Hayley v The Queen
[2006] WASCA 213
•23 OCTOBER 2006
HAYLEY -v- THE QUEEN [2006] WASCA 213
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 213 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2005 | 21 SEPTEMBER 2006 | |
| Coram: | STEYTLER P WHEELER JA McLURE JA | 23/10/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BELINDA JANE HAYLEY THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Where prejudicial evidence inadvertently introduced at trial Where evidence highly probative Whether trial Judge should have discharged jury Whether inadequate direction on propensity evidence Turns on own facts |
Legislation: | Criminal Code Act 1995 (Cth), Ch 2, Pt 5.2, Pt 5.4 Customs Act 1901 (Cth), s 233BAA(4) Customs Regulations 1926 (Cth), reg 179AA, Sch 1AA |
Case References: | Crofts v The Queen (1996) 186 CLR 427 Suresh v The Queen (1998) 72 ALJR 769 Atholwood (2000) 110 A Crim R 417 Evans v The Queen [2004] WASCA 10 Festa v The Queen (2001) 208 CLR 593 Hayley v The Queen [2006] WASCA 33 Pellicciotti v The Queen [2004] WASCA 10 R v Best [1998] 4 VR 603 RPS v The Queen (2000) 199 CLR 620 TKWJ v The Queen (2002) 212 CLR 124 Weiss v The Queen (2005) 80 ALJR 444 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAYLEY -v- THE QUEEN [2006] WASCA 213 CORAM : STEYTLER P
- WHEELER JA
McLURE JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND 14 of 2004
Catchwords:
Criminal law - Appeal against conviction - Where prejudicial evidence inadvertently introduced at trial - Where evidence highly probative - Whether trial Judge should have discharged jury - Whether inadequate direction on propensity evidence - Turns on own facts
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Legislation:
Criminal Code Act 1995 (Cth), Ch 2, Pt 5.2, Pt 5.4
Customs Act 1901 (Cth), s 233BAA(4)
Customs Regulations 1926 (Cth), reg 179AA, Sch 1AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R Richter QC
Respondent : Mr D W L Renton
Solicitors:
Appellant : Andrew Maughan
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crofts v The Queen (1996) 186 CLR 427
Suresh v The Queen (1998) 72 ALJR 769
Case(s) also cited:
Atholwood (2000) 110 A Crim R 417
Evans v The Queen [2004] WASCA 10
Festa v The Queen (2001) 208 CLR 593
Hayley v The Queen [2006] WASCA 33
Pellicciotti v The Queen [2004] WASCA 10
R v Best [1998] 4 VR 603
RPS v The Queen (2000) 199 CLR 620
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TKWJ v The Queen (2002) 212 CLR 124
Weiss v The Queen (2005) 80 ALJR 444
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1 STEYTLER P: On 4 February 2005 the appellant was convicted, after a trial by jury in the District Court, of three counts of importing a prohibited drug, pseudoephedrine, contrary to s 233BAA(4) of the Customs Act 1901 (Cth). She appeals against those convictions.
2 The evidence led at the trial revealed that, on each of 28 July 2002, 2 August 2002 and 24 September 2002, the appellant received an international mail package from a Canadian company known as ZooScape. The packages were intercepted by Australian Customs officers and, on chemical testing, each of them was found to contain some 900 to 1000 pseudoephedrine tablets. Pseudoephedrine is a tier 1 good and, consequently, its importation is prohibited in a quantity of 25 grams or more without approval from an authorised person: s 233BAA of the Customs Act and reg 179AA and Sch 1AA of the Customs Regulations 1926 (Cth). Each package contained a good deal more than 25 grams of pseudoephedrine and the appellant had no approval to import any quantity of that drug.
3 On each occasion the tablets had been ordered from ZooScape on the internet by means of a computer owned by the appellant. One of the orders was paid for by an international money order said to have been signed for by the appellant. The other payments were made by means of a credit card issued in the appellant's name. She was the sole account holder of the account relating to the card. One of the orders was placed in the name of the appellant's de facto partner. The others were made in her name. One of the packages was posted to the appellant's de facto partner at the house in Geraldton that was shared by the two of them. On the other occasions the packages were posted to the appellant at a post office box address in Geraldton. The post office box was leased in the name of a company operated by the appellant and her de facto partner.
4 On 14 August 2002, customs officers executed a search warrant at the home of the appellant and her partner. They found a number of empty "Sudafed" packages. Sudafed tablets contain pseudoephedrine. They also found various items and chemicals in the kitchen, bathroom and elsewhere which, according to a prosecution witness, were consistent with the manufacture of amphetamine or methylamphetamine. At the trial these items and chemicals were collectively referred to as "drug paraphernalia". Pseudoephedrine, in particular, is a precursor to the manufacture of amphetamine or methylamphetamine. However, each of the individual items was also capable of being used for a lawful purpose.
