Ilie Rusovan v R Angelo Peter Russo v R Nos. SCCRM 94/85 and SCCRM 94/86 Judgment No. 4496 Number of Pages 29 Criminal Law and Procedure Possessing Heroin for Sale (1994) 62 Sasr 86
[1994] SASC 4496
•20 April 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(1), OLSSON(2) AND DUGGAN(3) JJ
CWDS
Criminal law and procedure - possessing heroin for sale - Judge's summing up - joint charge - inadequate direction on weaknesses in identification evidence - need to discuss def ences of each accused separately - failure to put defence cases adequately - whether erroneous direction about ultimate question for jury distorted other directions on burden of proof - jury brought back after four hours and three minutes and asked for verdicts - first verdicts given when jurors had not completely made up their minds - whether jury had been free to deliberate without any pressure - appeal allowed - convictions set aside - new trial ordered. Juries Act 1927. Domican v R (1992) 173 CLR
555; Reg v Hamitov (1979) 21 SASR 596 and Black v R (1993) 118 ALR 209, applied. Green v The Queen (1971) 126 CLR 28; The Queen v Eyers (1978) 19 SASR 244 and Rex v Cefia (1979 21 SASR 171, considered.
HRNG ADELAIDE, 25 March 1994 #DATE 20:4:1994
Counsel for appellant Rusovan: Mr M David QC with him
Mr S D G Apps
Solicitors for appellant Rusovan: Patsouris and Associates
Counsel for appellant Russo: Mr M L Abbott QC with him
Mr I J Sampson
Solicitors for appellant Russo: Mcgee and Associates
Counsel for respondent: Mr J J Doyle QC with him
Ms G Davison
Solicitors for respondent: Director Of Public
Prosecutions (SA)
JUDGE1 MATHESON J Ilie Rusovan and Angelo Peter Russo (the "appellants") pleaded not guilty in the District Court of South Australia to an information containing three counts. It read:
"First Count
Statement of Offence Possessing Heroin for
Sale. (Section 32(1)(e) of the Controlled Substances Act,
1984.)
Particulars of Offence Ilie Rusovan between the 21st August,
1990 and the 24th August, 1990 at Adelaide and other places,
knowingly had heroin, a prohibited substance, in his
possession for the purpose of selling it.
Second Count
Statement of Offence Taking Part in the Sale of Heroin.
(Section 32(1)(d) of the Controlled Substances Act, 1984.)
Particulars of Offence Ilie Rusovan between the 21st August,
1990 and the 24th August, 1990 at Adelaide and other places,
knowingly took part in the sale of heroin, a prohibited
substance.
ANGELO PETER RUSSO is charged with the following Offence
Third Count
Statement of Offence Possessing Heroin for Sale.
(Section 32(1)(e) of the Controlled Substances Act, 1984
Particulars of Offence Angelo Peter Russo on the 23rd
August, 1990 at Brooklyn Park and other places, knowingly
had heroin, a prohibited substance, in his possession for
the purpose of selling it."
2. They were convicted by a jury, Rusovan on the first two counts, and Russo on the third.
3. The prosecution case against them, stated very briefly, was as follows. On 22 August, 1990 the police commenced observations at the Adelaide Travelodge, South Terrace, Adelaide. Rusovan was occupying a room with a woman in the name of Moser. That may have been the woman's name. At about 1.30 pm Rusovan left the Travelodge and went to the Festival City Lodge Motel at the corner of Bank Street and North Terrace, Adelaide. He was observed by police to leave the motel on a number of occasions for short periods and then return. On one of his absences, Detective Chaseling entered and searched his room. He found approximately $30,000 in cash in a leather jacket and a set of scales and weights. At 3.40 pm Rusovan entered the Parlamento Restaurant nearby in North Terrace. At 3.50 pm he returned to his room again. At about 3.59 pm, Russo arrived in a Mazda car with his seven year old daughter, and went into the Parlamento Restaurant. At 4 pm, Rusovan left the Motel and entered the Parlamento Restaurant. He carried a white bag with him. Detective Chaseling went back to Rusovan's room in the Festival City Lodge Motel, and found that the money and scales had gone. He found a vehicle registration slip in the room which had the name of Ilie Rusovan thereon, and an address in Sydney.
4. At 4.13 pm, Rusovan and Russo left the Parlamento Restaurant together. Russo was now carrying the white bag and he and his daughter returned to the Mazda. At 4.16 pm, police officers stopped Russo on West Terrace. The white bag was located on the floor of the car, and it contained some scales. Russo said the scales belonged to his wife, and that she used them for weighing jewellery at home, and that he had had them in the car since the night before. The police seized the scales. They were identical to the scales earlier observed by Chaseling. Traces of heroin were subsequently located thereon. On 23 August, Rusovan was observed by police seated in the Parlamento Restaurant. At 9 am he was picked up by Russo in the Mazda. They were followed to a house at Ward Street, North Adelaide. At 2.55 pm Rusovan and a woman were observed as they arrived at the Airport Motel, Brooklyn Park. They were occupying room 26. At 3.35 pm Rusovan and the woman left the Airport Motel and went to the city in a taxi. The taxi eventually dropped Rusovan at the Festival City Lodge Motel, and then returned to the Airport Motel with the woman.
5. At 4.50 pm Rusovan returned to the Airport Motel. He was carrying a suitcase. At 5.30 pm he and the woman checked out of room 26. As he was leaving, Rusovan told the receptionist, Jacqueline Milligan (also called Holmes), that he had left a pair of black leather trousers in his room, and that a friend by the name of Angelo was coming in about half an hour to collect them. Angelo is Russo's first name. At 6.05 pm, police entered room 26 and saw a pair of black leather trousers. Sticking out of a pocket was a piece of paper. It contained a plan which, when interpreted, indicated that there was something under a tile in the ceiling. The police found a ball of white powder wrapped in plastic food wrap under a ceiling tile. The motel manager, Victor Renko, was present and observed all this. The police took the powder to the kitchen, and using kitchen scales, weighed it and took a sample. Subsequently, it was found to be heroin. They then rewrapped the powder and put it back in the ceiling.
6. At 6.40 pm, Russo arrived at the motel. He spoke to Milligan, and said he had come to collect some trousers. Renko took him to room 26. Russo subsequently left carrying the trousers. Police officers entered room 26. The trousers and the piece of paper had gone, but the powder was still in the ceiling. At 7.10 pm Russo returned. He told Milligan that he had left a belt behind. Renko took him to room 26. Subsequently Russo left the motel. After he left, police officers checked the ceiling and the ball of white powder had gone.
7. The police lost track of Rusovan. They decided not to arrest Russo without Rusovan, and to wait until they were found together.
8. At 6.25 pm on 10 November, 1990, the police ascertained that Rusovan and Russo were together at the Airport Motel. Subsequently Rusovan was arrested at the Adelaide Airport. Russo was arrested at his house in the early hours of 11 November.
9. Neither of the respondents made any admissions, although there were some discrepancies in their answers to the police. Rusovan did not give evidence. His defence was that he and Russo were friends. The police observations of him were not denied, but he denied that he knew about any heroin at the Airport Motel. Russo did give evidence. He admitted the meetings with Rusovan at the Parlamento Restaurant, but denied that he ever went to the Travelodge, or to the Festival City Lodge Motel, or to the Airport Motel, or knew anything about the heroin. His counsel at the trial, Mr. Apps, vigorously cross-examined the police officers, and the witnesses Milligan and Renko, as to their observations. In his address to the jury, he strongly criticised the evidence of identification. Some of the police observations at the Airport Motel were made through a small gap in an open door. Mistakes were made about clothing worn. Milligan and Renko made errors in their evidence.
