R v F - [2007] SASC 258

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v F, V
[2007] SASC 258
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
10 July 2007
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES
Application for permission to appeal against conviction - applicant convicted by jury of the offence of knowingly taking part in the sale of a prohibited substance - prosecution case relied primarily on the evidence of witness claiming to have purchased the prohibited substance from the applicant - this witness had previously pleaded guilty in District Court to possessing methylamphetamine for sale, DPP did not oppose a suspended sentence for the witness in light of her cooperation in implicating the applicant - whether verdict of the jury was unsafe and unsatisfactory, as being unreasonable and not capable of being supported having regard to the evidence as a whole - Held: permission refused - trial Judge warned the jury in clear and unmistakable terms about the dangers of convicting on the evidence of the witness - it was open to the jury to accept her as a witness of credit and to accept her account beyond reasonable doubt.
Controlled Substances Act 1984 (SA) s 32(1)(d), referred to.
M v The Queen (1994) 181 CLR 487, considered.

R v F, V
[2007] SASC 258
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J. I agree with the reasons prepared by Gray J.
GRAY J.
This is an application for permission to appeal. Permission had earlier been refused by a Judge of this Court. The application for permission has been renewed to this Court. On 18 June 2007, this Court dismissed the application. My reasons for joining in the order of dismissal follow.
The applicant, F, was convicted following a jury trial of the offence of knowingly taking part in the sale of a prohibited substance contrary to section 32(1)(d) of the Controlled Substances Act 1984 (SA).
Prosecution Case
It was the prosecution case that the applicant took part in the sale of methylamphetamine on 21 January 2004. The prosecution relied primarily on the evidence of Joanne Morgan. Her evidence was central to the case against the applicant. The prosecution accepted that there was no case without her evidence.
Ms Morgan gave evidence that she met the applicant in 2002. Prior to 21 January 2004, she had visited his home three or four times a week for several months. She claimed to have purchased drugs from the applicant on a number of occasions. Ms Morgan was a daily amphetamine user.
On the morning of 21 January 2004, Ms Morgan contacted the applicant and arranged to purchase an ounce of methylamphetamine. It was Ms Morgan’s evidence that the purchase was to be made for her then partner. She knew that the methylamphetamine was then to be sold by her partner.
On the same morning, Ms Morgan attended the applicant’s home at Marden. The applicant and an associate, Georgina Blaikie, were present. Ms Morgan gave $5,000 to the applicant in exchange for an ounce of methylamphetamine. For her role in the transaction she received 1/8th of an ounce of methylamphetamine from the applicant. The applicant left the house shortly after the transaction. Ms Morgan remained at the house for a time after the applicant left, giving some methylamphetamine to Ms Blaikie and repackaging the rest.
Ms Morgan was able to provide a detailed description of rooms of the house including the presence of a TV monitor.
After Ms Morgan arrived at the house a police officer took up a position in the street and was watching the house. This officer observed Ms Morgan leave the house in her vehicle. He followed and stopped the vehicle within a short distance. Ms Morgan’s vehicle was searched. The search disclosed snap seal bags containing residues of methylamphetamine, two snap seal bags containing small amounts of methylamphetamine, a bag containing sucrose and a Tupperware container with 26.34 grams of a solid material which contained 6.89 grams of methylamphetamine.
Ms Morgan was arrested and charged with possessing methylamphetamine for sale. The charge related to the larger amount of methylamphetamine located in her car in the Tupperware container - being the amount that Ms Morgan alleged had been sold to her by the applicant for $5,000.
In 2006, Ms Morgan pleaded guilty in the District Court of South Australia to possessing methylamphetamine for sale. At about the same time, she gave a statement to the police implicating the applicant. In light of this cooperation, the Director of Public Prosecutions did not oppose a suspended sentence and one was imposed.
On the morning of 22 January 2004, police conducted a search of the home of the applicant. Both the applicant and Ms Blaikie were present. Items located at that house, on the prosecution case, lent considerable support for the account of Ms Morgan that the applicant had been the seller of the methylamphetamine on the previous day. In the house police located, inter alia, a room within the house set up as a “shooting gallery”, $21,755 cash in the main bedroom, a set of scales in the kitchen and a second set in the hallway – both of which disclosed traces of methylamphetamine, two firearms (one loaded), surveillance cameras and a number of press seal plastic bags.
At trial, the prosecution also led evidence that the applicant had a serious gambling habit. In the period 4 October 2003 to 21 January 2004, the applicant had lost $82,725 to a single bookmaker and had turned over $2.48 million.
The applicant was interviewed by police on 22 January 2004. In the course of that interview the applicant claimed that Ms Morgan had sold him 2 grams of methylamphetamine for $300 on 21 January 2004 and that the $21,755 found in his home were the proceeds of gambling.