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5 The prosecutor invited the jury to infer from the existence of the "drug paraphernalia" that the appellant had imported pseudoephedrine in order to manufacture amphetamine or methylamphetamine in her home. He suggested that, if the jury was satisfied beyond reasonable doubt that the appellant had been using the pseudoephedrine to manufacture other illicit narcotics, then they could use that information to assist them in deciding whether the appellant had intentionally imported the pseudoephedrine in circumstances in which she was reckless as to the fact that it was a tier 1 good: s 233BAA(4) of the Customs Act, read with the definitions of "intention" and "recklessness" in Ch 2, Pt 5.2 and Pt 5.4 of the Criminal Code Act 1995 (Cth).
6 The appellant did not give evidence. However, her defence was essentially that it had not been established beyond reasonable doubt that she had imported the pseudoephedrine. Evidence was led on her behalf to the effect that the computer from which the orders had been made was in an "office area" of the house, used for the purposes of running a concreting business operated by the appellant and her partner. It was said that that area could have been accessed by any number of people. Evidence was also given that other people, including office employees, could have accessed the post office box and that others had permission to use the appellant's credit card to effect office purchases. Orders could be placed either by telephone or on the internet using her credit card number without the need for any signature. Her counsel contended that the evidence did not establish conclusively that it was the appellant who had signed the application for an international money order to pay for one of the orders placed with ZooScape. The prosecutor had relied, in that respect, upon the evidence of a bank teller who had said that the appellant had signed the application form in her presence. Also, a handwriting expert testified that the signature on the international money order application form had been made by the same person who had signed other documents produced to him. These were documents signed by the appellant. He also said that there was no evidence that the signature on the application form had been written in a manner that would indicate "anything to do with forgery". He pointed out that there had been no hesitation or "patching" and that the signature had been written with speed.
7 The appellant's explanation for the empty Sudafed packages, given to a customs officer who had been involved in the search, was that she had put them in her bedroom with a view to throwing them away.
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Grounds of appeal
8 There are two grounds of appeal. They read as follows:
"1. Inadmissible evidence was before the jury such that it created a prejudice to the Appellant which was incapable of being overcome by direction."
"2. The learned trial Judge failed to direct the jury adequately as to the limits of the use to which they might put the evidence of the Appellant's propensity, thereby giving rise to a substantial miscarriage of justice."
Ground 1
9 The evidence referred to in ground 1 was given by a police officer, Detective Paul Thornton, who was one of those who executed the search warrant at the appellant's home. I will refer to his evidence later in these reasons but, before doing so, I should set out the background to that evidence.
10 On 21 January 2005, some 10 days in advance of the trial (which started on 31 January 2005), the prosecutor faxed to the then counsel for the appellant, Mr Bruno Illari, a letter informing him that the prosecutor had met with Detective Thornton and that Detective Thornton "can and will … say that the three sets of electronic scales located [in the appellant's kitchen] contained traces of amphetamine". The letter also informed Mr Illari that Detective Thornton would say that other items located in the kitchen had contained traces of pseudoephedrine. Mr Illari responded by a letter received by the prosecutor on 24 January 2005. In that letter, he wrote, amongst other things, the following:
"I note what you say regarding Detective Senior Constable Thornton's advice to you. Would you please indicate: -
a) Whether the three sets of electronic scales have been scientifically analysed by a properly qualified forensic scientist, and if so, would you please supply a copy of the reports and certificates in relation to the examination. If no forensic examination has taken place, what is the basis of Officer Thornton's assertion that the scales contained traces of amphetamine."
11 On the same day, the prosecutor faxed a response to the effect, amongst other things, that Detective Thornton was presently on leave but
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- that the prosecutor had already asked him to deal with the matters raised by Mr Illari. He said that, as soon as the information was to hand, he would let Mr Illari have it, but that this might only be on the first morning of the trial.
