Fuller v The Queen

Case [2013] NTCCA 10

Fuller v The Queen [2013] NTCCA 10

PARTIES:  FULLER, Tony John

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA 7 of 2012

DELIVERED:  15 August 2013

HEARING DATE:  27 May 2013

JUDGMENT OF:  RILEY CJ, BARR and HILEY JJ

APPEALED FROM:  BLOKLAND J and a jury of twelve in Proceeding SCC No 21110332

CATCHWORDS:

CRIMINAL LAW — Appeal against conviction — dangerous drugs — possession and supply — prosecution disclosure — splitting prosecution case — prosecution cross-examined accused regarding alleged transaction, evidence of which was not disclosed to defence — jury not discharged — any prejudicial effect removed by directions from trial judge — no substantial miscarriage of justice — Criminal Code (NT) s 411.

CRIMINAL LAW — Appeal against conviction — dangerous drugs — possession and supply — cross-examination of accused — prosecutor put that accused had bullets for firearm so he could ‘shoot somebody’ — question objected to and withdrawn — jury not discharged — any prejudicial effect removed by directions from trial judge — no substantial miscarriage of justice — Criminal Code (NT) s 411.
EVIDENCE — Expert evidence — forensic accountant — unexplained wealth — expert performed calculations on ledgers said to record drug transactions — expert gave evidence as to appellant’s ‘unsourced’ income based on bank records and other similar information — calculations did not require special skill — not expert opinion evidence — no error in admitting evidence.

Crofts v The Queen (1996) 186 CLR 427; R vO’Driscoll (2003) 57 NSWLR 416; Reza v Summerhill Orchards Ltd [2013] VSCA 17, applied

R v Jesson (2009) 24 NTLR 86, followed

ASIC v Rich (2005) 190 FLR 242; R v Chin (1985) 157 CLR 671; R v Dunwoody (2004) 149 A Crim R 259; Dupas v The Queen (2010) 241 CLR 237; R v Ferguson 24 VR 531; General Television Corporation Pty Ltd v DPP (2008) 19 VR 68; HG v The Queen (1999) 197 CLR 414; Killick v The Queen (1981) 147 CLR 565; Lawrence v The Queen (1981) 38 ALR 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Mokbel (2009) 26 VR 618; Nationwide News Pty Ltd v Farquharson (2010) 28 VR 472; Nguyen v R (2007) 173 A Crim R 557; Paric v John Holland (Construction) Pty Ltd (1985) 62 ALR 85; Ramsay v Watson (1961) 108 CLR 642;Shaw v The Queen (1952) 85 CLR 365 R v Soma (2003) 212 CLR 299, referred to

Criminal Code (NT), s 411.

REPRESENTATION:

Counsel:

Appellant:J C A Tippett QC

Respondent:  D Morters

Solicitors:

Appellant:Ward Keller

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Hil1302

Number of pages:  21

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fuller v The Queen

Continue reading Fuller v The Queen

Sign in free to access the full text

Details
AGLC
Fuller v The Queen [2013] NTCCA 10
Case
[2013] NTCCA 10
Decision Date

CaseChat Overview and Summary

The appeal concerned convictions for possession and supply of dangerous drugs. The appellant, Fuller, appealed against his conviction on multiple grounds, including issues relating to prosecution disclosure, the splitting of the prosecution's case, and the admission of expert evidence. The appeal was heard by Riley CJ, Barr and Hiley JJ.

The legal issues before the court included whether the prosecution had impermissibly split its case by cross-examining the appellant regarding an alleged drug transaction for which no prior disclosure had been made to the defence. Additionally, the court considered whether the admission of evidence from a forensic accountant, Mr. Wall, constituted expert opinion evidence and, if so, whether it was wrongly admitted. The court also had to determine if prejudicial questions posed by the prosecutor during cross-examination, which were subsequently withdrawn, warranted the discharge of the jury.

