R v Alwazan - [2016] SASCFC 155

Supreme Court of South Australia
(Court of Criminal Appeal)
R v ALWAZAN
[2016] SASCFC 155
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction. Appellant found guilty by verdict of a jury of trafficking in methylamphtamine. Where the drugs were found in the appellant’s car while he was in the house. Where the main issue at trial was possession. Where the accused did not give evidence but called another witness to give evidence. Where trial Judge referred to a reasonable probability rather than possibility that anyone other than the appellant had possession of the methylamphetamine.
Whether Judge erred in her directions as to the burden and standard of proof. Whether Judge failed to adequately put the defence case. Whether Judge erred in her directions in relation to proof of possession.
Held: Kourakis CJ, Vanstone J and Chivell AJ - appeal allowed. The Judge’s misstatement led to a real risk that the jury was misled about the correct approach to the defence evidence.
Douglas v The Queen (2012) 86 ALJR 1086; Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193; Castle and Bucca v The Queen [2016] HCA 46, applied.
B and D (1993) 66 A Crim R 192; R v GNN (2000) 78 SASR 293; R v Lavery (2013) 116 SASR 242; The Queen v Calides (1983) 34 SASR 355; R v Phan and Ton (2010) 108 SASR 260; R v Wilson and Ors (1986) 42 SASR 203, considered.

R v ALWAZAN
[2016] SASCFC 155
Court of Criminal Appeal: Kourakis CJ, Vanstone J and Chivell AJ

KOURAKIS CJ: I agree for the reasons given by Vanstone J that the Judge’s direction that the jury should return a verdict of not guilty ‘if it is a reasonable probability’ that persons other than the appellant had possession of the methylamphetamine in the Audi may have misled the jury on the onus of proof carried by the prosecution. That is particularly so having regard to the reverse onus on the question of sale. As a result there has been a miscarriage of justice.
I express no opinion on whether the failure to tell the jury that Ms Alwazan’s testimony raised the possibility of possession by others resulted, of itself, in a miscarriage. It would have been better, and in accord with the precepts in the authorities marshalled by Vanstone J, if an explicit direction to that effect had been given. However, failure to encapsulate the defence by explicit reference to the evidence on which it relies will not always result in a miscarriage when it must have been obvious to the jury.
It is a necessary part of a trial judge’s directions on the onus of proof that the jury are told that, in the words of Brennan J, in Liberato v The Queen[1] ‘even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence, if that evidence give rise to a reasonable doubt as to the issue’. That proposition is a corollary of the statement of the criminal standard of proof that the prosecution must prove its case beyond reasonable doubt. However, there need not be any prescription of the form of words necessary to convey that direction.
[1] (1985) 159 CLR 507 at 515.
On the form of direction suggested in The Queen v Calides[2] I observe that a common law trial involves both a process of evaluating testimonial and other evidence, and the application of a standard of proof to the evidence so evaluated, in order to determine whether the ultimate factual issues have been proved to the requisite standard. The former process involves questions of acceptance or rejection of evidence, but also a range of treatments of the evidence in between those extremes. However, it is difficult to give the jury detailed directions about the process of evaluating the evidence. It is critical that such directions, as are given do not compromise the directions on the question of whether the ultimate factual issues have been proved to the requisite standard.
[2] (1983) 34 SASR 355.
The summing up in this case does not raise the questions about The Queen v Calides[3] discussed in R v Lavery[4] precisely because it does not relate the evidence of Ms Alwazan to the ultimate factual issue of possession.
[3] (1983) 34 SASR 355.
[4] (2013) 116 SASR 242.
VANSTONE J: Feras Alwazan was found guilty by verdict of a jury of trafficking in methylamphetamine.
He now appeals against that conviction on grounds relating to the directions given to the jury in the Judge’s summing up. In particular, complaints are made about the directions going to the burden and standard of proof, and those going to proof of possession. In addition it is said that the Judge failed to adequately put the defence case. An appeal against the sentence imposed was abandoned.
