Norfolk v The Queen
[2002] WASCA 118
•10 MAY 2002
NORFOLK -v- THE QUEEN [2002] WASCA 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 118 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:27/2002 | 2 MAY 2002 | |
| Coram: | WALLWORK J ANDERSON J PARKER J | 10/05/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | MARK HENRY NORFOLK THE QUEEN |
Catchwords: | Criminal law Appeal Accused cross-examined on previous convictions Whether accused had given evidence of good character Whether discretion to allow cross-examination wrongly exercised Evidence of good character |
Legislation: | Evidence Act 1906 (WA), s 8(1)(e)(ii) |
Case References: | Cushing v The Queen (1977) WAR 7 Dawson v The Queen (1961) 106 CLR 1 Donnini v The Queen (1972) 128 CLR 114 Harriman v The Queen (1989) 167 CLR 590 M v The Queen (1994) 181 CLR 487 Melbourne v The Queen (1999) 198 CLR 1 R v Perrier (No 1) [1991] 1 VR 697 R v Stalder (1981) 3 A Crim R 87 Chidiac v The Queen (1991) 171 CLR 432 Jones v The Queen (1997) 191 CLR 439 Knight v The Queen (1992) 175 CLR 495 Mill v The Queen (1988) 166 CLR 59 Phillips v The Queen (1985) 159 CLR 45 Postiglione v The Queen (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Clinch (1994) 72 A Crim R 301 R v Cottrell (1989) 42 A Crim R 31 R v Reppucci (1994) 74 A Crim R 353 Wong v The Queen (2001) 185 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NORFOLK -v- THE QUEEN [2002] WASCA 118 CORAM : WALLWORK J
- ANDERSON J
PARKER J
- CCA 28 of 2002
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal - Accused cross-examined on previous convictions - Whether accused had given evidence of good character - Whether discretion to allow cross-examination wrongly exercised - Evidence of good character
Legislation:
Evidence Act 1906 (WA), s 8(1)(e)(ii)
(Page 2)
Result:
Appeal allowed
Conviction quashed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant : Mr D Grace QC & Mr M L Tudori
Respondent : Mr D Dempster
Solicitors:
Appellant : Michael Tudori
Respondent : Director of Public Prosecutions for WA
Case(s) referred to in judgment(s):
Cushing v The Queen (1977) WAR 7
Dawson v The Queen (1961) 106 CLR 1
Donnini v The Queen (1972) 128 CLR 114
Harriman v The Queen (1989) 167 CLR 590
M v The Queen (1994) 181 CLR 487
Melbourne v The Queen (1999) 198 CLR 1
R v Perrier (No 1) [1991] 1 VR 697
R v Stalder (1981) 3 A Crim R 87
Case(s) also cited:
Chidiac v The Queen (1991) 171 CLR 432
Jones v The Queen (1997) 191 CLR 439
Knight v The Queen (1992) 175 CLR 495
Mill v The Queen (1988) 166 CLR 59
(Page 3)
Phillips v The Queen (1985) 159 CLR 45
Postiglione v The Queen (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Clinch (1994) 72 A Crim R 301
R v Cottrell (1989) 42 A Crim R 31
R v Reppucci (1994) 74 A Crim R 353
Wong v The Queen (2001) 185 ALR 233
(Page 4)
1 WALLWORK J: The facts of this case are set out in the reasons for judgment of Parker J.
2 I agree with Parker J and for the reasons given by his Honour that the conviction should be set aside and a re-trial ordered. The appellant answered a question which in all the circumstances he should not have been asked.
3 With respect to the question of whether or not the appellant gave evidence of his good character within the meaning of s 8(1)(e)(ii) of the Evidence Act 1906 (WA), it is my opinion that he did not do so. He was answering a surprise question from prosecuting counsel as to whether he was dealing in drugs at the time of the trial in February 2002, when he was on trial for alleged drug offences said to have been committed in March 1997. He was obviously on the back foot when he answered the question in a defensive way - cfCushing v The Queen (1977) WAR 7 at 11. However, as it is not necessary to answer this question for the purposes of the decision, I will not develop it further in these reasons.
