Hoang v The State of Western Australia
[2006] WASCA 40
•15 MARCH 2006
HOANG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 40 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:60/2005 | 3 FEBRUARY 2006 | |
| Coram: | STEYTLER P WHEELER JA ROBERTS-SMITH JA | 15/03/06 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed Conviction set aside and judgment of acquittal entered | ||
| B | |||
| PDF Version |
| Parties: | HOA THI HOANG THE STATE OF WESTERN AUSTRALIA HOA THI HOANG |
Catchwords: | Criminal law Practice and procedure Appeal against conviction Whether unsafe and unsatisfactory verdict Whether inadequate corroboration warning Whether inadequate directions on possession of drugs and out of court statements Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4) Evidence Act 1906 (WA), s 50 Sentencing Act 1995 (WA), s 88, s 93, s 94 |
Case References: | Davies v Director of Public Prosecutions [1954] AC 378 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Edwards v The Queen (1993) 178 CLR 193 M v The Queen (1994) 181 CLR 487 Murray v The Queen (2002) 211 CLR 193 Alford v Magee (1952) 85 CLR 437 Bardsley v The Queen (2004) 29 WAR 338 Bromley v The Queen (1986) 161 CLR 315 De Gruchy v the Queen (2002) 211 CLR 85 Directer of Public Prosecutions v Killbourne [1973] AC 729 Fletcher v The Queen [1999] WASCA 18 Jones v The Queen (1997) 191 CLR 439 Kelleher v The Queen (1974) 131 CLR 534 Kirby v The Queen [2003] WASCA 164 Leary v The Queen [1975] WAR 133 Liberato v The Queen (1985) 159 CLR 507 McGibbon v The Queen [2003] WASCA 311 Mraz v The Queen (1955) 93 CLR 493 R v Faure (1993) 67 A Crim R 172 R v Jacquier (1979) 20 SASR 543 R v Kerim [1988] 1 Qd R 426 R v Latham (2000) 117 A Crim R 74 R v Middleton (2000) 114 A Crim R 141 R v Thomas (1981) 6 A Crim R 66 R v Todd [1976] Qd R 21 R v Wedd (2000) 115 A Crim R 205 Rabey v The Queen [1980] WAR 84 Sreckovic v The Queen [1973] WAR 85 Zoneff v The Queen (2000) 200 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HOANG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 40 CORAM : STEYTLER P
- WHEELER JA
ROBERTS-SMITH JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : IND 353 of 2004
Catchwords:
Criminal law - Practice and procedure - Appeal against conviction - Whether unsafe and unsatisfactory verdict - Whether inadequate corroboration warning - Whether inadequate directions on possession of drugs and out of court statements - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Evidence Act 1906 (WA), s 50
Sentencing Act 1995 (WA), s 88, s 93, s 94
Result:
Appeal against conviction allowed
Conviction set aside and judgment of acquittal entered
Category: B
Representation:
CACR 60 of 2005
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr D Dempster
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
(Page 3)
- <mpr>
CACR 153 of 2005
Counsel:
Appellant : Mr R Young
Respondent : Mr D Dempster
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Davies v Director of Public Prosecutions [1954] AC 378
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Edwards v The Queen (1993) 178 CLR 193
M v The Queen (1994) 181 CLR 487
Murray v The Queen (2002) 211 CLR 193
Case(s) also cited:
Alford v Magee (1952) 85 CLR 437
Bardsley v The Queen (2004) 29 WAR 338
Bromley v The Queen (1986) 161 CLR 315
De Gruchy v the Queen (2002) 211 CLR 85
Directer of Public Prosecutions v Killbourne [1973] AC 729
Fletcher v The Queen [1999] WASCA 18
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534
Kirby v The Queen [2003] WASCA 164
Leary v The Queen [1975] WAR 133
Liberato v The Queen (1985) 159 CLR 507
McGibbon v The Queen [2003] WASCA 311
Mraz v The Queen (1955) 93 CLR 493
R v Faure (1993) 67 A Crim R 172
R v Jacquier (1979) 20 SASR 543
R v Kerim [1988] 1 Qd R 426
R v Latham (2000) 117 A Crim R 74
(Page 4)
R v Middleton (2000) 114 A Crim R 141
R v Thomas (1981) 6 A Crim R 66
R v Todd [1976] Qd R 21
R v Wedd (2000) 115 A Crim R 205
Rabey v The Queen [1980] WAR 84
Sreckovic v The Queen [1973] WAR 85
Zoneff v The Queen (2000) 200 CLR 234
(Page 5)
1 STEYTLER P: After a trial by jury, the appellant was convicted in the District Court on 31 March 2005 of one count of possession of methylamphetamine with intent to sell or supply and one count of possession of heroin with intent to sell or supply (counts 1 and 2 on the indictment). She had been charged, at the same trial, with two further counts (counts 3 and 4), one of possession of methylamphetamine with intent to sell or supply and one of possession of heroin with intent to sell or supply. The jury was unable to agree upon a verdict in respect of these counts. The offences the subject of counts 1 and 2 were said to have been committed on 26 August 2003 while those the subject of counts 3 and 4 were said to have been committed on 27 August 2003.