Background
On 22 April 2014 police attended at the home of the appellant’s parents at Mansfield Park. Police found the appellant in a flat at the rear of the house. In the flat police located the sum of $5,050, which was in the bed. They also located the appellant’s passport and a small tub containing a crystalline substance. On the bedside table were found the keys to an Audi motor vehicle which was parked outside in the driveway. That vehicle was registered in the name of the appellant. In evidence, police were unable to say whether or not it was locked. Upon searching the vehicle police found a plastic resealable bag containing crystals. This was in the compartment of the driver’s door. There were also two smaller bags in the centre console. One contained crystals and the other white powder. Police also found in the car two mobile phones, two sets of small digital scales, a pipe which could be used to smoke methylamphetamine, as well as documents bearing the appellant’s name.
Upon analysis the bags from the car were found to contain over 17 grams of powder containing 11.4 grams of methylamphetamine. Evidence suggested that if sold in “points”, this quantity was worth over $15,000.
At trial, the only issue was that of possession. The appellant did not give evidence. However he called his sister Zeinab Alwazan in his defence. Ms Alwazan said she lived with her parents at these premises. She said the appellant did not. The flat was not occupied by any family member and was used as a guest room. She said that in April 2014 the appellant was living somewhere in Kilburn. He was married. She said he would sometimes visit and stay at the Mansfield Park residence.
Ms Alwazan said that on 22 April 2014, about two hours before police came, the appellant and his wife had arrived at the premises. She said she did not know how they got there. She said she thought the appellant and his wife had been in Melbourne before their arrival. She said after he arrived the appellant went to the flat to rest. She saw him go into the flat.
Ms Alwazan said that her older brother Mustafa also arrived at the house prior to police. She said she thought it was after the appellant’s arrival. He came with two men. She did not know the two men and could not describe them. She did not know where they were at the time police arrived. She did not see them leave the house.
Ms Alwazan was somewhat inconsistent in her evidence about the circumstances in which her brother Mustafa and the two men arrived. In evidence in chief she said that her brother and the two men arrived in the Audi. However in cross-examination she said she did not see the Audi arrive – although she heard it – but she did see her brother Mustafa and the two men in the vicinity of the Audi and in the process of opening the roller shutter doors. She said that neither Mustafa nor the two men came into the house. Asked whether the appellant was in the Audi on that day she said: “No, not that I know”. Ms Alwazan confirmed that the Audi was a car usually driven by the appellant. She also said that her brother Mustafa wished to buy the Audi from the appellant and subsequently did so.
Arguments of appeal
Mrs Shaw QC, for the appellant, argues that the directions given by the learned trial Judge in relation to the element of possession were inadequate, and, in one instance, incorrect. This argument was framed by reference to the summary by Doyle CJ in R v GNN (2000) 78 SASR 293 of what are the necessary directions in relation to proof of possession. Prior and Olsson JJ concurred in the Chief Justice’s judgment. It is convenient to set out the relevant passage, at [20]:
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
(italics added)
In relation to the four requirements set out, Mrs Shaw argued that the second and fourth had not been met. It was argued that the Judge did not direct the jury that, before finding the appellant guilty, they had to be satisfied that the drugs were not in the exclusive possession of one of the other men at the premises. The only direction about this which was given contained an unfortunate slip:
I remind you that Mr Alwazan is presumed innocent unless and until you, the jury, are satisfied beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will do. Probabilities and suspicion are insufficient. The matter of proof beyond reasonable doubt is of utmost importance and you must bear it in mind throughout your consideration. I say again, it is for the prosecution to prove the allegations beyond reasonable doubt.
If it is a reasonable probability that a person or persons other than Mr Alwazan had possession of the methylamphetamine found in the Audi, then your verdict would be not guilty.
(italics added)
That direction was given at the end of the summing up as part of a summary and conclusion in respect of the jury’s task.
The expression “reasonable probability” unfortunately resonated with the terms of a direction given about the presumption or reverse onus relevant to another element of the charge. That direction was reiterated in the concluding remarks. It concerned proof of the purpose of any proved possession. It referred to the purpose of possession being presumed unless the appellant demonstrated that it was more probable than not that any proved possession was not for the purpose of trafficking. (Since the appellant had made no attempt to discharge that onus, this element could have been dealt with more concisely.)
