Labriola v The Queen - [2001] WASCA 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LABRIOLA -v- THE QUEEN [2001] WASCA 341

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 17 SEPTEMBER 2001

DELIVERED : 6 NOVEMBER 2001

FILE NO/S: CCA 60 of 2001

BETWEEN: RICHARD JOHN LABRIOLA
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Drug offences - Four counts of supply of prohibited drug (amphetamine) - Denial of supply of drugs - One count of sexual penetration without consent - Denial of any sexual misconduct - Direction by Judge regarding honest and reasonable but mistaken belief in consent - Trial Judge considered that defence raised by appellant asking "Is it okay if I do this?" - Whether comments by Crown Prosecutor prejudicial to defence - Any prejudice adequately covered by direction to jury - Whether accomplice warning suggested appellant had formed a common purpose with complainants regarding drugs - Defence was that appellant did not supply the drugs which were independently obtained by the persons to whom he was alleged to supply them - Whether content of warning appropriate - No miscarriage of justice

Legislation:

Criminal Code (WA), s 325

Misuse of Drugs Act 1981 (WA), s 60(c)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J J Scudds
Respondent: Mr R E Cock QC

Solicitors:

Appellant: J J Scudds & Associates
Respondent: State Director of Public Prosecutions

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

Holman v R [1970] WAR 1
Mourish v The Queen, unreported; CCA SCt of WA; Library No 6888; 13 October 1987
MRW (1999) 113 A Crim R 308
R v Baker [2000] SASC 407
R v Taylor [1967] 2 NSWLR 278
Sutherland v The Queen, unreported; CCA SCt of WA; Library No 8974; 2 August 1991
Van den Hoek v The Queen (1986) 69 ALR 1
Vella v R (1990) 2 WAR 537

Case(s) also cited:

Nil

MALCOLM CJ: On 23 March 2001 the appellant was convicted in the District Court at Bunbury on four counts of supplying a prohibited drug, namely amphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). Each of the offences was alleged to have taken place on 15 December 1998. Count (1) alleged a supply of amphetamine to one "J" and count (2) alleged a supply of amphetamine to one "E". Counts (3) and (4) alleged a supply of amphetamine on the same date at Busselton to J and E.
Count (5) alleged that on 16 December 1998 at Busselton, the appellant sexually penetrated E without her consent contrary to s 325 of the Criminal Code. So far as count (5) on the indictment was concerned, the defence at the trial was a denial that sexual penetration had taken place. No issue of consent was raised by counsel for the appellant. There was no suggestion on the part of the defence that sexual intercourse had taken place. The appellant appeals against his conviction of the offence contrary to s 325 of the Code on the grounds that:
"1.The Learned Trial Judge erred in law by directing the jury that the defence of honest and reasonable but mistaken belief [Section 24] had application to the facts of the case."
"2.The Learned Trial Judge was not able to correct the prejudice that followed from comments by the Crown Prosecutor which had no evidential foundation but which were highly prejudicial to the Defence Case."
The Crown case was that on the evening of 15 December 1998 the appellant picked up the two complainants from the home of J. The appellant was then 35 years of age. The complainant J was nearly 16 years of age and the complainant E was 16 years of age. J had known the appellant for a few weeks and had previously gone out with him. The appellant had arranged to go out with J on the evening of 15 December 1998. Both J and E were at the house and wanted to go with the appellant in his car to experiment with drugs. The three of them planned to go to a motel for that purpose.
Not long after leaving J's house, the appellant stopped his car. He produced a bag of white powder and prepared an injection of drugs with a syringe. This took place at the side of the road just out of Dunsborough. These events gave rise to counts (1) and (2) on the indictment.
The appellant and the two complainants then drove into Busselton. They stopped at an hotel where the appellant purchased some alcohol. They then went to a motel just out of Busselton where the appellant booked into a room. Once inside the motel room the appellant gave further injections of amphetamine to E and at least one further injection to J. These actions gave rise to counts (3) and (4). At the same time the appellant injected himself with amphetamine.
While the three persons were in the motel room, there was sexual activity between the appellant and J which was consensual. The Crown case was that, later still, the appellant sexually penetrated with complainant E without her consent by inserting his finger into her vagina.
The Crown alleged that both girls consented to the appellant injecting them with amphetamine. They wanted to go in the car with him to experiment with drugs and they wanted to go to the motel, also to experiment with drugs. During the night the appellant was said to have injected E at least four more times into the arms with amphetamine. She wanted this to be done.
Some hours later in the early morning E began to feel very unwell. As the sun was coming up she had what was described as "a bad migraine headache" and she was "dry retching". During that time it was alleged that the appellant was saying things to E involving references to sex.
E had several showers in an effort to make herself feel better, but without success. She began to feel very weak. Her vision was blurry. She was staggering about when she was walking. At one point of time after she had come out of the shower she ended up on the double bed with the appellant. The appellant started touching her on the breasts. He also masturbated her and put his finger into her vagina. The evidence given by E about the circumstances was corroborated by J.
E said she tried to close her legs but the applicant pulled her legs open. She was very sick and weak at the time and could not do anything to prevent him from touching her, but she did not want him to touch her sexually at all. She did not go to the motel room for sex. She only went to experiment with drugs.
After the incident with the appellant, E appeared to have a fit. She passed out. The appellant and J took her to the Busselton Hospital where she was examined by a doctor. When examined she was wearing a short dress but no underwear and had wet hair. She showed signs of fluctuating levels of consciousness and other signs consistent with recovering from a grand mal epileptic seizure. Upon examination, several skin puncture marks overlaying the large veins in her arms just before the bend in the elbow were found. There were no signs of sexual assault.
E was sent for neurological examination and her blood was sent for toxicological examination. The medical report described the effect of intravenous injection of amphetamine. The jury were invited to infer from the symptoms and the medical report that E had consumed a very high dose of amphetamine. Analysis of her blood by toxicological examination revealed that there were no traces of alcohol, cannabis or opiates, but amphetamine and methylamphetamine was present in her blood. E was released from hospital the following day after making a satisfactory recovery from the grand mal seizure. The seizure constituted a threat to her life.
E gave evidence that she went into the car to experiment with drugs. J said she went in the car with the appellant "to have drugs". Both E and J gave evidence that shortly after leaving the house, the appellant stopped the car and injected each of them with amphetamine as had been described in the Crown opening. Both E and J testified that the appellant also injected them with amphetamines in the motel room. They gave evidence that each of them had consented to the supply of amphetamines to them by the appellant.
