Noble v The State of Western Australia

[2005] WASCA 33

NOBLE -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 33

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 33
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:148/2004	Heard:	11 FEBRUARY 2005
Coram:	STEYTLER P ROBERTS-SMITH JA PULLIN JA	Delivered:	11/02/05
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal against conviction refused Leave to appeal against sentence refused
Category:	B
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Parties:	PAUL NOBLE THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Appeal Extension of time Difficulties in obtaining transcript Extension allowed Criminal law and procedure Appeal against conviction Adequacy of trial Judge's directions to the jury on onus and standard of proof Liberato directions Turns on own facts Criminal law and procedure Appeal against sentence Parity Principle Turns on own facts
Legislation:	Nil
Case References:	Liberato v The Queen (1985) 159 CLR 507 Lowe v The Queen (1984) 154 CLR 606 Murray v The Queen (2002) 211 CLR 193 Postiglione v The Queen (1997) 189 CLR 295 R v Palmer (1992) 64 A Crim R 1 Latham v The Queen [2000] WASCA 57 Miles v The Queen [2000] WASCA 364 Mule v The Queen [2004] WASCA 7 R v Condo (1992) 62 A Crim R 11 R v Day (2001) 127 A Crim R 403 R v Middleton (2000) 114 A Crim R 141 Salmon v The Queen [2001] WASCA 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NOBLE -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 33 CORAM : STEYTLER P

ROBERTS-SMITH JA
PULLIN JA

HEARD : 11 FEBRUARY 2005 DELIVERED : 11 FEBRUARY 2005 FILE NO/S : CCA 148 of 2004

CCA 184 of 2004

BETWEEN : PAUL NOBLE

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

Citation : THE QUEEN -v- HAGAN & ANOR

File No : IND KUN 8 of 2003

(Page 2)

Catchwords:

Criminal law and procedure - Appeal - Extension of time - Difficulties in obtaining transcript - Extension allowed

Criminal law and procedure - Appeal against conviction - Adequacy of trial Judge's directions to the jury on onus and standard of proof - Liberato directions - Turns on own facts

Criminal law and procedure - Appeal against sentence - Parity Principle - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal against conviction refused

Leave to appeal against sentence refused

Category: B

Representation:

Counsel:

Applicant : Ms B J Lonsdale
Respondent : Mr J Mactaggart

Solicitors:

Applicant : Auburn & Associates
Respondent : State Director of Public Prosecutions

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

Liberato v The Queen (1985) 159 CLR 507
Lowe v The Queen (1984) 154 CLR 606
Murray v The Queen (2002) 211 CLR 193
Postiglione v The Queen (1997) 189 CLR 295


(Page 3)

R v Palmer (1992) 64 A Crim R 1

Case(s) also cited:

Latham v The Queen [2000] WASCA 57
Miles v The Queen [2000] WASCA 364
Mule v The Queen [2004] WASCA 7
R v Condo (1992) 62 A Crim R 11
R v Day (2001) 127 A Crim R 403
R v Middleton (2000) 114 A Crim R 141
Salmon v The Queen [2001] WASCA 270


(Page 4)

1 STEYTLER P: The applicant was convicted after a trial by jury of two counts of possession of cannabis with intent to sell or supply. He was sentenced to a total period of imprisonment of 3 years on each count. The sentences were ordered to be served concurrently with each other and the applicant was declared to be eligible for parole. He has applied for leave to appeal against his conviction and also against the sentences imposed upon him

2 The applications were filed out of time. The applicant has consequently applied for an extension of time within which to bring them. An affidavit sworn by the applicant's solicitor on 18 November 2004 makes plain that the delay was brought about through difficulties in obtaining a copy of the transcript of the trial. Given that in these circumstances those advising the applicant could not, any earlier than they did, have given adequate consideration to possible grounds of appeal, and given that there is no real opposition from the respondent, I would be prepared to grant each application for an extension of time.

3 The appeal against conviction relies upon only two grounds. They are to the effect that the trial Judge failed adequately to direct the jury as to the onus and standard of proof and that, as a consequence, the applicant was denied a fair trial and a chance of acquittal.