12 As the prosecutor had foreshadowed, the report was available only on the first morning of the trial. Some fifteen minutes before the trial was due to commence, the prosecutor showed Mr Illari a copy of a report, prepared by a chemist and research officer employed by the Chemistry Centre of the Department of Mineral and Petroleum Resources, dated 28 May 2003. This recorded the results of examinations of various items located at the appellant's home. Items 19 to 21 of the report dealt with the three sets of electronic scales. In each case the report recorded that traces of methylamphetamine had been detected on the surfaces of the scales. The report also recorded that traces of methylamphetamine were found on items 4 (a flask), 6 (a blender), 7 (a funnel), 10 (three pasta sauce jars) and 17 (a rubber stopper with a hole through the centre). In each case the word "methylamphetamine" appeared in bold type. The report also revealed that pseudoephedrine had been found on a number of other items. The word "pseudoephedrine" also appeared in bold type. Notwithstanding that the prosecutor had showed the report to Mr Illari (who said that he looked at it only briefly), he told Mr Illari that he did not propose to lead evidence from its author because of the late disclosure.
13 That brings me to the evidence of Detective Thornton. He was not asked any questions by the prosecutor concerning the finding of methylamphetamine on any of the items described as drug paraphernalia. However, when he was cross-examined by Mr Illari, the following exchanges took place (transcript 229 - 230):
"And you found packets of Sudafed, empty packets, and some full and so forth in various locations?---Correct.
And Sudafed of course is an over-the-counter preparation that you can get without prescription, is it not?---It has certain restrictions on its sale, but yes.
Now, as you have indicated, all these items might be used in the manufacture of amphetamine?---Correct.
Or they might be used for all sorts of other purposes?---As stand-alone items, yes.
Did you see any manufacturing in progress?---Yes.
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- Manufacturing of amphetamines in progress?---No, part of the manufacturing process is the dissolving of the Sudafed, or whichever tablets containing pseudoephedrine or ephedrine in a solvent, and they were located.
But you didn't see any actual manufacturing in progress when you attended, is the point I'm - - -?---To what you're alluding to, no.
Did you smell any unusual smells?---No.
The sort of smells that are sometimes associated, and you would know, with amphetamine laboratories?---No.
Did you find any amphetamine on the premises?---Yes."
14 After asking a number of other questions in the course of his cross-examination of Detective Thornton, Mr Illari then asked if he might raise a matter with his client. He did so. Immediately afterwards, the following exchange took place (transcript 233 - 234):
"I think, you mentioned earlier I put a question to you that you found - I asked you whether you found any amphetamine at the premises and you said yes?---Correct.
Whereabouts was that?---To that I was alluding to the traces that we've detected on some of the substances, not specific quantities.
Hang on a moment. Were any actual amphetamines - - - ?---No.
- - - found at the premises?---No."
15 The prosecutor then re-examined Detective Thornton as follows:
"Where were the traces of amphetamine found?---On the scales and the numerous jars in the house; on the five-litre flask. There may have been [(sic) other] items, but those ones specifically I recall."
16 Having asked that the jury be excused, Mr Illari objected to what had been said in the course of re-examination. He said that he had been "taken totally by surprise by this piece of evidence". He also said that his understanding, and what he had been told, was that the traces on the scales had been traces of pseudoephedrine and that the re-examination had raised
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- "the spectre that there seems to be traces of amphetamine found on several different items, not just on the scales" and this came "as complete news" to Mr Illari.
17 The prosecutor then corrected Mr Illari, pointing out that the latter had been informed, prior to the trial, that Detective Thornton could say that traces of methylamphetamine had been found "on various items, particularly the scales". He also said that his reason for not leading evidence concerning the finding of the methylamphetamine was that the report had been disclosed at too late a stage. He submitted that, once defence counsel had chosen to raise the issue with the witness, he was entitled to re-examine in respect of it. He recognised that the evidence from Detective Thornton was hearsay evidence, but said that he had ascertained that the chemist who had prepared the report was available to give evidence in order to substantiate what had been said by Detective Thornton.
18 Mr Illari then told the trial Judge that he had been directed to a "particular item" on the report, being the scales, and that this had referred to traces of pseudoephedrine. However, he was mistaken in that assertion. As I have said, the report recorded that traces of methylamphetamine had been found on the scales. Mr Illari also said that, having seen the reference to pseudoephedrine, he did not look any further because he assumed there was "nothing else". He said that he had consequently asked the question relating to methylamphetamine in the belief that it would be answered in the negative.
19 After some further discussion and a short adjournment, Mr Illari told the trial Judge that he had taken his client's further instructions and that they were to apply for a declaration that there had been a mistrial. He submitted that the prejudicial value of the evidence of the finding of the methylamphetamine outweighed its probative value. The following exchange then took place (transcript 244):
"[The trial Judge]: I understand. Of course as things stand, the evidence before the jury might be inadmissible and as a precaution, if the trial is to continue, the prosecution will have to rectify the situation by calling the analyst himself to confirm what was found.