E gave evidence that she had been invited to join in the sexual activity between the appellant and J but she refused. E gave evidence about feeling unwell, developing a migraine headache and having the showers to try and make herself feel better. She gave evidence that on one occasion when she came out of the shower, the appellant picked her up and put her on the bed where he penetrated her vagina with his fingers. She gave evidence that she did not want him to do that and tried to shut her legs but he pulled them open again.
J testified that the appellant had touched the shoulders of E and E had told him to leave her alone. When E came out of the shower the appellant took the towel off her, started to touch her nipple and "was asking her if it was okay if he did this". J also testified that E did not respond. She said that she was unwell, did not talk, was not moving and was sweating. At the material time she came out of the bathroom wearing a towel. The appellant took the towel off her. E was on the double bed and the appellant was next to her. He started to touch her nipple. He asked her if it was "okay" if he did this. E did not reply. She was unwell and sweating. J then went into the bathroom for 5 to 10 minutes. When she came out the appellant was standing next to the bed and E was sitting on the bed. The appellant was using his fingers to masturbate E. She saw him using his two fingers to move her clitoris.
After this E stayed on the bed for a while and the appellant and J told her to have a shower. When E came out of the bathroom after her shower, she had put on her dress back to front. She then went onto the single bed and had what was described as "a fit". According to J:
"... her whole body went hard, stiff. Her face went blue, her lips went purple."
J and the appellant turned her onto her side and put a spoon under her tongue to stop her from swallowing it. It was at that stage that the appellant decided it was time to take E to the hospital.
The appellant's defence was that he neither provided the drugs nor injected them into either of J and E and knew nothing about the amphetamine. The appellant also denied any sexual contact with the complainant E. After the Crown opened its case, J and E gave evidence and were cross‑examined on the basis that both of them had sought to blame the appellant for their own illegal use of amphetamines in which the appellant had no knowledge or involvement. It was maintained by the appellant that the allegation of sexual penetration was part of E's attempts to blame the appellant for the use of drugs.
The appellant testified that he had met J a few weeks before and had been told by her that she was aged 19, "going on" 20. He was introduced to E on the night in question. Both of the girls were dressed up, had lipstick and earrings on, and had handbags with them. On his way to the house the appellant had already purchased a bottle of bourbon. On the way to Busselton he had purchased a bottle of coke and cigarettes for J.
The appellant's evidence was that, after picking up the two young women from J's house, they later decided to go to the motel. There he had sexual contact with J. He said he was drinking bourbon and eventually passed out. He denied having anything to do with the use of amphetamine by either of the two girls and denied that he had sexually penetrated E.
The appellant testified that he was woken up in the morning and told by J that E was sick. He saw that she was ill, tried to cool her down, but then took her to the hospital. The complainant J wanted him to leave the hospital, so he left. Just after he had left he telephoned J's mother and told her that her daughter was at the hospital. J's mother then attended the hospital.
When cross‑examined, E admitted that she was trying to place the blame on the appellant. E admitted in cross‑examination that she went to the motel for drugs, to have a drink and some fun. It was only after she got out of hospital that she learned that J's father had made a complaint to the police. She admitted she was worried about getting into trouble with her parents. She agreed that she wanted to put some blame on somebody else for the drug taking, namely, the appellant.
When cross‑examined, J testified that the complaint in the matter had originated with her father. Her father knew the doctor at the hospital and she had told the doctor and the nurse at the hospital that E had taken amphetamines. After pressure from her father she eventually gave a statement to the police. J was concerned that she would get into trouble with her parents for using amphetamines.
E agreed that J and her were in and out of the bathroom of the motel at various times and that the appellant did not know what they were doing in the bathroom. J agreed in cross‑examination that she was in and out of the bathroom and on at least one occasion both she and E were in the bathroom together.
E admitted in cross‑examination taking the drugs to get "high" and mixing and packing her own needle on at least one occasion. J denied that E mixed her own drugs and packed a needle at any stage. Both of them at different times denied injecting themselves. Both E and J described the manner used to inject the amphetamines. J used the word "Dang" as a name used for injecting amphetamine. J also agreed that she had told E that "you can drink amphetamine, snort it, inject it, but the best way was to inject it". It was on the basis of this evidence together with that of the appellant that the appellant maintained in his defence that the two girls had been injecting themselves with amphetamine and had gone into the bathroom either separately or together for that purpose.
So far as count (5) is concerned, the learned trial Judge directed the jury with respect to the elements of the offence of sexual penetration without consent in terms in respect of which no complaint is made. The learned Judge then went on to direct the jury about consent as follows:
"The Criminal Code, our written criminal law, also deals with the question of consent and what it says is that 'consent' means a consent that is freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat or intimidation. The Criminal Code also provides, members of the jury, that a failure by a person to offer physical resistance does not of itself constitute consent to the act. 'Consent' means a consent that is freely and voluntarily given.