2 On 14 April 2005, the appellant was sentenced to a term of 4 years' imprisonment on count 1 and to a term of 3 years' imprisonment on count 2. However, the term imposed in respect of count 2 was ordered to be served partly cumulatively with that imposed in respect of count 1, with the 3-year sentence imposed on count 2 to commence after 2 years had been served on the 4-year sentence imposed in respect of count 1. The appellant was consequently required to serve a total term of 5 years' imprisonment. She was declared to be eligible for parole.
3 The appellant has appealed against her conviction and has sought leave to appeal against the sentence imposed upon her. I will deal first with the appeal against conviction.
Appeal against conviction
4 In August 2003 the appellant, a Vietnamese woman with a limited command of the English language, was 50 years old. She lived in Sydney. She had recently travelled to Perth and had been staying there with a friend, identified only as Ms Vo ("Vo"), since 23 August 2003. Vo's house was at 14 Eileen Street, Bassendean. She lived there with her son, Sanh Hoang Le ("Le") as well as with two other sons and their girlfriends, her daughter and her daughter's infant son.
5 During her visit to Perth, the appellant was driven around by Le. He was then 25 years old. He had known the appellant for about a month and had met her through his mother. The car which he was then using belonged to the brother of his mother's ex-boyfriend, who was away on holiday. From time to time Le's mother also drove the car.
6 Le gave evidence at the trial. He said that he often attended Burswood International Casino with the appellant and his mother. On 26 August 2003, at about 6.30 pm, he and the appellant drove to the
(Page 6)
- casino. On this occasion Vo did not accompany them. On arrival, Le and the appellant separated in order to meet friends and gamble. Unknown to either, the casino was under surveillance by the Australian Federal Police. Agent Bruce Alan Jackson had been watching a woman named Thai Dao Bui ("Bui"). Jackson saw the appellant meet with Bui. The two women talked, gambled and made some telephone calls. Then, at about 8 pm, the appellant and Le left the casino together and drove back to Vo's house.
7 Later that evening, at about 8.50 pm, Le drove the appellant to a fish shop at the Marangaroo Shopping Centre in Girrawheen. The appellant had arranged to pick up some fresh crabs there in order to take them back to Sydney with her that evening. While Le was driving the appellant along Braun Avenue in Morley, they were stopped by three uniformed members of the Western Australian Police Service in a marked police car. The police administered a random breath test and asked Le for his licence. Then, they asked Le and the appellant to get out of the car in order to enable them to check the roadworthiness of the vehicle. Two of the police officers, Constables Paul Michael Daly and Dion Peter Hayman observed two packages on the floor of the car in the driver's footwell. One, which was a little smaller than a cricket ball, was wrapped in black electrical tape and the other, a smaller package about the size of a matchbox, was wrapped in what looked like a yellow balloon. Later examination and analysis of the contents of the two packages disclosed that they respectively contained 82.9 grams of methylamphetamine with a purity of approximately 80 per cent and 27.5 grams of heroin with a purity of approximately 33 per cent.
8 As a result of the finding of the two packages in the car, detectives from the Organised Crime Squad were called to the scene. One of these was Detective Senior Constable Bailey, who interviewed each of Le and the appellant. The car was searched. The interviews and search were recorded by a video camera. Some time later, Le and the appellant were accompanied by the police to Vo's house. The police had obtained a search warrant and, on searching the house, they found the heroin and methylamphetamine which became the subject of counts 3 and 4. The drugs were found in Vo's bedroom, in which the appellant had been sleeping.
