Pratt v The King
[2023] VSCA 278
•31 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0149 |
| ALEXANDER PRATT | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, MACAULAY and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 October 2023 |
| DATE OF JUDGMENT: | 31 October 2023 |
| DATE OF REASONS: | 16 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 278 |
| JUDGMENT APPEALED FROM: | DPP v Pratt (County Court of Victoria, Judge Chettle, 5 August 2022) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of cultivation and trafficking of cannabis – Whether prohibited direction as to why accused might have given evidence gave rise to substantial miscarriage of justice – Whether comment by judge as to credit of defence witness gave rise to substantial miscarriage of justice – Whether erroneous direction as to use of prior inconsistent statement gave rise to substantial miscarriage of justice – Whether verdict on trafficking charge unreasonable or insupportable – Leave to appeal granted – Appeal allowed – Verdicts set aside – Order for new trial on cultivation charge – Judgment of acquittal entered on trafficking charge.
Jury Directions Act 2015 s 44J; Criminal Procedure Act 2009 s 276.
Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; M v The Queen (1994) 181 CLR 487; Lang v The Queen [2023] HCA 29; McKell v The Queen (2019) 264 CLR 307, applied.
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| Counsel | |||
| Applicant: | Mr OP Holdenson KC | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Theo Magazis & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
MACAULAY JA
TAYLOR JA:
Introduction
On 17 May 2022, following a 12 day trial by jury in the County Court, the applicant was convicted of cultivating a narcotic plant (Cannabis) in a commercial quantity and trafficking in a drug of dependence (Cannabis).
The jury acquitted the applicant of one charge of theft (of electricity).
Following a plea on 25 July 2022, the applicant was sentenced on 5 August 2022 to a total effective sentence of 9 years and 6 months’ imprisonment with a non-parole period of 6 years and 6 months’ imprisonment.
The applicant sought leave to appeal against conviction on the following grounds:
1.The learned trial judge erred in directing the jury that, in determining what weight to give the evidence given by the applicant, the jury should consider the “thing” or “argument” that “a guilty man might attempt to give evidence and brazen it out in the witness box … and take the risk of cross-examination, rather than dodging it and staying in the dock”, with the consequence that there has been a substantial miscarriage of justice.
2.The learned trial judge, in directing the jury concerning their assessment or evaluation of the evidence given by the Applicant, directed the jury in a manner prohibited by s 44J of the Jury Directions Act 2015 (Vic.) and, as a consequence, there has been a substantial miscarriage of justice.
3.The learned trial judge erred in his directions to the jury by making an impermissible comment about the facts and which was critical of the sworn evidence which had been given by the defence witness Carley Stevens.
PARTICULARS OF IMPERMISSIBLE COMMENT
“[Y]ou might think that your friendly drug dealer [Rhys Simms] wants money, just does not come with 15 kilograms of cannabis in your house and not be paid for it …But according to Carley Stevens that is what happened, that Rhys Simms delivered this material …’
4.The learned trial judge erred in directing the jury that the jury could use the evidence adduced by the prosecutor in his cross-examination of Carley Stevens that she had pleaded guilty to trafficking in cannabis on the basis of being in a joint enterprise with the Applicant as evidence of a “prior inconsistent statement” which was relevant to, and could be used by the jury as going to, both “her credit and to the issue of whether or not … [she had trafficked in cannabis] alone” in circumstances where, in his final address to the jury, the prosecutor had only relied upon, and thereby limited his reliance upon, that evidence as going to only her “credit” and “her credibility and reliability” that she alone, and not together with the Applicant, had trafficked in cannabis (at and from the Bentleigh premises) and, as a consequence, there has been a substantial miscarriage of justice.
5.There has been a substantial miscarriage of justice by reason of there being an aggregate of errors in the trial of the Applicant.
PARTICULARS OF ERRORS
(i) The Applicant refers to and repeats Grounds, 1, 2, 3 & 4 herein.
6.The verdict of the jury on Charge 5 is unreasonable and/or cannot be supported having regard to the evidence.
