Murphy v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MURPHY v POLICE
[2016] SASCFC 81
Judgment of The Full Court
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
3 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS
Appeal against conviction. The appellant was charged with two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to section 30(1) of the Controlled Substances Act 1984 (SA) and was found guilty by a Magistrate on 9 July 2015. The appellant’s appeal to a single Judge of this Court was dismissed.
On further appeal to the Full Court, the appellant has challenged the Judge’s decision on five grounds: the Magistrate and the Judge erred in their approach to the issue of identification when assessing the reliability and credibility of a critical witness; the Magistrate and the Judge erred in not resolving a conflict in the evidence given by two witnesses; the Magistrate and the Judge erred in the approach adopted when considering the admissibility of an exhibit (P7); the Judge erred in failing to find that the late production during the trial of exhibit P11 resulted in an unfair trial and/a miscarriage of justice; and that the Judge erred in failing to quash the appellant’s conviction on the basis that the offence the appellant was charged with was not known to the law.
Held per Nicholson J (Parker and Lovell JJ agreeing):
1. None of the grounds of appeal is made out.
2. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 30; Evidence Act 1929 (SA) s 34P; Summary Procedure Act 1921 (SA) s 181, referred to.
Murphy v Police [2015] SASC 193, applied.
Domican v The Queen [1992] HCA 13, (1992) 173 CLR 555, distinguished.
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Dhanhoa v The Queen [2003] HCA 40, (2003) 217 CLR 1, discussed.
Ireland v Police [2005] SASC 202; Robey v Police [1993] SASC 4182, (1993) 18 MVR 121, considered.

MURPHY v POLICE
[2016] SASCFC 81
Full Court: Nicholson, Parker and Lovell JJ
NICHOLSON J.
Introduction

Graeme John Murphy, a legally qualified medical practitioner, was found guilty, following a trial in the Magistrates Court, of two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to section 30(1) of the Controlled Substances Act 1984.[1] Dr Murphy appealed, to a single Judge of this Court against his convictions on a number of grounds. That appeal was unsuccessful.[2] He has now appealed against the Judge’s decision to the Full Court.
[1] Police v Murphy, Judgment of Magistrate Sheppard, 9 July 2015, AMC-14-10652 (“Magistrate’s Reasons”).
[2] Murphy v Police [2015] SASC 193.
Section 30(1) of the Controlled Substances Act is in the following terms.
(1)A person must not forge or fraudulently alter or utter a prescription or other document, or have in his or her possession such a prescription or document knowing it to be forged or fraudulently altered, with a view to obtaining a prescription drug.
Maximum penalty: $15 000 or imprisonment for 5 years.
The Information upon which the matter proceeded in the Magistrates Court charged the two offences in the following terms.
1.[The appellant on] the 13^th day of February 2013 at Frewville ... uttered a forged prescription with a view to obtaining Tramadol Hydrochloride, a prescription drug.
Section 30(1) of the Controlled Substances Act 1984.
This is a minor indictable offence.
2.[The appellant] on the 13^th day of February 2013 at Frewville ... uttered a forged prescription with a view to obtaining Zolpidem Tartrate, a prescription drug.
Section 30(1) of the Controlled Substances Act 1984.
This is a minor indictable offence.
Background
The respondent in its summary of argument has supplied the following summary of both the prosecution case and the defence case.
The prosecution case was that the Appellant attended Chemist King at Frewville at about 10am on 13 February 2013 and presented two scripts in the name of John Brookes to a pharmacy assistant, Ms Welson. One script for Tramadol Hydrochloride was purportedly signed by Dr Humphrey Adzanku and the other, for Zolpidem Tartrate, by the Appellant. Upon providing the scripts to the pharmacist, Mr Le, Ms Welson pointed to certain irregularities which caused Mr Le to make enquiries with Dr Adzanku. Mr Le approached the Appellant and asked him about the scripts, addressing him as Mr Brookes. After being questioned about the scripts, the Appellant hurried out of the pharmacy.
The Appellant gave evidence at trial in which he did not deny being present at the pharmacy at the relevant time. The defence case was that Dr Murphy attended the pharmacy at the relevant time but produced a script to Ms Welson for a blood pressure medication called Atacand. He denied providing the two forged scripts as alleged. The Appellant accepted that whilst waiting for his script to be filled, he was approached by Mr Le about the script or scripts for Mr Brookes. The Appellant accepted that he hurried away from the store, but did so because he felt he would be arrested if he remained. The Appellant said that he abandoned the script for Atacand.
It was common ground at the trial that the pharmacy assistant, Ms Welson, did receive from a customer two scripts to be filled and processed, one for Tramadol Hydrochloride and one for Zolpidem Tartrate which two scripts became exhibits P2 and P3, respectively. It was also common ground that the two scripts were forgeries. The issue in dispute at the trial before the Magistrate was the identity of the person who provided the two scripts to Ms Welson, that is, the utterer of the two scripts. If the utterer of the two scripts, acknowledged to have been forged, was the appellant, then it necessarily followed that the appellant uttered the two scripts knowing of their forged character. The scripts were made out to an ostensible patient by the name of John Brookes. The appellant is not John Brookes. In the event that the appellant was the utterer, he must have been aware that the scripts were forgeries at least to the extent that he was representing himself as the person “entitled” to receive the drugs.