If, members of the jury, a person believes that consent is being given but it is not being given, if that person's mistaken belief is both honest and reasonable, the law excuses that person from criminal liability so the Crown must satisfy you here that the accused person sexually penetrated [E], secondly that he sexually penetrated her without her consent and, thirdly, that he did not have any honest and reasonable but mistaken belief that she was consenting.
The term 'reasonable' means that such a belief must be an objective belief, that is, a belief held by a reasonable person in the circumstances of the accused person. Plainly, the consumption of alcohol or indeed any other intoxicating substance is not relevant to that issue. In other words, if a person thinks something because they were intoxicated, then the fact that they think that because of the intoxicant doesn't make the belief a reasonable one.
A reasonable person is a sober person it is sometimes said, but the better way of looking at it is to ask whether or not a belief is of a kind that it might be held by a reasonable person in the position of the accused and, as I say, it is for the Crown to satisfy you that the accused person did not have any honest and reasonable but mistaken belief here in the event that you were satisfied that there had been a sexual penetration without consent.
[E], of course, is not somebody who the law would regard as an accomplice in relation to count 5 so the warning that I gave you in relation to the evidence of accomplices would not be applicable in relation to count 5 and similarly, of course, in relation to [J] and if you accepted [J]'s evidence, of course, that would be evidence which would be capable of corroborating that of the complainant in some respects, although corroboration is not required. The defence, of course, members of the jury, is that there was no sexual activity between these two people [E] and the accused person."
It was contended on behalf of the appellant that the learned trial Judge erred in law by directing the jury about the defence of honest and reasonable but mistaken belief because that matter had no application to the present case. Reliance was placed on the following passage in the judgment of Owen J in Sutherland v The Queen, unreported; CCA SCt of WA; Library No 8974; 2 August 1991 at 2 where his Honour said:
"In my view, it cannot be the case that whenever an accused person gives evidence of some fact which could form the basis of a belief on the accused's part that the complainant had consented to sexual activity, the trial Judge would be under a duty to leave the defence of honest and reasonable but mistaken belief irrespective of competing evidence. Whether the defence should be left to the jury will be a decision to be made in the circumstances of each particular case. There must not only be evidence, but it must be evidence 'fit for [the jury's] consideration': Van den Holk v R (1986) 161 CLR 158 at 161."
A generation earlier in Holman v R [1970] WAR 1, in the context of trial for rape where the defence was simply to deny the alleded intercourse, Jackson CJ, having noted at 6 that the trial Judge had made it quite clear that the appellant was entitled to be acquitted unless the Crown had satisfied the jury that the complainant's story was accepted, went on to say at 6 – 7:
"There is, however, another passage which, in my view, was likely to mislead the jury in regard to the Crown's obligation to establish the absence of consent on the part of the prosecutrix. His Honour said: 'Now as I said just now non-consent by Mrs Wright must be proved by the Crown, but where as appears to be the fact in this case there is not only no evidence of consent but not even a suggestion by the defence that there was any consent it would seem as a matter of common sense to be virtually inevitable that if you find that intercourse did take place, you will find that it took place without the consent of Mrs Wright. You will recollect that Mrs Wright told you that she was terrified into submitting to the accused. The accused, on the other hand, said that no sexual intercourse at all took place. There does not really, therefore, seem to be any room for an argument that if there was sexual intercourse it was nevertheless with Mrs Wright's consent; and you have probably long since come to the conclusion that the issue you are trying in essence is: Was there sexual intercourse or was there not?'
It is, of course, true that the appellant denied that intercourse had occurred; but it is not at all uncommon, in cases where rape is charged, that for one reason or another an accused untruthfully denies the fact of intercourse. It is not hard to think of possible motives for such a denial in the present case. But if the jury disbelieve the denial it does not follow, either in law or as a matter of practice, that consent is not still in issue. When intercourse is denied, it is virtually impossible, in a criminal trial, for an accused person by his evidence to set up consent as a defence, and it is difficult even for his counsel to venture too far upon this topic without it being thought that he is in effect abandoning his client's own denial of intercourse. But, in my opinion, the particular circumstances here by no means made it 'virtually inevitable' that there was no consent, or that there was no 'room for an argument' on that issue. The place and time of the alleged offence, the nearness of friends and fellow-workers of the prosecutrix, her own maturity and experience, the long period during which she and the appellant were alone talking and smoking cigarettes, the absence of any physical injury (other than very minor), the strangely cold-blooded manner in which intercourse took place on the prosecutrix's own story, the report to the United States Navy rather than to the licensee of the hotel or the local police constables are all matters which taken in combination required, at the very least, the careful consideration of the jury before they arrived at a conclusion adverse to the appellant. That consideration was, in effect, withdrawn from them by the passage from the summing-up which I have cited, and this, in my view, also constituted a misdirection."

