QUESTION of LAW RESERVED on ACQUITTAL PURSUANT to SECTION 350(1a) CRIMINAL LAW CONSOLIDATION ACT (No 2 of 1993) No. 4152 Judgment No. SCCRM 93/90 Number of Pages - 10 Criminal Law and Procedure - Constitutional Law...

[1993] SASC 4152

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), BOLLEN(2) AND MOHR(3) JJ

CWDS
Criminal law and procedure - Case to answer - test for determining - possession of prohibited imports - circumstantial case. R v Bilick and Starke
(1984) 36 SASR 321, applied. R v Gebert and Ors CCA unreported 16/10/92, discussed. Question of Law Reserved on Acquittal pursuant to s.350(l) CriminalLaw Consolidation Act - jurisdiction of Supreme Court to entertain question reserved on application of Commonwealth DPP in respect of federal offences - whether procedure infringes s.80 of Commonwealth Constitution.
Constitutional law - Section 80 - right to trial by jury - whether reservation of question of law on acquittal by jury pursuant to s.350(1a) Criminal Law Consolidation Act (SA) infringes s.80.

HRNG ADELAIDE, 16 August 1993 #DATE 8:9:1993
Counsel for appellant:         Mr M Rozenes QC
   with Mr P J Rice
Solicitors for appellant:     Director of Public
   Prosecutions (Cwlth)
Counsel for respondent:         Mr M L Abbott QC
   with Mr J D Edwardson
Solicitors for respondent:     Patsouris and
   Associates
Counsel for intervener Attorney-General:                 Mr J J Doyle QC
Solicitors:   Crown Solicitor

ORDER
Both questions posed by the Reference answered 'Yes'.