9 In the course of the video-taped interview which took place at the time of the search of the car, Le was asked whether or not he could tell the police anything about the two packages which had been found. He answered "Oh no". The following exchanges then took place:
(Page 7)
- "Q. No. You don't know.
A. No.
Q. Can you tell me when they got there or who put them there?
A. Been there when I'm driving.
Q. It's been there when you're driving?
A. Yeah.
Q. Have you moved them at all, or anything like that?
A. I could have pushed them away with my hand to get it [sic] away from the pedal."
10 In his evidence at the trial, Le denied any knowledge of the drugs found in the car. He said that, as a police officer took his licence and returned with it to the police car, he was handed a "scrunched up" tissue by the appellant and told to throw it away. He simply dropped the tissue at his feet. When asked by the prosecutor whether there was anything in the tissue, he responded, "I have no idea because it was just a tissue. I don't know if anything in [sic]. I'm not sure."
11 The following exchanges then took place (transcript 31):
"You say you don't know; was it just a tissue? Here is a tissue?---It was scrunched up.
It was scrunched up?---Yep.
Did it feel heavier than just a tissue?---Yes, a little bit.
She said what to you?---'Just throw the tissue away,' she said.
Where was the police officer when you were handed that tissue or that object?---They were back at the police car.
Did you throw it away?---I threw it down my feet [sic].
Why did you throw it at your feet?---Just - no idea. I thought she said throw away [sic], so I just threw it."
(Page 8)
12 When asked what he thought had been inside the tissue he said, "Maybe something that I never seen [sic]". He was asked what he thought the package had contained. He responded by saying, "Drugs or something like that" (transcript 32). Then, when asked if he knew how many packages there were, he said, "No, just the tissue" (transcript 32).
13 In the course of cross-examination, it was put to Le that he had told the police that the packages found in the footwell in front of the driver's seat had been there when he was driving. He said that he had told the police this and that that was the truth (transcript 40). The following exchanges then took place (transcript 41):
"I thought you just said in evidence that you were given the tissue only when you pulled over?---Yeah, it was a tissue.
Yeah?---Scrunched-up tissue. Anything in it, I'm not sure or not [sic]. It wasn't just tissue.
Well, when you were driving, Mr Le, were you aware of anything obstructing your feet reaching the pedals?---In the car there was a lot of other stuff too, but it doesn't obstruct me from driving.
Again, the police asked you, 'Have you moved them?' meaning those two packages. 'Have you moved them at all or anything like that?' and you said, 'I could have pushed them away with my hand to get it away from the pedal'?---No, do not recall saying that.
You didn't say that, okay. So are you saying that you didn't say that to the police?---It's quite a while. I'm not sure. I don't remember.
You're not sure?---Yep.
Is it true?---Which about?
Did you reach down and move something away from the pedal as you were driving?---No.
No? So why did you tell the police you did or that you could have done?---Can't remember, sorry."
14 It was also put to Le (transcript 42) that the police had asked him questions "about things they found where … [Le] had been sitting on the
(Page 9)
- floor". He acknowledged that this had been so. Then, when asked if he thought that these might in some way have been related to the tissue that he had been given moments before, Le answered, "No". This exchange was followed, a little later (also transcript 42), by a further question whether Le had told the police that the packages had been there when he was driving. Le responded, "Yes, I agree with that".
15 Still later in the course of cross-examination, the appellant's counsel asked Le, once again, about the packages found in the car. The following exchanges took place (transcript 45):
"Are you saying that you knew nothing about the black package and the yellow package until the police pointed them out to you?---Yes.
So when you were driving were you aware of anything that was rolling around on the floor getting in your way?---No.
So why then did you tell the police when they asked you, 'Can you tell me when they got there or who put them there,' you said, 'Been there when I'm driving'?---Just can't remember.
Can't remember?---No.
Were you lying to the police? Sorry?---I don't know about that bit. I'm not sure. I can't remember exactly.
Was that statement the truth? 'Been there when I'm driving'?---Must have. I'm not sure.
Not sure?---Mm.
The police then asked you whether you had moved those packages and you said, 'I could've pushed them away with my hand to get it away from the pedal'?---I just …
Again, was that the truth?---I just can't remember saying those.