ILLARI, MR: If the trial were to continue then my instructions are not to take what would otherwise be inadmissible evidence any further. We would prefer that an analyst were not called.
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- We will simply not challenge in any way at this point, in any way during this trial, the evidence given by Thornton and accept it but if the trial were to proceed, then I'd rather that that evidence were not underlined. We will simply accept that he's given that evidence and leave it at that."
20 The trial Judge then ruled on the application to discharge the jury. He said that the prosecutor had fully complied with his duty of disclosure but that he accepted that Mr Illari had mistakenly assumed that no traces of methylamphetamine had been found and that that was why he had elicited the evidence from Detective Thornton in cross-examination. He said that he could understand why Mr Illari said that, if no mistrial was declared, he would not want the analyst called but would "simply leave the evidence as it stands" and accept the Detective's testimony as to the finding of traces of amphetamine (transcript 249). He went on to say that, in his opinion, evidence of the discovery of traces of amphetamine was admissible and that, while it was propensity evidence, "it … [was] nevertheless relevant … to prove the fact of importation, knowledge as to the nature of the drug being imported, and a reason for the importation of that particular drug in the quantities that it was imported in". He said that, had the prosecution sought to lead that evidence as part of its case from the outset, he would have ruled it to be admissible even if objection had been taken to it. He dismissed Mr Illari's application.
21 The prosecutor then told the Court that he would comply with Mr Illari's request, "although strictly speaking the Crown could conduct its case as it wishes, but in view of what has transpired … [he would] leave the matter there" (transcript 250).
22 The appellant's argument, as her counsel put it during the hearing of the appeal, was essentially that, prejudicial evidence having been introduced as a consequence of a mistaken assumption on the part of the appellant's counsel in circumstances in which it would not otherwise have been adduced, there was a miscarriage of justice and the trial Judge should have discharged the jury.
23 The issue of a refusal to discharge the jury was discussed by the High Court in Crofts v The Queen (1996) 186 CLR 427. In that case the majority (Toohey, Gaudron, Gummow and Kirby JJ) said (at 440):
"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of
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- slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? (Glennon v The Queen (1994) 179 CLR 1 at 8 - 9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521)."
24 In this case, the evidence was admissible. While Detective Thornton's evidence was hearsay, the prosecutor was, as I have said, in a position to call the chemist who had analysed the methylamphetamine and would have done so were it not for Mr Illari's request and his concession that the evidence could stand as it was. In my respectful opinion the trial Judge was right in his conclusion that the evidence had significant probative value and that this justified its admission notwithstanding its prejudicial effect. The evidence of the presence of traces of methylamphetamine (and that concerning the finding of the "drug paraphernalia") established that one or both of the occupants of the house (the appellant and her partner) had a purpose in acquiring large quantities of pseudoephedrine, being that of the manufacture of methylamphetamine. It was most unlikely that others who had access to the "office area" would also have had access to the various items of "drug paraphernalia" (kept in the kitchen, bathroom and elsewhere) for the purpose of manufacturing methylamphetamine. It should be kept in mind, in this respect, that the appellant's defence was essentially that it had not been she who acquired the pseudoephedrine, but some other person who had used her name and her credit card and who had forged her signature.
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25 In these circumstances, and taking into account the strength of the case against the appellant, the fact that the then counsel for the appellant did not suggest to the trial Judge that the appellant had been prejudiced as a result of an inability to challenge the accuracy of the report and the fact that the Crown had fully complied with its obligations of disclosure, I am not persuaded that any miscarriage of justice resulted from the admission of the evidence to which I have referred.
26 It follows that ground 1 has not been made out.
Ground 2
27 Ground 2 appears to be directed towards the fact that, in summing up, the trial Judge gave a general direction on propensity evidence but did not deal specifically with the evidence of Detective Thornton as regards the finding of traces of methylamphetamine and did not tell the jury what were the limits of the use to which that evidence might be put. The direction given by the trial Judge in respect of the "drug paraphernalia" reads as follows (transcript 382 - 383):
"Moving to another area of the case, you heard that during a search of Lot 100 Foskew Way on 14 August 2002, Detective Paul Thornton discovered a number of items and chemicals in the kitchen, bathroom and elsewhere which in his opinion could, in combination, have been used in a clandestine laboratory to manufacture amphetamine. He testified that pseudoephedrine is a precursor to the manufacture of amphetamine or methylamphetamine. Each of the items found is perfectly capable of being used for a purpose other than the manufacture of an illicit drug.