In my opinion, it does not follow that in every case where there is a denial of intercourse the trial Judge is required to specifically direct the jury on the issue of consent in the sense of an honest and reasonable belief in consent or otherwise. There must be something in the evidence which sufficiently raises the issue.
In Verdon (1987) 30 A Crim R 388 Burt CJ said at 391 – 392:
"There could no doubt be a case in which the evidence supporting the issue of mistake is so tenuous and so lacking in cogency and in which the verdict of the jury is only to be explained upon the basis that the jury accepted all the evidence given by the complainant that the court could reasonably be of the opinion that notwithstanding the failure to give the jury the direction which I think was called for, no substantial miscarriage of justice had occurred."
In Sutherland, supra, having cited the passage from the judgment of Burt CJ in Verdon, Owen J said at 2 – 3:
"This statement is directed to the functions of an appellate court. However, in my view, where the case is put forward on the basis of 'consent or no consent' it would often happen that such evidence as might be brought forward concerning the accused's belief would be so tenuous and lacking in cogency on the separate issue of belief that it could properly be regarded as evidence not fit for the jury's consideration."
In both Mourish v The Queen, unreported; CCA SCt of WA; Library No 6888; 13 October 1987, and in Verdon, supra, Burt CJ approved of the proposition formulated by Moffit J in R v Taylor [1967] 2 NSWLR 278 at 294 as being an accurate statement of the law under the Criminal Code (WA), namely:
"... the [defence] must be raised by the accused in the sense that he must be able to point to evidence in either the Crown case or in his own case from which it is open to the jury, by inference and not speculation, at least to infer in fact he honestly believed the woman consented, but that once there is material to so raise the matter, the ultimate onus rests on the Crown, so that the principles applicable as to when a direction should be given and the directions which should be given as to onus of proof are the same principles as are applicable in respect of other so called 'defences' such as self defence, the defence of automatism and provocation under the common law."
The issue raised is whether there was some evidence of consent fit for the consideration of the jury: Van den Hoek v The Queen (1986) 69 ALR 1 at 3 per Gibbs CJ.
It was submitted on behalf of the appellant that there was a real risk that the direction given by the learned trial Judge would cause the jury to speculate or cause the jury to believe that there was some common ground on the issue whether sexual contact had taken place. It was contended further in these circumstances that there was a real risk that the jury may have been diverted from the primary issue whether sexual penetration had in fact occurred at all.
So far as count (5) on the indictment was concerned, the learned Judge directed the jury that:
"... the Crown must satisfy you here that the accused person sexually penetrated [E], secondly, that he sexually penetrated her without her consent and, thirdly, that he did not have any honest or reasonable but mistaken belief that she was consenting."
The learned Judge also told the jury that they must be:
"... satisfied that the accused person sexually penetrated [E], and the second element is you must [be] satisfied that that was without her consent.
The Criminal Code, our written criminal law, also deals with the question of consent and what it says is that 'consent' means a consent that is freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat or intimidation. The Criminal Code also provides, members of the jury, that a failure by a person to offer physical resistance does not of itself constitute consent to the act. 'Consent' means a consent that is freely and voluntarily given.
If, members of the jury, a person believes that consent is being given but it is not being given, if that person's mistaken belief is both honest and reasonable, the law excuses that person from criminal liability so the Crown must satisfy you here that the accused person sexually penetrated [E], secondly, that he sexually penetrated her without her consent and, thirdly, that he did not have any honest and reasonable but mistaken belief that she was consenting."
The learned Judge went on to refer to what was involved in "reasonable" in these circumstances. The jury were told that the belief just be "an objective belief, that is a belief held by a reasonable person in the circumstances of the accused person". It was also pointed out that a reasonable person was a sober person, but it was better to ask whether the belief was one which might be held by a "reasonable" person and went on to say:
"... it is for the Crown to satisfy you that the accused person did not have any honest and reasonable but mistaken belief here in the event that you were satisfied that there had been a sexual penetration without consent."
The learned Judge concluded his directions to the jury in this context by saying:
"The defence, of course, members of the jury, is that there was no sexual activity between these two people [E] and the accused person."
The learned Judge directed the jury in terms of s 24 of the Criminal Code because he considered the defence was sufficiently raised in the evidence of J. His Honour made it clear that the appellant denied that any sexual activity had taken place. However, it was left to the jury to determine if they were otherwise satisfied that sexual penetration without consent had occurred. If they were so satisfied they were told that they must go on to consider whether they were satisfied beyond a reasonable doubt that the appellant did not have an honest and reasonable but mistaken belief that E was consenting.
Counsel for the defence did not seek any redirection on the issue under s 24 of the Code and was content to leave the matter in the hands of the learned trial Judge. Counsel for the defence told his Honour that s 24 was "not a matter we raise". The learned trial Judge, however, considered that the issue was raised by the evidence of J. His Honour pointed out that J had given evidence that E came out of the shower wearing a towel. The appellant took the towel off and E was then on the double bed. The appellant was touching her nipple and asked "Is it okay if I do this?". The learned Judge then indicated that it seemed to him that in those circumstances the issue of consent "was sufficiently raised for me to give a direction". Counsel's response was, "I will leave that matter in your Honour's hands". The learned Judge went on to comment that:
"Counsel normally have always argued that they ought to be given the benefit of that section and there has been an ongoing debate to some extent about it for as long as I have been around. If you want me to withdraw that and say that the jury should ignore that, then I don't think it's too late to do it, but I have always regarded that as being something for the benefit of an accused rather than something that works for his - - -
SCUDDS, MR: Well, in this particular case it – I'm not overly concerned about it. I only raise it in the context that the defence position is not in any way that it took place - - -
MACKNAY DCJ: Yes.
SCUDDS, MR: - - - and I was just worried that they might embark down a course and kind of think there was some hidden message from your Honour, but I don't think in all the summing up they would think that and that's why I'm not raising it as something that you need to redirect on."
In my opinion, the approach adopted by counsel for the defence at the trial was entirely correct. In my opinion, the learned trial Judge was right to direct the jury as he did. If anything, the direction was to the advantage of the appellant. It follows that, in my view, there was no miscarriage of justice and the learned trial Judge was entirely right to approach the matter as he did. For these reasons ground 1 fails.