10. Mr Abbott QC, counsel for Russo on the appeal, correctly submitted that the trial Judge's direction on the identification evidence was a critical matter for Russo. His Honour did warn the jury several times of the need to be very careful about the evidence of identification, and about the questions they should ask themselves in testing that evidence. However, I agree with Mr. Abbott that his Honour did not adequately remind the jury of the strong criticisms made by counsel of the identification evidence, or of possible weaknesses in it. Mr Abbott referred this Court to the unanimous judgment of six justices of the High Court in Domican v R (1992) 173 CLR 555. At pp.561-562, their Honours said:
"... the seductive effect of identification evidence has so
frequently led to proven miscarriages of justice that courts
of criminal appeal and ultimate appellate courts have felt
obliged to lay down special rules in relation to the
directions which judges must give in criminal trials where
identification is a significant issue. Whatever the defence
and however the case is conducted, where evidence as to
identification represents any significant part of the proof
of guilt of an offence, the judge must warn the jury as to
the dangers of convicting on such evidence where its
reliability is disputed Kelleher v The Queen (1974), 131 CLR
534, at p.551; R v Turnbull, (1977) QB 224, at p.228; R v
Burchielli, (1981) VR 611, at pp.616-619; R v Bartels
(1986), 44 SASR 260, at pp.270-271. The terms of the
warning need not follow any particular formula R v
De-Cressac (1985), 1 NSWLR 381, at p.384; R v Finn (1988),
34 A.Crim.R 425, at pp.435-436. But it must be cogent and
effective R v Dickson, (1983) 1 VR 227, at p.230; Reid
(Junior) v The Queen, (1990) 1 AC 363, at p.380. It must be
appropriate to the circumstances of the case R v Aziz,
(1982) 2 NSWLR 322, at p.328; R v Allen (1984), 16
ACrimR441, at pp.444-445. Consequently, the jury must be
instructed 'as to the factors which may affect the
consideration of (the identification) evidence in the
circumstances of the particular case' Smith v The Queen
(1990), 64 ALJR 588, at p.588. A warning in general terms
is insufficient Kelleher v The Queen (1974), 131 CLR, at
p.551. Reference to counsel's arguments is insufficient.
The jury must have the benefit of a direction which has the
authority of the judge's office behind it Davies and Cody v
The King (1937), 57 CLR 170, at pp.182-183. It follows that
the trial judge should isolate and identify for the benefit
of the jury any matter of significance which may reasonably
be regarded as undermining the reliability of the
identification evidence."
11. At p.565, their Honours said:
"As the learned Acting Chief Justice pointed out, the
adequacy of a warning in an identification case must be
evaluated in the context of the evidence in the case ibid.,
at p.446; R v Dickson, (1983) l VR, at p.230; R v Allen
(1984), 16 ACrimR, at pp.444-445. But its adequacy is
evaluated by reference to the identification evidence and
not the other evidence in the case. The adequacy of the
warning has to be evaluated by reference to the nature of
the relationship between the witness and the person
identified, the opportunity to observe the person
subsequently identified, the length of time between the
incident and the identification, and the nature and
circumstances of the first identification - not by reference
to other evidence which implicates the accused. A trial
judge is not absolved from his or her duty to give general
and specific warnings concerning the danger of convicting on
identification evidence because there is other evidence,
which, if accepted, is sufficient to convict the accused.
See R v Bartels (1986), 44 SASR, at pp.270-271; cf R v
Goode, (1970) SASR 69 at p.77. The judge must direct the
jury on the assumption that they may decide to convict
solely on the basis of the identification evidence. If a
trial judge has failed to give an adequate warning
concerning identification, a new trial will ordinarily be
ordered even when other evidence makes a very strong case
against the accused. See R v Gaunt, (1964) NSWR 864, at
p.867."
12. I am bound to say that apart from Mr Abbott's specific criticism about the identification evidence, with which I agree, that I consider his Honour's treatment of the defence of both appellants was confusing and, in some places, erroneous. Mr Apps raised a number of matters with his Honour at the end of his summing up, and after the jury retired, but there was no relevant redirection.
13. The summing up has apparently been edited - anonymously. It is agreed by counsel that his Honour at least twice mistakenly used the name Truang, instead of the name of one of the appellants. He was apparently using a summing up for a case with an accused of that name as a precedent.
14. Next, in referring to Russo's defence, he told the jury that Russo said he was not at the Travelodge, when it was not suggested by the prosecution that he was there. Russo said he was not at the Airport Motel. Then his Honour sometimes confused the two accused. At one stage, he said:
"Now, the defence of the accused, on their own assertions is
they don't really know anything about it, other than what
they have admitted about going to the Parlamento and going
to the Festival Lodge, and they just haven't any knowledge
at all of these things other than, as I say, the Festival
Lodge. The scales, which they say came from a different
source, and were borrowed and they were used to weigh the
jewellery, you heard what the Crown had to say about
weighing the jewellery, and I am not going to go into that."
15. The first paragraph suggested, contrary to the fact, that Russo admitted going to the Festival City Lodge Motel, whereas that was not even suggested by the prosecution. The second paragraph wrongly referred to "they", when his Honour should have referred only to Russo.
16. The paragraphs just quoted were followed by a long confusing passage where his Honour switched backwards and forwards from events on 22 August to events on 23 August, and did not attempt to separate the case against each of the appellants, which he clearly should have done. In my opinion, the cumulative effect of these criticisms is such that both appeals should be allowed, and a retrial order in respect of both appellants.
17. Mr Abbott also criticised what his Honour said on reasonable doubt and burden of proof, but more especially what he said in two paragraphs at the very end of his direction. I quote those paragraphs as well as the two paragraphs immediately preceding them. His Honour said:
"I remind you that the accused came into this court with the
presumption of innocence in their favour. They do not have
to prove anything. Ladies and gentlemen, you do not have to
believe either or both of them in order to acquit them. You
do not have to believe what they have told you or what has
been said of them in order to acquit them, and you do not
have to disbelieve the police or any other witness in order
to acquit them, that is find them not guilty. The police
are not on trial, nor are the other witnesses. It is the
accused, and the accused are entitled to the benefit of the
doubt if you have a reasonable doubt. When you have thought
about all the evidence, you might say 'We accept what the
accused say'. If that is your first and only reaction when
you go in the jury room, you must acquit them. But it might
not be as simple as that. I do not know. I do not know the
workings of your mind but there are 12 of you, and I am sure
you will do your best to get a proper verdict. You will
have to say to yourself, having discussed it amongst
yourself and got help from each other, shared your opinions
- you might have the ultimate question in your minds 'Is it
reasonably possible that they were not the people who had
the control at different times, and that Rusovan did not
commit the offence of being in possession for sale, or
taking part in the sale?'. They just were not there. Is
that reasonably possible? Is it reasonably possible that Mr
Russo was not there? He was not taking part in any sale.
They have got the wrong man. Having regard to the whole of
the evidence, is that reasonably possible? Is that a
reasonable possibility? If the answer to that is yes, ladies
and gentlemen, you must acquit them. But if you are
satisfied of all the elements that I have told you about
having regard to all the evidence, you might even say 'I do
not like the look of the pair of them. I do not think much
of them. I do not think much of their story', but if you
think it is reasonably possible that they are not the men,
then it is an acquittal, otherwise your proper verdict is
one of guilty as charged."
18. Mr Abbott referred the Court to the case of Green v The Queen (1971) 126 CLR 28, where the summing up included this passage:
"And of course it is a commonsense point of view before you
find anybody guilty of a crime like this, you do need to
feel comfortable about it; you do need to feel, 'Very well,
I've considered everything and I'm really satisfied. I am
satisfied beyond reasonable doubt; I have given it the best
consideration I can.' There it is. And then you go away
from the court and you are comfortable, and that is the way
you ought to be. You might not enjoy it, but you will
nevertheless be comfortable, and unless you can make a
decision of guilt and feel comfortable that it is the right
decision, well then you do not make it."
19. Barwick CJ, McTiernan and Owen JJ said in their joint judgment, at pp.32-33:
"In the first place, the passage in the summing up which we
have quoted must at best have been confusing to the jury.