You said a moment ago when I asked you directly that there was nothing in the seat of the car, on the floor of the car that was rolling around and getting in your way. You agree with that?---Yep.
Yes?---Yep.
(Page 10)
- But here you've told the police 'Been there when I'm driving. I could've pushed them away with my hand to get them away from the pedal'. So which is true? What you're telling the jury today or what you told the police back then?---I can't remember what I told the police."
16 Constable Daly gave evidence at the trial. He said that he had been on duty with Constables Hayman and Murray on 26 August 2003. They had stopped the car which was then being driven by Le. Constable Hayman had approached Le and performed a breath test. He had then taken Le's licence and handed it to Constable Murray, who conducted the licence check. By this time both the appellant and Le had been asked to get out of the car. Constable Daly was asked, in the course of cross-examination, whether there had been a time when Constable Hayman walked away, leaving the appellant and Le sitting in the car. He responded by saying, "No".
17 Constable Hayman did not give oral evidence. However, by consent, his statement of evidence was read to the Court. It was largely consistent with what had been said by Constable Daly, save that Constable Hayman had believed that Le and the appellant had been taken to stand at the front of the car whereas Constable Daly believed that they had been taken to stand at the back of the car.
18 The appellant did not give evidence at the trial. However, in the course of the video-taped interview with the police, which was tendered at the trial, she had denied any knowledge of the drugs found. No fingerprints or DNA were obtained from either of the packages obtained from the car. Consequently, the prosecution case that the drugs had been in the appellant's possession rested primarily on Le's evidence.
19 The defence case, as it was put to the jury, was that Le had been an unreliable witness, that he had conceded, in the course of his evidence, that he had been concerned that he or his mother, or both, might be charged with possession of drugs and that he was blaming the appellant in order to exculpate himself or his mother, or both.
Grounds of appeal
20 After amendment, the appellant advances eight grounds of appeal. Omitting particulars, they read as follows:
"1. The learned trial Judge erred in relation to his direction on the element of possession, in that he failed to direct the
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- jury inter alia that the prosecution was required to prove, beyond reasonable doubt, that, after the police had stopped Le's vehicle, the appellant handed to Le a tissue wrapped around two packages containing the prohibited drugs (and that the appellant knew that the packages contained prohibited drugs), and he failed to identify the relevant evidence that went to this critical issue …
- 2. The verdicts of guilty on counts 1 and 2 in the indictment were unsafe and unsatisfactory, in that the evidence adduced by the prosecution did not and could not establish, beyond reasonable doubt, that the appellant was in possession of the prohibited drugs …
3 The learned trial Judge erred in failing to direct the jury that the mere acceptance of Lee [sic] as a credible and reliable witness did not necessarily prove, beyond reasonable doubt, the issue of possession, in that acceptance by the jury of the evidence of Lee [sic] did not necessarily prove, beyond reasonable doubt, the element of possession.
4. The learned trial Judge's direction, at … [transcript 116], to the effect that:
'If, at the end of the day, you are left with a reasonable doubt as to where the truth lay on matters fundamental to the elements of the charge … and it is your duty to return a verdict of not guilty';
… had a tendency to reverse the burden of proof in relation to the issue of possession. In the circumstances, a Liberato-type direction was required to avoid that tendency and was not given.
5. The learned trial Judge's warning in relation to the evidence of Lee [sic] was inadequate …
6. The learned trial Judge erred in failing to direct the jury that the jury was entitled to take into account the out of court statements made by a witness (Lee [sic]) in circumstances where the witness adopted the truth of those statements on oath. Absent this qualification, the Judge's direction in relation to Lee's [sic] out of court
(Page 12)
- statements and the use that they could make of them was erroneous.
- 7. The learned trial Judge erred in directing the jury that they could use the 'address lie' to draw an inference of guilt …
8. … The grounds set out above individually have occasioned a miscarriage of justice, alternatively, the cumulative [sic] or aggregate of the errors of law, misdirections or failure [sic] to direct have caused the trial to miscarry: see Leary v R [1975] WAR 133 at 137."