4 ANDERSON J: I agree with the judgment of Parker J.
5 When a person on trial before a jury for the crime of possession of prohibited drugs with intent to sell or supply gives evidence on oath that he has never dealt in drugs and never would do so, he must be regarded as giving evidence of his good character within the meaning of s 8(1)(e)(ii) of the Evidence Act1906 (WA). That is what occurred in this trial and, in my opinion, the evidence enlivened the trial Judge's discretion to allow the prosecution to cross-examine the appellant as to his previous convictions for this type of offence and generally as to his character. Whether the discretion should have been exercised in favour of the prosecution is another question. The evidence of good character was elicited from the appellant only by improper and inadmissible cross-examination. It is true that the appellant's counsel did not object to the question and it is also true that the accused, in order to answer the question, did not need to expatiate in the manner that he did. In my opinion, however, the prosecution should not have been given the advantage of cross-examining the appellant on his previous convictions for drug offences, in the circumstances. The appellant's answer, "I never have" was untruthful. It was a lie. In one respect, to require the lie to go unchallenged by denying the prosecution the opportunity to cross-examine upon it would not do justice. The jury would naturally get the impression that the untruthful answer was accepted by the Crown as the truth and was therefore probably the truth - that this was a person who
(Page 5)
had never before dealt in drugs. That would be a misconception and, on one view, to apply rules of evidence in a manner likely to engender misconceptions in the minds of the jury makes no sense. There are, however, broader considerations. People must be fairly prosecuted. One of the first rules of fairness is that a person accused of a crime should be tried on the evidence of his/her guilt of that crime, not on evidence of his/her character, or antecedent conduct, or bad repute, or criminal propensity: Harriman v The Queen (1989) 167 CLR 590 per Brennan J at 593; Dawson J at 597; Toohey J at 607; Gaudron J at 613; McHugh J at 627 - 628. This means that ordinarily the prosecution must not be permitted to lead evidence or cross-examine on these subjects. The prosecution did so in this case. The appellant was on trial in February 2002 for drug offences allegedly committed in March 1997. The prosecutor asked him in cross-examination whether to that very day in February 2002 he was still "doing" drugs. This question was utterly impermissible. Of itself, it might have provided justification to discharge the jury. There was no such application, but I do not think the trial Judge should have rewarded the prosecution for its breach of one of the fundamental rules of criminal trials by allowing further cross-examination of the appellant under s 8. That cross-examination must have been very nearly conclusive of the accused's guilt in the minds of the jury, for all the wrong reasons.
6 I, too, would quash the conviction and order a retrial.
7 PARKER J: This is an appeal against the appellant's conviction after trial by jury in the District Court on 15 February 2002, of two counts of possession of heroin with intent to sell or supply it to another. The two offences were alleged to have occurred at Scarborough on 6 March 1997. The appellant was sentenced to 10 years imprisonment on each count, the sentences being ordered to be served concurrently. The appellant was made eligible for parole.
8 The appellant occupied a two-bedroom apartment in a resort at Scarborough at the time of the offences. The appellant and his then girlfriend, Jacqueline Ammoun, shared one bedroom and Jacqueline's brother, Jack Ammoun, occupied the other. Jack Ammoun had rented the apartment in February 1997 under another name.
9 On 6 March 1997 police searched the apartment pursuant to a warrant. In a freezer in the kitchen a quantity of what proved to be heroin was found in a plastic bag which was hidden in ice cream. This was the heroin the subject of count 1. In the bedroom occupied by the appellant and Jacqueline Ammoun a plastic bag containing what proved to be
(Page 6)
heroin was found to be hidden in the bed head. This heroin was the subject of count 2. Among the other things found in the apartment was a set of scales, some plastic bags in the inside pocket of one of the appellant's jackets and a brown bag containing $6,325 in money which was in the wardrobe of the room occupied by the appellant and Jacqueline Ammoun.