Indeed we are unable to feel any confidence as to what they
would understand by the totality of what the judge told
them. We point out later on what we think would have been
their dominant impression. In the second place, the
direction was in our opinion fundamentally erroneous. A
reasonable doubt is a doubt which the particular jury
entertain in the circumstances. Jurymen themselves set the
standard of what is reasonable in the circumstances. It is
that ability which is attributed to them which is one of the
virtues of our mode of trial: to their task of deciding
facts they bring to bear their experience and judgment.
They are both unaccustomed and not required to submit their
processes of mind to objective analysis of the kind proposed
in the language of the judge in this case. 'It is not their
task to analyse their own mental processes': Windeyer J,
Thomas v The Queen (1960) 102 CLR, at p.606... But the
error, in our opinion, does not end there. If the jury
could get any clear picture from the trial judge's
direction, we think the predominant impression they would
take to the jury room would be that a comfortable
satisfaction of the accused's guilt would be enough to
warrant conviction. It seems to us that the language used
in this portion of the summing up equated satisfaction
beyond reasonable doubt with that comfortable satisfaction
felt by persons who have done their best and depart
self-satisfied with their efforts. Such a standard of
conduct on the part of a jury in a criminal trial would in
our opinion be a denial of that traditional solicitude for
certainty expressed in the traditional formula as to the
onus of proof ..."
20. Green's case is useful reading for any trial judge, but I doubt whether it really assists the appellants to identify a vice in this case.
21. I think it was unfortunate that his Honour in the case at bar, having already many times stressed that the burden of proof was on the Crown and many times stressed the need for proof beyond reasonable doubt, concluded with the two paragraphs I have quoted with their emphasis on reasonable possibilities, and without any attempt to separate the cases against the two appellants. However, I agree with the Solicitor General that this Court's task is not to construe those paragraphs as though it was construing a conveyancing document. Of course the ultimate question (to use his Honour's phrase) for the jury was whether the Crown had proved the guilt of either or both accused beyond reasonable doubt. In the end, I am not persuaded that the words in question could have deflected the jury from that task.
22. I think the complaint by counsel for both appellants that the interventions of the trial Judge in the deliberations of the jury imposed pressure on the jury is more serious. The Solicitor General conceded that his Honour did not "handle the matter at all well". Let me say immediately that I do not think his Honour thought he was imposing any pressure, or intended so to do.
23. In considering the argument, I refer to s.57 of the Juries Act 1927 (so far as relevant):
"57.(1) Subject to subsection (2), where a jury, having
retired to consider its verdict, has remained in
deliberation for at least four hours and the jurors have not
then reached a unanimous verdict -
(a) if a sufficient number agrees to enable the jury to
return a majority verdict - a majority verdict shall be
returned;
but
(b) otherwise - the jury may be discharged from giving a
verdict.
(2) No verdict that an accused person is guilty of murder or
treason shall be returned by majority."
24. In R v Hamitov (1979) 21 SASR 596, in a joint judgment, Hogarth, White and Mohr JJ said, at p.599:
"The Act neither requires nor implies that a judge must
bring a jury back forthwith after the expiration of four
hours to inquire whether they require more time or for any
other purpose."
25. It is convenient here to refer to the fact that juries in South Australia always have, in the jury room, notes for their guidance, which include the following:
"Alternative and Majority Verdicts
In general the verdict must be unanimous; but after four
hours deliberation, a majority verdict as to the guilt or
innocence of the accused may be accepted. 'Majority
verdict' means -
1 The Verdict of 10 or ll Jurors if the Jury consists of 12
Jurors.
2 The Verdict of 10 Jurors if the Jury has been reduced to
11 Jurors.
3 The Verdict of 9 Jurors if the Jury has been reduced to 10
Jurors.
26. When an accused person is charged with an offence and the Jury have been directed that it is legally open to them to return a verdict of not guilty of the offence charged but guilty of an alternative offence, the Jury shall first consider whether the accused is guilty of the offence charged before considering whether he is guilty of the alternative offence. If the Jury decides (whether unanimously or, after four (h)ours, by a majority) that the accused is not guilty of the offence charged it must then proceed to consider whether he is guilty of the alternative offence. The above rules as to unanimous and majority verdicts apply also to the alternative verdict, the period of four hours being measured from the time of the Jury's retirement The above rules are subject to an exception in the case of a charge of murder. A verdict of guilty of murder must be unanimous irrespective of the duration of the deliberation. Subject to that exception the rules as to a charge of murder are the same as to other charges."
27. The jury retired to consider their verdict at 11.58 am on the twelfth day of the trial. They were brought back at 12.25 pm for his Honour to correct some minor matters, and to answer a jury question as to the definition of "sale" and "taking part in a sale". They retired again at 12.35 pm Later, they sent a question to his Honour asking whether they could "have a look at P16 and P17, evidence which came up during witness Renko's testimony". They came into court at 2.37 pm. and were told that they could not look at those documents as they were only marked for identification. They retired again at 2.38 pm His Honour, on his own initiative, brought the jury back into court at 4.12 pm Their deliberations had only lasted four hours and three minutes. There was no suggestion the jury had a verdict. I quote from the transcript as to what happened, and what was said:
"JURY RETURNS 4.12 P.M.
HIS HONOUR: Ladies and gentlemen of the jury, you have been
out for four hours, so I will now have the Clerk of Arraigns
ask you what the position is, Mr Clerk of Arraigns.
CLERK OF ARRAIGNS: Members of the jury, in relation to the
accused Ilie Rusovan, are you unanimously agreed upon your
verdict?
FOREMAN: No
CLERK OF ARRAIGNS: As to count l, in relation to Ilie
Rusovan, are ten or more of you agreed upon a verdict for a
majority verdict?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to the accused Ilie Rusovan, in
relation to count 1, the offence of possessing heroin for
sale, do you find the accused guilty or not guilty?
FOREMAN: Guilty.
CLERK OF ARRAIGNS: Is that the verdict of ten or more of
you?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to the accused Ilie Rusovan in
relation to count 2, are you unanimously agreed upon your
verdict.
FOREMAN: We are as yet undecided.
CLERK OF ARRAIGNS: In relation to the accused Angelo Peter
Russo, are you agreed upon your verdict?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to count 3, the offence of possessing
heroin for sale, do you find the accused Angelo Peter Russo
guilty or not guilty?
FOREMAN: Not guilty.
CLERK OF ARRAIGNS: Is that the verdict of you all?
FOREMAN: Yes.
MS DAVISON: Your Honour, there seems to be some dissension
over the -
FOREMAN: I wish to explain, we are still in the process of
considering, your Honour, we still haven't completely made
up our minds.
HIS HONOUR: With respect to -
FOREMAN: Really from our point of view with respect to all
charges. We would really like time really. From our point
of view you are asking us prematurely what is the situation.
HIS HONOUR: Very well, I will ignore the verdicts and send
you back. Do you agree with that?
MR APPS: Can I consider that, your Honour, I wonder if we
can talk about in the absence of the jury.
HIS HONOUR: You go back and continue your deliberations and
discuss the matter.
JURY RETIRES 4.15 P.M."
28. I note that the Clerk of Arraigns did not attempt to take a majority verdict on count 2, and when he came to count 3 involving Russo, he did not first ask the jury if they were unanimously agreed upon their verdict.
29. In the absence of the jury, Mr Apps submitted that Russo should be discharged. Ms. Davison, for the Crown, said "it was quite clear ... that there was much shaking of heads going on ... and it is quite clear that the verdict that was delivered was not the verdict of them all ...".