21 I propose, first, to deal with ground 2, then with ground 5 and then with the remaining grounds.
Ground 2
22 The leading case on the issue of unsafe and unsatisfactory verdicts is M v The Queen (1994) 181 CLR 487. In that case, at 493 - 495, Mason CJ, Deane, Dawson and Toohey JJ said:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations …
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court
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- is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …
In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … "
23 In this case, Le's evidence was central to the jury's determination of guilt or innocence on counts 1 and 2. If the jury accepted his evidence that he had been passed a tissue containing something which he was asked to throw away, it was open to the jury to infer that what had been passed, and thrown down, were the two packages containing the drugs. However, if the jury was to conclude that Le's evidence in that regard was unreliable, there was not enough evidence to prove that the appellant had been in possession of the drugs.
24 What was left, in that event, was evidence establishing that she had been a passenger in the car in which the drugs had been found and that other drugs, in similar packaging to one of the drugs found in the car, (and also money) had been found in the room in which she had been sleeping. However, because the bedroom had been Vo's bedroom (Vo seemingly shared it with the appellant), because the car had been borrowed from Vo's ex-boyfriend's brother and was being driven by Vo's son, Le, and because the drugs were found on the driver's side of the car, that evidence pointed as much in the direction of Vo and Le as it did towards the appellant. Other evidence was led from Le of dealings that the appellant had had with a Caucasian man known to Le only as "Brendon". These dealings were unusual, given that "Brendon" spoke only English and the appellant struggled to speak or read that language. However, there was nothing which could reliably be taken as suggesting that these dealings concerned drugs. Similarly, the fact that Bui had been under surveillance by Federal agents and that the appellant had been seen talking to Bui in the casino and had then herself been placed under surveillance was not probative of anything.
(Page 14)
25 In these circumstances Le's evidence of the passing of something to him by the appellant was critical. However, as will be apparent from what I have earlier set out, that evidence was unsatisfactory in a number of respects. When first asked about the drugs, in the course of the video-taped interview, he said that they had been "there" (presumably in the footwell) when he was driving and that he could have pushed them away with his hand to get them away from the pedal. In his evidence in chief at the trial he said, only when asked a leading question by the prosecutor, that the tissue had felt "a little bit" heavier than "just a tissue". In cross-examination he at first said that what he had told the police about the packages having been in the footwell of the car while he was driving was true, but then said that he did not recall having said anything to the police concerning the possibility that he had pushed the drugs with his hand to get them away from the pedal. When asked whether he thought that the drugs on the floor might in some way have been related to the tissue he had been given, he said, "No". Then, he again acknowledged that he had told the police that the packages had been there when he was driving. After that, he reverted to the proposition that he could not remember what he had told the police (although, when asked whether it was true that the drugs had "been there" when he was driving, he said "Must have. I'm not sure").
26 Even allowing for the fact that Le had some problems with the English language, none of this inspires any confidence in his evidence. Moreover, what was said by Le must be considered in the light of the evidence of Constable Daly which, as I have mentioned, was to the effect that there had not been a time when the appellant and Le had been left alone in the car. That, on the face of it, contradicts Le's evidence that he was handed the tissue during the interval in which the police officer had taken his licence and returned to the police car. Also, when the photographs of the two packages containing the drugs are looked at against the measure appearing in those photographs, it can be seen that the larger of the two packages was some 80 mm long and around 40 mm high and the smaller package was around 50 mm long and around 25 mm high. It is consequently unthinkable that Le could have been in any doubt concerning the fact that packages of that size had been passed to him, if that had in fact happened.
27 Le's evidence must also be considered in the light of the fact that he had an obvious interest in diverting suspicion from himself and his mother in circumstances in which there was, as I have said, a good deal to arouse suspicion concerning their involvement with the drugs.
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28 In all of these circumstances, I am not satisfied that it was open to the jury, upon the whole of the evidence, to conclude that the appellant's guilt had been established beyond reasonable doubt. That is especially so when regard is had to the fact that the jury was unable to reach a verdict in respect of the similarly packaged drugs found in Vo's bedroom. Le's evidence appears to me to have been so inadequate, and tainted by an obvious self-interest, that, even making full allowance for the advantages enjoyed by the jury (and recognising that the primary responsibility for determining guilt or innocence has been entrusted to the jury), there is a significant possibility that an innocent person was convicted.
29 I would consequently uphold ground 2 and set aside the conviction. It follows from what I have said that a judgment of acquittal should be entered: see Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630.