The appellant further complains that the directions in relation to possession were not related to the facts, as required in the fourth point of Doyle CJ in GNN. There was no explanation, it was put, of the impact of Ms Alwazan’s evidence in terms of the first element of possession; that her evidence could be seen to raise a reasonable possibility that someone else had exclusive possession of the drugs in the Audi.
This complaint is closely related to the appellant’s further ground, that the defence was not adequately put.
The defence case was that, on the basis of Ms Alwazan’s evidence, another person – perhaps the appellant’s brother Mustafa, or either of the two other men – had exclusive possession of the drugs. However, because of the uncertainties and lack of clarity in Ms Alwazan’s evidence, that was a matter of inference only and not readily apparent. Indeed, those uncertainties are demonstrated by observing that, on one view, Ms Alwazan’s evidence could be accepted and yet the prosecution case be proved. Perhaps it was not plain until defence counsel’s address exactly how the defence sought to use Ms Alwazan’s evidence. Nevertheless, the appellant was entitled to have his case fairly put. While the Judge accurately described Ms Alwazan’s evidence, her Honour did not encapsulate the defence itself.
In addition, the appellant argues that there was no direction that the prosecution had to prove that Ms Alwazan’s evidence was not reasonably possible. Such a direction might have had the capacity to ameliorate the misdirection. At no stage did the Judge tell the jury that even if it rejected Ms Alwazan’s evidence it could not find the appellant guilty unless any hypothesis consistent with innocence was excluded.
Mrs Shaw argued that a summing up must contain correct directions about the process of reasoning required, including as to how to approach any alternative explanation of the circumstantial evidence, as well as correct directions about the ultimate question for the jury. It was submitted that the obligation to put the defence case extended to explaining any basis upon which the jury might properly return a verdict of not guilty. It was insufficient, it was said, to recite the evidence; the essential points relied on by the accused must be expressly mentioned by the Judge. In this regard counsel relied on B and D (1993) 66 A Crim R 192 at 196.
Mr Press SC, for the respondent, pointed out that the impugned direction is not, literally, incorrect. If the jury thought it a reasonable probability that someone other than the appellant possessed the drugs, then the verdict would be not guilty. Therefore the direction does not amount to an error of law. Mr Press pointed to the fact that the misstatement was not picked up by counsel. Numerous other directions including written directions were correct. He submitted that the question for the Court is, therefore, whether there is a real risk that the jury was misled in its understanding of the burden and standard of proof by the reference to reasonable probability.
In relation to Ms Alwazan’s evidence, Mr Press put that, because it was not necessarily inconsistent with guilt, it would have been wrong to direct in that way. Not only did it not necessarily exclude the appellant having exclusive possession; it was also not inconsistent with the appellant having joint possession. Mr Press put that it was plain Ms Alwazan’s evidence went to the issue of possession. The Judge hardly needed to tell the jury that.
What is required to fulfil the obligation to put the defence case will vary, Mr Press put, from case to case. This was a short trial and it was plain throughout that the issue was possession. Nothing more in terms of directions was needed.
Analysis
I consider the question which is raised here may be expressed as whether there is a real risk that the jury was misled about the way in which to approach the evidence of Ms Alwazan and the question of whether possession should be found to be proved beyond reasonable doubt notwithstanding that evidence.
The Judge properly gave the usual directions that there was no obligation on the accused to prove his defence. She said:
Mr Alwazan has put forward a defence but he does not have to prove it. The prosecution must disprove it. So it always remains the prosecution must prove the charge beyond reasonable doubt to your satisfaction.
Later in the summing up, in the course of directing on the element of possession, the Judge said this:
So in the context of this case, if Mr Alwazan merely knew the methylamphetamine was in the Audi that does not establish he was in possession of it. Further, possession is not established by proving Mr Alwazan allowed someone else or acquiesced in someone else placing the methylamphetamine in his car. To be satisfied of possession you must be satisfied Mr Alwazan placed the methylamphetamine in the Audi himself or that it was placed there by someone at his request and he, thereafter, intended to assert control over it.