30. After further discussion, his Honour left the Bench and returned at 4.37 pm, apparently after some discussion about two comparable situations with two of his colleagues, which he relayed to counsel. Mr Apps asked again for the discharge of Russo, or alternatively for the jury to be discharged from giving a verdict. I quote Ms. Davison's submission. She was the prosecutor. The transcript reads:
"MS DAVISON: If your Honour pleases, I have a concern that I
am instructed to raise with you. That is this, given the
way that the jury were brought back and asked the questions
at the expiration of the four hours - it was never asked of
the jury 'Do you require any more time before delivering
your verdicts?' It may still be the situation that that is
what is required, that the jury were caught on the hop, so
to speak, that that was really what was indicated to us on
the verdict to count 2. I would ask that the situation be
viewed in this light your Honour, that the jury be asked
when they come back that the verdicts that have been
delivered have been revoked - and that is all of the
verdicts. And that the jury be asked if they require more
time, or if they are now ready to deliver a verdict. And if
they do require more time that they be granted that time in
which to consider the situation and if they are ready to
deliver a verdict that the unanimous be explained to the
jury and the majority be explained to the jury before they
are asked for their verdicts because apart from the fact
that they may need more time it is not unknown, in this
court, that the jurors do not understand what 'unanimous'
and 'majority' means. Mr Apps is huffing besides me. I
have been in cases where we have had three goes to explain
the meaning of those phrases.
HIS HONOUR: I propose to bring them back and find out what
they mean. I do not have much faith in the foreman of the
jury of course.
MS DAVISON: No.
JURY RETURNS 4.43 P.M.
HIS HONOUR: Now, what is the position at the moment Mr
Foreman?
FOREMAN: Your Honour we are in the process of making
decisions but, we still need more time.
HIS HONOUR: I see, What is the position about Mr Russo?
FOREMAN: We need more time to consider.
HIS HONOUR: How come you said you were unanimously agreed
and he was not guilty?
FOREMAN: Entirely my mistake your Honour. Can I explain
that? I did not realise that we were going to be asked for a
verdict. We were told by the Sheriff's Officer that 'The
judge wants to speak to you'. I had not thought.
HIS HONOUR: I am really obliged to bring you back in four
hours, unless you tell me. That is why you were asked. If
you had said at the beginning 'We are not unanimously agreed
upon the verdict.' And then you would be asked 'Are any 10
or more of you agreed on your verdict?' You would have said
'No.' I would have said 'Do you want more time?' You see,
that is the usual practice. However, I do not think I need
to ask more.
FOREMAN: I humbly apologise. The mistake was totally mine.
I tend to get nervous and I do apologise.
HIS HONOUR: Is that the situation ladies and gentlemen, more
time for every count?
JURY: Yes.
HIS HONOUR: I have been asked to point out to you the word
'unanimous' means all of you. And any 10 or more of you is
not unanimous. It is a 'majority'. Because you could not
reach a verdict in four hours, you can now have a unanimous
verdict or a majority verdict with respect to any one or
more of those counts. Anything else?
MS DAVISON: No.
HIS HONOUR: I'm sure what you had to say has been recorded
on the transcript Mr Apps.
MR APPS: Thank you your Honour.
HIS HONOUR: That is the course I propose to take. Please go
back to the jury room and continue your deliberations.
JURY LEAVES 4.45 P.M."
31. After the jury had retired again, both Mr Apps and Mr Sampson (who appeared at the trial for Rusovan) asked for "a mistrial". Mr Apps also complained about what his Honour said in relation to the Foreman of the jury in the presence of his client. His Honour left the bench at 4.47 pm and returned at 5.50 pm He again brought the jury into court, as I understand it, on his own initiative and not because the jury had sent any message to him. The following exchange occurred:
"JURY RETURNS 5.50 P.M.
HIS HONOUR: Mr Foreman are you agreed upon your verdict?
MR FOREMAN: We are your Honour, on two of the charges, with
respect to Mr Rusovan.
HIS HONOUR: On the third charge?
FOREMAN: We are still debating, still discussing.
HIS HONOUR: Do you think more time will help you resolve it?
MR FOREMAN: Yes, we do think that.
HIS HONOUR: I won't take the verdicts yet. I will give the
jury more time, if you can resolve the position with respect
to Mr Russo then you knock on the door and I will come back
and take such verdicts as you may wish. Very well.
JURY RETIRES 5.52 P.M."
32. At 7.27 pm, his Honour returned to court and took majority verdicts of guilty on all three counts on the information, having asked each juror first if that was correct.
33. This is not a case like The Queen v Eyers (1978) 19 SASR 244, where the Court of Criminal Appeal held on the authorities that a jury has a right to correct its verdict at any time until it is discharged, or Rex v Cefia (1979) 21 SASR 171, where in a joint judgment, King CJ and Sangster J said at p.173:
"In our opinion the case is covered by the principle that
where a jury has in fact agreed upon its verdict but by
error has communicated not that verdict but something else,
that jury - acting unanimously - may correct that error and
correctly communicate the verdict actually agreed upon."
34. In neither of those cases was there the slightest suggestion of any pressure on the jury on the part of the trial judge. More in point is the decision of the High Court in Black v R (1993) 118 ALR 209, where the court stressed "the fundamental principle that the jury must be free to deliberate without any pressure being brought to bear upon them, (p.213), and the importance of the jury giving the issues "that free deliberation to which both the accused and the Crown were entitled" (p.214).
35. The trial Judge here apparently had the practice of bringing the jury back into court as soon as they had deliberated for four hours. I think this is undesirable. He was not, as he said, "obliged" to bring them back in four hours. It must be noted, too, that the foreman was not asked if they were ready to deliver their verdict or whether they required more time. The complexity of a case, or lack of it, the time of day at which the jury retired, whether a meal is required and other similar matters can dictate what a judge should do, and it is impossible to lay down hard and fast rules for every situation, (compare Blackstone's Criminal Practice 1993 pp.1307-1310 as to practice directions in England). If a judge is minded to bring a jury back into court, before he has been told that it has a verdict, it should, generally speaking, only be to enquire whether the jury requires more time, or to enquire whether it is encountering difficulty in reaching a verdict, in which latter case a direction along the lines of that on p.214 of Black's case should be given, and in any event it should only be done after hearing the submissions of counsel upon what the judge proposed to do and say.
36. As it happened, verdicts were initially taken from the jury when as the foreman put it, the jury had not completely made up their minds "with respect to all charges". I agree with Mr Abbott that those jurors who initially were not prepared to acquit Russo were under pressure in the circumstances not to depart from that view, and I agree with Mr David QC, who appeared on the appeal for Rusovan, that those jurors who initially were disposed to convict Rusovan on count one were under pressure in the circumstances not to depart from that view, or to use his words "they were locked in" to convicting. Moreover, I consider it was most unfortunate that his Honour was heard by the appellants to say that he did not have much faith in the Foreman of the jury. I think in the circumstances his Honour should have discharged the jury from giving any verdicts.
37. I would allow both appeals and set aside both convictions. The proviso should not be applied in the circumstances here. There should be a retrial for both appellants.
JUDGE2 OLSSON J These are appeals against the convictions of the appellants, by verdicts of a jury, of drug related offences. The appellant Rusovan was found guilty of possessing heroin for sale and taking part in the sale of heroin, whilst Russo was found guilty of possessing heroin for sale. The appellants complain both of what are said to have been serious deficiencies in the summing up by the learned trial judge and also of his failure to declare a mistrial as a consequence of a somewhat remarkable situation which occurred during the course of the deliberations of the jury.
2. Before addressing these specific issues it is desirable, first, to attempt a summary of the highlights of the evidence.
3. In August 1990 members of the drug squad, acting on information received, were maintaining a surveillance of the two appellants - although the principal focus of their attention appears to have been the appellant Rusovan, who was said to have come to Adelaide from interstate. The appellant Russo is a permanent resident of Adelaide.
4. It was ascertained by the police officers that Rusovan, accompanied by a female companion, had been booked in as a guest at the Travelodge Motel on South Terrace, under the surname "Moser" on the night 21/22 August 1990. They had him under surveillance there on the morning of 22 August.
5. At about 1.35 pm on the lastmentioned date, Rusovan left the Travelodge by taxi and went to the Festival Lodge Motel (on North Terrace Adelaide, not far from the Railway Station), having first extended his booking at the Travelodge by another night.
