R v Angelopoulos No. Sccrm-03-166

R v ANGELOPOULOS
[2003] SASC 408
Court of Criminal Appeal: Prior, Bleby and Anderson JJ

PRIOR J: The appellant challenges the validity of his conviction by verdict of a jury for taking part in the sale of methylamphetamine. The information stated the offence as just described. There then followed a reference to s 32(1)(d) of the Controlled Substances Act 1984. The particulars of the offence alleged against the appellant were that the appellant “on the 7^th day of January 2002 at Mitchell Park knowingly took part in the sale of methylamphetamine, a prohibited substance, to another person”.
Before this Court it is said that methylamphetamine is not a prohibited substance under the Act. It is a drug of dependence. The conviction is therefore unlawful. In the course of the trial, both counsel for the prosecution and the trial judge wrongly told the jury that methylamphetamine was a prohibited substance under the Act. It is put to this Court that the appellant has been found guilty of an offence unknown to the criminal law.
The prosecution does not dispute that the trial judge erred in directing the jury that methylamphetamine is, as a matter of law, a prohibited substance under the Act. It is submitted that there is no doubt that methylamphetamine is a drug of dependence under the Act. Section 32(1)(d) provides that a person must not knowingly take part in the sale of a drug of dependence or a prohibited substance. The offence for which the appellant was convicted was the offence of taking part in the sale of a drug of dependence, or a prohibited substance. There is no relevant objection as to duplicity arising from that[1]. The fact that the particulars wrongly described methylamphetamine as a prohibited substance does not mean that the appellant has been convicted of an offence unknown to the criminal law. The conviction was for taking part in the sale of methylamphetamine. At law that is a drug of dependence. The drug methylamphetamine is an illicit drug. Its misdescription in the particulars does not invalidate the charge or the conviction unless the error in the particulars can be said to have prejudiced or embarrassed the person charged. This is not the case here. The conviction stands with any defect being cured by the application of the proviso in s 353(1) of the Criminal Law Consolidation Act 1935.
[1] See Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552
The information charged the appellant with taking part in the sale of methylamphetamine. It properly cited s 32(1)(d) of the Controlled Substances Act. Thus the charge in the indictment can be seen fairly to relate to, and be intended to charge a known and subsisting criminal offence. It set forth the offence charged in such a manner as was necessary to inform the appellant of the nature of the charge.
The fact that the particulars were not corrected before the jury’s verdict does not render the trial a nullity, nor involve the commission of an offence unknown to the criminal law. The offence, charged and proved, was one known to the law. The information was valid, despite the error in the particulars. That error did not prejudice the appellant in the preparation for trial or conduct of his defence. The information did disclose an offence known to the law. No substantial miscarriage of justice has resulted from the error in the particulars and the directions given by the trial judge as to methylamphetamine being a prohibited substance rather than a drug of dependence[2]. The error in the particulars is one of form, not substance. No prejudice resulted to the appellant. The proviso to s 353(1) is properly applied[3].
[2] See Palmer v R (1998) WASCA 153
[3] Standley (1996) 90 A Crim R 67 at 77, 78
There are two other grounds of appeal. It is complained that the trial judge’s directions in relation to circumstantial evidence were inadequate and that His Honour failed to adequately put the defence case to the jury.
This was a case where there was really only one essential fact in dispute. That was whether, the appellant going to Room 10 at the Marion Hotel on the night of 7 January, carrying a Joop bag, the bag then contained 780 tablets of methylamphetamine worth some $39000.
The appellant did not dispute that he went to Room 10 at about half past nine that night, carrying the Joop toiletry bag and that he left the hotel without the bag an hour later.
Police saw another man leave the room half an hour after the appellant. When they went into the room, just after midnight, they located the Joop toiletry bag with the contents the subject of the charge. There was then a woman present in that room.
Before the jury, the fact that the appellant had gone to the hotel over some three days was not disputed. The trial judge directed the jury that there was no direct evidence that the tablets were in the Joop bag when the appellant was seen to go to the room. His Honour told the jury that the case was circumstantial and therefore relied upon the drawing of inferences. His Honour told the jury that the prosecution case, about the drugs being in the Joop bag at the time the appellant took it up the stairs and into the room, was:
“entirely circumstantial. Nobody actually saw the drugs in that bag at that time. However, the prosecution ask you to infer from the whole of the evidence, as you find it to be, that those drugs must have been in that bag.”
