R v Baftiroski

Case [2018] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BAFTIROSKI

[2018] SASCFC 83

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

21 August 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES

Appeal against conviction. The appellant was convicted of one count of trafficking in a controlled drug following a trial by jury. The police found a quantity of a substance containing methylamphetamine in the house in which the appellant was living. The only other person living in the house was the appellant’s fiancée.

The only real issue before the jury was whether or not the prosecution had proved beyond reasonable doubt that the appellant was in possession of the methylamphetamine at the time of the police search of the house.

The prosecution relied upon a number of items of circumstantial evidence, including a tick list that was found at the same premises. The prosecution adduced evidence from a handwriting expert in support of the contention that the appellant was the author of the tick list.

The two grounds of appeal relied on by the appellant complain about the directions given to the jury by the Judge. The appellant contends that there has been a miscarriage of justice as a result of the Judge failing to adequately direct the jury as to the handwriting evidence and as to the element of possession, in particular on the topic of acquiescence.

Held per Nicholson J (Kourakis CJ and Parker J agreeing), dismissing the appeal:

1.       There has been no miscarriage of justice resulting from the manner by which the Judge dealt with the handwriting evidence or the Judge’s directions on the element of possession.

2.       The Judge made plain in his summary of the handwriting evidence the limitations on the reliability of the expert’s opinion and adequately focused his directions with respect to the facts before the jury.

3.       The directions as to the element of possession, including as to the insufficiency of mere knowledge, were adequate to bring home to the jury a proper understanding of possession at law sufficient to the facts of this case.

Controlled Substances Act 1984 (SA) s 4, s 32; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) r 6; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) s 30, referred to.
R v GNN (2000) 78 SASR 293; R v Wood [2017] SASCFC 100; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v BAFTIROSKI
[2018] SASCFC 83

Court of Criminal Appeal:   Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ.

  1. I agree with the reasons of Nicholson J.  I would dismiss the appeal.

    NICHOLSON J.

    Introduction

  2. On 28 June 2017, the appellant,[1] was convicted following a trial by jury of the offence of trafficking in a controlled drug.[2]  The police…

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R v Baftiroski [2018] SASCFC 83
Case
[2018] SASCFC 83
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, R v Baftiroski, contended that a miscarriage of justice had occurred due to the trial judge's directions to the jury. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The central legal issues before the court were whether the trial judge had adequately directed the jury regarding the assessment of handwriting expert evidence and the element of possession in drug offences. Specifically, the appellant argued that the directions concerning the handwriting evidence failed to properly guide the jury on how to weigh the expert's opinion against their own comparisons of the disputed handwriting samples.

The Full Court held that the trial judge's directions on handwriting evidence were sufficient. The judge had correctly instructed the jury that they were the sole judges of fact and were not bound to accept the expert's opinion. Furthermore, the jury was explicitly permitted to make their own comparisons of the handwriting samples, a right recognised by law, while also being cautioned against reaching conclusions solely based on their own comparisons without considering the expert evidence. The court noted that the appellant's trial counsel had expressed satisfaction with these directions, indicating no perceived prejudice at the time.

Consequently, the Full Court concluded that there had been no miscarriage of justice arising from the directions on either the handwriting evidence or the element of possession. The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The jury convicted the appellant and there is no complaint that the verdict is unreasonable or cannot be supported having regard to the evidence.[5] Rather, the appellant contends that there has been a miscarriage of justice[6] as a result of the Judge’s failures to adequately direct the jury in the ways earlier identified.Appeal ground 1 – the handwriting evidence directions[5] Section 158(1)(a) of the Criminal Procedure Act 1921 (SA).[6] Section 158(1)(c) of the Criminal Procedure Act 1921 (SA).The evidence of the handwriting expert The prosecution adduced evidence from Elizabeth Ockleshaw, a forensic document examiner employed by Forensic Science SA. She provided very detailed evidence concerning the processes employed by an expert in her field when undertaking handwriting analysis and comparison. She outlined various considerations which, potentially, have a limiting effect on the accuracy or otherwise of a particular comparison exercise. These included matters such as attempts to disguise handwriting, but noting that this can be difficult to maintain for an extended period of time; the intoxication of the author; the presence of internal or external influences, such as the manner in which the author’s brain processes information at the time and the writing surface or implement employed; problems attendant on a small letter pool in the questioned sample; and the problem arising where a different style of writing might be used in the questioned sample as compared with the comparison sample. Other potentially relevant factors that need to be allowed for include such matters as whether or not the questioned sample or the comparison sample is prepared whilst the person is in a state of tiredness, stress or anxiety and the physical conditions in place at the time either the questioned or comparison sample is prepared. Ms Ockleshaw outlined the hierarchy of opinion used by experts in this area to express a level of similarity or dissimilarly between comparison samples. There are five levels of opinion: very strong support for the proposition that the questioned sample was written by the writer of the comparison sample; qualified support for this same proposition; no opinion able to be expressed as to this proposition; qualified support for the proposition that the questioned sample was not written by the writer of the comparison sample; and very strong support for this latter proposition. She told the court that the level of opinion to the effect that there is qualified support for the proposition that the questioned sample was written by the writer of the comparison sample is employed in circumstances where particular limitations associated with the analysis can be identified. Ms Ockleshaw was provided with the tick list as the questioned sample. The tick list contains a relatively small number of written entries. It contains a number of complete words including: “sister”, “paid” (five entries), “Red”, “Diesel”, “Pixi”, “PAT”, “Miko” (two entries) and “Berry” and the phrases “paid in cutter” and “paid full” (two entries). The tick list also contains a number of initials including “MM”, “BBB”, “A” and “V”. The tick list also contains the numerals 0, 2, 4, 5, 6 and 9, some of which were employed on multiple occasions.