JUDGE1 KING CJ The accused persons are husband and wife. They were the occupants of a house of which the male accused was lessee and in which the female accused's sister also resided. Federal police attended at the house when the accused were present and conducted an extensive search of the house and garden and a car which was in the driveway. 2. Three quantities of heroin, wrapped in plastic, were found secreted in different parts of the garden of the house. Fingerprints of the male accused were found on one of the packages of heroin. A quantity of cocaine contained in two small plastic bags was found inside the base of a lamp on the exterior of the premises near the front door. Fingerprints of the female accused were found on one of those bags. The female accused's sister gave evidence that the drugs were not hers and that she had never seen them before they were shown to her by the police. 3. The accused were tried in the District Court on an Information charging them jointly with four offences of possession of a prohibited import. The case for the prosecution was the evidence of the finding of the drugs and the fingerprints. At the conclusion of the case for the prosecution, counsel for the defence submitted that there was no case to answer. That submission was upheld and the learned trial judge directed an acquittal on all counts. 4. Pursuant to s.350(1) of the Criminal Law Consolidation Act 1935, the trial judge reserved for the consideration of the Full Court the following questions of law:
    (a) Was it an error in law to direct the jury to acquit the
    (male) accused on Counts 1, 2 and 3 of the Information?
    (b) Was it an error in law to direct the jury to acquit the
    (female) accused on Count 4 of the Information? 5. A preliminary point was taken by Mr Abbott QC for the accused that the Commonwealth Director of Public Prosecutions has no standing to seek the reservation of a question of law under the section, and that this Court has no jurisdiction to entertain a purported reservation which has been made on the application of the Commonwealth Director of Public Prosecution. 6. Section 350(1)(a) of the Criminal Law Consolidation Act provides that: "Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court." 7. The question is one of the jurisdiction of the Court. If there is jurisdiction in this Court to entertain a question of law reserved under that section on the acquittal of a person charged with an offence against the laws of the Commonwealth, it is clear that the question may be reserved on the application of the Director of Public Prosecutions of the Commonwealth; Rohde v DPP (1986) 161 CLR 119 esp at 124-5. 8. The jurisdiction of the Supreme Court of the State in Commonwealth criminal matters is to be found in s.68(2) of the Judiciary Act 1903 of the Commonwealth. That subsection confers jurisdiction with respect to "the trial and conviction on indictment" of persons charged with offences against the laws of the Commonwealth "and with respect to the hearing and determination of appeals arising out of any such trial or conviction". The word "appeal" is given an extended meaning by s.2. It is extended to include: "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge." 9. The s.350(1)(a) procedure is not an appeal in the ordinary sense of that word. It does not seek to reverse or vary the verdict of acquittal. It does, however, challenge a decision or ruling made at trial on a question of law. It necessarily, in my opinion, amounts to a review of the proceedings and it calls in question the decision of the judge on the point of law in question. In my opinion this Full Court has jurisdiction to entertain the points reserved. 10. Mr Abbott QC contended that if s.68(2) does purport to confer such jurisdiction on the Court, it is to that extent in conflict with s.80 of the Constitution and ultra vires. Section 80 provides that: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury ..." 11. In R v Him, Sung Bo, unreported 17th March 1993, the Full Court of the Supreme Court of Tasmania held that s.80 of the Constitution did not preclude an appeal by the Commonwealth Director of Public Prosecutions pursuant to Tasmanian law, against a verdict of acquittal by a jury. There is even less reason for thinking that the procedure under consideration in this case is precluded by the constitutional provision. I am unable to see that the s.350 reservation procedure impinges in any way on the right to trial by jury. The verdict of the jury is not affected. The section expressly provides that the determination of the Full Court shall not invalidate or otherwise affect the acquittal (s.351(2a)), that the DPP is to pay all the costs associated with the proceeding (s.351(2b)) and that there is to be no publication which might identify the accused (s.351A). The procedure cannot affect the verdict of acquittal or adversely affect the accused persons. The purpose, as pointed out in the joint judgment of Mason CJ, Deane J, Dawson J, Gaudron J and McHugh J in Mellifont v Attorney-General (1991) 173 CLR 289 at 305, "of seeking and obtaining a review of the trial judge's ruling was to secure a correct statement of the law so that it would be applied correctly in future cases." I see no conflict with s.80 of the Constitution. 12. The learned trial judge gave reasons for his ruling that there was no case to answer. After discussing authorities, he concluded that "the evidence on the prosecution case was not 'capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused'" and "ruled accordingly that there was no case to answer." His Honour did not explain why he considered that the facts were not capable of producing the required degree of satisfaction. 13. The principles upon which a trial judge should rule on a submission of no case to answer were debated before us. 14. In R v Prasad (1979) 23 SASR 161, the Court of Criminal Appeal rejected the proposition that the trial judge should uphold such a submission, stop the case and direct a verdict of not guilty "if he considers that the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it." The correct principle was stated as follows:
    "It is fundamental to trial by jury that the law is for
    the judge and the facts for the jury. If there is no evidence
    which would justify a conviction then, as a matter of law, there
    must be an acquittal. That decision is for the judge and the
    jury must accept and act on his direction on that question of
    law. If, however, there is evidence which is capable in law of
    supporting a conviction, a direction to the jury to acquit would
    be an attempt to take from them part of their function to
adjudicate upon the facts." (pp.162-3). That view of the law was endorsed by the High Court in Doney v R (1990) 171 CLR 207. 15. That principle was applied to the particular problem of a prosecution case dependent upon circumstantial evidence in R v Bilick and Starke (1984) 36 SASR 321. I enunciated the relevant principles with the concurrence of Mohr J. At p.335 I said:
    "The question of law is whether on the evidence as it
    stands the defendant could lawfully be convicted. He could
