.  DNA evidence supported an inference that the appellant had worn these shorts.  This quantity related to count 2 on the indictment.

7. A third, much larger, quantity of methylamphetamine was located in a safe in the garage.  This consisted of two 'bricks' wrapped in plastic bags and weighing a total of 845 g.  The key to the safe was located on the appellant's key ring.  During the course of the search, the appellant admitted that he had touched one of the bags in which the drugs in the safe were located.  He also said that a beanie wrapped around the package of drugs was his.  This quantity of drugs related to count 3 on the indictment.

8. The prosecution also relied upon the finding of a number of other items on the premises which supported an inference that the appellant was actively engaged in the drug trade.  These included electronic scales, a replica pistol, around $6,000 in cash and a quantity of unused clipseal bags.  The cash was in two parts; $3,585 was located in the 'bumbag' and $2,385 was found in the appellant's wallet.  The wallet was located on top

of a silver tin.  The tin contained the clipseal bags and a spoon on which there were traces of white powder.

1. The appellant's defence was that he had no knowledge of the presence of the drugs, that other people had a key to the premises and that someone else could have placed the drugs in the safe.  The appellant did not give evidence, rather reliance was placed upon the appellant's denials during the search and on whether there was a reasonable doubt as to the appellant's possession of the drugs.

2. The appellant was present when the police executed the search warrant.  A video of the search was played as part of the prosecution case.  During the course of the search the appellant made a number of conflicting statements.  Initially, he denied living at the premises and said that he was just visiting.  He later admitted that he did live there.  He denied that he had any possessions in the room but later admitted that certain of the items found in the premises were his.  He denied ownership of the tin in which the clipseal bags and the spoon were found but later admitted the tin was his.  He denied ownership of the safe in which the drugs were found or of ever having used it.  He later admitted that he had handled the safe.

The proposed grounds of appeal - conviction

1. There are two proposed grounds of appeal against conviction.  They relate to the same issue; namely, whether the trial judge erred in the directions that he gave to the jury regarding the alleged false statements made by the appellant during the course of the search.  The proposed grounds are as follows:

   1.The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury pursuant to the principles stated in Edwards v The Queen (1993) 178 CLR 193 concerning lies told by the appellant that were capable of showing consciousness of guilt ('the lies');

   Particulars

   1.1the lies were not precisely identified by his Honour;

   1.2the circumstances and events said to indicate that the lies constituted admissions against interest were not precisely identified;

   1.3the jury were not told that they may only take the lies into account if satisfied they revealed a knowledge that the truth would implicate the appellant in the offending;

   1.4the jury were not told there may be reasons for telling the lies apart from a realisation of guilt (t/s 241).

   2.The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when he left lies that were capable of only going to the credit of the appellant to the jury as ones that were capable of demonstrating they were told out of a consciousness of guilt.

The appellant's submissions

1. Counsel for the appellant submitted that one of the components of the prosecution case was that the appellant had told lies to the police during the course of the search.  It was submitted that the prosecution case was closed to the jury on the basis that they could infer that the lies were implied admissions of guilt.  That is to say that the jury should infer that the appellant made false statements to the police out of consciousness of his own guilt and with the intention of deflecting attention away from himself.

2. In those circumstances, it was submitted, the trial judge was obliged to give to the jury a direction that they could only take a lie into account if they were satisfied having regard to all the circumstances that the only reasonable explanation for the lies was that the appellant was in possession of the drugs and was falsely seeking to avoid any responsibility for them:  Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. Such a direction would require identification of what statements were suggested to be lies. It would also require that the jury be told that there may be reasons for telling lies to the police other than a realisation of guilt.

3. Counsel submitted that, in the absence of a direction of the type referred to, there was a risk that the jury would use the alleged lies as evidence of guilt without giving adequate consideration to other possible explanations for why the appellant might lie to the police.  That risk was such, it was argued, that the appellant may have been deprived of a chance of acquittal.  In those circumstances, it was suggested that a miscarriage of justice had occurred that required the convictions to be set aside and there be a retrial.

The law as to lies

1. The law in respect of lies and what directions may be required is well settled.  Not all lies are capable of being used as an indication of guilt.  Many will only be relevant in assessing the credibility of an accused person.

