R v Corish
[2006] SASC 369
•8 December 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CORISH
[2006] SASC 369
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
8 December 2006
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS
Appeal against conviction - appellant convicted following trial by jury in the District Court of the offences of possessing methylamphetamine for sale and manufacturing methylamphetamine - during course of summing up, trial judge directed jury regarding a potential witness who had not given evidence - whether the trial judge erred in directing the jury that the failure of the appellant to call the witness in support of the defence case could be used adversely against him - appeal allowed.
Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(3), referred to.
R v Zampogna (2003) 85 SASR 56; R v Granger (2004) 88 SASR 453; Dyers v The Queen (2002) 210 CLR 285; R v Reed (1993) 65 A Crim R 434, considered.
R v CORISH
[2006] SASC 369Court of Criminal Appeal Bleby, Gray and Anderson JJ
BLEBY J: The facts relating to this appeal have been sufficiently stated by Gray J. I will not repeat them. Gray J has also referred to the reasons advanced by Gaudron and Hayne JJ in Dyers v The Queen[1] as to why a Jones v Dunkel direction cannot normally be given against an accused in a criminal trial. However, Dyers was a case which the court was not concerned with any statutory or other presumptions. It was a case where the burden of proof lay, from beginning to end, on the prosecution.
[1] (2002) 210 CLR 285, Kirby J (at 305) and Callinan J (at 325-328) generally agreed with Gaudron and Hayne JJ on this point.
Section 32(3) of the Controlled Substances Act 1984 (SA) provides:
(3) For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person. (Emphasis added)
Presumptions, particularly statutory presumptions, will have differing effects. Some may be no more than a logical inference to be drawn from a proven fact without in any way affecting the burden of proof. Some may merely raise an evidential burden where, once the primary fact is proved to the requisite standard, the ultimate burden of proof of the presumed fact remains on the party required to prove the primary fact. Some will impose a legal burden of proof if the presumed fact is to be negated.[2]
[2] See generally the classification discussed in J D Heydon, Cross on Evidence (7th Australian ed, 2004) 281-283.
It seems that there may possibly be an unresolved question as to the effect of s 32(3) of the Controlled Substances Act. In R v Zampogna[3] the trial judge had referred in his summing up to a change in the onus of proof with respect to that element of the charge which requires possession to be for the purpose of sale. Duggan J, with whom Doyle CJ and Gray J agreed, said:[4]
I do not think there was any danger of the jury being misled by the terminology used by the trial judge. He explained that the prosecution must prove that the appellant had the drug in his possession for the purpose of sale. He went on to refer to the presumption which would arise if the prosecution established beyond reasonable doubt that the appellant was in possession of more than the prescribed amount. He explained that the presumption could be rebutted by the appellant if it were established on the balance of probabilities that the possession was not for the purpose of sale.
That having been said, it would be better, in my view, if the effect of the section was not explained in terms of a change of onus, although I appreciate that this is sometimes said in the course of jury charges. There is a sense in which that statement is true, but there is a risk of confusing the operation of the onus in relation to the presumption with the overall onus in relation to proof of this particular element of the offence. The onus of establishing the element of purpose for sale remains throughout on the prosecution, albeit that proof is aided by the presumption. (Emphasis added)
[3] (2003) 85 SASR 56.
[4] Ibid at 64-65, [43]–[44].
In R v Granger[5] the trial judge, sitting alone, said in her reasons for convicting the appellant on a charge of possession for sale:[6]
The result of the application of the presumption provided for in s 32(3) facilitates proof of an offence, which might otherwise be difficult to prove. It may attribute to the accused a purpose that he in fact did not entertain. It is a rebuttable presumption.
On the evidence, it is possible that the accused did not have cannabis in his possession for the purpose of sale. However, it is for the accused to establish on the balance of probabilities, that is, that it is more likely than not that he did not have cannabis in his possession for the purpose of the sale of that substance to another person.