Ground 5
30 It will be obvious from what I have said, when dealing with ground 2, that the trial Judge's directions to the jury as regards the way in which Le's evidence should be approached by the jury were very important. He said, in this respect, the following (transcript 126 - 127):
"As I have said, as the case has unfolded before you … the critical issue is, is the prosecution able to establish beyond reasonable doubt that in respect of each count, that the substance was a substance possessed by the accused person. In that respect the prosecution relies in substantial part on the evidence of … Le …
If you are not satisfied beyond reasonable doubt of the truth and accuracy of Le's evidence, you are not able to exclude the possibility that he had at least some involvement with the drugs. If that possibility existed of course, it would be dangerous to act upon his evidence as to the circumstances in the car unless it was supported by independent evidence which confirmed or strengthened it in the sense that it rendered it more probable.
That is for the obvious reason. It probably does not require to be said to you but it is for the obvious reason that if he had any involvement in the substance, there would be a clear advantage or benefit to him implicating the accused, thus concealing his participation. He also mentioned that he held a fear that he or his mother might be charged which could well have an impact
(Page 16)
- upon what he had to say and they are matters clearly that you would need to take into account because there does not appear to be any independent evidence which corroborates Le's evidence concerning the events at the motor vehicle.
Of course if having considered the evidence of Le having regard to those matters, taking those matters into account in assessing his evidence, having carefully assessed it having regard to the dangers which I have explained to you, you are satisfied beyond reasonable doubt of the truthfulness of that evidence, you can of course and would be entitled to act upon it."
31 It will be apparent from this that the jury was told that it was only if they were not satisfied beyond reasonable doubt of the truth and accuracy of Le's evidence that the possibility existed that he had some involvement with the drugs and, consequently, that it would be dangerous to act upon his unsupported evidence for the reasons given. While that approach was presumably dictated by the trial Judge's belief that a warning was justified (as to which see s 50 of the Evidence Act 1906 (WA)) only if the jury considered that he might have been involved with the drugs (see, for example, Davies v Director of Public Prosecutions [1954] AC 378 at 402), what was said seems to me, with due respect, to have reversed the way in which the circumstances of the case required the jury to approach Le's evidence. What those circumstances required, in my respectful opinion, was for the jury to evaluate, first, whether or not Le might have had some involvement with the drugs and, hence, have a motive to transfer blame elsewhere, and then to evaluate his evidence in the light of the answer to that question. What they were invited by the trial Judge to do was to consider, first, whether or not they were satisfied of the truth and accuracy of Le's evidence and, only if they were not, then to take into account the possibility of his involvement.
32 It consequently seems to me that ground 5 has been made out. Given the conclusion at which I have arrived in respect of ground 2, it is unnecessary for me to consider whether the error resulted in a substantial miscarriage (see s 30(4) of the Criminal Appeals Act 2004 (WA)).
Ground 1
33 The gravamen of the complaint made in ground 1 is that the trial Judge's directions in respect of the issue of possession of the drugs the subject of counts 1 and 2 was deficient for two reasons. The first is that he is said to have failed to point out that that issue turned upon the question whether or not the jury accepted that the appellant had handed
(Page 17)
- the drugs to Le. The second is that he is said to have failed to direct the jury's attention to the relevant evidence in that regard.
34 The trial Judge told the jury (transcript 126 - 127) that the critical issue was that of possession and that, in that regard, the prosecution relied "in substantial part" on Le's evidence.
35 He went on to say:
"It was his evidence … that an officer took his licence and returned it to the police car and that at that time the accused gave him what he called a scrunched up tissue which seemed to be more substantial than simply a tissue, asking him effectively to throw it away. He said he threw it down at his feet.
The police later found drugs in the driver's side footwell and I think one of the videos demonstrates that there appears to be tissue located clearly under or on the side of the seat. Le denied any knowledge of the drugs, the implication being the State says, that they were in the possession of the accused person. The defence says that Le is an unreliable witness and that his evidence should be rejected for the various reasons advanced by … [the then counsel for the appellant] when speaking to you.
The defence says that the drugs found in the car and for that matter in the house, could well have belonged to Le, could have been in his possession, or alternatively in respect of the house, in the possession of his mother or someone else and that he is conveniently blaming the accused to exculpate himself and or his mother. Unless you are satisfied beyond reasonable doubt of the truth and reliability of the evidence given by Le, you would probably have difficulty being satisfied that the drugs in the cars [sic] were in the possession of the accused."