As to the central issue at the trial – was it the appellant who uttered the two scripts, P2 and P3 – the Magistrate reached the following conclusion.[3]
Having considered all of the evidence, particularly the version given by the [appellant], as well as the submissions from counsel and arguments concerning the script for Atacand, retrieved from storage, I have absolutely no doubt that Ms Welson received the two scripts P2 & 3 from the [appellant] in the name of Mr Brookes on the morning in question. In reaching this view, I bear in mind, not only my assessment of this witness, which would have satisfied me sufficiently in the absence of other evidence, but also evidence which fits logically with her version of events.
[3] Magistrate’s Reasons at [160] (emphasis supplied).
My reading of her Honour’s reasons leading to this conclusion, and generally, is that she accepted the evidence of Ms Welson that she received the two scripts from the appellant as being truthful and reliable beyond reasonable doubt. Further, she implicitly rejected the appellant’s evidence to the contrary. The finding, by its terms, is a strong finding in this respect. In addition, her Honour considered all of the circumstantial evidence presented by the prosecution and the appellant, together with their respective submissions as to inferences that might be drawn therefrom, and determined that nothing in this respect caused her to doubt her conclusion that the eyewitness account of Ms Welson should be accepted beyond reasonable doubt.
Whilst much of the case presented by the parties involved circumstantial evidence, the Judge who heard the appeal from the Magistrate concluded that the case was not, principally, a circumstantial case. Her Honour said this.[4]
This case was not, principally, a circumstantial case. The prosecution case consisted of the direct evidence of Ms Welson and Mr Le, as well as the scripts P2 and P3 and circumstantial evidence arising from the police investigation. That circumstantial evidence assisted in the task of assessing the credibility of the two critical witnesses. It was not a matter of excluding hypotheses consistent with innocence arising on the defence case, although that was clearly done. Rather, the magistrate’s task was to evaluate the critical direct evidence and consider it in light of the prosecution case as a whole and the defence case. That is what the magistrate did.
I agree with her Honour’s analysis. It follows, that unless the appellant can persuade this Court to overturn the Magistrate’s findings of fact, based on her acceptance of the evidence of Ms Welson and Mr Le that it was the appellant who handed the two scripts, P2 and P3, to Ms Welson, the appeal must fail.
[4] Murphy v Police [2015] SASC 193 at [43].
The principles applicable to the approach to be taken by an appellate court by way of rehearing, such as in the present case, when reviewing findings of fact are settled. In Fox v Percy:[5]
[5] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29] (citations omitted).
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
. . . .
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
In this case, the Magistrate heard all of the evidence over a number of days in March 2015 and on a day in June 2015 when various witnesses were recalled to give further evidence. Her Honour delivered judgment relatively promptly, on 9 July 2015. Her Honour heard and observed each of the witnesses give evidence and had distinct and obvious advantages, as compared with the Judge who heard the first appeal and this Court, when forming a view about the truthfulness and reliability of the respective accounts of the appellant, Ms Welson and Mr Le. Her Honour delivered judgment at a time when the impressions made by the various witnesses still must have been clearly in her mind.
The Judge who heard the first appeal dealt with a substantial number of appeal grounds all aimed, ultimately, at overturning the Magistrate’s critical finding that it was the appellant who handed the scripts, P2 and P3, to Ms Welson. Her Honour concluded in the following terms.[6]
I have carefully considered the arguments mounted by Mrs Shaw in support of this appeal. In my view none has substance. This was a trial containing some complexities. It was conducted in the Magistrates Court and a police prosecutor, rather than counsel from the Office of the Director of Public Prosecutions, appeared. However, the prosecution case was a strong one. The two main witnesses were impressive. The magistrate’s reasons for decision were cogent. I have no misgivings about the magistrate’s decision.
[6] Murphy v Police [2015] SASC 193 at [71].
On my review of the evidence, I have arrived at the same conclusion as did the Judge. Furthermore, nothing in the evidence has caused me to conclude that the Magistrate’s acceptance of Ms Welson as credible and reliable was contrary to “incontrovertible facts” or “compelling inferences” to be drawn from other evidence or that Ms Welson’s evidence on the critical issues was “glaringly improbable”.
Grounds of appeal to the Full Court
The appellant has raised five grounds of appeal from the judgment following the appeal to the single Judge.[7] These grounds, in part, overlap with those considered by the Judge and, in part, raise new issues. The five grounds are as follows.
1.The Learned Judge erred as a matter of law in determining that an issue of identification did not arise in relation to the Learned Magistrate’s evaluation of the credibility and reliability of the evidence of Ms Welson.
2.The Learned Judge erred as a matter of law in determining that where the Learned Magistrate had found Ms Welson’s evidence credible and reliable, it was unnecessary to resolve the conflicts between Ms Welson and the police officer or to address the issue of displacement, where such reasoning is circular.
3.The Learned Judge erred as a matter of law in finding that the Learned Magistrate did not err in determining the admissibility of Exhibit P7 absent any application by either party to do so where the Appellant was denied the opportunity to make submissions and denied the benefit to his defence of the evidence.