His Honour then proceeded to tell the jury that circumstantial evidence was simply an exercise in logic and commonsense. His Honour also told the jury that while proof beyond reasonable doubt is still required for proof of guilt based on circumstantial evidence it could also be stated in an alternative way, namely that there should be no explanation of the matter which is reasonably possible on the evidence consistent with the innocence of the accused.
The primary facts were within a narrow compass. They were not in dispute. The trial judge told the jury that if they thought the inferences from the circumstances could give rise to a reasonable possibility consistent with innocence they must acquit the appellant. After that, the trial judge reminded the jury that they did not hear from the other two persons known to have been in the hotel room during the time that the appellant was observed to go in with the Joop bag. His Honour told the jury that they might well think that there was some “fairly large gaps in the evidence about what occurred in that Room 10 between when the accused last came on the night in question and when the police raided it.” However, His Honour told the jury that neither the prosecution nor the defence were to be criticised or penalised for not having called those people. His Honour said that it may be that the absence of their direct evidence about the drugs meant that the prosecution had not proved the guilt of the accused beyond reasonable doubt. His Honour told the jury that that was a matter for them. However, the jury was not to speculate or guess about what they might think the two absent persons might have told them had they been witnesses in the trial.
A little further on, in his summing-up, the trial judge asked the jury to consider whether it was proved that the tablets were in the Joop toilet bag when the appellant carried it up the stairs to Room 10. He reminded the jury that the appellant had denied that to police, when interviewed, and again denied it to the jury in his sworn evidence. His Honour properly told the jury that what, if any, weight the jury gave to those denials was entirely for the jury. He then asked the jury whether, on its view of the evidence, including that of the appellant, there was a reasonable possibility that the methylamphetamine tablets were placed in the Joop bag by either of the other two persons in the period of about one and a half hours, between when the appellant last left Room 10 and when the police raided it. He told the jury that if that was a reasonable possibility they must acquit. He invited the jury to bear in mind all of the submissions put to them by counsel on that point.
The trial was not a long one. It was begun mid morning on a Monday. The summing-up began before 11.00 am on the following Wednesday. The jury had the benefit of assessing the appellant and his credibility from the fact that he gave evidence and was cross-examined.
I am not persuaded that the directions given by the trial judge with respect to circumstantial evidence were inadequate. More could have been said. The appellant’s credibility was the subject of close attention after all the evidence was heard. It was vigorously attacked in the prosecutor’s address to the jury. Reference was made to the fact that the appellant’s evidence to the jury differed significantly from what he admitted to police. In the circumstances, what was said about circumstantial evidence was sufficient.
Likewise, I think, the defence case was sufficiently put to the jury by the trial judge. Had the trial been longer and more issues joined there would have been more in the complaints made about the directions, the appellant’s explanation and what he had to say about the other two people in Room 10 that night. Overall, if it be said that the trial judge did fail to put the defence case adequately, I would still dismiss this appeal on the ground that that failure did not give rise to a substantial miscarriage of justice. It cannot be overlooked that the trial judge was not asked to give any further directions by the appellant’s experienced counsel, who complimented the jury on their close attention during a short trial.
The complaint that the judge should have reminded the jury of the evidence of the appellant’s sister is not at all significant. She gave evidence just before addresses. It was not particularly powerful against the evidence led which indicated an ongoing contact between the appellant and the occupants of Room 10, over the period of time that they were there. The sister’s evidence was referred to by the appellant’s counsel in his final address.
At the end of his address, the appellant’s counsel told the jury that the evidence in the case was not such that the jury could reject as a reasonable possibility that the appellant was innocent. He suggested to them that the jury could not reject as a reasonable possibility that the drugs had been put in the bag by someone else. The trial judge repeated that more than once in his summing up.
There is no proper basis upon which this Court can interfere with the verdict. The appeal should be dismissed.
BLEBY J: I agree.
ANDERSON J:    I agree that the appeal should be dismissed and I agree with the reasons of Justice Prior.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.     See Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552
2.     See Palmer v R (1998) WASCA 153
3.     Standley (1996) 90 A Crim R 67 at 77, 78

[2003] SASC 408

9 December 2003