McLeod v Wiltshire
[2011] WASC 366
•1 DECEMBER 2011
McLEOD -v- WILTSHIRE [2011] WASC 366
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 366 | |
| Case No: | SJA:1091/2011 | 1 DECEMBER 2011 | |
| Coram: | McKECHNIE J | 1/12/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions set aside Matters remitted back to the Magistrates Court for retrial | ||
| B | |||
| PDF Version |
| Parties: | TRAVIS JAMES McLEOD GRANT ANDREW WILTSHIRE |
Catchwords: | Criminal law and procedure Finding of cannabis Alleged admissions Explanation given Magistrate finding it is not normal to agree to something you did not admit to Whether error of law No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GRANT ANDREW WILTSHIRE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M WHEELER
File No : FR 5474 of 2010, FR 5475 of 2010
Catchwords:
Criminal law and procedure - Finding of cannabis - Alleged admissions - Explanation given - Magistrate finding it is not normal to agree to something you did not admit to - Whether error of law - No new principles
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Convictions set aside
Matters remitted back to the Magistrates Court for retrial
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms L A Eddy
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: The appellant was charged with possessing a prohibited drug and possessing a utensil, a bong. The circumstances were that the police executed a warrant on premises where the appellant and, it would appear, others were living and found the items - some cannabis and a bong. There are a number of grounds of appeal following the conviction but I need to deal only with one.
2 Police officers gave evidence that the appellant admitted to them that he took responsibility for the material. Indeed, in his evidence the appellant agreed that he had said words to that effect that they were said under an inducement.
3 Oddly, the officer to whom he made the alleged admissions was not called and the officers who gave evidence therefore were in the position of overhearing what was said by others and also had made no notes of what was said. One of the officers indicated in his evidence that the appellant:
The accused stated it was cannabis. He was asked, 'Who does the cannabis belong to?' and he said that it was his and he - we - ... Detective First-Class Constable Wiltshire asked if there was anyone else that had ownership of the cannabis and he said no, it's his.
4 The ownership of a bong was dealt with in a similar way. Detective First-Class Constable Wiltshire:
[A]nd he admitted ownership of the bong, and he admitted that it was used to smoke cannabis and denied that anyone else had ownership of the bong.
5 That statement is obviously conclusionary in nature and is not a verbatim account. The second officer called, Constable Trovarello, said this when asked the question, 'What did Detective Wiltshire say?':
Yeah, I can't give you verbatim, word for word, but the actual subcontext was that he questioned him what the item was and the accused conceded that it was cannabis. He asked what the - the smoking implement was and he conceded that it was a smoking implement to smoke cannabis with. I can't give you word for word what was said. I didn't take any notes at the time.
6 In cross-examination he was asked a lengthy question:
Let me put this to you: After I asked for my wallet, one of the police officers replied, and I quote, 'No, we don't let arseholes that hang up on us take anything with them that is not on person.' I then begged and pleaded. Then one of your officers responded by saying, 'Are you going to take the rap for the marijuana and the bong?' as if hinting that he would let me take
(Page 4)
- my wallet if I did. I then responded by saying, 'Yes, okay, I will put my hand up for it.' Do you remember this being said?---No, not at all.
Is it possible it was said?---No. I was there the whole time by your side.
7 After a further question and answer he said:
Okay. So is it possible that I said put my hand up for it but never said that it was mine?---No, because as I said, I was there the whole time.
8 In his evidence the appellant, who gave evidence on his own behalf at trial, spoke about the wallet and the comment about 'arseholes that hang up on us' and then said:
[I] begged and pleaded because I needed the money and they said, you know, 'Are you going to put your hand up for the bong?' and I said, 'Yeah, yeah, all right, I'll put my hand up for it.'
9 A number of issues arose for consideration by the magistrate in relation the alleged admissions, such as whether there was an inducement and, if there was not, what precise words were spoken, bearing in mind, that the police officers were relying solely on their memory, not on any notes. Moreover, their evidence was conclusionary rather than a verbatim account.
10 It fell then to the magistrate to decide the issues of the admissions because there is no question that the admission was an important part of the prosecution case. The magistrate accepted the evidence of the police officers and rejected the evidence of the appellant. In the course of his reasoning, he said:
Now, the quality of that one needs to look at the legal origins of allowing confessional statements in court. It's an exception to the hearsay rule because a confession is an out of court statement which has been - we've heard evidence of it here, disputed in the context but accepted in general principle and the reason the courts over the centuries, not just in recent times, allowed confessions (indistinct) it's against human nature to admit something you haven't done and that's why confessional statements have permitted it to be (indistinct) evidence as exceptions to the hearsay law. It's just not normal to agree to something that you haven't admitted to.
11 The respondent concedes, correctly, that this is in error. It is self-evidently an error in this case because the appellant's evidence did provide an explanation for why he might have admitted to something that was nevertheless untrue. This was a case of credibility and it came down to the evidence of the two police officers and the appellant.
(Page 5)
12 However, the error which has been conceded is part of the reasoning of the magistrate towards conviction or, more particularly, towards the rejection of the appellant's confession in the terms that the appellant said he had made it.
13 In my view, that error renders the conviction unsafe. I appreciate the force of Ms Eddy's submissions that, as it were, the police came in, the cannabis and the bong were there, there was nobody else at home. But that does not of itself necessarily amount to proof beyond reasonable doubt and it was not in any way in any event a process of reasoning which the magistrate undertook in order to reach a conviction.
14 There is one other matter. The magistrate referred to the PathWest report:
[T]hat indicates no cannabis, he saw the appellant's sample, but on there was one detection in that report of methylamphetamine and benzodiazepine, so it's not as if he's not using illicit substances.
15 That strictly may have diverted the magistrate from the actual task, because the issue was whether the cannabis was his and, therefore, evidence of clean urinalysis samples in relation to cannabis was a relevant factor to take into consideration. The magistrate seems to have regarded that as an irrelevance. What weight there may have been placed on them is another matter but the results of the samples, negative to cannabis, were at least relevant.
16 In the circumstances, there was a miscarriage of justice because the error made by the magistrate was a part of his reasoning and may have impermissibly affected his reasoning towards a conclusion of guilt. It is not appropriate to apply the proviso. I allow the appeal, set aside the convictions and remit the matter to the Magistrates Court for retrial.
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