6. It was observed that Rusovan's female companion also left the motel at about 3.10 pm the same day. On searching the motel room occupied by Rusovan a few minutes later, the police officers located and photographed a large amount of money in a sports bag. There were some 8 bundles of notes secured with rubber bands.
7. In the meantime it had been ascertained by the police that, after leaving the Travelodge, Rusovan had booked a room (Room 312) at the Festival Lodge Motel and had then left it for a time. Upon searching the room during his absence, they found in it about $30,000 in cash and a set of scales and weights.
8. At about 3.59 pm Russo and his young daughter were seen to enter the Parliamento Restaurant, also on North Terrace, close to the Festival Lodge Motel. About a minute later Rusovan left that motel and entered the restaurant, carrying a white bag. Whilst he was absent, police officers again searched his room and found both the scales and the money missing.
9. Police officers noted that, at 4.13 pm, both Rusovan and Russo left the restaurant, at which time Russo was carrying the white bag. The latter entered his car and drove off, but was intercepted by police on West Terrace. The bag, which was found to contain the set of scales, was located on the floor of his car. A later testing of the scales revealed that they had traces of heroin on them. Russo told the police that the scales belonged to his wife, who was a jeweller. (In later giving evidence he deposed that they were to be used to weigh some personal jewellery for valuation purposes.)
10. Shortly before 9.00 am the next morning, it was noted that Russo picked up Rusovan from the restaurant in his car and then drove him to a house at Ward Street North Adelaide, which both men entered.
11. Later the same day information was received by the police to the effect that Rusovan and his female companion had booked into Room 26 at the Airport Motel, Brooklyn Park. The motel was thereupon placed under surveillance.
12. Shortly after 3.30 pm both of these persons left the motel by taxi for the city. After a short visit to Rundle Mall Rusovan eventually left the taxi in the vicinity of the Festival Lodge Motel, whilst his companion returned to the Airport Motel, arriving there at 4.13 pm with two large boxes. In the meantime police entered Room 26 and noted the presence of a white substance (which appeared to be plaster) above the refrigerator. At about 4.50 pm Rusovan was seen to return, carrying a suitcase.
13. The evidence reveals that Rusovan and his companion checked out of Room 26 at about 5.30 pm, stating that he had left a pair of trousers in his room; and that a friend of his called "Angelo" was coming to collect them from the room. Russo's christian name is in fact Angelo. At 6.05 pm two detectives entered Room 26. They found a pair of black leather pants on the bed. There was a piece of paper in the pocket, which appeared to indicate a plan of the ceiling. Using the plan the officers lifted a ceiling tile and found a ball of white powder wrapped in plastic food wrap. It was found to weigh about 30 grams. After taking a small sample of the contents, the detectives replaced the package back in the ceiling. The sample was later analysed and found to be heroin of 71% purity.
14. On the Crown case a person said to have been Russo arrived at the motel in a red car at 6.40 pm and identified himself as "Angelo". He was let into Room 26 and re-appeared shortly thereafter, carrying a pair of trousers. After he left detectives re-entered the room, to find the trousers and piece of paper gone, but the ball of powder still in the ceiling. Detective Slaven, who had seen Russo on the previous day, recognised him as the person who arrived in the red car. Slaven was then located, with Detective Patterson, in the nearby Room 23. The manager of the motel, who took "Angelo" to Room 26, subsequently identified Russo's photograph, in a folder of photographs, as the person who went to Room 26. The receptionist purported to make a dock identification of Russo, as being the person calling himself "Angelo".
15. It was deposed by the manager and the receptionist that "Angelo" returned to the reception area about 20-30 minutes later and said that he had left a trouser belt in Room 26. The manager re-admitted him to the room. Slaven again recognised him, both as he arrived at the motel and on the staircase landing.
16. "Angelo" left shortly thereafter and police again re-entered Room 26. The ball of white powder was no longer in the ceiling. He was apparently not followed at that stage, because there were no other police officers readily available in the area to do this.
17. When spoken to by Detective Weeding on 11 November, Russo denied any involvement with drug dealing. On that occasion the following exchange occurred between Weeding and himself:-
"I said 'The day after we stopped you on West Terrace and
took the scales, Ali was booked into the Airport Motel.
When he booked out to go back to Sydney he told the manager
that "Angelo" would collect some trousers from the room he
had been staying in. We located one ounce of high grade
heroin in the ceiling of that room with a map of its
location in the trousers he left. Later that evening you
were identified as a person who went to that room.' He said
'You're wrong, I've got nothing to do with heroin. It
wasn't me.' I said 'I'm arresting you for taking part in the
sale of heroin between 21 and 24 August this year, which is
when what I've just told you took place. Do you understand
that?' He said "I'm not a heroin dealer. I mix with the
wrong people, that's all. I know people involved in heroin
but that's all. I don't sell it, they do. I've just been
seen with the wrong people.'"
18. Russo declined to participate in a line up, for identification purposes.
19. In giving evidence at trial Russo asserted that he could not recollect where he was on 23 October 1990, but was adamant that he had not been at the Airport Motel. He said that there was another person named Angelo (one Angelo Boscolo) who knew Rusovan. He denied that, when interviewed by Weeding, he had made the statement recited above. He claimed that he merely said - "I don't deal in that shit, and what my friends do is their business". He said that he had been to the Airport Motel sometime in May or June 1990, but in relation to a proposed property deal, not involving Rusovan.
20. Rusovan made no relevant admissions when arrested. He did not give evidence at trial.
21. On the hearing of the appeals the appellants relied upon a variety of grounds of appeal. Both criticized certain aspects of the summing up by the learned trial judge as inadequate and both relied upon the situation which arose during the jury deliberations.
22. As a matter of convenience I will deal with the latter aspect first.
23. It is to be noted that the jury originally retired at 11.58 am and eventually returned its verdicts at 7.27 pm.
24. Following the initial retirement, counsel raised a series of concerns with the learned trial judge, to the detail of some of which I shall return in due course. At 12.25 pm he recalled the jury and gave them a brief redirection. The jury again retired at 12.35 pm.
25. At 2.37 pm the jury returned into court with a request to see two documents which had not been tendered as exhibits, but merely marked for identification.
26. The learned trial judge quite properly told them that this was not possible, because the documents did not constitute evidence in the case. The jury then retired at 2.38 pm.
27. At 4.12 pm the learned trial judge, noting that the jury had been out for four hours, unilaterally recalled them and, without further ado or explanation, caused the clerk of arraigns to administer the usual questions concerning rendering of verdicts.
28. The relevant excerpts of transcript reads as follows:-
HIS HONOUR: Ladies and gentlemen of the jury, you have been
out for four hours, so I will now have the Clerk of Arraigns
ask you what the position is, Mr Clerk of Arraigns.
CLERK OF ARRAIGNS: Members of the jury, in relation to the
accused Ilie Rusovan, are you unanimously agreed upon your
verdict?
FOREMAN: No
CLERK OF ARRAIGNS: As to count l, in relation to Ilie
Rusovan, are ten or more of you agreed upon a verdict for a
majority verdict?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to the accused Ilie Rusovan, in
relation to count 1, the offence of possessing heroin for
sale, do you find the accused guilty or not guilty?
FOREMAN: Guilty.
CLERK OF ARRAIGNS: Is that the verdict of ten or more of
you?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to the accused Ilie Rusovan in
relation to count 2, are you unanimously agreed upon your
verdict.
FOREMAN: We are as yet undecided.
CLERK OF ARRAIGNS: In relation to the accused Angelo Peter
Russo, are you agreed upon your verdict?
FOREMAN: Yes.
CLERK OF ARRAIGNS: As to count 3, the offence of possessing
heroin for sale, do you find the accused Angelo Peter Russo
guilty or not guilty?
FOREMAN: Not guilty.
CLERK OF ARRAIGNS: Is that the verdict of you all?