4 The first of those grounds is supported by three particulars as follows:

"(a) The learned trial Judge failed to tell the jury that the applicant was presumed to be innocent until proven otherwise;

(b) The learned trial Judge failed to direct the jury in accordance with the decision of the High Court in Liberato v R;

(c) The learned trial Judge erred by directing the jury that 'whether the jury accepts or rejects [the accused's statements to police on video] is a matter for the jury', as this amounted to an oversimplification of the onus and standard of proof."

5 Before turning to these grounds, I should say something about the prosecution case at the trial.
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6 The applicant was charged jointly with a co-accused, James Ernest Hagan.

7 On the afternoon of 31 October 2002 two police officers, Detective Sergeant Ashley Goy and Detective Sergeant Travers, intercepted a Holden Commodore sedan driven by Hagan. They searched the vehicle. The search revealed a bucket behind a seat in the vehicle which contained clip-seal bags of packed cannabis weighing some 415 grams in all. Hagan and his passenger, a woman by the name of Jade Donovan, denied any knowledge of the cannabis. Hagan said that the car was not his. In fact, the car was later established to have been driven into Western Australia by the applicant, who was in the process of buying it, on 31 October 2002.

8 When the two police officers searched the car, they saw in it a security tag with the name Ivanhoe Village Caravan Resort on it. Hagan was asked whether he was staying at that resort and he said that he was. A number of police officers then accompanied him to the caravan resort. Hagan had told them that he was staying in chalet 25 with the applicant. The applicant was present in the chalet when the police arrived.

9 The chalet was searched. In a small wardrobe the police officers found a bag containing a plastic bucket. Inside the bucket were plastic bags containing smaller bags of cannabis head material. The total weight of the cannabis was just over one kilogram. The police officers also found cash amounting to $2000 in the side pocket of a bag in the chalet. The bag belonged to the applicant.

10 Later that day the applicant participated in a video-recorded interview. The effect of what he said to the police during that interview was that he had no explanation for the existence of the cannabis other than that his co-accused Hagan had put it in the car and wardrobe. He explained the presence of the money, and a further sum of $540 found in his wallet, by saying that it was the proceeds of deals which he had made in respect of cars, motorbikes and boats.

11 Hagan, too, was interviewed by the police. That interview was also video-recorded. He told the police that the car in which the cannabis was found was that of the applicant. He denied that any of the cannabis had belonged to him. While he did not expressly blame the applicant for the presence of the cannabis found in the car and in the chalet, it was implicit in his responses to the police officers that the cannabis had belonged to the applicant.

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12 The situation was consequently one in which, as counsel for the applicant put it, each of the two co-accused blamed the other.

13 Neither of the two co-accused gave evidence at the trial. However, the videotaped interviews were shown to the jury.

14 In his opening comments to the jury at the outset of the trial, the trial Judge told the jury that the ultimate question for them was whether each charge had been proved beyond a reasonable doubt.

15 He repeated this in his summing up to the jury at the end of the trial. He said:

"In our system if you lay a charge against someone and it's criminal in nature, as these charges are, then it is your job to prove it and it's your job to prove it beyond a reasonable doubt. That's what you're being asked in respect of each of the four verdicts that you are asked to return. You are asked, 'Has that charge been proved beyond a reasonable doubt against that individual?'

As part of that, if you look at it in that way, you will see that you don't ask yourselves, 'Has he proved he is innocent? Has he proved he is not guilty?' The onus to prove the charge beyond a reasonable doubt lies on the State in each case."

16 After referring to the fact that people are generally not obliged to speak to police officers, he went on to say:

"Each of them did speak to the police and you have seen what they had to say. That's something that you therefore have before you as part of the evidence that you have heard, the evidence of what they told the police. In our system, people don't have to give evidence in court if they're charged. In these cases both Mr Hagan and Mr Noble exercised that right of not having to give evidence in court, so you have before you what they told the police. That's a matter for you to accept or reject in whole or in part as you think appropriate.