36 In my opinion this direction made it plain enough that the issue of possession turned on Le's evidence as regards the passing of the tissue containing some other substance to him. While it is true that the trial Judge mentioned the State's contention that an implication arose, from Le's denial of any knowledge of the drugs, that they were in the possession of the appellant, that contention would plainly have been considered by the jury in the light of Le's evidence, also referred to by the trial Judge, that some substance had been passed to him by the appellant and was thrown by him onto the floor of the car.
(Page 18)
37 Also, while it is true that the trial Judge did not, in the passage to which I have referred, identify the various shortcomings in Le's evidence that have been mentioned earlier in these reasons, he did tell the jury that the defence advanced the contention that Le was an unreliable witness for the various reasons which had been mentioned by counsel for the appellant. These presumably encompassed the shortcomings in Le's evidence.
38 I am consequently not persuaded that ground 1 has been made out.
Ground 3
39 Ground 3 contends that the trial Judge should have directed the jury that acceptance of Le's evidence did not necessarily prove that the appellant had been in possession of the drugs found in the car. This contention assumes that the jury might have believed, from Le's evidence, that the drugs had not been in the tissue and that they had been in the footwell of the car before it was stopped by the police. In my opinion, it must have been obvious to the jury that, if that was the fact, the appellant could not be found to have been in possession of the drugs.
40 I am consequently not prepared to uphold this ground.
Ground 4
41 Ground 4 complains of the following direction given by the trial Judge in the course of his summing up. He said (transcript 116 - 117):
"In considering the evidence and assessing the evidence as it relates to each of the charges, there are really various or several positions that could be arrived at if, on all the evidence, you are satisfied beyond reasonable doubt of the guilt of the accused in respect of the charge you are then considering, clearly it would be your obligation to return a verdict of guilty. If you accepted that the accused was giving a truthful account of events when she was spoken to during the various searches, or you are unable to reasonably exclude that account as truthful, you will of course be obliged to return a verdict of not guilty.
If at the end of the day you are left with a reasonable doubt as to where the truth lay on matters fundamental to the elements of the charge you are considering and the context, the way this case has developed, that is going I would think to come down to a question of possession - if then today you are left with a reasonable doubt as to any of the elements of the charge that
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- you are considering, then of course it is your duty to return a verdict of not guilty since the State would have failed to have satisfied you to the required degree."
42 Counsel for the appellant contended, in his written submissions (but only very faintly in the course of his oral submissions), that this direction had the tendency to place an affirmative burden on the appellant in order to prove that she had not had any knowledge of the two packages containing the prohibited drugs. He relied upon the judgment of the High Court in Murray v The Queen (2002) 211 CLR 193 to the effect that it would be an error to say to a jury that the question for determination was whether it accepted the prosecution's or the appellant's version of events (see Gaudron J at 201 - 202 [23], Gummow and Hayne JJ at 213 [57] and Callinan J at 231 - 232 [132]).
43 In my opinion the trial Judge made no error of that kind in the passage complained of. At other points in the course of his summing up to the jury, he made it plain that the prosecution bore the onus of proof. In the passage complained of, he made it clear that if, for any reason, the jury was left with a reasonable doubt, it was their obligation to acquit. I am unable to accept that what was said by him amounted to an invitation to the jury to decide whether it preferred the version of events offered by the prosecution or that of the appellant. Ground 4 consequently fails.
Ground 6
44 In the course of his summing up, the trial Judge gave the following direction to the jury in respect of out of court statements (transcript 128 - 129):
"It is very important that you bear in mind that out of court statements … is [sic] not evidence before you, not matters that you can take into account. You can of course and must take into account any statements made by the accused person out of court because special rules of evidence require that to be the position … and you are entitled to take into account anything that Le said outside the court but only for the purpose of evaluating what Le has told you on oath; that is, if he has said something inconsistent outside the Court. That is not evidence of what he was talking about but it is material that you are entitled to look to in determining the validity of what he has told you on oath, in determining the weight that you gave to him as to his sworn testimony."
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45 Counsel for the appellant complains that this direction overlooked the proposition, important to the case, that statements made out of court by a witness can be treated as evidence of the truth of their contents if the witness, while giving evidence at the trial, adopts those statements as being true.