2. In Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234, Gleeson CJ, Gaudron, Gummow and Callinan JJ said that as a general rule an Edwards direction should only be given if the prosecution contends that a lie is evidence of guilt in the sense it was told because the accused knew that the truth would implicate him in the commission of the offence and if the lie is capable of bearing that connotation [16].

3. If there is doubt as to the way in which the prosecution puts its case, the trial judge should enquire as to whether the prosecution contends that lies may constitute evidence of consciousness of guilt:  Zoneff [17]. In Zoneff the prosecutor did not, either in cross‑examination or in closing address, suggest in terms or by implication that answers given by the accused were lies told out of consciousness of guilt.  In those circumstances it was held to be undesirable that an Edwards direction be given [20].  To give such a direction in those circumstances could have the effect of raising an issue upon which the parties were not joined.

4. Where lies have been raised during the course of the prosecution case but are not relied upon as being direct evidence of guilt they may, nonetheless, be relevant in assessing the credibility of answers given by the accused.  In order to avoid a risk that such lies will be misused by the jury to infer guilt, it was suggested in Zoneff that a direction in the following terms be given:

   You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt [23].

5. In Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1, it was held that an Edwards direction would not have been appropriate as the lies in that case were not such that it was open to the jury to find that the lies reflected a knowledge on the part of the appellant that telling the truth would implicate him in the commission of the offences: Gleeson CJ and Hayne J [29]. A direction concerning lies as evidence of guilt is not necessary whenever a prosecutor suggests directly or indirectly that an accused's out of court statement is a lie. However, a direction as to how such lies may be used and, where appropriate, that they may only affect issues of credibility, may be appropriate: McHugh and Gummow JJ [59].

6. It should not be thought from this that a suggestion by the prosecution that a lie told by an accused is evidence of guilt will always necessitate an Edwards direction.  If, notwithstanding such a submission from the prosecution, the trial judge is of the view that the lies in question are incapable of supporting such an inference, a direction excluding such use would be necessary.  That is to say, a direction in the terms recommended in Zoneff.  Where the prosecution alleges that lies have an incriminatory effect, the trial judge is obliged to tell the jury whether the evidence is capable of that use or not:  Edwards (212 ‑ 213); The Queen v Renzella (1997) 88 A Crim R 65; [1997] 2 VR 88 and Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [296].

The merits of the appeal

1. Counsel for the appellant submitted that the state prosecutor told the jury that the state relied upon the lies told by the appellant to the police.  The state prosecutor said that the lies could be used by the jury in assessing the appellant's credibility.  In those circumstances, unless the lies were clearly of a different character, there would be no basis for giving an Edwards direction to the jury and it may well have been wrong to do so.

2. More specific comments had been made by the state prosecutor in regard to the sealed tin containing unused clipseal bags and the spoon.  In this regard, the state had submitted to the jury that the appellant had lied in 'an effort to distance himself from the contents of that tin, let alone possession of it'. 

3. Counsel for the appellant submitted that this latter comment was, in effect, a submission that when the appellant said he did not know who the tin containing the clipseal bags belonged to, he was lying because he was trying to conceal his responsibility for possession of the amphetamines found at other locations in the same room.  Such a construction is at odds with the submission made by the State prosecutor that the jury should use the lies in assessing credibility.

4. There is no suggestion that there was an express invitation by the state prosecutor to use any of the lies as evidence of guilt.  In any event, even if the comments made to the jury bear the construction that has been suggested, it is difficult to see how the lie in question could in fact be capable of leading to an inference that it could only have been told out of a consciousness of guilt.  Given the evident purpose of the search and the finding of drugs at other locations in the garage there are obvious reasons other than guilt why the appellant might want to deny ownership of a tin containing clipseal bags and a spoon, even assuming he knew what the tin contained.

5. Whilst there may be cases where there is doubt as to how the prosecution puts its case in respect of lies, it remains the duty of the trial judge to determine whether the lies in question are capable of being used as evidence of guilt.  Even if the prosecution were to positively assert that a lie could be used as an implied admission, if the trial judge was of the view that it could not be so used, he or she would be obliged to give the jury a direction accordingly.  A direction which excluded the possibility of the lies being used as evidence of guilt and limited their use to credibility would, of course, favour the accused.