Decision

Reasons for decision

KOURAKIS CJ (dissent) NICHOLSON J (dissent)
I am fortified in the view I have taken by the fact that the appellant’s experienced criminal trial counsel expressed his satisfaction with the Judge’s various redirections. The atmosphere at this stage of the trial was for counsel and the Judge to assess. It would seem that trial counsel did not apprehend any prejudice to his client as a result of the possession directions as ultimately formulated.Conclusion There has been no miscarriage of justice as a consequence of either the Judge’s directions dealing with the handwriting evidence or the Judge’s directions on the element of possession. I would dismiss the appeal. I agree with the reasons of Nicholson J. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

Relatively early in the summing up, the Judge provided a conventional direction as to the proper approach to be taken by the jury to its assessment of expert evidence, including that of Ms Ockleshaw. As part of those directions, the Judge reminded the jury that they were the sole judges of the facts and were not bound to accept the expert opinion evidence that was before them.It is for you to give such weight to the opinions of those expert witnesses as you think they should be given, having regard to the qualifications of a witness, the partiality or impartiality of the witness and the extent, if any, to which the witness’ opinion accords with other facts that you find proven in the case.More specifically, the Judge provided these further directions. In the case of expert opinion in terms of handwriting, I should tell you that you are entitled to use the exhibits yourselves to test the validity of the expression of opinion. Conversely, you can test any views you yourself form by the opinions of the expert. Similarities of handwriting can of course be deceptive, both the very nature of handwriting and the way it is taught create necessary similarities. In any particular case the handwriting of different people offered for your comparison will always contain some similarities and sometimes apparently similar eccentricities and the handwriting of the same person can vary from occasion to occasion. This is a field of evidence, members of the jury, where you are entitled to make comparison of the samples of handwriting tendered as exhibits. In doing so, however, you should bear in mind the warning I have given you. You should also seek to apply the assistance, if any, that you derived from the expert, if you accept her evidence.I do warn you that it would be dangerous for you who are not experts to jump to any conclusions just by your own comparison of the sample. You should consider any conclusions suggested by your comparison most carefully in light of all the evidence given by the expert or any other evidence as to handwriting in a case before finally coming to any conclusions about the handwriting. So it is a somewhat unusual area of evidence, members of the jury, it is one of those areas where, yes, you should give appropriate weight to the expert opinion but you yourselves are also allowed to look at the evidence and compare it.Later in the summing up and by way of conclusion to the Judge’s summary of Ms Ockleshaw’s evidence the Judge reiterated an earlier direction.As I mentioned earlier, you are fully entitled to examine and compare the features yourself as well as having regard to the expert’s evidence and do that as you see fit. I will not repeat all of my earlier directions but of course you’ll have regard to them. Consideration of and conclusion as to ground 1 I will deal with subgrounds 1.1 and 1.2 together. Expert evidence concerning handwriting is admissible in a criminal trial and is to be dealt with in accordance with the usual rules concerning expert witnesses.[8] In addition, lay persons, including jury members, are permitted to make their own handwriting comparisons. Section 30 of the Evidence Act 1929 (SA) is in these terms.[8] R v Bonython (1984) 38 SASR 45.30—As to comparison of disputed writingComparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.Indeed, a trier of fact is entitled to reach conclusions following a comparison of known with disputed handwritings in the absence of any evidence on the topic, expert or non-expert.[9] This is consistent with the standard direction given to juries in this State concerning the way in which they are to approach expert evidence and, ultimately, the undisputed proposition that the jury in a criminal trial is solely responsible for determining the facts.[9] Adami v The Queen [1959] HCA 70; (1959) 108 CLR 605, Daley v R [1979] Tas R 75 at 82, R v Leroy [1984] 2 NSWLR 441 at 446, and R v Mazzone (1985) 43 SASR 330.