    lawfully be convicted on that evidence only if it is capable of
    producing in the minds of a reasonable jury satisfaction beyond
    reasonable doubt." 16. The application of the basic principle, as enunciated in Prasad, to a case of circumstantial evidence was dealt with in the following passage:
    "The same test is to be applied to deciding a submission
    of no case to answer in a case depending upon circumstantial
    evidence as in a case depending upon direct evidence, although
    the manner of its application will be different. The question
    to be answered by the trial judge is whether there is evidence
    with respect to every element of the offence charged which, if
    accepted, could prove that element beyond reasonable doubt.
    Where there is direct evidence of the actus reus and that
    evidence is capable of supporting an inference of mens rea,
    there is a case to answer except in the extreme case, as perhaps
    of testimony which is manifestly self-contradictory or the
    product of a disorderly mind, envisaged by the Privy Council, in
    which the direct 'evidence' is so incredible as to amount to no
    evidence. Where the case is a circumstantial or partly
    circumstantial case and therefore depends on inferences, the
    question may be expanded so that it becomes: On the assumption
    that all the evidence of primary fact considered at its
    strongest from the point of view of the case for the
    prosecution, is accurate, and on the further assumption that all
    inferences most favourable to the prosecution which are
    reasonably open, are drawn, is the evidence capable of producing
    in the mind of a reasonable person satisfaction, beyond
reasonable doubt, of the guilt of the accused?" 17. It follows from the principles as formulated in Bilick and Starke in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. Attorney-General's Reference No.1 of 1983, (1983) 2 VR 410; Thorp v Abbotto (1992) 106 ALR 239. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. 18. There was some criticism before us of the concept of reasonableness in the Bilick and Starke test and reference was made to R (1991) 57 A Crim.R 39. I do not read that case as deciding that there can be a case to answer on circumstantial evidence which is incapable of producing in a reasonable mind a conviction of guilt beyond reasonable doubt. If the evidence is incapable of producing that state of mind, it is not capable in law of proving the charge. I note that Lee CJ at CL speaking for the Court quoted with approval a passage from the judgment of Jordan CJ in Crooks and Hudson (1944) 44 SR(NSW) 390 in which Jordan CJ quoted from Ross v R (1922) 30 CLR 246 at 255-56 as follows: "If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone ..." I would restate the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence. 19. There were suggestions in argument that certain expressions used in the case of R v Gebert, Haley and Black unreported 16th October 1992, may not be consistent with the above principles. That case was an appeal to the Court of Criminal Appeal against a conviction on a charge of conspiracy to commit armed robbery. The Court upheld the refusal of the trial judge to rule that there was no case to answer. The judgment was written by Mullighan J and Olsson J and I concurred in it. Mullighan J said: "If the evidence in the Crown case cannot exclude any reasonable hypothesis consistent with the innocence, Peacock v. The King (1911) 13 CLR 619, then the evidence is not capable in law of providing the charge beyond reasonable doubt and there is no case to answer." 20. The emphasis in that passage is on the word "cannot" twice appearing. That word denotes incapacity. There is no implication that it is for the judge to decide whether any hypothesis consistent with innocence is reasonable. There is no case only if the evidence lacks the capacity to lead a reasonable mind to reject all such hypotheses as unreasonable. At page 11, Mullighan J crystallized the question to be answered in relation to the particular issues in that case as follows:
    "The question is whether the evidence and the inferences which
    could safely be drawn is capable of excluding any reasonable
    hypothesis that there was an agreement to commit some other crime." 21. That formulation is clearly not intended as an exhaustive formulation of principle. It was sufficient for the purpose of the case. There was no intention on the part of the Court to modify the test in Bilick and Starke which Mullighan J was purporting to apply. Stated more fully the formulation would have referred to the acceptance, for this purpose, of the evidence for the prosecution and to the inferences as being those most favourable to the prosecution. The word "safely" is used in the sense of "reasonably" and is, of course, not intended to suggest that it is the function of the judge to consider whether any verdict of guilty would be unsafe. That is plainly not his function; Doney v R supra at p.215. If there is evidence capable in law of supporting a conviction, the case must go to the jury. The question of the safety of any consequent verdict of guilty is for the Court of Criminal Appeal. 22. The learned judge did not disclose by what route he arrived at his conclusion that there was no case to answer. It was necessary for him to accept, for this purpose, that the male accused was the lessee of the premises on which the drugs were found, that the drugs had been secreted on the premises, that the accused persons were the occupants of the premises, that the only other resident had no knowledge of the drugs, that the fingerprints of the male accused were on one plastic container of heroin and that the fingerprints of the female accused were on the plastic container of cocaine. These were the essential primary facts. The judge was bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution. It was clearly open to the jury to infer that the male accused had handled the heroin packet and that the female accused had handled the cocaine packet, that they were aware of the nature of the contents and that each had played a part in secreting the packages on the premises. Those inferences, if drawn, are plainly capable of leading a reasonable jury to conclude that the accused persons were acting jointly to control the drugs and were therefore in joint possession of them, and to exclude as not reasonably open on the evidence, any hypothesis consistent with innocence. 23. I should add that I would have reached the same conclusion if there had been no fingerprints and the case had rested solely on the presence of the drugs hidden on the accused's premises. Those facts clearly called for an explanation and, if not satisfactorily explained, were in themselves capable of founding a verdict of guilty. 24. The ruling that there was no case to answer was a ruling on a question of law and was erroneous. In my opinion there was a case for both appellants to answer. The first question, however, relates only to the male accused and the second question only to the female accused. Both must be answered "Yes".