FOREMAN: Yes.
MS DAVISON: Your Honour, there seems to be some dissension
over the -
FOREMAN: I wish to explain, we are still in the process of
considering, your Honour, we still haven't completely made
up our minds.
HIS HONOUR: With respect to -
FOREMAN: Really from our point of view with respect to all
charges. We would really like time really. From our point
of view you are asking us prematurely what is the situation.
HIS HONOUR: Very well, I will ignore the verdicts and send
you back. Do you agree with that?
29. Counsel for Russo asked for the opportunity of addressing the learned trial judge in the absence of the jury. Accordingly, he instructed the jury to return to the jury room to continue their deliberations.
30. The Crown Prosecutor pointed out to him that, on her observations, there appeared to have been dissension within the jury when the foreman made his pronouncements; and that she considered it obvious that what had been said did not reflect the unanimous views of all of them. The learned trial judge said that he would take time to consider the matter. Counsel for Russo foreshadowed that he might have to ask for the jury to be discharged if a later different verdict was sought to be returned, apropos his client.
31. The learned trial judge returned to the bench at 4.37 pm and some exchanges occurred between himself and counsel, with counsel for Russo protesting that a verdict of not guilty had been returned in relation to his client and that, even if that submission was not upheld, the jury process had been contaminated and the jury ought to be discharged. The Crown Prosecutor, in effect, pointed out that the procedure adopted had been inappropriate and that the jury ought simply to have been asked if it required more time. She argued that the jury ought to be recalled and told that the verdicts rendered "have been revoked", that they ought to be asked if they required more time and that the situation concerning unanimous and majority verdicts ought to be explained to them.
32. The jury was recalled at 4.43 pm. The transcript of what then transpired is as follows:-
HIS HONOUR: Now, what is the position at the moment Mr
Foreman?
FOREMAN: Your Honour we are in the process of making
decisions but, we still need more time.
HIS HONOUR: I see, What is the position about Mr Russo?
FOREMAN: We need more time to consider.
HIS HONOUR: How come you said you were unanimously agreed
and he was not guilty?
FOREMAN: Entirely my mistake your Honour. Can I explain
that? I did not realise that we were going to be asked for a
verdict. We were told by the Sheriff's Officer that 'The
judge wants to speak to you'. I had not thought.
HIS HONOUR: I am really obliged to bring you back in four
hours, unless you tell me. That is why you were asked. If
you had said at the beginning 'We are not unanimously agreed
upon the verdict.' And then you would be asked 'Are any 10
or more of you agreed on your verdict?' You would have said
'No.' I would have said 'Do you want more time?' You see,
that is the usual practice. However, I do not think I need
to ask more.
FOREMAN: I humbly apologise. The mistake was totally mine.
I tend to get nervous and I do apologise.
HIS HONOUR: Is that the situation ladies and gentlemen, more
time for every count?
JURY: Yes.
HIS HONOUR: I have been asked to point out to you the word
'unanimous' means all of you. And any 10 or more of you is
not unanimous. It is a 'majority'. Because you could not
reach a verdict in four hours, you can now have a unanimous
verdict or a majority verdict with respect to any one or
more of those counts. Anything else?
MS DAVISON: No.
HIS HONOUR: I'm sure what you had to say has been recorded
on the transcript Mr Apps.
MR APPS: Thank you your Honour.
HIS HONOUR: That is the course I propose to take. Please go
back to the jury room and continue your deliberations."
33. At that point counsel for both accused requested a mistrial, but the learned judge did not accede to their submission.
34. At 5.50 pm the learned trial judge again recalled the jury. The following exchanges took place:-
HIS HONOUR: Mr Foreman are you agreed upon your verdict?
MR FOREMAN: We are your Honour, on two of the charges, with
respect to Mr Rusovan.
HIS HONOUR: On the third charge?
FOREMAN: We are still debating, still discussing.
HIS HONOUR: Do you think more time will help you resolve it?
MR FOREMAN: Yes, we do think that.
HIS HONOUR: I won't take the verdicts yet. I will give the
jury more time, if you can resolve the position with respect
to Mr Russo then you knock on the door and I will come back
and take such verdicts as you may wish. Very well.
35. The jury again retired. They returned at 7.27 pm and, by majority verdicts in each instance, found Rusovan guilty of counts 1 and 2 and Russo guilty of count 3.
36. To say the least what took place was extremely unfortunate and, in procedural terms, inappropriate. Quite apart from the legal implications involved it is small wonder that the two accused perceive that an injustice has been done.
37. In my experience the practice of trial judges varies somewhat. Some judges explain the four hour rule to juries prior to their initial retirement, whilst others do not. In the latter case it seems not infrequently the situation that, at some point after the expiration of four hours, the trial judge, in his or her discretion, usually recalls the jury simply to enquire whether they desire more time - at which point the four hour rule is normally explained the them. They do, of course, have the Sheriff's explanatory notes in the jury room, which refer to that rule.
38. It seems to me that either of the above procedures is proper, but what occurred in the instant case was most undesirable. It is small wonder that it precipitated the regrettable chaos which in fact followed.
39. In my opinion what took place in this case amounted to a miscarriage of the trial process for two quite separate reasons. In the first place it necessarily engendered a reasonable perception on the part of each accused that justice has not been done. Secondly, I entertain no doubt that the conduct of the learned trial judge placed an impermissible pressure on the jury. Whilst the factual circumstances here under consideration were unique to this case, the pressures inevitably placed on the jury were no less significant and undesirable than those adverted to by the High Court in Black v R (1993) 118 ALR 209.
40. So far as Rusovan was concerned, the initially announced majority verdict of guilty, at a time when, in fact, no decision had apparently been reached, must inevitably have placed pressure on the jury in relation to its ultimate verdicts on counts 1 and 2, because, in a sense, it could be felt by some jurors that they had publicly been "locked into" a verdict in that direction. It necessarily operated so as, potentially, to contaminate their deliberations from that stage.
41. A somewhat different point arises in relation to the initial verdict of not guilty in relation to Russo, which was later reversed into a verdict of guilty at a later time. The whole process which was adopted - which, I understand, was said by the learned trial judge to be his normal procedure - was clearly to place undue and prohibited pressure on the jury at the bare expiration of four hours and to establish a state of confusion and tension within the jury which ought not to have been engendered. Once again it seems to me that what occurred was inconsistent with what fell from the High Court in Black v R, operated to contaminate and distort the whole jury process and produced an eventual end result which could not be seen to have been just.
42. In my opinion it must be concluded that the end result of the debacle that occurred was necessarily the need to declare a mistrial.
43. But, quite apart from that aspect of the case, there were also serious, multiple problems with the summing up itself.
44. The first of these related to the directions given on the question of the identification of Russo as "Angelo". This was a critical issue in relation to that appellant, who steadfastly denied that he was the person who went to the Airport Motel.
45. In the course of his directions the learned trial judge undoubtedly gave an appropriate and adequate general direction, touching on the question of identification. However, it was strongly argued that what he did not do was, to adopt the phraseology of the High Court in Domican v The Queen (1992) 173 CLR 555 at 561, accurately and fairly put the respective cases for the prosecution and the two accused to the jury. As to this several criticisms were advanced.
46. First, it was said that the presentation of the learned trial judge was very much pitched at the prosecution case and did not present the defence aspects in a balanced manner. Further, it was argued that, in relating to the factual evidence, the learned trial judge adverted to the facts in such a confused and muddled manner that, effectively, the jury would not have been able to appreciate the effect of the evidence in a logical, analytical manner. It was contended that the learned judge had confused relevant days and occasions and that the presentation of the facts and the issues arising from them were presented in the context of what was -
"... just a mishmash of unrelated facts relating to two
different days unrelated other than the fact that they
happened to be somewhere in those two days relating somehow
in some way to the two accused."
