Norris v The Queen - [2021] SASCA 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NORRIS v THE QUEEN
[2021] SASCA 100
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
22 September 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
Following a trial by jury, the applicant was convicted of trafficking methylamphetamine and 4 hydroxybutanoic acid (fantasy), contrary to the Controlled Substances Act 1984 (SA). At trial, counsel for the applicant sought to elicit a prior consistent statement from the co-offender as to what she had said to the police about the ownership of the drugs at the time she was arrested. The trial Judge intervened and disallowed the question. The applicant sought permission to appeal on the basis that the trial Judge erred in disallowing the question.
Held (per the Court), refusing permission to appeal:
1.In circumstances where the co-offender had given evidence that she alone was in possession of the drugs and that, in effect, the applicant was not in possession of those drugs and that they did not belong to him, what the co-offender might have said to police about that fact could not be regarded as relevant. It was, presumably, a prior statement made out of court that was consistent with the evidence given in court.
2.Evidence of a prior consistent statement is usually admissible only to rebut an allegation of recent invention. As recent invention was never put to the witness in the course of cross-examination, evidence about her prior consistent statement was neither relevant nor admissible.

Day v The Queen [2021] SASCA 38; Kirkland v The Queen [2021] SASCA 14; McLaughlin v The Queen [2020] SASCFC 67; Nominal Defendant v Clements (1960) 104 CLR 476; R v W, CT [2019] SASCFC 18, considered.

NORRIS v THE QUEEN
[2021] SASCA 100
Court of Appeal – Criminal: Livesey P and Bleby JA
THE COURT (ex tempore):

The applicant seeks permission to appeal conviction. The application is out of time.
Following a trial before a District Court Judge sitting with a jury, the applicant was convicted of trafficking the drugs, methylamphetamine and

4-hydroxybutanoic acid (fantasy), contrary to the Controlled Substances Act 1984
(SA).
The applicant was found not guilty of trafficking in buprenorphine (Suboxone) but convicted of the lesser, alternative offence of simple possession.
Before the trial commenced, the applicant pleaded guilty to trafficking in methylamphetamine. He is yet to be sentenced for that offending. That matter is not the subject of the present application for permission to appeal.
Ms Jade Elmes was jointly charged with the applicant in relation to the charges of trafficking in methylamphetamine and fantasy. She pleaded guilty and, on 24 October 2019 she was sentenced to a term of imprisonment of two years, eight months, two weeks and four days, with a non-parole period fixed of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norris v The Queen

Details

AGLC: Norris v The Queen [2021] SASCA 100
Case: [2021] SASCA 100
Decision Date: 22 September 2021

CaseChat Overview and Summary

Norris v The Queen concerned an appeal to the Full Court of the Supreme Court of South Australia following a jury conviction of the applicant for trafficking methylamphetamine and 4-hydroxybutanoic acid. The applicant's conviction arose from a trial where he sought to introduce a prior statement made by a co-offender to the police regarding the ownership of the drugs at the time of their arrest. The trial judge disallowed a question intended to elicit this statement, leading to the applicant's appeal.

The central legal issue before the Full Court was whether the trial judge erred in disallowing the question seeking to introduce the co-offender's prior consistent statement to the police. Specifically, the court had to determine the relevance and admissibility of such a statement in the context of the co-offender's trial testimony and the applicant's defence.

The Full Court held that permission to appeal should be refused. The court reasoned that the co-offender's evidence in court was that she alone possessed the drugs and that the applicant was not in possession of them and they did not belong to him. In this context, any prior statement made by the co-offender to the police that was consistent with this in-court testimony could not be regarded as relevant. Furthermore, the court affirmed the general principle that evidence of a prior consistent statement is typically admissible only to rebut an allegation of recent invention. As the defence had not put an allegation of recent invention to the co-offender during cross-examination, the prior consistent statement was neither relevant nor admissible.

Orders

Orders of the court

Following a trial by jury, the applicant was convicted of trafficking methylamphetamine and 4 hydroxybutanoic acid (fantasy), contrary to the Controlled Substances Act 1984 (SA). At trial, counsel for the applicant sought to elicit a prior consistent statement from the co-offender as to what she had said to the police about the ownership of the drugs at the time she was arrested. The trial Judge intervened and disallowed the question. The applicant sought permission to appeal on the basis that the trial Judge erred in disallowing the question.

Held (per the Court), refusing permission to appeal:

1. In circumstances where the co-offender had given evidence that she alone was in possession of the drugs and that, in effect, the applicant was not in possession of those drugs and that they did not belong to him, what the co-offender might have said to police about that fact could not be regarded as relevant. It was, presumably, a prior statement made out of court that was consistent with the evidence given in court.

2. Evidence of a prior consistent statement is usually admissible only to rebut an allegation of recent invention. As recent invention was never put to the witness in the course of cross-examination, evidence about her prior consistent statement was neither relevant nor admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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