Both counsel emphasised that, but they may also be consistent with the use of pseudoephedrine for illicit purposes. If you are satisfied beyond reasonable doubt that the items found by Detective Thornton were, in combination, capable of being used to manufacture amphetamine and that the accused was linked, either individually or in concert with others, to the possession of these materials and chemicals, you would be entitled to look at the evidence of what was found at the premises to assist you in deciding whether the accused knowingly and intentionally imported pseudoephedrine in quantities exceeding the critical amount.
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- Evidence of this kind, ladies and gentlemen, may be relied on by the crown to show that the accused had a reason for intentionally bringing in the drug pseudoephedrine in sufficient quantities to achieve an illegal purpose. The evidence may be relevant not only to the alleged act of importation but also to her knowledge of what goods were being brought in and in what quantities.
The apparatus found on the premises, together with the chemicals and the empty packets of pseudoephedrine, were, the crown says, the kind of paraphernalia and chemicals you would expect a person manufacturing amphetamine or methylamphetamine to be in possession of, and this the crown alleges was the very reason the accused was involved in the importation of pseudoephedrine in the quantities alleged.
But you must be cautious in your approach to this evidence. You must remember that the accused is not charged with the manufacture of methylamphetamine. You are not here to decide whether or not she manufactured methylamphetamine. That is not your task. You are confined to a decision as to whether or not the crown has proved the charges of importation contained in the indictment.
You must also remember that this evidence of the paraphernalia and chemicals found on the premises is not direct evidence of the offence charged and, unless you are satisfied that the evidence as a whole proves the guilt of the accused beyond reasonable doubt, you cannot use the evidence of the other chemicals and paraphernalia said to have been in the accused's possession to convict her of the offences of importation. Furthermore, you must not reason that because she had these other chemicals and paraphernalia in her possession, she was the kind of person who was likely to have committed the three offences charged. That type of reasoning would be quite wrong."
28 It was consequently made plain to the jury they could not adopt an impermissible process of reasoning in respect of the "drug paraphernalia". It seems to me that it must have been obvious to the jury that the same logic applied to the evidence concerning the traces of methylamphetamine. The trial Judge's comments that the appellant was not charged with the manufacture of methylamphetamine and that the jury
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- was not there to decide whether or not she manufactured methylamphetamine plainly applied also to the evidence concerning the traces of methylamphetamine. The same is true of his comments made in the first and concluding paragraphs of the quoted extract from his summing up. In these circumstances, and taking into account the fact that no mention was made concerning the methylamphetamine traces at the request of the then counsel for the appellant, I am not persuaded that the failure to give specific directions concerning the evidence of the methylamphetamine led to any miscarriage of justice.
29 Finally, it may be appropriate to refer to what was said by Kirby J in Suresh v The Queen (1998) 72 ALJR 769 at [54]:
"What is to be done when retrospect suggests that a trial strategy was seriously misguided, may have inflamed a jury but was consciously determined? Given the adversarial nature of our legal system, it is ordinarily necessary to hold a litigant to the way in which the case is presented by that litigant's legal representatives. This is true of criminal as well as of civil litigation (R v Birks (1990) 19 NSWLR 677 at 684; R v Miletic [1997] 1 VR 593 at 598) … Out of an appreciation that serious mistakes can sometimes arise from incompetence, ignorance or inexperience, courts of criminal appeal have developed rules to safeguard accused persons from the risk of miscarriage of justice where serious default on the part of legal representation is shown (Jukov v The Queen (1994) 76 A Crim R 353 at 361). However, this does not mean that every tactical decision, considered with hindsight to have been misjudged, opens the door to a ground of challenge to the jury's verdict. Such a rule would be intolerable and unworkable. It would seriously undermine the finality of litigation which is important in criminal as it is in civil trials."
30 Kirby J went on to say (at [56]):
"The object of the foregoing approach is not to punish an accused for an erroneous tactical decision made by that person's legal representative. It is to put an end to what would otherwise be an infinite regression of argument which would be destructive of finality of trials and of certainty in the administration of justice. It is not to hold the accused rigidly to rules of a game which ordinarily must be played by others over whom, as courts recognise, effective control by the accused is
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- often more theoretical than real. It is to accept the realities within which a criminal trial takes place, reserving complaints about alleged miscarriages of justice arising from the conduct of the trial by a party's legal representatives to really serious cases of incompetence, ignorance and inexperience."
31 There is no suggestion, in this case, that, in asking that no direction be given concerning the traces of methylamphetamine, the then counsel for the appellant acted incompetently, or out of ignorance or inexperience. As the trial Judge said, his request in that respect was not difficult to understand.
Conclusion
32 I would consequently dismiss the appeal.
33 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
34 McLURE JA: I agree with Steytler P.
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