…
I cannot accept that, on the evidence, it was more likely than not that the cannabis produced by the accused was solely for his own use, and/or occasional supply to friends. I cannot accept the submission that the accused’s personal and financial circumstances, around the time of the offence charged, were inconsistent with a financial incentive associated with the sale of cannabis.
I am not satisfied, on the balance of probabilities, that the accused did not have the cannabis, or some of it, in his possession for the purpose of sale. I am satisfied that the charge in count 1 is proved beyond reasonable doubt. I find the accused guilty as charged.
[5] (2004) 88 SASR 453.
[6] Ibid at 457-458.
Of s 32(3) the Chief Justice, with whom Perry and Mullighan JJ substantially agreed, said:[7]
That provision has been interpreted as requiring the accused to satisfy the court on the balance of probabilities that he did not have the relevant drug or substance in his possession for the purposes of sale: R v Zampogna (2003) 85 SASR 56 at [43]-[44].
[7] Ibid at 457.
Later he continued:[8]
Mr Schapel also submits that s 32(3) should be interpreted as requiring Mr Granger to do no more than point to evidence capable of supporting a conclusion that he did not have the cannabis for the purpose of sale and that once such evidence was before the court the burden remained on the prosecutor to prove beyond reasonable doubt that his purpose was that of sale, without resort to the statutory presumption. He did not argue that Zampogna was wrongly decided. He referred to decision such as R v Oakes [1986] 1 SCR 103; R v Lambert [2002] 2 AC 545 and Attorney-General (Hong Kong) v Lee Kwong-Kut [1993] AC 951, decisions dealing with the impact on presumptions of provisions in Bills of Rights and Conventions preserving the presumption of innocence in particular.
While the argument put on this point has some attraction, this Court should continue to follow its decision in Zampogna unless that decision is overruled, or, alternatively, unless the court is persuaded that it should depart from the decision.
[8] Ibid at 458-459.
The equivalent provision in Western Australia has been interpreted as placing a burden on the accused to establish that it is more probable than not that he did not have the intent to sell or supply the drug.[9]
[9] R v Reed (1993) 65 A Crim R 434.
This is not the occasion to resolve the question whether there is any difference between what this court said in R v Zamponga[10] and what was said in R v Granger[11], and whether there remains an onus on the prosecution of establishing the element of purpose for sale.
[10] (2003) 85 SASR 56.
[11] (2004) 88 SASR 453.
If the effect of s 32(3) is to place a legal onus of proof on the accused as to the purpose of sale, then there may be a question as to whether what the High Court said in Dyers v The Queen[12] about the inapplicability of a Jones v Dunkel inference to criminal cases applies to evidence which might have been called which can only go to the issue on which there may be an onus on the defendant under s 32(3) of the Controlled Substances Act. I would want to reserve any decision on that point to a more appropriate occasion.
[12] (2002) 210 CLR 285.
The reason I joined in allowing the appeal was that the Jones v Dunkel direction in this case did not differentiate between the issue of possession and that of the purpose of possession. For the purposes of s 32(1) of the Controlled Substances Act, the appellant’s knowingly being in possession of the drug the subject of count 1 was in issue. Mr Babidge’s evidence, if he were called, would also have been relevant to that issue and not merely to the question of the purpose of possession, if possession were proved. His evidence would therefore have been relevant to an issue on which the prosecution clearly bore the legal burden of proof.
The offending Jones v Dunkel direction applied without differentiation to the various issues on which the appellant gave evidence. It applied to proof of an issue (knowingly possessing) on which the onus at all time remained with the prosecution. On that account, the direction was contrary to what was decided in Dyers v The Queen,[13] and the appeal had to be allowed and a fresh trial directed. It is not necessary to decide whether, if Mr Babidge could only have given evidence as to the purpose of the possession, the direction was wrong.
[13] (2002) 210 CLR 285.
Mr Babidge could only have given evidence relevant to count 1. However, the direction also called in question the reliability of the accused’s evidence in respect of count 2, thereby causing a miscarriage in respect of that count also.