The prosecution case was that the evidence revealed by the search of Ms Morgan’s motor vehicle and the applicant’s home undermined the applicant’s assertions to the police. Further, the search of Ms Morgan’s vehicle did not locate the $300 that the applicant claimed he had given Ms Morgan for 2 grams of methylamphetamine. The only money that Ms Morgan had at the time of her arrest was approximately $22 in small change. Ms Morgan’s account that she had packaged the drugs the subject of the charge was said to be supported by items seized by police from the house.
The Defence Case
The applicant’s defence was that he had not taken part in the sale of methylamphetamine to Ms Morgan.
The applicant called no evidence at trial. As a result, there was no sworn evidence to contradict the direct evidence of Ms Morgan that the transaction alleged had taken place.
The Summing Up
In the course of summing up, the trial Judge summarised the evidence of Ms Morgan:
[Ms Morgan] had been given $5,000. As a reward she was expecting an eight-ball of meth, which is an eighth of an ounce. She said that she went to the house, she had been there before, she said: ‘I walked in and the ounce had already been made up for me but I had to take some out for [Ms Blaikie], so I repackaged it and wiped it all clean. I believe [the applicant] left soon after I arrived. I repackaged it in electrical tape and I left.’ She was asked ‘Did you receive approximately an ounce of methylamphetamine?’. She said ‘Yes’. She said [the applicant] gave it to her, that it was packaged in a Tupperware container. She said that she gave the money to [the applicant].
If you accepted that evidence, ladies and gentlemen, there would be evidence of a sale and there would be evidence that [the applicant] had taken part in the sale, as he handed the Tupperware container to Ms Morgan and he received the $5,000. Those two actions are both steps in the process of a sale.
The trial Judge warned the jury about Ms Morgan’s evidence in the following terms:
The comments which I am about to make are necessary because of the fact, first, that Ms Morgan was an accomplice and, secondly, the fact that she is a person who made a statement to the police for the purpose of reducing her own sentence. Either one of those matters would have required me to say what I am about to say.
You can see that there may have been a strong incentive for a person in the position of Ms Morgan to implicate the [the applicant] when giving evidence. You must scrutinise the evidence of Ms Morgan with great care and approach your assessment of her evidence with caution.
A person who has been involved in an offence may have reason of self-interest to lie or falsely implicate another in the commission of an offence. The evidence of such a person is potentially unreliable and it is for that reason that you need to scrutinise the evidence of Ms Morgan carefully before acting on it.
Also, Ms Morgan, having been involved in the offence, is likely to be a person of bad character. For that reason her evidence may be unreliable and untrustworthy.
In addition, Ms Morgan may have sought to justify her conduct, or at least to minimise her own involvement, by shifting the blame wholly or partly to the accused. Perhaps Ms Morgan sought to implicate [the applicant] and to give untruthful evidence because she apprehended that she had something to gain by doing so. In fact, she told you that she had an expectation of being dealt with more leniently in the sentencing process as a result of her cooperation with the authorities. It may not be possible to identify the reasons which she may have had for giving false evidence. There may be other reasons for giving false evidence which are known only to her.
Ms Morgan’s evidence, if not truthful, has an inherent danger. If it is false in implicating [the applicant], it may nevertheless have some plausibility about it because of her familiarity with the circumstances of the alleged crime.
In view of these matters which I have mentioned, it would be dangerous to convict [the applicant] on the evidence of Ms Morgan unless you find that her evidence that [the applicant] was the vendor of the methylamphetamine is supported in material ways by objective, independent evidence.
Having given the warnings the Judge then observed:
When you come to consider your verdict you must keep in mind my warning: that it would be dangerous to convict on the uncorroborated evidence of an accomplice. However, you may do so if, after subjecting the evidence of Ms Morgan to close and careful scrutiny and taking into account the matters put by defence counsel, and giving full consideration to my warning, you are nevertheless satisfied beyond reasonable doubt as to the guilt of the [applicant].
Whether you are prepared to accept the evidence of Ms Morgan is entirely a matter for you. I remind you about what I said about the assessment of witnesses in my preliminary remarks.
The trial Judge stressed the critical importance of Ms Morgan’s evidence to the prosecution case in the following terms:
If you were to reject the evidence of Ms Morgan, then you would have to consider whether the circumstantial evidence excluded the possibilities that Ms Morgan had always had the container in her possession, that is, she took it with her to [the applicant’s] home or that she had received it from Ms Blaikie or from some person other than Ms Blaikie. Counsel for the [applicant] mentioned other variations of those possibilities. Unless the possibility of Ms Morgan having received the container of methylamphetamine in some other way other than from [the applicant] is excluded then you could not infer that she received the container from [the applicant].
What that means, ladies and gentlemen – this is a matter for you, but I just make this comment for your assistance – the ultimate question, that is whether there was a sale from [the applicant] to Ms Morgan, will depend upon whether you accept Ms Morgan or not. If Ms Morgan had not stepped into the witness box and given the evidence which you have heard, there would not have been evidence upon which you could convict, so in order to convict you are going to have to accept the evidence of Ms Morgan. I will say a little more about that in a moment, but before I do I might just say one or two words about the elements of the offence.
...