JUDGE2 BOLLEN J I agree that each question asked should be answered "Yes". I agree with the reasons both of the Chief Justice and of Mohr J.

JUDGE3 MOHR J Mr and Mrs Faranda were charged in the District Court with four counts of possessing a prohibited import on the 8th January 1992 at Adelaide. The counts referred to 5.2 grams of heroin, 5.4 grams of heroin, 1.3 grams of heroin and .26 grams of cocaine. Each count alleged breach of section 233B(a)(ca) of the Customs Act 1901. At the conclusion of the case for the prosecution the Learned Trial Judge ruled that there was no case to answer on any of the four charges and directed verdicts of "not guilty". 2. On the application of the Director of Prosecutions for the Commonwealth of Australia his Honour has reserved questions of law for the consideration of the court pursuant to s.350(1a) and s.351(1) of the Criminal Law ConsolidationAct 1935. 3. The facts giving rise to the charges were succinctly stated by his Honour in his reasons for holding that there was no case to answer. He said:-
    "In this case the two accused were charged with four
    counts of possessing a prohibited import on 8th January 1992,
    the items concerned being two press-seal packets containing a
    quantity of cocaine that were found in a coach lamp on the upper
    right-hand side of the front door at 1 Avenel Gardens Road,
    Medindie, and three items wrapped in tape and plastic in the
    shape of balls about the size of golf balls containing heroin
    that were found in the garden of the premises, one in some soil
    underneath the swimming-pool filtering system and the other two
    in close proximity to each other, one under some soil between
    the chopping block and the wall of a playroom and the other
    under the block. Mr Faranda had been the lessee of the house
    since 16th May 1990. The evidence of Miss Rings was that she
    and her sister Mrs Faranda with her husband and young child had
    moved in together about a month before the Australian Federal
    Police raid on 8th January 1992 and Mrs Faranda had told a
    police officer on that day that she had been living at the house