It was for these reasons that I joined in allowing the appeal.
GRAY J:
The appellant was convicted by jury verdict following a trial in the District Court of the offences of possessing methylamphetamine for sale and manufacturing methylamphetamine. The appellant appealed against both convictions.
On 17 May 2006, at the conclusion of the hearing of the appeal, I joined in orders of the Court allowing the appeal, setting aside the convictions and remitting the matter for retrial. The Court indicated that reasons would be published at a later date. I now publish my reasons.
The count of possessing methylamphetamine for sale involved an alleged offence against section 32(1)(e) of the Controlled Substances Act 1984 (SA). That section provides:
A person must not knowingly—
have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
The particulars of the count were that:
Adam Richard Corish on the 22nd day of September 2003 at McLaren Flat, knowlingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
The charge of manufacturing methylamphetamine was an alleged offence contrary to section 32(1)(a) of the Controlled Substances Act. That section provides:
A person must not knowingly –
manufacture or produce a drug of dependence or a prohibited substance;
The following particulars of this count provided:
Adam Richard Corish between the 21st day of June 2003 and the 23rd day of September 2003 at McLaren Flat, knowlingly manufactured methylamphetamine, a drug of dependence.
The Crown case was that the appellant operated a clandestine drug laboratory in a shed at McLaren Flat. Police attended at the premises and searched the shed. They found equipment and paraphernalia, which on the prosecution case, the accused was using to produce the drug methylamphetamine. At the time of the search, the police found the accused in the shed seated at a table on which a computer monitor was located. The monitor was linked to a surveillance camera system. This allowed the appellant to observe persons entering his property and moving towards the shed.
The examination of the shed disclosed what the Crown said was the clandestine drug laboratory. The police located glassware, equipment, chemicals and other substances used to produce methylamphetamine. The police also located in the shed the substance, methylamphetamine, in two portions.
Because of the quantity of methylamphetamine located, it was the prosecution case that the presumption, contained in section 32(3) of the Controlled Substances Act, operated. That section provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
The effect of section 32(3) of the Controlled Substances Act was discussed by this Court in Zampogna.[14] Duggan J speaking for the Court observed:
There are two further matters. During the hearing of the appeal leave was granted to add a ground of appeal which complained of the directions of the trial judge in relation to the effect of s 32(3).
In the passages complained of, the trial judge referred to a "change in the onus of proof" with respect to that element of the charge which requires possession to be for the purpose of sale. According to the argument, this may have conveyed to the jury that the prosecution was not required to establish this element of the offence.
I do not think there was any danger of the jury being misled by the terminology used by the trial judge. He explained that the prosecution must prove that the appellant had the drug in his possession for the purpose of sale. He went on to refer to the presumption which would arise if the prosecution established beyond reasonable doubt that the appellant was in possession of more than the prescribed amount. He explained that the presumption could be rebutted by the appellant if it were established on the balance of probabilities that the possession was not for the purpose of sale.
That having been said, it would be better, in my view, if the effect of the section was not explained in terms of a change of onus, although I appreciate that this is sometimes said in the course of jury charges. There is a sense in which that statement is true, but there is a risk of confusing the operation of the onus in relation to the presumption with the overall onus in relation to proof of this particular element of the offence. The onus of establishing the element of purpose for sale remains throughout on the prosecution, albeit that proof is aided by the presumption.
[14] R vZampogna (2003) 85 SASR 56 – see also R v Granger (2004) 88 SASR 453 at [7], [12]-[13].
The appellant gave evidence in support of the defence case. He admitted that one of the two portions of methylamphetamine being a weight of under 2 grams, was his. He claimed that this portion was intended solely for his own use. The other portion, also under two grams, was, he claimed, in his possession on trust for his step-brother, Richard Babidge.
The appellant’s defence in respect of the charge of manufacturing methylamphetamine was that his conduct involved the purification of methylamphetamine given to him by other persons and that he was not engaged in any process of manufacture.