6. In the present case, the trial judge gave a direction to the jury in respect of the alleged lies that was in the following terms:

   What the state says in relation to some of the things that were said by the accused is that he was lying.  They referred to him saying he didn't know who the tin belonged to.  He lied initially about whether or not he was living there and whether or not he had any possessions there.  And about just visiting the place and about who owned the safe.

   Now, members of the jury, you will make up your own mind about as to whether he was telling lies and if he was doing so deliberately.  It is for you to decide the significance of those suggested lies, have in relation to the issues in the case.

   The fact that a person has told a lie may be a factor in your assessment of that person's credibility.  It's entirely a matter for you to consider.

   However, members of the jury, don't follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that that is evidence of guilt.  The fact that a person has told a lie is not evidence that the person is guilty of a crime.

7. That direction was in accord with what was recommended in Zoneff.  The effect was to exclude the possibility of the jury using the lies as implied admissions.

8. The jury were told, in effect, that the lies referred to were relevant in considering the credibility of the appellant insofar as he had answered questions from the police during the course of the search.  It is to be inferred that the trial judge came to the conclusion that it was not open to use the lies as implied admissions.  In my view, he was correct to come to that conclusion.  In those circumstances, an Edwards direction would have been inappropriate.

9. No submissions were made to the trial judge in regard to the direction that he gave.  Nor was any request made for a redirection in terms of Edwards.

10. The appellant's submissions proceeded upon the basis that, notwithstanding the direction given by the trial judge, there was a danger that the jury would use the lies, and in particular that regarding the tin containing the clipseal bags and spoon, as implied admissions of guilt.  That is a bold proposition.  The criminal justice system presumes that juries comply with the directions given by judges:  Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414. Many appeals against conviction are predicated upon this assumption.

11. There may be very rare cases where the prejudicial use of evidence of lies by an accused person will not be obviated by a direction against such use by the trial judge:  R v Chang [2003] VSCA 149; 140 A Crim R 573. However, those cases usually arise where it is very clear that the lies in question are capable of being used as implied admissions and the prosecution has relied upon them in that respect. In Chang the risk of misuse was also enhanced by the fact that there were lies falling into both categories.  Such a danger did not arise in the present case.

12. There is no reason to believe that the jury in this case did not follow the directions given to them by the trial judge.  In those circumstances, a risk that the evidence was misused and the appellant unfairly convicted could not arise.

13. It should not be overlooked that if the trial judge in this case had given an Edwards direction, there would be some potential for that to adversely impact upon the appellant.  An Edwards direction assumes the possibility that the lies in question are capable of being used as implied admissions.  If the jury reached that conclusion it would serve to strengthen the prosecution case.  The direction given in this case obviated that possibility.  Thus, even if the lies in this case were capable of being used as implied admissions, the direction given by the trial judge was favourable to the appellant.

14. There is an inherent inconsistency between proposed grounds 1 and 2.  The first asserts that an Edwards direction should have been given 'concerning lies told by the appellant that were capable of showing consciousness of guilt'.  The second asserts that there were no such lies and that there was an error in leaving to the jury lies only capable of going to credit as ones capable of demonstrating consciousness of guilt.  No more need be said about the second proposed ground than that it is plainly wrong; the trial judge did not do that, as the excerpt from his charge amply demonstrates.

The proposed grounds of appeal - sentence

1. The proposed ground of appeal in respect of sentence is that the sentence of 10 years imposed for count 3 was in all the circumstances manifestly excessive having regard to the appellant's antecedents, level of culpability, the criminality involved, the circumstances of the offending and sentences imposed in comparative cases. It is important to note that 10 years' imprisonment was also the total effective sentence because the sentence on count 2 was made concurrent with that imposed on count 3. Concurrent sentences were also imposed for a number of further offences listed on a notice under s 32 of the Sentencing Act.