They did not exercise their right to give evidence. They exercised their right not to give evidence and you can't make an adverse inference - that is, you can't find a person guilty because they didn't give evidence. You don't ask, 'Has he proved that he is not guilty?' or 'Has he proved that he is

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innocent?' The question remains throughout, just as it was at the start: has the charge been proved against the person beyond a reasonable doubt? That's the question that is being asked of you in each case."

17 Still later in his summing up the trial Judge went on to say:

"When people speak to police, they can make admissions about themselves but what they say about other people is not evidence against that other person. If they say it in court under oath, subject to cross-examination in the presence of the other person, that's evidence against the other person.

Whether the jury accepts it or rejects it is a matter for the jury, but you can't use as evidence against another person what somebody out of court tells the police about them, but when Mr Hagan is speaking in his record of interview about himself, that's evidence concerning him. You may accept it; you may reject it but that's evidence concerning him.

When he speaks to police about Noble, that's not evidence you can use against Mr Noble. Similarly when Mr Noble is giving a statement, an interview, to police, what he says about himself you can use. You may accept it; you may reject it but it is part of what you can consider."

18 That brings me to ground 1(a).

19 The applicant complains of the fact that the trial Judge did not tell the jury that the applicant was presumed to be innocent until proven otherwise. Counsel for the applicant contends that it is incumbent on all trial judges to remind the jury of the fundamental role of the presumption of innocence. She has, in her outline of submissions, referred us in this respect to the case of R v Palmer (1992) 64 A Crim R 1 at 6. There, Finlay J, with whom the other two members of the Court were in agreement, referred to the presumption of innocence as expressing a fundamental tenet of our criminal justice system. However, he went on to say, at page 6, that the tenet operates as a yardstick by which the quality of rules are judged rather than as a phrase specifically to be recited by all judges to all juries. He also said that while it is no doubt helpful, and not uncommon, in a criminal trial, for a judge expressly to refer to the presumption of innocence in order to assist the jury better to appreciate the onus which lies upon the State throughout the trial, there is no legal requirement that a judge use such phraseology.

(Page 8)

20 In my opinion, there was in this case no need for the trial Judge to say any more than he did. He told the jury, emphatically, that it was the State's job to prove the applicant's guilt beyond a reasonable doubt and that it was not for him to prove his innocence. As will be apparent from what I have already said, the jury was told this on more than one occasion. In these circumstances, it seems to me, the jury could have had little doubt as regards the operation of the presumption and as regards the onus which the prosecution bore in establishing the applicant's guilt.

21 That brings me to grounds 1(b) and (c).

22 The applicant complains of the trial Judge's failure to give to the jury a so-called "Liberato direction". By this, his counsel refers to what was said by Brennan J in his Honour's dissenting judgment in the case of Liberato v The Queen (1985) 159 CLR 507 at 515. His Honour there said:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

23 The case before us is, in effect, one in which, as I have said, each of the two co-accused blames the other. Consequently, even putting to one side the debate which exists as regards the question whether Brennan J, in Liberato, was intending to lay down a new rule, it was important, in a case of this kind, that the jury should have been left in no doubt that the question of guilt or otherwise was not simply a matter of weighing up what was said by each of the co-accused and deciding which version was the preferable version. Nor should the jury have been left with any doubt

(Page 9)

as to the proposition that it was enough, for guilt, that they disbelieved either or both of the accused.

24 In this last respect we were referred to the case of Murray v The Queen (2002) 211 CLR 193. There, at 201 - 202 of her judgment, Gaudron J stressed that the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility. She stressed, also, that any misstatement of that burden could result in a miscarriage. In the same case, Gummow and Hayne JJ, at 212 - 213, stressed that the question is whether the prosecution has proved the relevant elements of the offence beyond reasonable doubt; and that this requires no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the accused person.

25 Accepting these propositions, it seems to me that the trial Judge did, in this case, make it quite plain to the jury that they had to be satisfied beyond reasonable doubt of the proof of the applicant's guilt.