As I said, at its simplest level the defence case is that the transaction just never happened and that the only transaction was the sale of a very small quantity of methylamphetamine from Ms Morgan to [the applicant]. It’s a situation where you are confronted with two versions. The Crown says Ms Morgan was the purchaser. The defence says that Ms Morgan was the vendor. Your task, ladies and gentlemen, is not to decide whether you prefer the defence version or the Crown version. It is not just a matter of preferring version A or version B. Your task, you will recall, is to decide whether the Crown has proved its case and that is what your ultimate inquiry has to be; whether the Crown has proved beyond reasonable doubt that [the applicant] sold 1 ounce of methylamphetamine in the Tupperware container to Ms Morgan. All of the other facts in the case are quite peripheral to that primary inquiry.
Consideration of the Application
The ground of appeal sought to be advanced is that the verdict of the jury was unsafe and unsatisfactory, as being unreasonable and not capable of being supported having regard to the evidence as a whole.
Counsel for the applicant drew attention to the guiding principles set out by Mason CJ and Deane, Dawson and Toohey JJ in M.[1] Their Honours observed:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
...
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[1] M v The Queen (1994) 181 CLR 487 at 492-493, (footnotes omitted).
Counsel for the applicant made no complaint about any aspect of the trial Judge’s directions. However, it was submitted that had the jury followed the trial Judge’s directions in relation to the evidence of Ms Morgan, they could not have been satisfied of the applicant’s guilt. Counsel drew attention to a number of aspects about the evidence of Ms Morgan to support this submission. They were all matters that were brought to the attention of the jury.
Counsel for the Director of Public Prosecutions submitted that:
-With respect to the criticisms that the applicant made about the evidence of Ms Morgan, the jury were directed that they were entitled to accept or reject parts of her evidence. The question was whether or not the jury accepted her evidence of the transaction alleged. That matter turned upon the jury’s assessment of her evidence. The jury were best placed to make that assessment;
-It was a misunderstanding of the evidence to suggest that Ms Morgan’s evidence was “not corroborated”. There was a significant body of circumstantial evidence to suggest that the applicant was involved in the drug trade. Further, the applicant’s account to the police that he had paid $300 to Ms Morgan for methylamphetamine was undermined by the absence of any money in the possession of Ms Morgan;
-The fact that Ms Morgan was a user and a dealer in methylamphetamine was obvious to the jury. The trial Judge gave a detailed warning about her evidence;
-The trial Judge reminded the jury of the attitude taken by the prosecution with respect to Ms Morgan’s sentencing and that she might have a motive to falsely implicate the applicant. It was also a matter that had been emphasised by the applicant’s counsel in his address at trial;
-There was nothing inconsistent or implausible as to how Ms Morgan had arranged to collect and pay for the methylamphetamine. Her evidence on that topic was to be evaluated against the background of her evidence that this was not the first time that she had made such a purchase from the applicant;
-The fact that Ms Morgan had been seen to go back and forth to her motor vehicle on more than one occasion was arguably no more consistent with the applicant’s account than with that of Ms Morgan. In any event, it is not a matter that could have escaped the jury and is not a matter of any real significance;
-There are a number of possible explanations for the failure of the police to find a second container in Ms Morgan’s motor vehicle. This was not a matter that could have had a significant impact upon her evidence. Again, it was a subject that had been highlighted by the applicant’s counsel;
-The finding of sucrose in Ms Morgan’s motor vehicle was not a matter of significance. Indeed, the same substance had been found in the home of the applicant. The possession of sucrose by Ms Morgan was consistent with her taking larger amounts of methylamphetamine and diluting them. That is something that she admitted that she did;
-The fact that Ms Morgan’s mobile phone rang on a number of occasions was not inconsistent with her evidence. She admitted that from time to time she would sell some of the methylamphetamine that she obtained and that the person for whom she was obtaining the methylamphetamine on this particular occasion rang her repeatedly after the police had seized the drugs. As that person had given Ms Morgan $5000 but had received no drugs, it is understandable that he would have called. Further, the significance that the applicant placed upon these calls was obvious to the jury.
In my view counsel for the DPP’s submissions should be accepted. The jury were best placed to evaluate each of the matters raised. They were adequately canvassed by both counsel. The jury received appropriate assistance from the trial Judge.
There is no substance to the proposed appeal. There was no complaint about any aspect of the trial Judge’s summing up either to the trial Judge or to this Court. The trial Judge pointed out that the jury’s acceptance of Ms Morgan’s account beyond a reasonable doubt was necessary before they could return a verdict of guilty.
The trial Judge warned the jury in clear and unmistakable terms about the dangers of convicting on the evidence of Ms Morgan.
It was open to the jury to accept Ms Morgan as a witness of credit and to accept her account beyond reasonable doubt. The trial Judge gave appropriate warnings and outlined accurately and sufficiently the defence case. There was significant corroborative evidence. There is no basis on which the verdict could be interfered with. No arguable ground of appeal has been identified.
KELLY J
I agree with the reasons of Gray J for the dismissal of this appeal.