4.The Learned Judge erred as a matter of law in not finding that the late production of Exhibit P11 resulted in an unfair trial and/or a miscarriage of justice where the Appellant’s credit was attacked upon the basis of its nonexistence and the evidence of Dr Le allowed for it to have been presented in the way contended for by the Appellant.
5.The Learned Judge erred as a matter of law in failing to quash the Appellant’s conviction on the basis that the offence of which the Appellant was convicted was an offence not known to the law.
[7] The original notice of appeal, filed on 29 January 2016, contained grounds 1 to 4. During the hearing of the appeal a formal application to file an amended notice to add ground 5 was heard and allowed.
Ground 1
The appellant contends that inherent in Ms Welson’s evidence was the question of whether or not she correctly identified the appellant as the person who handed to her the two scripts, P2 and P3. Further, in assessing whether or not she correctly identified the appellant as that person, it was incumbent on the Magistrate to give herself an identification warning in accordance with the principles stated by the High Court in Domican v The Queen.[8]
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. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. 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”. A warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. 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. 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.
[8] [1992] HCA 13; (1992) 173 CLR 555 at 561-562, [11] (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (citations omitted).

At the first appeal, the appellant raised two major criticisms concerning the evidence of Ms Welson in identifying the appellant as the person who gave her the two scripts, P2 and P3.
First, in her initial statement to the police, given on 13 February 2013, Ms Welson said that she did not think she would be able to recognise again the person who handed P2 and P3 to her. Nevertheless, on 11 April 2013 she was shown by police an array of 16 photographs from which she selected a photograph of the appellant as that person. At the trial, when giving evidence, Ms Welson confirmed that the appellant was the person who handed her the two scripts. It was argued before the Judge that her earlier reticence in being able to recognise again the person who gave her the two scripts was of significance.
The second major criticism related to the Magistrate’s acceptance that, prior to making her photographic identification, Ms Welson had not viewed the closed circuit television (CCTV) footage for the day and time in question which showed the appellant approaching Ms Welson. There was evidence from Constable Conroy, one of the investigating police officers, who said that Ms Welson was present when that footage was viewed by the police. It was contended before the Judge that the Magistrate had been obliged to but did not resolve the conflict in evidence between Constable Conroy and Ms Welson on this topic.
Furthermore, if it had been the case that Ms Welson had viewed the CCTV footage between the making of her initial statement to the police and the making of her photographic identification, the potential for a displacement effect[9] causing Ms Welson to make a false identification would have to have been considered by the Magistrate before accepting Ms Welson’s evidence on this point.
[9] That is, there would have been the potential for Ms Welson, when making the photographic identification, to be inadvertently relying, not on an image in her mind of the person she saw hand her the scripts on the day in question, but on an image in her mind produced from having watched the CCTV.
On appeal to this Court, the appellant appeared to rely solely on the failure of the Magistrate to have warned herself in accordance with the requirements of Domican and on the contention that the Judge below erred in holding that such a warning was not called for in the circumstances of this case.
I agree with the Judge that this was not an identification case in the sense comprehended in Domican. After the evidence to the effect that Ms Welson had selected a photograph of the appellant from a police provided photo pack was adduced, she was asked whether she could see that person in Court. This line of questioning was interrupted by a discussion as to whether identity was in issue. Senior counsel for the appellant at trial[10] advised the Court: “There is no dispute that [the appellant] was there. That is him on the screen”. This was then clarified in the following exchanges involving the Magistrate, counsel for the appellant and the further evidence adduced from Ms Welson both in chief and as a result of questions from her Honour.
[10] Different counsel represented the appellant at the appeal before the Judge. Different counsel, again, was initially involved in the appeal to this Court and settled the appellant’s written summary of argument. However, the appellant filed a notice of acting in person on 3 March 2015, was unrepresented at the hearing of the appeal and presented his own oral argument.
HH:Yes. Look, I do not think an identification in court is going to take the matter very far, but if it can just be accepted that the person that this witness saw approach the counter was the defendant. Is that accepted?
Appellant’s counsel: Yes.
...
XN
Q.The person that approached your counter has been identified as the defendant.
A.Yes.
HH:
Q.Sorry, are you clear about that.
A.Yes.
Q.The defendant, the person with the glasses and the tie.
A.Yes.
Q.That’s the person that is the defendant in this matter.
A.Yep.
Q.All right, thank you.
XN
Q.And you said he gave you two scripts.
A.Yep.
Q.Is that correct.
A.That’s right.
Q.What were they for.
A.There was two medications, like a medication on each script. One was Tramadol, it’s a pain killer and the other one was Stilnox [Zolpidem Tartrate] which is mainly used for insomnia or anxiety, mainly. The combination of two medications these two medications is a bit awkward. Like, I’ve never seen these two coming together, because it has the side effects of excessive drowsiness. So it’s not right to have them together.
The Judge held, and I agree, with respect, that these passages make it clear that the issue between the parties was not whether Ms Welson correctly identified the appellant as a person who was in the pharmacy on the day and, indeed, as a person who approached the counter to speak to Ms Welson on the day but rather whether Ms Welson was correct in her evidence that it was that person, the appellant, who handed to her the scripts, P2 and P3. It was the defence case that the appellant was the person who approached Ms Welson as shown on the CCTV and as described in the evidence of Ms Welson but that he did so for the purpose of presenting a single script, being a script for Atacand, which was produced and tendered late in the trial as exhibit P11.[11]
[11] A ground of appeal based on the late production of this script for Atacand is dealt with later in these reasons – appeal ground 4.