Ground 2

Ground 2 contended that:
"The learned trial Judge was not able to correct the prejudice that followed from comments by the Crown Prosecutor which had no evidential foundation but were highly prejudicial to the Defence Case."
Counsel for the Crown opened the prosecution case to the jury on the basis that the complainants were supplied with amphetamines by the appellant and were experimenting with the drugs. The defence case was that J and E had demonstrated a knowledge of amphetamines and that J had introduced E to their use, with the result that E had suffered an overdose by reason of her own inexperience. The appellant's evidence was that he had not used drugs and had only consumed alcohol on the night in question. In his address to the jury, counsel for the Crown said:
"Mr Scudds [defence counsel] said [J] seems to have some knowledge about that. Where did she get that knowledge from? We have heard she had been out with this accused previously over the past few weeks before that night."
In summing up to the jury the learned Judge said:
"Counsel for the Crown suggested in closing that if [J] had demonstrated any knowledge of amphetamines and drug use, she might have acquired that on some earlier occasion with the accused person, members of the jury. There is simply no evidence of that and that is speculative and that is not permissible reasoning. That is something you must put out of your minds to comment and as I say, it would be speculation to have regard to anything of that nature. There is no suggestion of that in the evidence."
It was contended on behalf of the appellant that the warning by the learned trial Judge about the relevant comments by counsel for the prosecution only served to reinforce the unsubstantiated allegation which had been made and could not overcome the prejudice caused to the case for the defence as a result, thereby depriving the appellant of a fair trial: Vella v R (1990) 2 WAR 537; and MRW (1999) 113 A Crim R 308.
In my opinion, however, the direction given by the learned trial Judge made it abundantly clear to the jury that they were to disregard what the Crown Prosecutor had said and that any false impression created by the Crown Prosecutor's address to the jury was adequately corrected.
For these reasons ground 2 fails.

