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): 

1. The applicant seeks permission to appeal conviction.  The application is out of time. 

2. 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). 

3. The applicant was found not guilty of trafficking in buprenorphine (Suboxone) but convicted of the lesser, alternative offence of simple possession. 

4. 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. 

5. 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 one year and four months.

6. The Notice of Appeal filed on 24 November 2020 articulates only one ground of appeal:

   The Learned Trial Judge erred in refusing to allow cross examination of an accomplice witness on topics of her admissions to plea and her guilty plea.

7. The reference to cross-examination is in error.  Ms Elmes was called as a witness in the defence case and an attempt was made to lead evidence from her.  It remains unclear what the claimed error is in connection with the refusal by the trial Judge to allow evidence to be led from Ms Elmes.  The Director has assumed that the defence wished to lead evidence to rebut recent invention when recent invention had neither been alleged nor put. 

8. In order to address this ground of appeal it is necessary to set out a little more of the factual background. 

9. On 19 March 2018, police attended the applicant’s home and, in a rear shed, located 29.8 grams of methylamphetamine, being the controlled drug the subject of the applicant’s guilty plea on 10 September 2020.

10. Later that year, on 13 July 2018, the police pulled over a vehicle being driven by the applicant.  Sitting in the front seat was Ms Elmes.  A search of the vehicle located a blue bag in which were located two plastic tubs containing 30.2 grams of methylamphetamine.  That was the subject of the trafficking charge on which the applicant was found guilty.  The applicant’s DNA was located on the strap of the bag. 

11. In the centre console of the vehicle, sitting in a cup holder, was a bottle containing 246 grams of fantasy.  This was the subject of the trafficking charge on which the applicant was found guilty.  In addition, police located 11 Suboxone strips in the pocket of the shorts being worn by the applicant under his jeans.  These were the subject of the conviction on the lesser offence of simple possession. 

12. Police also located $1,060 in cash in the pocket of the applicant’s jeans.  In a mobile phone a number of messages were detected, consistent with the applicant dealing in methylamphetamine and fantasy around the time of the search of the vehicle.  The applicant was arrested.

13. At the trial before the jury in the District Court, the applicant called Ms Elmes and, after her evidence, he gave evidence.  In response to the prosecution case that Ms Elmes was holding the drugs for the applicant, Ms Elmes said that she did not have any arrangement with the applicant to sell methylamphetamine or fantasy.  She claimed sole possession.  Ms Elmes also gave evidence that she had pleaded guilty to two counts of trafficking and that she had been sentenced to a term of imprisonment.  Ms Elmes’ evidence was that she was holding the drugs for her former boyfriend who had died the day he gave her the methylamphetamine. 

14. Counsel for the applicant raised with the trial Judge an issue about the admissibility of Ms Elmes’ record of interview.  The trial Judge was told that the applicant had been given advice about the admissibility of that evidence but that the applicant nonetheless wished to pursue the issue directly with the Court.  The trial Judge noted that it was unusual to permit a conversation with the applicant whilst still represented.  Nonetheless, the trial Judge advised the applicant that the record of interview of the co-accused was not admissible.  After this, the applicant did not press the issue of the admissibility of Ms Elmes’ record of interview. 

15. However, during the course of her evidence, an attempt was made to elicit further evidence from Ms Elmes about what she had said to the police about the ownership of the drugs when she was arrested with the applicant.  The Judge intervened and the following was said:

    HIS HONOUR:     I’m not sure how that is admissible.

    [COUNSEL]: Only to rebut recent invention.  I know it has not come up yet.  Perhaps I should wait.

    HIS HONOUR:     I will disallow the question.

    QUESTION DISALLOWED

16. In circumstances where an alleged 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 Ms Elmes 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.

17. Evidence is relevant if it might rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.[1]  This usually requires that the purpose for which evidence is to be led be identified and, in addition, that the fact in issue which it may prove or disprove also be identified. 

    [1]     Day v The Queen [2021] SASCA 38, [43]; Kirkland v The Queen [2021] SASCA 14, [132]; R v W, CT [2019] SASCFC 18, [30].

18. As counsel for the applicant recognised at trial, evidence of a prior consistent statement is generally admissible only to rebut an allegation of recent invention.[2]  That allegation had not been put.  In fact, it was not ever put to Ms Elmes in the course of cross-examination.  Had recent invention been distinctly and squarely put, then the evidence might have been elicited to rebut recent invention in the course of re-examination. 

    [2]     Nominal Defendant v Clements (1960) 104 CLR 476.

19. In the Nominal Defendant v Clements, Dixon CJ said:[3]

    If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court.

    [3]     Nominal Defendant v Clements (1960) 104 CLR 576, 479 (Dixon CJ, with whom McTiernan and Kitto JJ agreed).

20. 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. 

21. In the circumstances, the trial Judge did not err in disallowing the question.  The proposed appeal raises no issue of principle nor any arguable error.  There is no point in granting an extension of time.[4]

    [4]     McLaughlin v The Queen [2020] SASCFC 67, [86]-[88].

22. Accordingly, permission to appeal this ground is refused.  Before leaving this matter, we emphasise that we have not finally disposed of the applicant’s appeal rights.