I agree with the Judge that, in these circumstances, the dangers peculiar to the question of whether an out of court identification of a person previously unknown to a witness has been accurately arrived at, as canvassed in Domican, do not arise. No formal identification warning was called for. I also agree with the Judge that the present case, whilst not on all fours, has more in common with the situation considered by the High Court in Dhanhoa v The Queen[12] rather than with a Domican type situation.
[12] [2003] HCA 40; (2003) 217 CLR 1.
In Dhanhoa, the victim had met four men and had invited them to his home. It was his evidence that soon after arrival, the four men attacked and robbed him. The victim’s identification of the accused Dhanhoa, was not the only evidence connecting him to the victim’s home. However, the defence case was that the accused had left the victim’s house before any violence took place. No identification warning was given to the jury. Gleeson CJ and Hayne J held that no such warning was required. Their Honours observed as follows.[13]
In the present case the victim, Mr Schembri, asserted to a police officer, and again a few days later in court, that the person in photograph No 8 was a person who was present at or about the time he was attacked and kidnapped. His assertion in court, and the police officer’s report of that assertion, was the identification evidence to which s 116 had potential application. Let it be assumed that the assertion had been comprehensively denied. It is instructive to consider the basis of the need for special caution before accepting the evidence. Because there was a reasonable explanation for the failure to conduct an identification parade, that aspect of the matter may be put to one side. The risk of suggestibility, or the displacement effect, associated with photographs would have been relevant, as would the matter raised by counsel when originally objecting to the photograph, that is to say, the lapse of time between January 1999 and April 2000. There may also have been considerations relating to the quality of the photographs, the fact that all four men had previously been strangers to the victim, and other matters affecting the reliability of Mr Schembri’s conclusion that photograph No 8 was a photograph of one of the four men who accompanied him to his flat. However, as the Court of Criminal Appeal pointed out, in the light of the appellant’s evidence, the only question was whether the man in photograph No 8 was still there when the attack occurred, or whether he had left shortly before. It was not the reliability of the identification that was in dispute; it was the reliability of the account of the conduct of the person identified, and, in particular, of the evidence that such person remained with his three companions at all material times.
As the Judge in the present case observed:[14]
By parallel reasoning, there was no need for an identification warning in the present case. Ms Welson was shown to be correct in asserting that the appellant was present at the relevant time. The question was whether she was correct in her description of his conduct.
[13] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at 10 [23] (citations omitted and emphasis supplied).
[14] Murphy v Police [2015] SASC 193 at [36].
In any event, the Magistrate painstakingly considered all of the evidence relevant to the question of whether or not it was the appellant rather than some other customer in the shop who handed over P2 and P3 and whether, in the alternative, the appellant did something else such as hand over P11, the script for Atacand. It would appear that the Judge on appeal also carefully reviewed all of the evidence bearing on this question. I have also examined the evidence.
Whilst the Magistrate did not give herself a warning in express terms concerning the risks inherent in accepting Ms Welson’s evidence, she nevertheless had regard to all relevant considerations. In particular, when discussing the credibility of Ms Welson and arriving at her conclusion on that issue, the Magistrate expressly acknowledged the concession made by Ms Welson, in her first witness statement, that she was not sure if she would recognise the male person if she saw him again. The Magistrate took the view that this did not undermine the quality of Ms Welson’s evidence on the topic of identification or more generally and it was open to her Honour to take that view. As far as the CCTV imagery is concerned, the Magistrate expressly noted that Ms Welson had stated repeatedly that she had not seen the CCTV images of the appellant at all, not even on the day when the police attended. The Magistrate accepted this evidence. In so doing, she implicitly, if not expressly, rejected the evidence of Constable Conroy that Ms Welson was present at the time the CCTV imagery was shown.
There are a number of possible explanations for why Constable Conroy might have been mistaken or made an unwarranted assumption in that respect. It was open to the Magistrate who heard and saw the witnesses give their evidence to accept Ms Welson’s evidence on this topic.
It should not be forgotten that there was other evidence bearing on this issue which the Magistrate was entitled to and did rely on. There was the evidence of the pharmacist, Mr Le, that he approached the person whom he had seen drop off the two prescriptions to Ms Welson, that he spoke to this person, addressing him as Mr Brookes, and that this person then walked quickly out of the door. The appellant conceded that Mr Le approached him and spoke to him after which he left the pharmacy in a hurry. The CCTV footage shows Mr Le to be standing nearby when the appellant appears to drop something off to Ms Welson. Mr Le said that he was certain it was the same person he dealt with. Implicit in Mr Le’s evidence is a contemporaneous identification of the appellant as the person who had handed the two scripts to Ms Welson.
There was also Ms Welson’s evidence that she saw Mr Le speak to the same person who had given her the two scripts and that she saw that person run out the door. There was Mr Le’s evidence that when he spoke to the person, who it is accepted was the appellant, that person said something along the lines of “that’s ok. I will go back and see the doctor”.