10 When interviewed the appellant essentially made "no comment".
11 The evidence at the trial showed that the police had searched the apartment because of information they had received from Jack Ammoun that there were drugs in the apartment. Jack Ammoun became a registered informant and was paid a reward. He was not charged with any offences. It was the evidence of Jack Ammoun that he had previously arranged with the appellant, who was interstate, to set up a heroin distribution business in Perth, his reason being that he did not approve of the relationship between the appellant and his sister and he wished to have the appellant arrested. Shortly after this the appellant and Jacqueline Ammoun came to Western Australia. There was evidence from Jack Ammoun that in Perth the appellant had used the scales to weigh heroin and told Jack Ammoun how much each deal was worth. Jack Ammoun then dealt in the heroin on the appellant's behalf, passing the money from the sales to the appellant but receiving some financial reward.
12 It was the evidence at trial that Jack Ammoun had been convicted in 1982 of an offence of possession of heroin with intent to sell or supply, had used illegal drugs and had purchased or received small quantities from the appellant for his own use.
13 There was evidence led from Jacqueline Ammoun that, following a conversation which she overheard between her brother and the appellant, she and the appellant had driven to Perth with heroin secreted in the vehicle. She had seen the appellant give her brother some heroin, conceal heroin in the ice cream and weigh heroin on the scales which belonged to the appellant. She also saw the appellant, she said, conceal drugs behind the bed-head. She was present during the police search of the apartment. She was arrested together with the appellant and charged with possession of the drugs. Following committal proceedings, she had agreed to give evidence for the Crown on the basis that the charges against her were withdrawn.
14 The appellant gave evidence in his defence. He denied any knowledge of the heroin in the apartment, that he had brought heroin to WA, or that there had been any arrangement with Jack Ammoun to do so.
(Page 7)
It was his evidence that he was a jeweller by trade and worked from home. The scales that were found were jewellery scales and the plastic bags were for the purpose of holding precious stones in the course of his business. He accepted that the cash found in the wardrobe was his. It was his evidence that this was from the sale of jewellery and winnings from gambling and not from the sale of heroin. He had brought cash with him from Melbourne to Perth because he did not know if his banking card, which was with the Bank of Melbourne, would be accepted in Western Australia. He explained that he had made "no comment" when interviewed because he suspected the drugs could have been Jack Ammoun's and he didn't want to get him into trouble.
15 There was also evidence that Jacqueline Ammoun and the appellant had had a child, which was born on 27 April 1998. Since then, however, she had married another man. The appellant had been granted custody of the child but there was disagreement and it seems there were proceedings in the Family Court in which the question of custody was to be further considered.
16 One significant thread of the appellant's cross-examination was to challenge his evidence that he had the scales and plastic bags as part of his activities as a jeweller, rather than a drug dealer. There was also cross-examination as to whether the heroin found in the bed-head was on the side of the bed on which the appellant normally slept or on Jacqueline Ammoun's side.
17 It was in this last context that, virtually at the end of the cross-examination, the appellant disputed evidence of Jacqueline Ammoun as to the side of the bed on which she normally slept. The following then occurred:
"So she is wrong about that, is she? - - - Yes, she is. I still to this very day sleep always on my right-hand side.
I'm sure you do. And to this very day you are still dealing jewellery? - - - Yes.
Not drugs? - - - No. I never have; I never will."
18 No further questions were asked in cross-examination. There was no re-examination. Counsel appearing for the Crown, however, then raised in the absence of the jury whether he might have leave to cross-examine the accused, pursuant to s 8(i)(e)(ii) of the Evidence Act 1906 (WA) on the basis that the appellant had personally "given evidence of his good
(Page 8)
character". Counsel relied principally on the final answer of the appellant quoted above. Although this answer was coupled with an observation made by the appellant in his evidence-in-chief to the effect that if the appellant had thought there was heroin in the apartment he would not have stayed there. The Crown's application was resisted by counsel for the appellant and the tape recording of the passage of evidence was replayed because of some uncertainty as to precisely what was said.