The court found that while the prosecution should have informed the defence immediately about the material relating to the alleged drug transaction, rather than introducing it through cross-examination, the trial judge's clear directions to the jury immediately following the objection mitigated any prejudice. The court held that juries are presumed to understand and comply with judicial directions, and their capacity to do so should not be underestimated. Regarding Mr. Wall's evidence, the court determined that his calculations, based on existing data and involving basic mathematics, did not require special expertise and therefore did not constitute expert opinion evidence. Consequently, its admission was not an error. The court concluded that, in light of the trial judge's directions, no substantial miscarriage of justice had occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Accordingly we do not consider that the jury should have been discharged as contended for grounds 1 or 2.Grounds 3 and 6 – Evidence of Mr Wall Both of these grounds relate to what is said to have been expert opinion. However, for the most part, Mr Wall’s evidence comprised what was essentially a mathematical exercise. It involved him referring to data and similar material that was in evidence and making certain assumptions before applying basic mathematics and reaching dollar figures at the end of the exercise, an exercise that does not require any particular expertise. Mr Wall performed two such exercises. One was to reach a figure of $976,200 as being the net profit that would have been derived by the appellant on the assumptions that 4881 units of drugs were sold during the indictment period at an assumed price of $1000 per unit and that the appellant would have received $200 per gram/unit profit. We shall refer to this as the net profit exercise. The other exercise was to identify expenditure by the appellant during the indictment period, which Mr Wall could not readily identify as having a legitimate source. We shall refer to this as the unsourced funds exercise. In the course of performing that exercise he examined bank records, credit card statements, tax returns and working papers in relation to the tax returns of the appellant and his wife (all of which were in evidence) and he looked for any record therein that identified the source of funds used for a number of purchases. Mr Wall identified a number of purchases or other forms of expenditure for which he could not find a source and added the figures for those items to reach a total figure of $847,108.21. That did not include another $207,517.61 in cash deposits for which he could not find any source. In relation to ground 3 the appellant contended that Mr Wall’s evidence was ‘entirely misleading, and ought not to have gone before the jury’ and ‘the fact that it did caused the trial to miscarry.’ The appellant also contended that the respondent relied upon the similarity of the two figures derived from the net profit exercise and the unsourced funds exercise so as to wrongly put to the jury that ‘it was reasonable to assume therefore that the unsourced funds were the product of drug sales’. In relation to the unsourced funds exercise the appellant contended that Mr Wall’s evidence was internally inconsistent and misleading because he had excluded from his calculations certain amounts that should have been included, such as the $137,000 in cash found at the house, a figure of $47,190 which he classified as discretionary spending, bank deposits of $207,517 and another sum of $141,000, without giving a reason for excluding those amounts. The appellant contended that Mr Wall did not seek to source or investigate monies received from any place other than ‘employment payments’, which other moneys may have had a legitimate source. The appellant pointed out that Mr Wall did not take any account of any money that had come into the appellant’s possession before the indictment period. Accordingly, it was contended that Mr Wall wrongly designated potentially sourced money as unsourced money, and then went on to associate that (supposedly) unsourced money with the notebooks and by further association characterised the appellant as carrying on the business of a drug supplier.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In the summing up the trial judge also gave a further direction that questions put to a witness are not evidence and it is the answers that are evidence. The appellant did not seek further directions on these points. Counsel for the appellant contends that a further direction would have reminded the jury of the allegations and would not have removed the prejudice that had already been created.Consideration The appellant contends that the prosecution case was entirely circumstantial, relying as it did on a range of pieces of evidence, including the discovery of various drugs at the appellant’s home and workplace, DNA and fingerprint evidence attached to the notebooks and an analysis of the contents of the notebooks. The prosecution case did not seek to rely on any actual event of drug dealing, or on any actual event of violence or use of any firearm by the appellant such as might indicate drug dealing. We will first deal with ground 2. Before the cross examination in relation to the alleged drug transaction on 1 February 2011, no evidence had been led about this event, and no particulars of the event had been provided by the prosecution to the defence. Accordingly, the defence was deprived of the ability to obtain instructions to meet the allegation and to cross-examine persons said to have observed the transaction. The appellant contends that this amounted to the Crown impermissibly splitting its case on the central issue in the trial. It is well established that ‘as a general rule, the prosecution must offer all its proofs during the progress of its case’[3] and that the ‘the evidence for the prosecution must be presented before an accused is called upon.’[4] Counsel for the respondent contended that it was only after the defence case had begun that he became aware that Skevos Kazouri, a well known drug dealer, was likely to give evidence in the defence case and of the alleged drug deal involving him, the appellant and Popye Kathopoulis. This evidence would further link Popye Kathopoulis with the entries ‘Pop’ and ‘Popye’ in the notebooks seized from the appellant. Although the respondent only became aware of this material after the defence case had commenced, we consider that counsel for the appellant should have been informed of that material immediately, and that it should not have been put for the first time by way of cross examination without first giving counsel the opportunity to consider the material and to object to that line of questioning before it was embarked upon. However, we do not consider that the failure on the part of the prosecution was such as to require the jury to be discharged. This is particularly so in light of the clear direction by the trial judge, given immediately following the adjournment after counsel had taken objection to the questions. We respectfully agree with the observations of Kyrou AJA in Reza v Summerhill Orchards Ltd [2013] VSCA 17 at [50]:‘It must be borne in mind that, in both criminal and jury trials, juries are assumed to understand and comply with directions from the trial judge.[5] The capacity of a jury to decide a case in accordance with the law and the directions of the trial judge should not be underestimated.[6] The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously.[7] It is assumed that, when they are properly directed by trial judges to decide cases in accordance with the law — that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations — juries comply.[8] The capacity of juries to do so is critical to ensuring that proceedings are fair.[9]’