Ground 3

Ground 3 contended that the learned trial Judge erred in his direction to the jury regarding J and E being accomplices of the appellant when:
"(a)The giving of an accomplice warning by the learned trial Judge at page 143 of the Transcript was not justified in the circumstances; or alternatively
(b)The terms of the accomplice warning tended to suggest to the jury that the [appellant] had formed a common purpose and engaged in a course of conduct with the two witnesses in which he supplied amphetamines to each of them;
(c)The terms of the accomplice warning failed to address the defence case that the witnesses [J] and [E] engaged in a course of conduct in which both witnesses used amphetamines and/or the witness [J] supplied amphetamines to the witness [E] and [that] following the attendance of the witness [E], at a Hospital and involvement of their parents, both witnesses sought to blame the [appellant] for their own illegal use of amphetamines in which the [appellant] had no involvement."
Particular (a) of ground 3 was abandoned at the hearing. In the course of giving the warning, the learned Judge said:
"In relation to counts 1 to 4, members of the jury, I must say to you that the law says an accomplice is a person who would also be guilty of the offence charged against the accused person in the dock. The accused person in relation to each of counts 1 to 4 is charged with supplying a prohibited drug, the particular of the prohibited drug in each case being here amphetamine.
The Misuse of Drugs Act, which is the Act of Parliament that creates that offence, says that any person who aids or abets a person to commit an offence is also guilty of the offence. It is a matter for you but having regard to the events of this particular night and the fact that there was an ongoing course of supply, if you like, on the evidence of the two girls, that a common purpose had been arrived at between these three people to have a course of supply, it might well be that you would form the view that each of [E] and [J] aided the supply of the amphetamine and was therefore an accomplice.
In those circumstances I must say to you that the law says that accomplices are regarded by the law as a category of witnesses whose evidence is not as a class reliable for the reason that persons who commit offences sometimes blame each other. In other words, persons who commit offences with the person in the dock are in a different category to persons who have had nothing to do with that offence and that persons who commit offences do sometimes fall out or blame each other in circumstances where the blame is not an honest allegation.
If the evidence is corroborated, it can be acted upon with due observance of care, corroborative evidence being evidence which supports or strengthens the evidence of the witness and involves the accused person in the commission of the offence. Here there is no evidence capable [of] corroborating the evidence of either [E] or [J].
Accomplices cannot corroborate each other in the witness box so the law requires me in those circumstances to tell you by way of warning that it is unsafe to act on the uncorroborated evidence of an accomplice or accomplices, unsafe to convict an accused person on the uncorroborated evidence of an accomplice or accomplices, and here, as I have said to you, the evidence of each of these persons is uncorroborated. The law says that nonetheless you may act on the evidence of an uncorroborated accomplice if, after careful scrutiny of the evidence and paying heed to the warning that I have just given you, you are satisfied of its truth and accuracy."
It was submitted on behalf of the appellant that the terms of the accomplice warning given tended to suggest to the jury that the appellant had formed a common purpose and engaged in a course of conduct with the two witnesses in which he had supplied amphetamines to each of them. It was further submitted that the terms of the accomplice warning failed to address the case for the defence that J and E engaged in a course of conduct in which both complainants used the amphetamines without the knowledge or assistance of the appellant, or alternatively, it was submitted that J supplied amphetamines to E and, following the attendance of E at a hospital and the involvement of their respective parents, both complainants sought to blame the appellant for their own illegal use of amphetamines in which the appellant had no involvement.
In R v Baker [2000] SASC 407, Duggan J at [2] quoted from the accomplice warning given by the trial Judge in that case in which the jury were told:
"It has been found from experience that there are certain classes of witnesses whose evidence is inherently suspect for one reason or another. Accomplices are one such class. That is because their involvement in the crime in issue may incline them to falsely implicate another person, either with a view to exculpating themselves or with a view to minimising their own role or perhaps with a view to currying favour with the police. In other words they are not impartial witnesses. They may be promoting their own cause when giving evidence. That is the rationale for the warning."
Counsel for the appellant at the trial requested a warning in those terms.
Counsel for the appellant did not take issue with the fact that the trial Judge decided to give an accomplice warning. Issue was taken with the content of the warning and, in particular, where his Honour said:
"In these circumstances I must say to you that the law says that accomplices are regarded by the law as a category of witnesses whose evidence is not as a class reliable for the reason that persons who commit offences sometimes blame each other."
Counsel maintained that the warning that was being sought was that persons who may be categorised as accomplices sometimes falsely implicate another person, which was the position in this particular case. The appellant's case at trial was that the two girls J and E had falsely implicated the appellant in the drug use. It was in these circumstances that the trial Judge was asked to give a warning in terms of the warning in Baker.
In the course of a discussion between counsel for the appellant and the learned trial Judge, his Honour said:
"... the theory behind accomplice warnings are that people who commit offences together sometimes fall out and start blaming each other and therefore juries need to be aware that they are less reliable than people who have had nothing to do with the offence. Plainly, these two had something to do with the commission of the offences on their own evidence, individual offences. As I say, if one descends into technicalities I suppose one is an accomplice in relation to count 1, the other in relation to count 2 and so on, but it just seems to me that perhaps a modified direction to the jury of the need to take care in the circumstances ... and the need to scrutinise ... and the need to take care ..."
Counsel for the appellant at the trial said that he would not have called it necessarily "an accomplice warning" and went on to submit:
"I would have thought it was more in the area of a co‑accused where you get two people allegedly involved in an offence and one isn't involved but they try to put the blame on the other person, as opposed to how your Honour has framed it; that they have a falling out and one tries to blame the other one, because what's happening here is he denies involvement in the offence and my understanding, although I decided not to pursue it in cross‑examination, was in fact that they were cautioned in relation to the fact that they committed offences."
The Crown took the position that each of the two girls was an accomplice to the supply to them which was alleged as against the appellant. It was on that basis that his Honour agreed with counsel for the appellant and with the agreement also of the Crown to give what in substance was an accomplice warning.
It is apparent that there is something artificial about the concept that a person who is said to supply another with a drug is an accomplice of the recipient who then possesses or uses the drug, or alternatively that the recipient is an accomplice in respect of the supply. The contention was that the terms of the accomplice warning tended to suggest to the jury that the appellant and the two girls had formed a common purpose and engaged in a course of conduct with the two of them in which he supplied them with drugs.
The defence case, however, was that the appellant had nothing to do with the supply of amphetamines to the two girls or their use of the drugs. His case was that they had concocted a story by which they blamed him for supplying them with the drugs when they had obtained them for themselves.
In his summing up to the jury the learned trial Judge said:
"In relation to counts 1 to 4, members of the jury, I must say to you that the law says an accomplice is a person who would also be guilty of the offence charged against the accused person in the dock. The accused person in relation to each of counts 1 to 4 is charged with supplying a prohibited drug, the particular of the prohibited drug in each case being here amphetamine. The Misuse of Drugs Act, which is the Act of Parliament that creates that offence, says that any person who aids or abets a person to commit an offence is also guilty of the offence. It is a matter for you but having regard to the events of this particular night and the fact that there was an ongoing course of supply, if you like, on the evidence of the two girls, that a common purpose had been arrived at between these three people to have a course of supply, it might well be that you would form the view that each of [E] and [J] aided the supply of the amphetamine and was therefore an accomplice."