47. Having carefully studied the relevant portions of the summing up, whilst I would not employ the somewhat flamboyant language of counsel, it seems to me that the factual issues on this aspect of the case were not dissected out and presented in that clear, understandable and balanced manner which is contemplated by Domican v R There was a confusion of occasions and the aspects relied upon by the defence were not put in a clear and connected manner. Indeed, at times, the learned trial judge was said to have referred to a person who was not even a party in the proceedings and was, apparently, a party or witness in an earlier case dealt with by him, although this seems to have been edited out of the version appearing in the Appeal Book.
48. At the conclusion of the summing up, counsel for Russo, having drawn attention to the confusion in names, went on to complain that the learned trial judge had not adequately put to the jury the defence case on identification. As to this he submitted:-
"I would submit that in so far as your Honour has given the
jury an identification warning, you have made it more
difficult. Once you got on to the factual material, because
you only spoke about opportunities to observe and you did
not go into other material, when taken together with all of
that, it may well have indicated these people were
unreliable. Your Honour said Slaven was in the best
position. Patterson, he identified him. Then you went on
to Renko going up and down the stairs and Milligan. In my
submission, by omitting identification, the criticism the
defence had of those people, your Honour really has
detracted from the direction. ..... I don't know what your
Honour can do, that is what I am saying, because it really
requires an analysis of what was said in criticism of each
of them. Your Honour gave the direction about
identification but then, when you followed it up with saying
what there was about the witnesses, you haven't given the
full picture. That is my problem."
49. I consider that, on a fair reading of the summing up, those criticisms were amply justified. It is fair to say that the learned trial judge was far from receptive of them. He said that he was not prepared to embark upon a more analytical approach, unless the Court of Criminal Appeal said he had to.
50. My riposte to that comment is that the High Court has made it abundantly clear that a proper and balanced presentation of the defence criticisms of the identification has to be put to the jury. In this case it was not.
51. Next it was complained that the directions given by the learned trial judge on onus of proof, particularly in his final remarks to the jury, impermissibly equated "reasonable doubt" with "reasonable possibility". Moreover, his parting remarks to the jury dealt with the two appellants as if their cases were identical.
52. In this regard the last point which the learned trial judge made to the jury was expressed thus:-
"You will have to say to yourself, having discussed it
amongst yourself and got help from each other, shared your
opinions - you might have the ultimate question in your
minds 'Is it reasonably possible that they were not the
people who had the control at different times, and that
Rusovan did not commit the offence of being in possession
for sale, or taking part in the sale?'. They just were not
there. Is that reasonably possible? Is it reasonably
possible that Mr Russo was not there? He was not taking part
in any sale. They have got the wrong man. Having regard to
the whole of the evidence, is that reasonably possible? Is
that a reasonable possibility? If the answer to that is yes,
ladies and gentlemen, you must acquit them. But if you are
satisfied of all the elements that I have told you about
having regard to all the evidence, you might even say 'I do
not like the look of the pair of them. I do not think much
of them. I do not think much of their story', but if you
think it is reasonably possible that they are not the men,
then it is an acquittal, otherwise your proper verdict is
one of guilty as charged."
53. In my opinion this mode of expression was unfortunate. In the first place it infused the test of reasonable possibility in lieu of the concept of proof beyond reasonable doubt; and thus tended to negate the earlier direction as to proof beyond reasonable doubt. Secondly, it addressed the situation of the two accused globally and failed to recognise that Rusovan did not give evidence and had not proffered any version of narrative events. It suggested that he, in effect, had to sink or swim with Russo. Any possibilities related to one were, in fact, likely to be different to those related to the other.
54. I cannot escape the conclusion that such a formulation had a strong tendency to deflect the jury from a consideration of the proper question - Had the Crown proved all elements of the relevant offences charged, beyond reasonable doubt, as against the two accused, considered separately?
55. As Mr Abbott QC put it, whilst it is permissible to point out to a jury that the existence of a reasonable possibility of some type may produce a reasonable doubt, it is quite erroneous simply to tell the jury that the case turns on the issue as to whether a particular identification situation exists as a reasonable possibility, failing which guilt must be found.
56. As Mr Abbott QC expressed the proposition:-
"... The reasonable possibility directions strike at the
heart of proof beyond reasonable doubt. If one accepts, as
we submit you must, that reasonable doubt is not co-extant
with reasonable possibility, then to tell the jury that
'Unless something is a reasonable possibility, you convict'
is a clear misdirection. As Green's case has pointed out at
p.33, reasonable possibility may be the source of reasonable
doubt, but reasonable doubt is not a reasonable
possibility."
57. Once again counsel protested at this situation at the conclusion of the summing up; and said that what had been put constituted an inappropriate over-simplification of the situation - but the learned trial judge would have none of it. He said that he had used such an expression of the situation for years.
58. In my view the direction given constituted a significant error of law and the criticisms advanced by counsel were well founded. In this regard it must be emphasized that, in making the impugned remarks in his summing up, the learned trial judge was not simply focusing on some specific items of evidence, but purported, finally, to speak of an approach to the case at large.
59. In the grounds of appeal criticism was further directed to the manner in which the learned trial judge dealt with the important aspect of circumstantial evidence. In the case of Rusovan the whole of the Crown case consisted of circumstantial evidence. So far as Russo was concerned, significant issues of circumstantial evidence arose. It was complained that the learned trial judge failed to relate his general directions on this aspect to the detailed evidence in a balanced manner, so as to present both sides of the coin. It was also argued that the directions were inadequate because they did not, expressly, point out to the jury that, to the extent to which circumstantial evidence was relied upon as a basis for inferring guilt, that evidence must be such that it necessarily excludes any rational hypothesis consistent with innocence. (Knight v R (1992) 109 ALR 225 at 230-1, 236; Shepherd v The Queen (1990) 170 CLR 573 at 578.) In my opinion the general direction of the learned trial judge was a sufficient compliance with those authorities, as to the approach to be adopted, but the summing up did fail to present a balanced analysis of the evidence, pro and con, on this aspect as well as others.
60. Viewed as a totality the summing up in this case left a great deal to be desired in terms of defining the issues and identifying the respective cases of the parties. When coupled with the scenario related to the jury verdicts, that situation inexorably leads to the conclusion that this trial miscarried. Whilst that miscarriage caused a greater prejudice to Russo than Rusovan, I cannot accept that the verdicts against the latter can stand. As Mr David QC contended, the case against him was circumstantial and there is, on any view, a serious danger that, if the jury was misled as to Russo, then this could have had an adverse effect against Rusovan - because of the manner in which the cases of and against both accused were intertwined. In any event it seems to me that the manner in which the verdict situation was handled gives rise to the situation in which the verdicts against Rusovan cannot be held, regardless of the deficiencies in the summing up itself.
61. I would allow both appeals, quash the convictions appealed against and direct a retrial of both appellants.
JUDGE3 DUGGAN J The facts of this matter are set out in detail in the judgments of Matheson and Olsson JJ.
2. The case against each appellant was circumstantial in nature. However in the case of Russo the main challenge to the Crown case was directed towards the identification evidence which was central to the facts upon which the circumstantial case against him was based. In particular he denied being present at the Airport Motel at any relevant time. Rusovan did not give evidence but in his interview with the police he did give some information as to his movements in Adelaide. In his case the defence challenged the inferences which the prosecution claimed were available on the evidence. It was argued by Rusovan's counsel that, although Rusovan was photographed leaving the reception area at the Travelodge Motel, there was no evidence that he booked into the room in which the money was found. Furthermore it was argued that the evidence was insufficient to connect him with the rooms (and therefore the incriminating material) at the Festival Lodge Motel and the Airport Motel.
3. No criticism could be made of the general directions which the learned trial judge gave as to the elements of the offences, the onus and standard of proof, the nature of circumstantial evidence and the dangers inherent in identification evidence. However, in my view, the major difficulty with the summing-up is that the jury were not adequately instructed in the application of some of these important principles to the facts of the case. In addition, although the jury was instructed to consider each count separately and the case against each appellant separately, the learned trial judge tended to speak of their cases as one defence case. This resulted in confusion and ambiguity in certain parts of the summing-up with insufficient focus being placed upon the considerations relevant to each case.