19 The learned trial Judge granted the application. In the reasons that he gave he focussed attention on the final answer given in cross-examination and reached the view that those words clearly conveyed the implication that the appellant was a person of good character. His reasons indicate that he had concluded that the answer of the accused was conscious and deliberate and given in a case where the critical issue was credibility, there being direct conflict between the evidence led for the Crown from Jack and Jacqueline Ammoun and the evidence of the appellant. He expressly weighed the prejudice and considered whether it outweighed the probative value. He was clearly well aware of the prejudicial effect of granting the application but concluded that the probative value clearly outweighed that. He expressly noted that he was conscious that the discretion to allow cross-examination was one not lightly exercised and only appropriate in an exceptional case.
20 The appellant was then cross-examined by the Crown. He admitted that in 1996 in Victoria he had been convicted of one offence of trafficking in heroin and in September 1998 he had been convicted on three charges of unlawfully selling, supplying or administering heroin. In re-examination the appellant reasserted the truth of the evidence that he had given before the jury. The trial Judge then immediately cautioned the jury in terms that are not questioned for their clarity or appropriateness as to the limited use that the jury might properly make of this evidence of the previous convictions and that they should not have regard to it as proof of guilt of the offences charged on the basis of propensity. The direction was clear that the use of this evidence was to be confined to the issue of credibility.
21 There was no further evidence. Following closing addresses by counsel and a charge which is not questioned on this appeal as to its adequacy and correctness, and in which the jury were once again expressly and clearly directed as to the limited use they might properly make of the previous convictions of the appellant, the jury returned the verdicts of guilty.
(Page 9)
22 The first ground of appeal contends that the learned trial Judge erred in law in the exercise of his discretion to allow the cross-examination of the appellant on his previous convictions. In support of this ground it was submitted, by Mr Grace QC who did not appear at the trial, that the last answer of the appellant to the question "Not drugs?" ie, "No. I never have; I never will" was not sufficient to constitute giving evidence of his good character within the meaning of s 8(1)(e)(ii) of the Evidence Act. In support of this reliance was placed on Melbourne v The Queen (1999) 198 CLR 1 for the proposition that evidence of lack of prior convictions need not amount to evidence of good character. While that is the case, the answer in question is not an assertion of a lack of prior convictions. In its context it clearly conveys expressly that the appellant never had dealt in drugs and never would do so. Especially, in the context of a trial in which the issue was possession of heroin with intent to sell or supply it appears to me that it was well open to the learned trial Judge to regard this as clear evidence of the appellants' good character.
23 Alternatively, it is submitted that the likely prejudicial effect of the previous convictions in the mind of the jury was wholly disproportionate to its probative significance in the trial. Reliance was placed on Dawson v The Queen (1961) 106 CLR 1 particularly at 9 – 10, 16, R v Stalder (1981) 3 A Crim R 87 at 93, and Donnini v The Queen (1972) 128 CLR 114 at 123 at 144. It was further submitted that the prejudicial effect was so great that notwithstanding the learned trial Judge's warning to the jury there was a real risk that the evidence of the past convictions would be used as evidence of propensity. In this respect reference was made to R v Stalder at 98 and R v Perrier (No 1) [1991] 1 VR 697 at 705 and 709.
24 I need not deal with these authorities and the argument in any detail for a reason which will become apparent shortly. Nevertheless, I should indicate that, in my respectful view, the learned trial Judge was clearly alert to the issues raised by these arguments and gave appropriate and balanced consideration to them in his decision. Were these the only issues I would not be persuaded that the exercise of discretion by the learned trial Judge to allow the cross-examination of the appellant on his past convictions was affected by error or omission or that it should be overturned.