PARTICULARS
(i)It was not open to the jury to find beyond reasonable doubt that the Applicant was “involved in” the trafficking of cannabis with Carley Stevens at and from the premises at Bentleigh.
(ii)It was not open to the jury to reject (or exclude) beyond reasonable doubt a reasonable hypothesis consistent with the innocence of the Applicant, namely, Carley Stevens had alone trafficked cannabis at and from the premises at Bentleigh.
The applicant also sought leave to appeal against sentence. It is unnecessary to detail those proposed grounds because at the conclusion of the hearing the Court was of the view that the appeal against conviction must succeed. We made orders granting leave to appeal and allowing the appeal. A judgment of acquittal was entered on charge 5. A new trial was ordered in respect of charge 1.
These are our reasons for those orders.
Background
Charge 1 concerned a commercial crop of cannabis grown in a Mordialloc factory from late 2016 to early 2017. On 2 February 2017 police executed a warrant at the factory and discovered a sophisticated hydroponic set up. 72 cannabis plants — aged about 16 to 20 weeks and weighing 256 kilograms — were found along with 35 kilograms of branch portions which had come from those plants.
The prosecution case was that the applicant was complicit with unknown others in that cultivation, on the basis that he had secured the factory, organised the lease and subsequently paid its rent.
The factory had been rented by Rhys Simms, an associate of the applicant and the applicant’s then girlfriend, Carley Stevens. Simms was in debt to the applicant. Simms gave evidence that in mid-2016 the applicant asked him to rent the factory in his name and that in late 2016 told him that he was thinking about growing weed there.
On 3 February 2017, the day after the warrant had been executed, the applicant told Simms that the factory had been broken into and the door nailed shut. He supplied Simms with a photocopy of a driver licence in the name of Brizolen Dzikiti and told him to create a false sublease for the factory. Simms bought an invoice book and recorded details in it as instructed by the applicant.
On 11 February 2017 police executed a warrant at Simms’ apartment. Documents associated with the lease of the factory, including a tax invoice book and photocopy of the Dzikiti driver licence, were seized. Upon later forensic analysis the applicant’s fingerprints were located on the latter.
CCTV footage obtained from the National Australia Bank, Southland, shows the applicant attending the bank on numerous occasions to deposit cash into the account of the real estate agent that managed the lease of the factory.
A computer later recovered from the applicant’s Bentleigh unit and linked to him had an internet search history regarding hydroponics retailers and equipment.
The applicant was not forensically linked with any item recovered from the factory.
Charge 5 concerned 15.69 kilograms of dried cannabis seized by police under warrant from a bedroom of the Bentleigh unit at which the applicant and Stevens lived. Scales, plastic bags and other packaging materials were also seized.
The prosecution case was that the applicant was jointly involved with Stevens in trafficking the cannabis — preparing it for sale and doing so on the dark web — in that he intentionally assisted, encouraged or directed Stevens in that endeavour.
The applicant, who gave evidence in the trial, denied any involvement in either the cannabis cultivation at the factory or the cannabis trafficked by Stevens. Stevens also gave evidence. She said that she carried out the trafficking business alone and that the dried cannabis found in the Bentleigh unit had been delivered to her by Simms.
Grounds 1 and 2 — s 44J of the Jury Directions Act 2015 (‘JDA’)
During his charge to the jury, the trial judge said the following:
Now in this case, Mr Pratt chose to give evidence, to go into the witness box and give evidence. I should tell you he did not have to do that. No accused person has to give evidence. They are perfectly entitled to sit where they are, or he is and say, ‘You prove it Mr Prosecutor’ and his counsel can go to you and suggest that the evidence does not prove the case. Well in this case, he took the course of giving evidence. By doing so, you saw him take an affirmation to tell the truth and he exposed himself to cross-examination by the prosecutor.
Now there are two things that can be said about that. Firstly, a guilty man might attempt to give evidence and brazen it out in the witness box, rather than — and take the risk of cross-examination, rather than dodging it and staying in the dock. On the other hand, it can be said that there is no more that an innocent man can do, than go into the witness box and say, ‘I am not guilty and cross‑examine me all you like’. You consider both those arguments, in determining what weight you give to Mr Pratt’s evidence.