These directions were plainly correct and helpful.
I have concluded however, that there is a risk that the jury was misled by the directions. The deficiency in this summing up has two aspects. First, the defence case was not encapsulated and placed within the context of the elements of the offence, in particular the element of possession.
A trial judge is required to put fairly and adequately before the jury the case which the accused makes. That obligation extends to explaining any basis upon which the jury might properly return a verdict in the accused’s favour: Castle and Bucca v The Queen [2016] HCA 46 at [59] per the Court. What is needed to fulfil the obligation will vary from case to case depending on the length of the case and the complexity of the legal issues, as well as the way the issues have been crystallised in the evidence and in counsels’ addresses: R v Phan and Ton (2010) 108 SASR 260 at [38] to [44] per Vanstone J. Unless the matter is entirely straightforward the judge must relate the important pieces of evidence to the legal defence or defence raised: R v Wilson and Ors (1986) 42 SASR 203 at 208 per King CJ.
Here the Judge summarised the evidence of Ms Alwazan comprehensively. However that evidence was not related to the difficult concepts of possession and joint possession.
Further, when in the quoted passage the Judge tacitly linked that evidence to the standard of proof, she unfortunately referred to a “reasonable probability” instead of reasonable possibility. Therefore, the only advice about how the defence case might be assimilated with the obligation on the prosecution to prove the charge, contained, if not an error, a statement which at least implied that Ms Alwazan’s evidence could be disregarded unless it was adjudged reasonably probable.
In these circumstances, it is not to the point that the general directions given by the Judge on the onus and standard were correct.
However, I do not accept the further argument that the Judge should have directed the jury that, in order to prove its case, the prosecution had to disprove Ms Alwazan’s evidence. As Mr Press argued, acceptance of her evidence was not necessarily inconsistent with the appellant’s guilt.
Neither do I accept the proposition that there is a universal obligation to instruct a jury that, even if it rejects the defence evidence, it cannot find the defendant guilty unless satisfied beyond reasonable doubt of the prosecution evidence. Of course that stands to reason. However a judge’s general directions on the onus and standard would usually make such a direction unnecessary. There may be a perception that there is, in all cases, an obligation to give such a direction. Such a perception may emanate from the statement of Brennan J (in dissent) in Liberato v The Queen (1985) 159 CLR 507 at 515. The passage was referred to with approval by the High Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [13], footnote 15. In Liberato Brennan J said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The point being made by his Honour was that, even if a jury did not whole heartedly accept evidence called by the defence, that evidence might yet be such as to give rise to a reasonable possibility of innocence. That the passage should be interpreted in this way is plain from the following passage in Douglass at [13]:
Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true.

In my opinion it is undesirable as a general rule to embark on directions about the jury accepting or rejecting defence evidence. The pitfalls of so doing are discussed in Murray v The Queen (2002) 211 CLR 193.
More recently, in R v Lavery (2013) 116 SASR 242 Peek J and Nicholson J in separate although complementary reasons, examined the dangers of using terms such as “accepting”, “preferring”, “believing” or “being persuaded” by the evidence of either the prosecution or the defence. Nicholson J at [38]-[40] highlighted the need for caution before using the “Calides direction”, a direction which seems to be unique to this jurisdiction (The Queen v Calides (1983) 34 SASR 355). Peek J questioned whether discussing with a jury the situation where it might be “persuaded” by the defendant’s evidence is any more than a distraction from the fundamental question whether, upon the whole of the evidence, the prosecution case is found to be proved: [10].
Consequently, my decision in the present case rests on the Judge’s misstatement, set out earlier, coupled with the failure to adequately put the defence case.
Conclusion
I would allow the appeal, quash the conviction and direct a new trial.
CHIVELL AJ: I agree that the appeal should be allowed for the reasons given by Vanstone J. I agree with the Chief Justice that the issues discussed in The Queen v Calides[5] and R v Lavery[6] do not arise here because, as Vanstone J points out, acceptance of Ms Alwazan’s evidence was not necessarily inconsistent with the appellant’s guilt.
[5] (1983) 34 SASR 355.
[6] (2013) 116 SASR 242.