25 There is one further issue, however, which in my view is critical in this case. It was not raised before the learned trial Judge nor is it directly raised by the ground of appeal. The form of the questions put by counsel for the Crown at the critical point of his cross-examination appears to me to be open to serious objection. It is to be remembered that the offences
(Page 10)
were alleged to have occurred in March 1997 whereas the trial was being conducted in February 2002. The relevant passage in the cross-examination has been set out earlier in these reasons. The appellant's answer to the question as to which side of the bed he normally slept was "I still to this very day sleep always on my right-hand side". The notion of "to this very day" was echoed in the next question of counsel for the Crown when he asked "And to this very day you are still dealing jewellery?" The appellant's answer was a simple "Yes". The final abbreviated question, "Not drugs?", clearly enough depended upon the preceding question for its full effect, ie its apparent effect may be rendered as "And to this very day you are still not dealing in drugs?" This question appears clearly to have introduced issues as to the appellant's conduct in connection with drug dealing between March 1997 and the trial in February 2002. On any view a question with this effect was improper. This may well not have been the intention of counsel, but given the abbreviated form of the question and what had preceded it, this appears to be the natural and obvious effect.
26 The clear tendency of the question to raise the conduct of the appellant in respect of drug dealing over the years to the time of trial may well indeed have had a significant influence on the way in which the appellant came to answer. It is to be remembered that, notwithstanding the one comment in evidence-in-chief noted earlier, at no stage during his evidence-in-chief or the cross-examination to this point had the appellant asserted his good character in a way that might properly have attracted the operation of s 8. His answer under the pressure of cross-examination to a question that appeared to direct attention to a span of years may well have significantly influenced the way in which he expanded his answer in time to say "I never have; I never will". Thus the answer of the appellant which constituted the assertion of his own good character was in response to an improper and inadmissible question and a question which invited a denial of involvement in drug dealing, not only in respect of March 1997, but over a span of years to trial.
27 The inadmissibility of the question which provoked the answer in question, and the tendency of the form of the question to invite an answer dealing with behaviour over years to the time of trial are issues which, once identified, have clear relevance to the discretion whether or not the Crown should have leave to cross-examine by virtue of the answer given. It is regrettable indeed that the offending question was asked in such a lax form, and without objection from defence counsel, and that these issues were not raised in submissions before his Honour by either counsel, so
(Page 11)
that his Honour did not come to deal with them when he dealt with the application.
28 There can be no doubt of the importance in this trial of the discretion which his Honour was called on to exercise. Even if it be accepted that the jury well heeded the clear directions of his Honour as to the proper use that could be made of the previous convictions, their effect may well have been most significant on the jury's impression of the credibility of the appellant's denials of his knowledge of the drugs on this occasion and his denial of the truth of much of the evidence of the other two occupants of the apartment. Credibility was at the heart of the case.
29 In these circumstances, it is not possible to be satisfied that the discretion of the learned trial Judge would have been exercised as it was had the issues which have now been identified been raised by counsel at the time. There is a clear prospect that his Honour may well have been persuaded not to exercise his discretion to allow cross-examination had the inadmissibility of the question and the potential of its form to have influenced the answer of the appellant been raised by defence counsel. In the regrettable and unusual circumstances presented by this case I am persuaded that it would not be safe to allow the conviction to stand.
30 There was a submission that the evidence would not warrant a re-trial but in my view, despite reason for great care with the evidence of Jacqueline and Jack Ammoun, it cannot be said that their evidence suffers from such defects or inherent unreliability that a jury, properly directed, might not properly convict on the basis of it. The circumstances of this case are quite different from those in M v The Queen (1994) 181 CLR 487.
31 There was another ground of appeal against conviction which it is unnecessary to consider. It is also unnecessary to give consideration to the application for leave to appeal against sentence in CCA 28 of 2002.
32 I would quash the conviction and order a re-trial.
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