The applicant argued that this direction was a clear breach of s 44J of the JDA and productive of a substantial miscarriage of justice.
The respondent submitted, faintly, that no substantial miscarriage of justice was occasioned because while the direction was an irregularity in the trial, the judge did not use the specific words prohibited by s 44J(b)(i) — ‘a guilty person who gives evidence will more likely be believed’.
Discussion
The direction was erroneous and should not have been given.
Section 44J of the JDA is in the following terms.
Prohibited directions in relation to evidence of an accused
The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused—
(a) whether the accused is under more stress than any other witness;
(b) that the accused gave evidence because—
(i)a guilty person who gives evidence will more likely be believed; or
(ii) an innocent person can do nothing more than give evidence.
There is little difference in directing a jury that a guilty person might give evidence, on the one hand, hoping that by doing so they will ‘more likely be believed’ and, on the other, because they have chosen to ‘brazen it out’ under cross-examination. In any event, the comparison between why a guilty accused and an innocent accused might give evidence invited the jury to speculate as to the applicant’s guilt, independently of the whole of the evidence.[1] Accordingly the impugned direction was in conflict with the directions given on the onus and standard of proof. As stated by the High Court in Awad such a direction has the real potential to undermine the presumption of innocence, deflect the jury from applying the requisite standard of proof and taint its evaluation of the evidence of the accused.[2]
[1]Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082, 1099 [97] (Gordon and Edelman JJ); [2022] HCA 36 (‘Awad’).
[2]Awad (2022) 96 ALJR 1082, 1089 [32]–[34] (Kiefel CJ and Gleeson J), 1099 [99], 1100 [106] (Gordon and Edelman JJ).
We could not be satisfied that the error made no difference to the outcome of the trial. Nor could we be satisfied that the conviction was inevitable.[3]
[3]We note that the respondent did not press this argument.
It follows that grounds 1 and 2 are made out.
Ground 3 — impermissible comment
The judge gave an unreliable evidence direction pursuant to s 32 of the JDA regarding the evidence of Simms. In so doing, the judge identified the independent evidence supporting Simms’ evidence. At the end of that the judge said:
They are the only pieces of independent evidence that you could use if you chose to do so as supporting Mr Rhys Simms’ evidence. On the other hand, you have all the evidence called by the defence that has Mr Simms as saying that he was going to grow cannabis, saying that he was growing cannabis. According to Carley Stevens not only growing it but delivering it in large bins and boxes to the Bentleigh address.
There is a lot you may want to ask about that. There is a complete lack of evidence about any financial movement of money or cash payments for this note. I mean you might think, again this is a comment of mine, and you can ignore it if you like — you might think that your friendly drug dealer wants money, just does not come with 15 kilograms of cannabis in your house and not be paid for it.
But according to Carley Stevens that is what happened, that Rhys Simms delivered this material.
The applicant submitted that neither in cross-examining Stevens nor in his final address did the prosecutor suggest that Stevens’ evidence that she received the dried cannabis from Simms in two deliveries was implausible because she had not paid him money. Accordingly, the judge’s comment was effectively a judicial invitation to see Stevens’ credit as impugned and therefore reject not only that piece of her evidence but the whole of the evidence.
The respondent submits that while the judge should not have made the comment, it had little effect on the jury’s assessment of Stevens. She was a witness with manifest credit issues and the jury would have had little difficulty rejecting her evidence.
Discussion
The discretion of a trial judge to comment on the facts of the case in a criminal trial is to be exercised with circumspection and should not ‘add to the force of the case’ for either the prosecution or the accused.[4] The comment made by the judge in this case could only have been understood by the jury as a negative comment on the credibility of Stevens, a central witness in the defence case. It thereby did add force to the prosecution case. Further, there was a sting in the phrase used — ‘I mean, you might think’. As the plurality in McKell v The Queen stated:
… there is no little tension between suggesting to the jury what they ‘might think’ about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently.[5]
[4]McKell v The Queen (2019) 264 CLR 307, 312–313 [3] (Bell, Keane, Gordon and Edelman JJ); [2019] HCA 5 (‘McKell’).