The appellant’s step-brother, Richard Babidge, did not give evidence either for the prosecution or the defence.
During the course of the summing up, the Judge drew attention to the fact that the accused did not call Mr Babidge to give evidence in support of the suggestion, made by the accused, that one of the packets of drugs found in his shed belonged to Mr Babidge. The Judge reminded the jury that the explanation for not calling Mr Babidge was to be found in the evidence given by the accused to the effect that he and Mr Babidge had fallen out. The Judge went on to say to the members of the jury that they might think that Mr Babidge’s absence was not satisfactorily explained.
The Judge further instructed the jury that it was open to them to find that Mr Babidge was available to give evidence, that there was no satisfactory explanation for his absence, and that Mr Babidge was a person whom the accused might have been expected to call as a witness to testify as to his knowledge of who was the owner of one of the bags of methylamphetamine.
The Judge invited the jury to ask themselves whether the accused, on the evidence, had discharged the onus of proof resting on him as a possessor of more than 2 grams of methylamphetamine by establishing that the portion supposedly belonging to Mr Babidge was not possessed by the accused for the purpose of sale.
The Judge then warned the jury that, before drawing any inference adverse to the accused, they should take into account that there might be other reasons for Mr Babidge not being called as a witness than the fact that he could not have assisted the defence case. Further, the Judge warned the jury that they should not speculate about what any potential witness, who had not been called to the witness box, might or might not have said.
After the jury retired and following discussion with counsel, the Judge recalled the jury and read to them the terms of an agreed fact as follows:
It is an agreed fact that police looked for Mr Richard Babidge on Saturday the 4th and Sunday, 5 March 2006, this year. He could not be found;
The Judge then directed the jury that Mr Babidge, if he had been called, could only have given evidence relevant to count one. The Judge instructed the jury that they should not draw any inference adverse to the accused on count two from the fact that any witness whom they might have expected to have been called was not called.
The jury later returned with the following question:
Can we ask which side asked Richard to give evidence at trial, defence or prosecution?
The Judge instructed the jury that the extent of the evidence on this question was the agreed fact referred to earlier, and went on to direct the jury further that:
… it would be impermissible, that is to say, it would not be permissible, for you to speculate on the topic. The issues that are there to be decided by you must be decided on the evidence. I remind you of that.
In Dyers,[15] the High Court considered the appropriateness of a direction given in a criminal trial that the jury were entitled to infer that if a person was not called, the person would not have assisted a defendant. The circumstances leading to the direction are set out in the reasons of Gaudron and Hayne JJ as follows:[16]
[15] Dyers v The Queen (2002) 210 CLR 285.
[16] Dyers v The Queen (2002) 210 CLR 285 at [1]-[2].
In 1999, the appellant was indicted, in the District Court of New South Wales, on a charge of indecently assaulting a thirteen year old girl in 1988 — eleven years earlier. Although the indictment alleged that the offence had occurred between specified dates, by the end of the prosecution case it was clear that it was alleged that the assault had occurred on the morning of 29 July 1988. In an unsworn statement at his trial, the appellant acknowledged that he had seen the complainant that morning, but he said that it was only in the company of her mother, and while he was otherwise engaged in meetings with others. The appellant's appointment diary was tendered in evidence. It recorded a number of appointments for the appellant during the day. No appointment with the complainant was recorded. There were, however, references to a meeting at 9.30 am with two other persons, a meeting between 1 pm and 3 pm with several other persons, including the complainant's mother, and what was described as a "processing session" with a Ms Tinkler between 9.30 am and 11.30 am in a room called the "energy conversion room". The complainant swore that the appellant had indecently assaulted her in that room at the end of a "processing session" with her in the morning of 29 July 1988.
Neither Ms Tinkler nor others who were recorded in the diary as having appointments at 9.30 am and 1 pm gave evidence at the trial. ...
Gaudron, Hayne JJ observed:[17]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
Then their Honours continued:[18]
As was pointed out in RPS, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled.
The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.