None of this is consistent with the appellant having handed in a single script for Atacand rather than the forged scripts, P2 and P3. If the appellant had only dropped off a script for Atacand in his own name, the behaviour of Mr Le and the conversations Mr Le had with the appellant, including addressing him as Mr Brookes, ought to have been entirely perplexing. The obvious response ought to have been along the lines of “my name is not Brookes and I do not know what you are talking about”. Instead, the appellant abandoned his legitimate (on his case) business at the pharmacy and took off.
I agree with the following conclusion by the Judge.[15]
In any event, the magistrate was entitled to place weight on Ms Welson’s evidence. Her selection of the appellant’s photograph as being a person within the pharmacy on that day was self-evidently correct. Her evidence that he presented two scripts and not one and that she identified irregularities in relation to those scripts and immediately referred those to Mr Le was compelling. In addition, it complemented Mr Le’s evidence about his actions and his approach to the appellant.
The first ground of appeal is not made out.
[15] Murphy v Police [2015] SASC 193 at [37].
Ground 2
This ground has already been addressed, in part. It was not necessary to resolve the conflict between the evidence of Ms Welson and the evidence of Constable Conroy or to address the issue of displacement. For the reasons already given, the Magistrate was entitled to find Ms Welson’s evidence that it was the appellant who handed her P2 and P3 to be credible and reliable and to do so beyond reasonable doubt. In any event, the conflict between the evidence of Ms Welson and Constable Conroy with respect to the CCTV issue was resolved by the Magistrate, at least implicitly, and resolved in favour of Ms Welson’s evidence. I would reject this ground of appeal.
Ground 3
The nature of the appellant’s complaint to this Court concerning exhibit P7 and the manner in which it was deployed by the Magistrate is unclear. The potential relevance of P7 was discussed at quite some length by the Magistrate and by the Judge on appeal. Appeal ground 3 is drawn in terms that appear to be inconsistent with the appellant’s written summary of argument and the contentions ultimately put by the appellant on appeal.
Exhibit P7 is a computer generated “Patient History” setting out the dispensing history from the Frewville Chemist King pharmacy for a patient with the name of John Brookes of 16 John Street, Salisbury North. On its face it comprises evidence that somebody had presented prescriptions on six previous occasions, five of which purported to be prescriptions for Tramadol. According to the appellant’s summary of argument, P7, if accepted at face value, could form the basis for a number of inferences including:
(i)that [the appellant] had prescribed Tramadol Hydrochloride to a real patient named John Brookes during September 2011 and the date of the alleged offending – which would be consistent with the appellant’s innocence;
(ii)that a person (whether or not actually named John Brookes) presented forged prescriptions purportedly written by [the appellant] between September 2011 and the date of the alleged offending –consistent with innocence of the appellant; and
(iii)that [the appellant] himself presented prescriptions in the name of John Brookes to the pharmacy between September 2011 and the date of the alleged offending –consistent with guilt.
The appellant contended that the second of the above inferences was a reasonable possibility consistent with innocence.
Exhibit P7 was introduced by the police prosecutor during the evidence of Mr Le. The transcript at this point suggests that the prosecutor was concerned to provide the Court with any documentation, gathered during the investigation, that might be thought to bear generally on the issues before the Court. It was not suggested during the trial that P7 should be relied on by the Magistrate as similar fact evidence. However, neither party drew to the Magistrate’s attention the potential relevance of Division 3 of Part 3 of the Evidence Act 1929, which deals with the proper approach to the admissibility of evidence of discreditable conduct.
Nevertheless, at the time of writing her judgment, the Magistrate took the view that whilst P7 had a limited relevance to the defence case, it also had the potential to be highly prejudicial. After undertaking the exercise required by section 34P of the Evidence Act, her Honour directed herself that P7 and the evidence given about it was inadmissible for the purpose of suggesting that it was more likely that the appellant committed the offences because he had engaged in similar discreditable conduct in the past. However, her Honour decided that she would have regard to P7 for a limited permissible use, namely as providing background to and explanation of the evidence of Ms Welson to the effect that when she entered the name “Brookes” into the computer it caused the information contained in P7 to come up so as to confirm that a person named Brookes had had scripts filled for Tramadol at the Frewville pharmacy on previous occasions.
In her consideration of the potential relevance of P7, the Magistrate reasoned in the following manner.[16]
In the present case, there was undisputed evidence from Dr Adzanku that he had not treated a patient by the name John Brookes. It is accepted that the script purportedly written in his name on 11 February 2013 (P2) is a forgery. One logical inference flowing from this evidence is that another forged script was generated by someone in his name for Brookes previously and presented to the pharmacy in November 2012 at which time, the forgery was not detected and the medication was dispensed.
[The appellant’s] evidence on the topic is ambiguous. He has not stated with any certainty that Mr Brookes was his patient in the past, but concedes that he may have been.
One interpretation of P7, in light of the other evidence in this trial, is that [the appellant] did write those earlier scripts for Tramadol for a real patient called Brookes whom he has since forgotten, although this is unlikely.
Bearing in mind the coincidence of the medication involved, and other evidence from the defendant, the more logical inference flowing from the exhibit P7 is that [the appellant] uttered and forged each script for Tramadol which has been dispensed in the name of Brookes referred to in P7.