[5]McKell (2019) 264 CLR 307, 324–325 [50] (Bell, Keane, Gordon and Edelman JJ).
In our view there is a real risk that the jury were swayed by the judge’s evident scepticism as to Stevens’ credibility.
The success of grounds 1 and 2 renders it unnecessary for us to determine whether this irregularity, in isolation, was productive of a substantial miscarriage of justice. That said, the impermissible comment remains relevant to ground 5, considered below.
Ground 4 — prior inconsistent statement
As already stated, Stevens gave evidence that she alone was responsible for the trafficking the subject of count 5. In cross-examining her, the prosecutor put to Stevens that the factual basis on which she was sentenced in the County Court and re-sentenced in the Court of Appeal was that she was complicit with the applicant in the trafficking. In his final address the prosecutor, with some care, explained that the purpose of that cross-examination was limited to Stevens’ credibility and to his argument that the jury should not accept her evidence that the applicant was not involved in the trafficking.
In his charge the judge gave the jury a direction as to prior inconsistent statements made by Simms. The judge then continued:
That also works in relation to the witness Carley Stevens. Her position is a bit more complicated. In essence you saw her come into the witness box and say, ‘All the trafficking on the day, that was mine’, that Mr Pratt had nothing to do with it. That was her evidence here. But it turned out in cross-examination, you might remember, that she had pleaded guilty to trafficking cannabis before a judge in this court on the basis of being in a joint enterprise with Mr Pratt and that she then appealed to the Court of Appeal.
And you heard the evidence where propositions were put to the Court of Appeal that only (sic) did her crime arise out of the relationship with Pratt but that she had a very limited role in what occurred is what was put on her behalf over the road.
Now, she said, ‘I didn’t tell my barristers anything. I didn’t say that. I know that’s what they said, but I didn’t talk to my barrister’, so in effect she was trying to back away, you might think, from those assertions. But if you are satisfied that those assertions were made on her behalf you can use that in reflecting upon whether you accept her evidence here that it was all her and not Pratt. Do you follow? It is another example of a prior inconsistent statement, which you can use in both the ways I told you: as going to her credit and to the issue of whether or not it was her alone. (emphasis added)
The applicant submitted that by directing the jury that they could use Stevens’ prior inconsistent statements for a purpose beyond what the prosecutor intended and as evidence which directly implicated the applicant in the offending relevant to charge 5, the judge impermissibly enlarged the scope of the evidentiary material.
The respondent accepted that the jury may have interpreted the direction to mean that rejecting Stevens’ evidence that she acted alone was positive proof that she did not, but argued that any such interpretation was of little potency given the overarching weakness of her evidence.
Discussion
The prosecutor was correct to carefully limit the use of Stevens’ prior inconsistent statements concerning the trafficking from the Bentleigh unit as relevant to her credibility and reliability. Any admission made by Stevens in those prior inconsistent statements that the applicant was involved in the offending the subject of charge 5 would not be admissible against him. By directing the jury that the statements could be used in two ways — as to credit and also to prove the truth of the facts asserted in the statements — the judge erred. Whatever credibility issues Stevens’ evidence suffered in general, this enlargement of the evidentiary material had a particular bite. The jury were told that they could use evidence that two courts had acted on the basis that the applicant was involved with Stevens in the trafficking in determining whether or not he was. The shadow of judicial imprimatur was heavy.
It follows that the misdirection was productive of a substantial miscarriage of justice. Ground 4 is made out.
Ground 5 – Aggregate of errors
Ground 5 does not admit of argument. In light of our findings with respect to the errors established in grounds 1 to 4 inclusive and at least grounds 1, 2 and 4 giving rise to a substantial miscarriage of justice, ground 5 is made out.
It follows that there must be a new trial on charge 1. Charge 5 is the subject of further consideration below.