26 This was not merely a case of word against word. There was no dispute as regards the finding of the cannabis in the vehicle and in the wardrobe in the chalet. Nor was there any dispute as regards the finding of the money and its ownership by the applicant. It was not in dispute that the car in which the cannabis was found was being purchased by the applicant.

27 Moreover, after telling the jury that they had before them what each of Hagan and the applicant had said in the course of the video-recorded interviews, the trial Judge told the jury that it was a matter for them to accept or reject it "in whole or in part" as they thought appropriate. He immediately went on to remind the jury, as will be apparent from what I have earlier said, that the jury must be satisfied that the charge had been proved against each person beyond a reasonable doubt. That stricture was again repeated by his Honour later in the course of his reasons.

28 Consequently, the effect of what was said by the trial Judge to the jury was that while the jury could accept or reject either in whole or in part any part of what had been said by either or both of the applicant and his co-accused, the prosecution ultimately bore the onus of proving the guilt of either person beyond reasonable doubt.

29 In my opinion, nothing more was required in the circumstances of this case and the jury could not have been left with the impression that the question of guilt or innocence depended upon which of the two versions

(Page 10)

offered was the preferable version. Rather, it was made quite plain to the jury that the ultimate question was always that of whether or not the prosecution had proved its case against each accused beyond reasonable doubt. Indeed, it is plain from the verdict of the jury that they did not accept either of the versions offered.

30 It consequently seems to me, taking grounds 1(a), (b) and (c) together, that there was no misdirection as to the onus and standard of proof and that these grounds consequently fail.

31 I would consequently refuse the application for leave to appeal against conviction.

32 That brings me to the application for leave to appeal against sentence.

33 There is only one ground of appeal. It is to the effect that the learned sentencing Judge erred in the exercise of his sentencing discretion by failing to have any or proper regard to considerations of parity. That ground is particularised by reference to the facts that the State's case was said to have been that the applicant and his co-accused were engaged in a joint enterprise; that the sentencing Judge erred by categorising the applicant as the primary offender; that the co-accused had several previous convictions, whereas the applicant had no prior convictions; and that there was no significant difference between the respective levels of culpability of the two men such as to justify the disparate sentences imposed.

34 The sentencing Judge was relatively brief in the course of his sentencing remarks.

35 He dealt first with Hagan.

36 Hagan had a significant criminal record but, since 1987, had come before the courts, in this State at least, on only one matter, being for possession of a small amount of cannabis. That cannabis was found in his possession on the same day as the offences which led to the trial. His Honour remarked that Hagan had spent a period of close to 8 months in custody on remand which, he said, made the sentencing exercise difficult. He said that Hagan had been a user of illicit drugs and that he had been unemployed but that he had now ceased using drugs and had gained employment. Hagan had had debt problems at the time of his offending.

(Page 11)

37 Then, after referring to Hagan's age (he was then 39 years old) the trial Judge said that the appropriate sentence seemed to him to be a fine of $2500 and that, if there should be default in payment, Hagan was to remain in custody for 3 months.

38 The sentencing Judge then turned to the applicant. He described him as the primary offender. He found that the applicant had supplied the money and the motor vehicle which made the trip possible. The cash which was found was in the applicant's bag. He said that the applicant was "at least" the financier. The sentencing Judge also said that the applicant, like Hagan, had shown no remorse.

39 There were very limited mitigating factors present in the applicant's case. Most important was the fact, noticed by the sentencing Judge, that the applicant was then 51 years of age but had no prior convictions. The sentencing Judge also took into account the fact that the applicant had had some health problems. The applicant was sentenced, as I have said, to a term of 3 years' imprisonment in respect of each charge and those terms were ordered to be served concurrently. I have mentioned that the applicant was declared to be eligible for parole.

40 As to the parity issue, the so-called parity principle is, as Dawson and Gaudron JJ pointed out in Postiglione v The Queen (1997) 189 CLR 295 at 301, based upon the notion of equal justice, which requires that like should be treated alike. However, their Honours went on to say that where there are relevant differences, then allowance must be made for them.