[17] Dyers v The Queen (2002) 210 CLR 285 at [5] (footnotes omitted).
[18] Dyers v The Queen (2002) 210 CLR 285 at [9]-[10] (footnotes omitted).
Their Honours then discussed the further reasons for concluding that the direction should not have been given:[19]
The second of the principal reasons for concluding that a Jones v Dunkel direction should not have been given is closely connected with the first. Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.
[19] Dyers v The Queen (2002) 210 CLR 285 at [11] (footnotes omitted).
Finally, their Honours discussed a third reason for concluding that the direction should not have been given:[20]
The third of the principal reasons, for concluding that a Jones v Dunkel direction should not have been given, arises out of the direction that the jury should not speculate about the evidence that might have been given by those who were not called. The reasoning of which Windeyer J spoke in Jones v Dunkel was the drawing of inferences from proved facts and the confidence with which such inferences could be drawn. The central issue for the jury in the present matter was whether they were persuaded, to the requisite standard of satisfaction, that the events described by the complainant had happened. To those events there were said to be only two witnesses — the complainant and the accused. It may, therefore, be doubted that the drawing of inferences loomed large in the jury's deliberations in this case. At most, there might have been some questions of inference about peripheral issues.
[20] Dyers v The Queen (2002) 210 CLR 285 at [13] (footnotes omitted).
On the hearing of the appeal, counsel for the Crown conceded that for the reasons identified in Dyers, the Judge’s direction with respect to Mr Babidge should not have been given. Counsel conceded that the appeal should succeed in respect to count one. Counsel accepted that there had been a material misdirection with the consequence of a real risk of a miscarriage of justice. Counsel accepted that there was no occasion for the application of the proviso.
During the course of submissions counsel for the Crown although conceding that the Jones v Dunkel direction should not have been given in the present case contended that it may not always be inappropriate to give such a direction. This contention was advanced having regard to the terms of section 32(3) of the Controlled Substances Act.
In this respect it is relevant to recall the observations in Dyers concerning the position of the Crown on issues where the Crown has the onus to prove elements of an offence beyond reasonable doubt. In that respect Gaudron and Hayne JJ observed:[21]
The three reasons we have given are all concerned with giving a Jones v Dunkel direction about evidence which the accused might have adduced. The directions given in this matter were described in the Court of Criminal Appeal as having been intended as "bipartisan". That is, they were understood as permitting, if not inviting, the jury to conclude that there were witnesses whom the prosecution could and should have called. Again, the trial judge having given the jury no guidance about who could be thought to fall into this group, or why that was so, the directions given were either of no assistance to the jury or were apt to mislead. But again, there are more deep-seated reasons for saying that, save in very exceptional circumstances, a direction of this kind should not be given about witnesses whom the prosecution ought to have called.
However the reversal of onus in section 32(3) may be characterised, it is clear that the fact that the defendant may carry an evidentiary or other onus does not effect the circumstances which a Jones v Dunkel direction may be given in a criminal trial – very exceptional circumstances must be established.
[21] R v Dyers (2002) 210 CLR 285 at 294-295.
Initially, counsel for the Crown submitted that the Judge’s direction in respect of Mr Babidge was only relevant to count one and that the verdict in regard to count two should stand. However, in the course of submissions before this Court, counsel accepted that the impugned direction of the trial Judge concerning Mr Babidge had the capacity to impact generally on the jury’s consideration of the appellant’s credibility and reliability as a witness. Counsel accepted that the jury could have carried through any adverse effects into an assessment of the credibility and reliability of the appellant’s evidence concerning the charge of taking part in the manufacture of methylamphetamine.
The concessions of counsel were appropriate. There was a real risk that the Judge’s misdirection impacted on the jury’s proper consideration of both counts. In those circumstances, the verdict in regard to count two should also be set aside.
As earlier observed, for these reasons, I joined in the order of the Court.
ANDERSON J I agree with the reasons of Gray J for allowing the appeal, setting aside the convictions, and remitting the matter for retrial.
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