4. The directions on identification were of most relevance to the case against Russo. The learned trial judge gave the usual warning concerning the dangers of identification evidence and he directed the jury in broad terms to consider the circumstances of each purported identification. However he said very little about those circumstances and what he did say was quite inadequate in equipping the jury to assess the evidence in the light of the general directions.
5. In Kelleher v The Queen (1974) 131 CLR 534 at 551 Gibbs J held that if a warning as to the dangers of identification was required "a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence". The importance of relating the warning to the circumstances of the particular case was stressed again in the joint judgment of the High Court in Smith v The Queen (1990) 64 ALJR 588 and in the passage from Domican v The Queen (1992) 173 CLR 555 which is quoted in the judgment of Matheson J.
6. The learned Solicitor-General acknowledged that in the case of Russo the directions on identification were inadequate, but he invited the court to apply the proviso. He relied upon the terms of the general warning which was given and the fact that the learned trial judge directed the jury's attention to the importance of considering matters such as the circumstances of each purported identification. However the importance of identification in Russo's case and the clear need to deal with a number of the potential difficulties associated with the particular instances of identification make the application of the proviso inappropriate.
7. The position is not so obvious in the case of Rusovan. However the case against both men as it was presented to the jury by the prosecution was based upon the alleged relationship and dealings between them over the period of time identified in the evidence. The cases were intertwined, a factor which no doubt led the trial judge into the unfortunate method of attempting to apply common directions to both appellants instead of directing more attention to their separate cases. I think it is a clear possibility that if the jury had not been satisfied beyond reasonable doubt that Russo was involved it may have been a consideration which would have had some bearing on the other proposition in the prosecution case, namely, that Rusovan was involved in the manner alleged. I find it unnecessary to decide whether this is sufficient in itself to set aside Rusovan's conviction because of my views on the other grounds of appeal.
8. The next criticism of the summing-up bears more directly on the case of Rusovan. The final direction given by the learned trial judge before counsel were asked if they wished to make any submissions on further directions was in the following terms:
"You will have to say to yourself, having discussed it
amongst yourself and got help from each other, shared your
opinions - you might have the ultimate question in your
minds 'Is it reasonably possible that they were not the
people who had the control at different times, and that
Rusovan did not commit the offence of being in possession
for sale, or taking part in the sale?'. They just were not
there. Is that reasonably possible? Is it reasonably
possible that Mr Russo was not there? He was not taking part
in any sale. They have got the wrong man. Having regard to
the whole of the evidence, is that reasonably possible? Is
that a reasonable possibility? If the answer to that is yes,
ladies and gentlemen, you must acquit them. But if you are
satisfied of all the elements that I have told you about
having regard to all the evidence, you might even say 'I do
not like the look of the pair of them. I do not think much
of them. I do not think much of their story', but if you
think it reasonably possible that they are not the men, then
it is an acquittal, otherwise your proper verdict is one of
guilty as charged."
9. This direction must be considered in conjunction with the failure of the trial judge at any time during the summing-up to identify with any degree of precision the individual components of the circumstantial case against either appellant. (cf. R v Pope (Court of Criminal Appeal S4344.2 delivered 22/12/93). After giving the usual direction on the nature of circumstantial evidence his Honour did not go on to deal with the significance which the prosecution claimed arose out of the movements of the two appellants, their contact with one another and the relevance of the items of property and where they were discovered. Only a very brief reference was made to the facts which constituted the prosecution case. The defence cases were summarised as follows:
"Now, the defence of the accused, on their own assertions is
they don't really know anything about it, other than what
they have admitted about going to the Parlamento and going
to the Festival Lodge, and they just haven't any knowledge
at all of these things other than, as I say, the Festival
Lodge. The scales, which they say came from a different
source, and were borrowed and they were used to weigh the
jewellery, you heard what the Crown had to say about
weighing the jewellery, and I am not going to go into that."
10. His Honour then went on to consider criticisms made by the defence of certain aspects of the prosecution case.
11. In this passage the learned trial judge has taken individual parts of the case for each appellant and combined them into a common defence. This method of treating the defences as one is carried on into the first direction quoted above. Furthermore the impression is given that the case of both is to be resolved by reference to whether the accused were present on the occasions in question. Such a direction is misleading, particularly in the case of Rusovan where the emphasis was more on the effect of the circumstantial evidence rather than on the accuracy of various alleged sightings of the appellant.
12. Furthermore the direction should not have been confined to a consideration of the alternatives referred to by the learned trial judge: a reasonable possibility that the appellants were not the "men" which would result in an acquittal or, if such a reasonable possibility were not open, then a verdict of guilty as charged would be appropriate. Such a direction could well have diverted the jury's attention away from the real question in the case, namely, whether on each count the circumstances were such as to be inconsistent with any reasonable hypothesis other than guilt. In my view the deficiencies in the summing-up arising from this direction and the direction on identification should lead to the quashing of the convictions recorded against each appellant.
13. The final matter relates to the deliberations of the jury. Section 57 of the Juries Act, 1927 provides that one of the conditions precedent for a majority verdict is a requirement that the jury has remained in deliberation for at least four hours. There is no obligation on the part of the judge to make any enquiry of the jury once that period has expired. (R v Hamitov
(1979) 21 SASR 596). The question as to when an enquiry is to be made of a jury concerning its deliberations is entirely within the discretion of the trial judge. However in most cases it would be undesirable to make such an enquiry as a matter of course as soon as the four hours has expired. The written instructions to jurors explain the nature of a majority verdict and it is usual to instruct the jury that it may seek guidance from the trial judge at any time. It is desirable that the jury should be permitted to deliberate with the minimum amount of interruption. Of course there may well come a time in the course of deliberations when, because of the length of the retirement and the circumstances of the case, the jury might be asked whether further time would be of any assistance. (R v Rose (1982) 2 All. ER 536 at 541). In this event it is nevertheless inappropriate to enquire how the jury are divided. (ibid at 541).
14. The next difficulty in the present case arose from the circumstance that the learned trial judge directed that the procedure appropriate for the formal taking of a verdict be administered forthwith. Again, the usual practice is to make a less formal enquiry of the jury as to whether verdicts have been reached. In the case of multiple accused and multiple counts such an enquiry is rendered all the more desirable in that the trial judge may have to make a decision as to whether more time should be given to the jury to deliberate on counts on which a verdict has not been reached.
15. The desirability of proceeding in the above manner is well demonstrated by the difficulties which were encountered in the present case when the procedure was not adopted. Not surprisingly the foreman became confused. He proceeded to deliver verdicts although it appeared shortly afterwards that deliberations on these counts had not been completed. The result was to reveal tentative views on the matters under discussion. In my view this exchange had the potential to place the jurors, and the foreman in particular, under a degree of pressure and the position was exacerbated when the jury was summoned again after a lapse of twenty-eight minutes and the foreman was asked what the present position was and why he had earlier said the jury were unanimously agreed on a verdict of not guilty in the case of the appellant Russo. Finally the trial judge brought the jury back at 5.50 pm and asked whether they were agreed upon their verdict. The foreman explained that they were agreed on two of the charges but not on the third. It would seem that the recall of the jury on this occasion was on the initiative of the trial judge.
16. There is no suggestion that the learned trial judge intentionally brought pressure to bear upon the jury (cf R v McKenna (1960) 1 QB 411) but in my view the combination of these circumstances could well have placed pressure on all or some of the jurors. As a consequence the circumstances "may well have resulted in the jury failing to give the issues that free deliberation to which both the accused and the Crown were entitled". R v Black (1993) 118 ALR
209 at 213.
17. For the reasons which I have given I am of the view that the appeals of both appellants should be allowed, the convictions set aside and new trials ordered.
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