41 In this case there were, on the findings of the sentencing Judge, different degrees of culpability as between the two offenders. I have said that the sentencing Judge found that the applicant was the primary offender, having financed the venture and having provided the motor vehicle. He also found that it was the applicant who had the money in his possession and in whose bag the cannabis had been found in the chalet.

42 Counsel for the applicant contends that there was evidence that the co-offender Hagan had had contacts in Kununurra, unlike the applicant, and that he had attempted to make arrangements with them to further his plan to sell the cannabis. She also contended that the two men had had an equal role in transporting the cannabis to Kununurra, that Hagan had in fact been the driver of the vehicle and that there was no evidence to suggest that Hagan was put under any pressure by the applicant to enter into the enterprise.

(Page 12)

43 In these circumstances, she submitted, in effect, that any remaining difference in the respective roles played by the two men were more than counterbalanced by the applicant's better antecedents and ill-health.

44 In my opinion, given that Hagan had already served a period of 8 months' imprisonment, the disparity between the two sentences, while significant, was not so large as to give rise to any justifiable sense of grievance, as to which see Lowe v The Queen (1984) 154 CLR 606, given the sentencing Judge's finding as regards the applicant's greater culpability. Even accepting what has been said on behalf of the applicant in respect of his better antecedents, his ill-health and the evidence of Hagan's dealings with his contacts in Kununurra, it was open to the sentencing Judge to conclude that the applicant's considerably more culpable role was such as to justify a significantly greater sentence.

45 It seems to me that the sentences imposed upon the applicant were entirely appropriate to the circumstances relating to him and to his offending and that the disparity between the sentences imposed upon the two men reflected a reasonable exercise of discretion and was not such as to give rise, in the circumstances to which I have referred, to any justifiable sense of grievance.

46 I would consequently refuse leave to appeal against the sentence also.

47 ROBERTS-SMITH JA: I agree with the reasons and conclusions of Steytler P as to both the conviction and sentence and would add only the following brief comments.

48 The actual directions given by the learned trial Judge have been set out by the learned President and it is apparent from those directions which appear at AB 125 and 126 that effectively what his Honour did when specifically dealing with the issues of onus and burden of proof was to give entirely appropriate directions about that and then in fact to sandwich in between both of those entirely appropriate directions reference to the video records of interview with the police which had been undertaken by each of the accused prior to trial.

49 There can be no room, in my view, for thinking that the jury would have been confused about the effect of the direction. The direction which is complained of which appears at AB 137 had nothing whatsoever to do with the onus and burden of proof at all. His Honour was there addressing the issue of the use that might be made in an evidentiary sense of

(Page 13)

out-of-court statements made by each accused. His Honour was at pains to point out that what each accused had said out of court might be used either in that accused's favour or adversely to him, but in no instance could it be used against the co-accused. Those directions were entirely appropriate.

50 Given that that was the context and his Honour was not there addressing the onus and standard of proof at all, what his Honour said could not have been as described in ground 1(c), "an over-simplification of the onus and standard of proof." Nor, in my opinion, did what his Honour say detract from nor erode the quite correct directions he did give that the jury could not convict unless satisfied the prosecution had proved its case beyond a reasonable doubt.

51 The only observation I would make as to the sentence application is to point out that, of course, the 8 months which Hagan had spent in custody before sentence must be scaled up to the equivalent of 16 months had that been a sentence imposed and he was, of course, ordered to pay a fine of $2500. In my view, there is no degree of disparity which would take the two sentences imposed on the applicant and Hagan outside a proper exercise of the sentencing discretion.

52 PULLIN JA: I agree with the reasons given by the President and I make only this comment in relation to grounds 1(b) and (c). The comments by Brennan J in his dissenting reasons for decision in Liberato, at page 515, constitute a reminder that in a case where there is a conflict in the evidence relating to proof of a charge, the Judge must not give directions which gives the jury the wrong impression that the resolution of that conflict is to be treated as concluding the issue whether the prosecution has discharged the onus to prove the charge beyond a reasonable doubt. In my opinion, the learned trial Judge did not give the jury that impression. I agree with the orders proposed by the President.