I find that the evidence does not enable me to make a finding that Mr Brookes has never been [the appellant’s] patient and is a fiction, however it does raise a suspicion about that, especially in light of the evidence about the nominated address for Brookes, the invalid Medicare number on the scripts in P2 and P3 and the nature of the medication referred to in those scripts. There is also a potential inference open on the evidence that [the appellant] manipulated the computer records at work to delete or hide an entry for a person called John Brookes, before the police came to the clinic, notwithstanding the documentary evidence about the relevant computer software which the defendant relied upon to refute that.
Given the ambiguity surrounding this topic and its potential for prejudice to the defendant if admitted, I direct, that Exhibit P7 and evidence given about it by the defendant is inadmissible and cannot be used to suggest that he is more likely to have committed the offences because he has engaged in discreditable conduct in the past. Unfortunately, the matter was not argued during the trial, nor was it addressed by counsel despite me having raised it during closing submissions.
[16] Magistrate’s Reasons at [133]-[138].
Ground 3 asserts that the Judge on appeal erred in finding that the Magistrate did not err in determining the admissibility of P7 in the manner that she did, that is, absent any application by either party to do so and where the appellant was denied the opportunity to make submissions, so as to deny the benefit to his defence of the evidence.

It is difficult to see where this appeal ground can go. The Magistrate made it plain in her reasons that the more logical inference to be drawn from P7 is that the appellant uttered and forged the earlier scripts. It is true that the Magistrate arrived at this conclusion without the benefit of submissions by either party directly addressed to P7. However, she did have the benefit of comprehensive submissions made on behalf of the appellant at the conclusion of the trial and could have been in no doubt as to the nature of the appellant’s defence. It is difficult to see what else might have been put to dissuade her Honour from the view she took that P7, whilst of potential assistance to the appellant, was also potentially highly prejudicial to the appellant’s case.
The difficulty for the appellant’s argument is that the inferences consistent with innocence based on P7 relied on by the appellant have arisen after looking at P7 in isolation. However, when P7 is considered in the context of all of the evidence before the Magistrate, her Honour’s finding that the more logical inference flowing from P7 is that the appellant uttered the earlier scripts in the name of Brookes carries significant weight.
The Judge on appeal analysed the matter in the following manner with which I agree.[17]
The appellant’s argument based on the document P7 remains rather elusive. As mentioned, that document was generated by the Frewville Chemist King and showed that a person giving the name “John Brookes of 16 John Street, Salisbury North” had presented prescriptions on six previous occasions and that five of those purported to be prescriptions for Tramadol. Rather than advancing the suggestion that a person other than [the appellant] had presented all the scripts, as the appellant asserts, in my mind this document underlines the tenuous nature of the appellant’s defence to these charges. On the basis of this document it would appear that during 2011 and 2012 someone was systematically presenting false scripts for Tramadol and attributing the writing of those scripts to [the appellant] and Dr Adzanku. This was a pharmacy which was far from the appellant’s surgery and far from pharmacies which he claimed to use regularly for professional purposes. Tramadol was a medication used by the appellant. Yet, on the defence case, here was the appellant in the Chemist King at Frewville, well away from his place of work and the pharmacies he regularly used, at much the same time as the person who habitually presented scripts falsely using the appellant’s name; and more, upon being mistaken for that person and being addressed as Mr Brookes, leaving without protest. That such a coincidence could occur strains credulity.
Later in her Honour’s reasons, her Honour drew the following conclusions with which I also agree.[18]
I have explained why I see P7 as damaging to the appellant’s case. Plainly the magistrate was inclined to take a similar view. I consider that the limitation placed on the use of P7 by the magistrate can only have advantaged the defence. If the document were to be available for use in the way the appellant suggests, then, by the same token, the appellant would have to suffer the potential harm caused by the magistrate drawing the “more logical inference” that the appellant was the person who presented all the scripts listed in P7.
[17] Murphy v Police [2015] SASC 193 at [46].
[18] Murphy v Police [2015] SASC 193 at [56].
In the appellant’s summary of argument, it is conceded on behalf of the appellant that whilst neither party requested the Magistrate to direct herself in accordance with section 34P of the Evidence Act, “it is acknowledged that the direction was appropriate and, if it was not, was to the advantage of [the appellant]”. Thereafter in the summary of argument, the complaint seems to be that the Magistrate should still have considered and placed weight on the manner by which the appellant had submitted P7 could assist his case and that the Judge on appeal left that omission uncorrected.
In other words, the appellant maintains that, even though P7 was correctly or justifiably admitted for only the limited purpose as explained by the Magistrate, her Honour still should have used it in a way that was beneficial to the appellant’s case. If so, and as observed by the Judge on appeal in the passage quoted immediately above, the Magistrate would have been obliged to consider the other inferences that the document might support, including the “more logical inference” nominated by the Magistrate.
In my opinion, a short answer to the appellant’s reliance on P7 is that put on behalf of the respondent. Given that the issue at trial was whether the appellant had handed P2 and P3 in the name of John Brookes to Ms Welson when he attended at the pharmacy, the fact that there was evidence that someone had previously presented a similar script or scripts for Tramadol in the name of Brookes, without there being any evidence at all of the circumstances surrounding the presentation of those scripts, cannot support a case that it was someone other than the appellant who presented the scripts, P2 and P3. Exhibit P7, considered in isolation from any evidence of the circumstances surrounding the presentation of the various scripts referred to in P7, is, at best for the appellant, entirely equivocal. I would reject ground 3.