46 It seems to me that, while it might have been preferable for the trial Judge to have included a direction to that effect, it would have been obvious to the jury that if, in court, a witness said that what had been said by him out of court was true, the witness was effectively repeating that statement under oath in the course of his evidence. I am consequently not persuaded that there is any substance to this ground.
Ground 7
47 During the course of the video-taped search of the car on 26 August 2003, the appellant was asked by a police officer what her address was. She replied that she was staying at 13 Blanche Street, Ballajura. In the course of his summing up to the jury, the trial Judge said, in this respect (transcript 129):
"I have mentioned the fact that the State says that the accused gave a false address when asked by the police as to her whereabouts. It is important that you bear in mind you are not entitled - if you came to the conclusion that she lied about her address, if that was your conclusion - you cannot reason from that therefore she is guilty of these offences but that would be obvious to you. But it is one of the factors which the State asks you to take into account in looking at all the circumstances and in suggesting to you that on a consideration of all the circumstances the only reasonable inference to be drawn is that she was in possession of the drugs located in the house."
48 It was common ground, at the hearing of the appeal, that this direction was deficient in that it suggested to the jury that the lie might be relied upon as a factor tending to prove guilt in circumstances in which there was no direction of the kind required by Edwards v The Queen (1993) 178 CLR 193. However, because the passage complained of related only to the prosecution case on counts 3 and 4, in respect of which the jury was unable to reach a verdict, I am not persuaded that the error, of itself, gave rise to any substantial miscarriage.
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Ground 8
49 Given the conclusions at which I have arrived in respect of ground 2, it is unnecessary to consider this ground, which contends only that the errors contended for by other grounds resulted in a substantial miscarriage of justice.
Conclusion
50 It follows, from what I have said, that I would allow the appeal, set aside the conviction on each of counts 1 and 2 and enter a judgment of acquittal in respect of those counts.
Application for leave to appeal against sentence
51 While it is consequently unnecessary for me to consider the application for leave to appeal against sentence, I will deal briefly with it.
52 There is only one ground of appeal. It reads as follows:
"The learned sentencing Judge erred in ordering that the sentence on count 2 was to commence after the service of 2 years of the sentence on count 1, thereby resulting in a total time to be served before earliest release of 3 years and 6 months in circumstances where the intention was to impose a sentence that would result in 3 years to be served before earliest release."
53 The appellant was sentenced on 14 April 2005. After the sentencing Judge had imposed the terms of imprisonment to which I have earlier referred, making them only partly cumulative, he asked the prosecutor if she could assist by telling him what was "the appropriate time that must pass". She responded by saying that she did not know. The sentencing Judge then said to counsel for the appellant that he supposed that the minimum term to be served before eligibility for parole would be a term of 3 years. Counsel for the appellant agreed. The sentencing Judge thereupon told the appellant that the effect of the sentences imposed would be that she would be eligible for release on parole after serving 3 years of the total sentence. In fact, the sentencing Judge was in error. The minimum term to be served before eligibility before parole, was one of 3 years and 6 months' imprisonment: s 88, s 93 and s 94 of the Sentencing Act 1995 (WA).
54 On 13 July 2005, counsel for the appellant applied to have the sentence corrected. He pointed out the error which had been made and suggested that the head sentence should be altered so as to give rise to a
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- minimum term of 3 years' imprisonment before eligibility for parole. The sentencing Judge declined to alter the sentences imposed by him, saying that, while the error was regrettable, his clear intention was to impose a total term of 5 years' imprisonment, as he had in fact done. He pointed out that the error had not formed part of the sentencing itself, and had been made only in the course of explaining the effect of the sentences imposed.
55 In my respectful opinion his Honour was right in the approach which he adopted. While it was, as he said, unfortunate that the appellant had been given an incorrect explanation of the effect of the sentences imposed, no error had been made in the course of the imposition of those sentences and there was consequently no reason why they should be altered.
56 I would accordingly have dismissed the application for leave to appeal against sentence.
57 WHEELER JA: I have read the reasons to be published by Steytler P. I agree with those reasons and have nothing further to add.
58 ROBERTS-SMITH JA: For the reasons given by Steytler P, I agree that the appeal against conviction should be allowed, the conviction on counts 1 and 2 should be quashed and judgment of acquittal entered. I would also have dismissed the application for leave to appeal against sentence, had that remained extant.
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