Ground 6 – unreasonable or insupportable verdict
The applicant argued that the evidence in his trial, at most, showed only that he was aware of the trafficking by Stevens and was incapable of showing his complicity in it. Both the applicant and Stevens gave evidence that he was not involved. The prior inconsistent statements of Stevens, considered under ground 4, were inadmissible as proof of the applicant’s involvement in trafficking. The remaining evidence cannot establish the applicant’s involvement in, as opposed to knowledge of, the trafficking.
The respondent argued that the circumstantial evidence taken together linked the applicant to the trafficking.
Discussion
Recently, the High Court in Lang v The Queen[6] affirmed that the correct approach to a ground that contends that a jury’s verdict is unreasonable or cannot be supported having regard to the evidence is as established in M v The Queen.[7] Jagot J said:
The relevant test is that identified in M v The Queen. The question ‘which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’. This question ‘is one of fact which the court must decide by making its own independent assessment of the evidence’. While ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’, if ‘a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal’ then the court may conclude that no miscarriage of justice has occurred. Accordingly:
where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In a case where the evidence is circumstantial, this means that the appeal court must ‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’. A circumstantial case must not be considered ‘piecemeal’. If, on the whole of the evidence, ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’, then the jury is not able to draw that ultimate inference. Accordingly, in a circumstantial case, it is impermissible to consider any piece of evidence in isolation from the whole.[8]
[6][2023] HCA 29 (‘Lang’).
[7](1994) 181 CLR 487; [1994] HCA 63 (‘M’).
[8]Lang [2023] HCA 29, 67–68 [250]–[251] (Jagot J) (citations omitted).
In this case, the jury clearly rejected the evidence of both Stevens and the applicant that the trafficking business was Stevens’ alone and the applicant never entered the room containing cannabis. They were entitled to do so, but rejection of that evidence is not proof of the opposite. The question becomes, ‘what is the evidence upon which the jury could find beyond reasonable doubt that the applicant was involved in the trafficking?’
Having explained the meaning of ‘trafficking’, the judge directed the jury, correctly, as follows:
The prosecution must prove that the accused man intentionally trafficked and for that regard he has to be complicit in the way I indicated with Carley Stevens, that he directed, assisted, or encouraged her cultivation (sic). Now, there is no direct evidence of that. The prosecution invite you to infer that from all the circumstances. And you remember what I told you about inferences: you need to be satisfied of that beyond reasonable doubt that that is the only reasonable inference that can be drawn in this circumstance.
The judge did not, however, then explain to the jury what those circumstances were.
The prosecutor in his closing address had identified the following matters:
(a)The cannabis was prepared for sale in a bedroom of the unit that was used as an office. Some 15.25 kilograms was located there.
(b)The preparation for sale was done openly. Some cannabis was visible. It emitted a strong smell. It was simply impossible for a resident of the unit not to know what was going on in the room.
(c)There were documents in the bedroom/office connected to the applicant and temporally linked with the period of offending.
In submissions to this Court, the respondent repeated those matters and illustrated them by reference to photographs that had been before the jury. These showed plastic bags and scales in the bedroom along with some clearly visible dried cannabis. Reference was also made to a camera with photographs of the applicant and Stevens.
Having undertaken our own review of all of the evidence in the case, we are persuaded that the jury must have had a reasonable doubt about the guilt of the applicant on charge 5. As we have said, it is unsurprising that the jury rejected the evidence of both Stevens and the applicant that not only was he not involved in the trafficking but he was ignorant of it. However, while the remaining evidence can safely found an inference that the applicant knew about Stevens’ activities, as well as establish that a large quantity of dried cannabis was found in a room of a unit he occupied, it cannot support an inference beyond reasonable doubt that the applicant was complicit with Stevens in the trafficking of cannabis. There was simply no evidence from which an inference that he directed, assisted or encouraged her trafficking could be drawn to that standard. And it was on that basis — and no other — that the prosecution framed the charge.
It follows that ground 6 is made out. A judgment of acquittal must be entered on charge 5.
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