Ground 4
The appellant’s complaint here is that the trial miscarried as a consequence of the late production by Mr Le of the document that ultimately became P11. Exhibit P11 was a bundle of three prescriptions drawn in favour of the appellant, one of which was a prescription for Atacand. It was the defence case that the appellant, when he approached Ms Welson, gave her a script for Atacand but not the scripts P2 and P3.
During the week before the trial, the appellant’s lawyers issued a summons in the nature of a subpoena to the Chemist King pharmacy requiring production of various categories of documents including any original, copy or repeat prescription for the appellant held by the pharmacy. The trial commenced without that summons having been fully complied with although cross-examination of Mr Le demonstrated that various boxes of unfilled, uncollected or expired scripts had not yet been searched. After the evidence in the trial had been completed, but before final addresses, further searches were undertaken. Three scripts stapled together, the top one being for Atacand and made out for “Dr Graeme Murphy” and dated 2 November 2012 were located. This bundle of scripts became P11. However, according to the evidence of Mr Le, P11 was located in a box of prescriptions marked as having been provided to the pharmacy in March 2013, that is, the month after the events relied on by the prosecution, as the foundation for the charges, took place.
The appellant’s complaint in relation to P11 is not that the prosecution failed in its obligation to disclose evidence. Exhibit P11 was never in the possession of the prosecutor or its investigating officers. The appellant contends that he was put at a disadvantage by having to conduct his defence, to the effect that it was a script for Atacand that he had supplied to Ms Welson, throughout the whole of the trial (until P11 was finally located) in the absence of such a script being produced. It was submitted that this weakened the cross-examination of the prosecution witnesses and that it caused the appellant to conduct himself, at times, with a level of frustration which no doubt gave rise in the Magistrate’s mind to a poor demeanour and which may have affected the quality of his evidence.
Shortly prior to the trial, when it was apparent that the time available had not allowed for comprehensive searches to be made for any documents that might capture any script or scripts in the form of P11, it was open to the appellant, represented by counsel, to seek an adjournment in order to permit a complete search to be undertaken. An adjournment was not sought. In any event, once P11 was located, all relevant witnesses were recalled. Ms Welson, Mr Le and the appellant gave further evidence in chief and were further cross-examined. Such arguments as were available to the defence based on the existence of P11 were put in final submissions.
This ground of appeal was considered and dealt with by the Judge on appeal in the following terms.[19]
Having read the transcript of the trial, it is not apparent to me that the production of P11 after the close of evidence and the recalling of the material witnesses had any substantive impact on the way in which the issues at trial developed. If there were any shift in the prosecution attitude to the question of P11 existing, then it was a subtle one. That was understandable, because even when it was found, its location in the March 2013 box of scripts was not particularly helpful to the appellant. As I have previously observed, how the script might have found its way into that box was, and could only remain, the subject of conjecture. There was no ready answer to that quandary; certainly not one which could have assisted the appellant.
I do not consider this to be an issue of prosecutorial disclosure. Neither the police prosecutor nor the investigating officers or other police ever had P11 in their possession. The late production of P11 was hardly surprising in view of the late call for it and the place in which it was finally located. Early in the trial the Chemist King staff had demonstrated by their evidence quite a sophisticated recording system, both electronic and hard copy. A log of all scripts dispensed on 13 February 2013 had been produced (Exhibit P6). Extensive evidence had been given about the records of scripts processed within the pharmacy. Initially, the trial proceeded on the basis that no search for records such as P11 had been conducted because of the late notice and the extent of the task involved, rather than on the basis that no such record existed.
Once P11 was produced and the relevant prosecution witnesses and the appellant were recalled, any inconvenience to the defence was removed.
[19] Murphy v Police [2015] SASC 193 at [67]-[69].
On my review of the evidence at trial and the procedures undertaken by the Magistrate with respect to the late finding of P11, I agree with the Judge’s analysis and conclusion. I am satisfied that the Magistrate was able to properly consider the weight to be given to P11 and to consider how it might bear on the credibility and reliability of Ms Welson and of the appellant.
During the hearing of the Full Court appeal, extensive submissions were put by the appellant and by counsel on behalf of the respondent and substantial interchanges with the bench occurred, all in an effort to explore possible explanations for the presence of P11 in the Chemist King pharmacy’s March 2013 box of stored scripts. Ultimately, I have derived little assistance from this. The presence of P11 is a curiosity. Nevertheless, it was not necessary for the Magistrate to explain how it came about. Much of the evidence concerning P11 and much of the oral submissions on appeal were simply speculative.
The existence of P11 was not necessarily inconsistent with the evidence given by the prosecution witnesses, as earlier discussed. The circumstantial evidence before the Court which supported the inference of guilt, together with the Magistrate’s cogent findings as to the credibility and reliability of Ms Welson and Mr Le, rendered the prosecution case a very strong one irrespective of the presence of P11. Further, there is no basis to conclude that the earlier production of P11 would have affected the Magistrate’s assessment of the circumstantial evidence and of the prosecution witnesses.