1. In sentencing the trial judge noted that the evidence in respect of counts 2 and 3, for which the appellant was convicted, was overwhelming.  He also referred to the substantial quantity of drugs involved.  Count 2 involved a total of 14 g of methylamphetamine found in the denim shorts.  This consisted of a quantity located in a pocket in a plastic vial being 2.53 g at 17% purity.  In another pocket, two clipseal bags were found inside a small black Sandisk case.  Those bags respectively contained 7.62 g and 4.25 g of methylamphetamine at 14% and 18% purity respectively.

2. The much larger quantity found in the safe was the subject of count 3.  That quantity was divided into two clipseal bags, each of which contained what was described as a brick of methylamphetamine.  One weighed 400.5 g at 17% purity and the other 445.9 g at 18% purity.

3. His Honour noted that expert evidence had been given as to the value of the drugs that were located.  Whilst this value included the quantity of 22.7 g that was the subject of count 1 in respect of which the appellant was acquitted, that was a relatively small portion of the total quantity.  Accordingly, the evidence as to value was still relevant.  That evidence was that the drugs, if sold in grams, would have a value of between $220,000 and $240,000.  If sold in ounces, the value would be between $205,000 and $346,000, and if sold in pounds, between $160,000 and $260,000.

4. In addition to the charges of which the appellant was found guilty, he also pleaded guilty to a number of further charges that were contained on a notice under s 32 of the Sentencing Act 1995 (WA). One of those charges related to the $2,355 in cash located in the appellant's wallet which was reasonably suspected of being unlawfully obtained. A second charge related to a small quantity of methylamphetamine found in a clipseal bag on a shelf in the premises (0.4 g). A further charge related to possession of a quantity of cannabis found in a drawer of the coffee table at the premises. There was also a charge in relation to a smoking utensil. Finally, there was a charge of being in possession of stolen items, including a computer and a telephone. The appellant received concurrent sentences of imprisonment for these offences; 3 months for each of the possession of drugs and smoking utensil charges, 9 months for the possession of cash and 6 months for the possession of stolen items.

5. His Honour noted that in addition to the drugs and cash, other items consistent with the sale and distribution of drugs were found on the premises.  Those items included a replica gun, clipseal bags and scales.  His Honour said that despite the quantity of drugs found, it was difficult to precisely place the appellant in the hierarchy of distribution.  However, his Honour said that it was not in doubt that the appellant was in possession of very large quantities of methylamphetamine and equipment for distribution.  On this basis, it was clear that the appellant was part of a commercial chain of distribution.  Even if the appellant was merely warehousing the drugs, he was nevertheless playing a significant and important role in the distribution chain.  These findings of fact are not contested.

6. His Honour made reference to the personal circumstances of the appellant.  It is unnecessary to refer to them here.  He also noted that the appellant had a criminal record which included a conviction for murder for which he was sentenced to life imprisonment on 6 May 1994.  The present offences were committed whilst the appellant was on parole.  His Honour noted that whilst the prior record was not an aggravating circumstance, it did indicate that the appellant had a low regard for the law and highlighted the need for deterrence.  His Honour concluded that the sentence for count 3 should be one of 12 years.  However, he reduced that to 10 years, taking into account the totality principle.

7. The range of sentences imposed for offences of this nature has been considered by Buss JA in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119. The trial judge referred to Atherton; as well as Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Cameron v The Queen [2000] WASCA 286; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130 and the New South Wales case of R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241.

8. More recently, sentences imposed for offences involving possession of significant quantities of methylamphetamine were considered in Basilio v The State of Western Australia [2010] WASCA 202 [18] ‑ [24] (Newnes JA). It is unnecessary to canvas the facts of all the comparable cases for the purposes of this application for leave. Suffice to say that, taking into account all of the relevant circumstances, the sentence imposed on count 3 was not outside the relevant discretionary range. Furthermore, even if the appellant could demonstrate that the sentence on count 3 was manifestly excessive he would face the insurmountable obstacle that the total effective sentence was appropriate for the totality of the criminal conduct: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [115] ‑ [116].

Conclusion

1. Leave to appeal in respect of a ground may only be granted if the court is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act 2004 (WA). This requires an assessment of whether a ground has a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

2. In my view, neither of the two proposed grounds against conviction have any real prospect of success.  The proposed ground against sentence also has no prospect of success.  Accordingly, I would refuse leave to appeal in respect of those grounds.