On the defence case this was not a case of accomplices, but a case in which the defence was that the appellant was not involved in the use of drugs by the two girls. It was contended that they had formed a common purpose to use drugs which they administered to themselves and to each other. The appellant denied any involvement. They had in fact been dealt with for use of the drug under s 6 of the Misuse of Drugs Act 1981 (WA).
It was submitted on behalf of the appellant that the terms of the accomplice warning that was given suggested to the jury that the appellant had formed a common purpose and engaged in a course of conduct in which he supplied amphetamines to each of them. That was in fact the evidence which they gave. It was submitted, however, that the warning which was given failed to address the defence case that J and E engaged in using amphetamines without the knowledge or assistance of the appellant. In particular, it was asserted that the learned Judge failed to put to the jury the case that J supplied the amphetamines to E and, further, that E had overdosed and that when E had to go to hospital and their parents became aware of their involvement with drugs, they sought to falsely blame the appellant.
Later on in his directions to the jury the learned Judge made it clear that in relation to each of counts (1) to (4) the jury had to be satisfied beyond a reasonable doubt that the appellant had supplied the drug by injecting the girls in question with the drug on each occasion.
The evidence in the case did raise the possibility that the appellant and the two girls J and E had formed a common purpose whereby the appellant would supply amphetamines to them and assist them in administering the drug. In these circumstances, in my opinion, it was not only open to the learned trial Judge to give an accomplice direction, but it was required as a matter of law. This meant that his Honour was required to warn the jury that it was unsafe to convict an accused on the uncorroborated evidence of an accomplice or accomplices. However, that is what the learned Judge did. In particular, the jury were warned in an appropriate manner and also told that nonetheless they could act on the uncorroborated evidence of each of the girls if they were satisfied of its truth and accuracy. In my opinion, it has not been demonstrated that there was any misdirection by the learned trial Judge.
In my opinion, the defence case was fairly put to the jury in considerable detail. The learned Judge concluded his summing up by saying to the jury:
"The defence, of course, is, members of the jury, that the accused person went with the two girls to the motel room but consumed only alcohol himself there and was not involved in the supply of amphetamines at all to either of them and although he had some consensual sexual activity with [J], he had not been involved in any sexual activity at all with [E].
There is no onus on the accused person to point to any motive on the part of either of the complainants for making a false complaint or for giving false evidence. Members of the jury, wherever there is a possibility of the presence of something of that kind, it is a matter of commonsense that is relevant to the reliability of a complainant's evidence but the absence of any evidence of that kind is irrelevant and cannot be taken as something which would strengthen a submission that a particular complainant's evidence was truthful. There is no onus on an accused person in a criminal trial.
You might think, members of the jury, that there is to an extent a general question as to who is to be believed in this trial, whether it is the two girls [J] and [E] or the accused person. When you come to consider that question, it is essential that you have regard to what I have said to you as to the onus of proof and the standard of proof and the warning that I have given you in relation to accomplices in relation to each of counts 1 to 4 inclusive and that you be aware, members of the jury, that as a consequence of those rules even if you preferred the evidence of [J] and [E], you are not entitled to act on it unless you are satisfied as to both the truthfulness and the accuracy, that is, the reliability of that evidence.
Further, even if you did not positively believe the evidence of the accused person in relation to an issue or a count or his overall innocence, you are not entitled to be satisfied as to any of those things if his evidence gives rise to a reasonable doubt in relation to it. Finally, members of the jury, even if you positively disbelieve the accused person on an issue, you must, of course, still be satisfied as to the reliability of the prosecution evidence on the issue before you proceed against the accused person in relation to it."
In my view, it has not been demonstrated the terms of the accomplice warning failed to address the defence case as contended for in particulars

(b) and (c) of ground 3 of the grounds of appeal or that otherwise there has been a miscarriage of justice in this case. In these circumstances, when one takes the three grounds of appeal either alone or together, the contention that the appellant was denied a fair trial has not been made out.

For these reasons, while I would grant leave to appeal, I would dismiss the appeal.
WALLWORK J: I agree with the reasons for judgment of the Chief Justice. There is nothing I wish to add.
ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of the Chief Justice. I agree with those reasons and with the orders proposed. There is nothing I wish to add.