I agree with the Judge below that no miscarriage of justice arose from the chain of events concerning P11.[20]
[20] Murphy v Police [2015] SASC 193 at [70].
Ground 5
By this ground of appeal, the appellant complains that the Judge below erred as a matter of law in failing to quash the convictions on the basis that the offence of which the appellant was convicted was not an offence known to the law. In fact, this was not a ground of appeal raised before the Judge but was raised for the first time before this Court.
The offence under section 30(1) of the Controlled Substances Act can be committed in a number of ways. Section 30(1) has been set out earlier in these reasons but it is convenient to set it out again.
(1)A person must not forge or fraudulently alter or utter a prescription or other document, or have in his or her possession such a prescription or document knowing it to be forged or fraudulently altered, with a view to obtaining a prescription drug.
Maximum penalty: $15 000 or imprisonment for 5 years.
Both counts on the Information charged the appellant in terms that he “uttered a forged prescription with a view to obtaining [the prescription drug in question]”. The appellant was not charged with forging or fraudulently altering such a prescription or having in his possession such a prescription. Nevertheless, it was common ground that both P2 and P3 were forgeries. Strictly, and in order to follow the form of that aspect of the offence with which the appellant was charged, both count 1 and count 2 should have asserted that the appellant “uttered a prescription, knowing it to be forged with a view to obtaining [the prescription drug in question]”.
However, the Magistrate, notwithstanding the form of the offences as charged on the Information, described the elements of the offence which the prosecution had to prove beyond reasonable doubt as being:
[The appellant] knowingly uttered a forged prescription with a view to obtaining a prescription drug.
Her Honour went on to observe, correctly, that the issue in dispute was the identity of the utterer of the two scripts. In describing the elements of the charged offence in this way, her Honour perpetuated a misstatement of the nature of the conduct comprising the offence pursuant to section 30(1) as relied on by the prosecution.
The appellant submitted in his summary of argument that, as a result of the manner by which the two offences on the Information were described, and in circumstances where the fact of forgery was not in dispute at trial, the sole issue before the Court was whether it was proved beyond reasonable doubt that it was the appellant who uttered the forged prescription. According to the appellant, the course of evidence during the trial reflected this as being the live issue at trial.
However, the appellant further submitted that had he been charged with an offence known to the law, that is, with an offence that fell within section 30(1) the prosecution would have had to allege matters that went beyond those asserted on the Information and that this “would naturally have affected the course of the evidence at trial and the forensic decisions taken by counsel for [the appellant] at trial”.
Nevertheless, the appellant did not particularise any matters of evidence or any forensic decisions made that would or might have been addressed differently had the trial proceeded on an Information which more accurately recorded the offence alleged. The appellant submitted that the convictions should be quashed, the Information struck out and that the respondent should be, in effect, put to its election whether or not to commence a further prosecution by a fresh complaint.
I agree with the respondent’s submission that the appellant has been convicted of an offence known to the law; he has been convicted of two counts of the offence provided for by section 30(1). If there is a problem, it is that the incorrect description of the form of the offence charged, as set out in the Information, and her Honour’s misstatement of its elements have, in some way, prejudiced the appellant. In my view, there has been no prejudice.
The finding that it was the appellant who uttered P2 and P3 in the circumstances established by the evidence necessarily implied a finding that he did so intentionally and knowingly. That is, the appellant knew that he was handing over P2 and P3 with a request that he was to be supplied with each of the prescription drugs in question. The act of uttering could not have been accidental or inadvertent. Further, in the circumstances of this case, the fact that P2 and P3 were forgeries was incontestable and conceded by the appellant. Once it were to be found that the appellant knowingly had been the utterer, it necessarily followed that he must, at the time, have been aware that the scripts were forgeries, at least to the extent that by uttering the document he was representing himself as the person entitled to receive the drugs in circumstances where he knew that he had no such entitlement.
I am satisfied that the course of the evidence and of the trial generally would not have changed had the description of the offence on the Information and the elements stated by the Magistrate been more precisely articulated. There has been no prejudice caused to the appellant and no miscarriage of justice.
For these same reasons, this is one of those relatively rare cases where permission to amend the Information even at the appeal stage should be allowed, if necessary.[21] In my view, it is not necessary to go this far. I agree with the respondent’s submission that the present case is analogous to Robey v Police[22] and that the reasoning of Cox J in that case is apposite. I would reject ground 5.
[21] Section 181(2)(a) of the Summary Procedure Act 1921 (SA), Ireland v Police [2005] SASC 202.
[22] [1993] SASC 4183; (1993) 18 MVR 121.
Conclusion
None of the grounds of appeal has been made out. Further, on my review of the evidence before the Magistrate, and bearing in mind the natural advantages her Honour enjoyed as to the assessment of the credibility and reliability of the witnesses who gave evidence, I am satisfied that the Magistrate was entitled to find the charges proved beyond reasonable doubt. I would dismiss the appeal and hear the parties on the question of costs.
PARKER J.
I agree with the reasons of Nicholson J. I would dismiss the appeal.
LOVELL J.
I would dismiss the appeal. I agree with the reasons of Nicholson J.

[2016] SASCFC 81

3 August 2016

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Statutory Interpretation

Legal Concepts

Appeal

Charge

Procedural Fairness

Sentencing