    since 8th November 1991. There was evidence from Mrs Slape, the
    landlord's agent, about the provision of a person to clean the
    pool and another to do the gardening, and evidence from Miss
    Rings about a substantial number of guests being at a party at
    the house towards the end of 1991 and having the free run of the
    house and garden. The raid was the result of information given
    to the police by an informer in respect of whom immunity was
    successfully claimed together with the actual information
    provided, and the prosecution case was based not just on the
    couple living together at the house concerned but on
    fingerprints detected by SC Clements of the SA Police
    Department's fingerprint section. That officer deposed that, in
    effect, a fingerprint found on one of the two cocaine packets
    was that of Mrs. Faranda and one of two fingerprints found on
    the plastic wrap of the last ball found was that of Mr.
    Faranda. When the police arrived at the house, Mr. Faranda was
    told they were looking for drugs and he said 'There aren't any
    here'. When later he was shown the packets containing white
    powder taken from the coach lamp he said that "Someone else put
    them there". As to the three balls he said 'I have never seen
    them before'. For her part Mrs. Faranda indicated when shown
    the two white packets from the coach lamp that she had not seen
them before and made no admission in regard to the three balls." 4. When the matter first came before a Court of Criminal Appeal in May of this year Mr Abbott QC who appeared then and still does, for Mr and Mrs Faranda took a preliminary point that by virtue of s.68 of the Judiciary Act and s.80 of the Constitution the Commonwealth Director of Public Prosecutions could not apply to have a point of law referred to this court as was done in this case. That court adjourned the matter so that notice could be given pursuant to s.78(b) of the Judiciary Act. This was done and the Attorney General of South Australia gave notice of intervention. No other State gave notice nor did the Commonwealth of Australia. 5. The matter was called on before this court for hearing. The first submission made by Mr Abbott QC was that the Director of Public Prosecutions for the Commonwealth had no right to apply to have a question of law reserved pursuant to s.350(1a) of the Criminal Law Consolidation Act 1935. Pursuant to s.68 of the Judiciary Act State procedures are to be followed in Commonwealth matters heard in State Courts. In my opinion this submission must fail for the reason enunciated by the High Court in Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at pp. 124-125. 6. The next submission which lead on to a consideration of s.80 of the Constitution, but putting first things first, it is to s.68 of the JudiciaryAct 1903 and in particular the definition of "appeal" appearing therein which must be considered. In Rohde's case (supra) the High Court decided that the Attorney General of the Commonwealth had a like right of appeal as the Attorney General for New South Wales. The present matter is not an appeal in the real sense of the word but in my opinion it does come within the meaning of "appeal" which is defined in the Judiciary Act as "includes an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court of Judge". Mr Abbott suggested in his argument that the words "proceedings decision" should be read together and that there be no implied comma between them. I do not agree and in any case a perusal of the definition of "judgment" in the same Act which reads "includes and judgment decree order or sentence" demonstrates the fallacy of his argument. 7. He then argued that s.80 of the Constitution rendered questionable the verdict of a jury of acquittal and that to permit the procedure under question would distract from the integrity of the Jury's decision in this case. In my opinion it does no such thing. What is in question is the decision of the Judge in holding that there was no case to answer. Whatever the answer to that may be the jury's verdict remains as it always was. 8. In my opinion for the reason set out above the Director of Public Prosecutions for the Commonwealth does have standing to apply as he did in this case and that the reservation of the questions asked come within the meaning of "appeal" as defined in the Judiciary Act 1903 and that such reservation does not offend s.80 of the Constitution. 9. As I understood his argument Mr Abbott's main point regarding the question of whether or not there was a case to answer was a criticism of the weight to be given to the finding of the fingerprints on some of the concealed drugs. 10. The following passage taken from the transcript really puts the argument in a nutshell:-
     "KING CJ: Why wasn't it open to a jury in this case to
    draw the conclusion beyond reasonable doubt that the occupants
    of the house were in possession of the drugs and to conclude the
    alternative hypothesis that it was not reasonable?
     MR ABBOTT: Because the judge determined that no reasonable
    jury would be able to exclude the reasonable hypothesis that the
    fingerprints were found on the objects not in accordance with
    possession as the charge alleged." 11. Mr Rozens QC in his outline of argument put for the Director of Public Prosecutions made the point that three inferences could reasonably be drawn as how the fingerprints could have come to be on the packages:
     1. The fingerprints were placed on the package when the
    heroin was wrapped.
     2. The fingerprints were on the packaging before it was used
    to wrap the heroin.
     3. The fingerprints were placed on the packaging after the
    heroin was wrapped in circumstances where it cannot be said that
    Mr and Mrs Faranda knew what was in the wrapping. As a matter of simple reasoning there can be no argument as to the above propositions, but because two of the possible explanations are inconsistent with guilt that of itself does not dispose fo the question of whether or not there was a case to answer. 12. Taken at its highest the evidence established the following facts - apart from the fingerprints.
     1. The drugs were concealed on the premises occupied by
    Mr and Mrs Faranda.
     2. It was a fair inference that the person concealing the
    drugs had access to the property both for the purpose of
    concealing the drugs and for the purpose of recovering them at
    that persons convenience.
     3. That the person concealing the packages knew the contents.
    The above findings would go a long way to at least indicating Mr
    and Mrs Faranda as being implicated in the concealment of the
    drugs. Add to that the fact of the fingerprints being found and
    in my opinion a jury would be entitled to find that Mr and Mrs
    Faranda were the persons who concealed the drugs and thus were
    in possession of them. In other words when the fingerprint
    evidence was added to the surrounding circumstances there was
    clearly a case to answer. The test to be applied is that laid
down by the High Court in Doney v. The Queen (1990) 171 CLR 207
    at pp 214-215: "It follows that if there is evidence (even if
    tenuous or inherently weak or vague) which can be taken into
    account by the jury in its deliberations and that evidence is
    capable of supporting a verdict of guilty, the mater must be
    left to the jury for its decision or, to put the matter in the
    more usual terms, a verdict of not guilty may be directed only
    if there is defect in the evidence such that, taken at its
    highest, it will not sustain a verdict of guilty." 13. As remarked earlier there was in my opinion no such "defect in the evidence" in this case. The evidence of the fingerprints and the possible explanations for their presence was just one piece of evidence in the whole of the circumstances to be considered by the jury in due course. 14. I would answer both questions posed by the reference "Yes".