R v Franco

Case [2009] SASC 370

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FRANCO

[2009] SASC 370

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kourakis)

4 December 2009

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - DIRECTIONS TO JURY

Appellant convicted by jury of two counts of taking part in manufacture of methylamphetamine - complains of certain directions given by trial judge in course of summing up - evidence that appellant possessed a bottle of methylamphetamine shortly after second charged occasion - trial judge directed jury as to use that could be made of evidence based on whether or not satisfied beyond reasonable doubt that methylamphetamine in bottle came from batch manufactured - jury directed in alternative that if not so satisfied they could still use evidence as showing appellant had an interest in methylamphetamine - whether alternative direction introduced new path of reasoning to proof of guilt - whether alternative direction invited jury to engage in impermissible propensity reasoning.

Held:  no new basis for conviction introduced - use to which prosecution put evidence was clear - no question of inferring prior offending from evidence arose - whilst judge erred in introducing criminal standard of proof, alternative use open and would have survived application of exclusionary principle - observations on exclusionary principle in relation to evidence showing an interest in an illegal substance.

CRIMINAL LAW - EVIDENCE - CORROBORATION - DIRECTIONS TO JURY

Whether possession of bottle of methylamphetamine was evidence capable of corroborating evidence of accomplice - appellant's argument that leaving evidence of the bottle as corroboration confusing and unfair not made out - appeal dismissed.

Harriman v The Queen (1989) 167 CLR 590; R v Lander (1989) 52 SASR 424; Doney v The Queen (1990) 171 CLR 207; R v Perks (1986) 43 SASR 112, applied.
R v Solomon [1980] 1 NSWLR 321; R v Franco (2003) 139 A Crim R 288, distinguished.
Edwards v The Queen (1993) 178 CLR 193; R v Long & McDonnell (2002) 137 A Crim R 263; R v Palaga (2001) 80 SASR 19; R v Nieterink (1999) 76 SASR 56; R v Conley (1982) 30 SASR 212, considered.

R v FRANCO
[2009] SASC 370

  1. VANSTONE J:    After a long trial in the District Court before a judge and jury, the appellant was found guilty of two counts of taking part in the manufacture of methylamphetamine.

  2. He appeals, with permission, against the verdicts on three grounds (grounds 3 to 5) raising directions given by the trial judge in the course of his summing up.  He also renews his application for permission to appeal in respect of the judge’s refusal to exclude some evidence said to be more prejudicial than probative, as well as an alleged failure by prosecuting counsel to adhere to the terms of a ruling by the judge as to admissibility and use of a particular body of evidence.  Permission to appeal on these…

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R v Franco [2009] SASC 370
Case
[2009] SASC 370
Decision Date

CaseChat Overview and Summary

The case of R v Franco concerns a criminal appeal where the appellant argued that the trial judge's directions to the jury regarding the use of evidence as corroboration were incorrect. The appellant, who was convicted of manufacturing methylamphetamine, contested the directions given concerning a small bottle of methylamphetamine found in his possession. The central issue was whether the trial judge erred in allowing the bottle of methylamphetamine to be considered as corroborative evidence of the accomplice's testimony and whether this constituted an error of law that warranted a new trial.

The appellant contended that the directions provided by the trial judge were misleading and prejudicial because they suggested that the jury could only consider the bottle as corroborative evidence if it was proven beyond reasonable doubt that the contents of the bottle and the methylamphetamine on the appellant's hands and clothes were from the same batch as that identified in the samples tested from the premises. The appellant argued that this direction was overly restrictive and potentially confusing. However, the court found that while the direction was not ideal, it did not amount to an error of law. The court noted that corroborative evidence does not need to be proven beyond reasonable doubt and that its purpose is to strengthen the evidence of the accomplice by confirming the accused's involvement in the crime.

The reasoning of the court was that the trial judge's directions, though not perfectly articulated, did not introduce any legal error or unfairness to the appellant. The court emphasized that the direction was not necessary and potentially misleading but held that it did not prejudice the appellant's case. The appeal was dismissed as the court found no substantial error in the judge's directions that would warrant a retrial. The judges unanimously agreed that the appeal should be dismissed based on the reasoning that any perceived deficiencies in the directions did not amount to a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

Grounds 3 and 4 raise directions given by the trial judge in the course of the summing up to the jury as to the treatment of a particular item of evidence, being a small bottle of methylamphetamine seen in the appellant’s possession. Before setting out the relevant directions, I shall say a little of the essential facts comprising the prosecution case.Background Both offences were said to have taken place at premises at Tarqui Drive, Paralowie. This was the home of the prosecution witness, Ms Reading. Prior to the appellant’s trial, Ms Reading had been sentenced for manufacturing methylamphetamine at these premises on the occasion of count 2. Ms Reading gave evidence which directly implicated the appellant in respect of both counts. She said that on the occasion of count 1, the appellant had, for the third time, used her home for the purpose of manufacturing methylamphetamine. She said that on the first such occasion he had brought with him a suitcase, which he had then left in her spare bedroom. Police surveillance on this occasion confirmed her evidence that during the period that the appellant was at the house, Ms Reading went to purchase caustic soda and to fill up a gas bottle. She said that these things had been done at the request of the appellant and to assist him in producing the illicit drug. Ms Reading said that on the occasion of count 2 the appellant came to her home, by arrangement, and she saw him manufacturing methylamphetamine. Police surveillance disclosed that earlier that day the appellant was at his sister’s home at Seymour Avenue, Windsor Gardens. At those premises were a number of items associated with methylamphetamine manufacture. The appellant was seen to depart carrying a brown paper bag. He then drove to the Tarqui Drive premises. He was seen to carry inside a brown paper bag. The appellant was there from about 11:00am to 1:27pm, when he left the house and was arrested. Subsequent examination of the inside of the house established that methylamphetamine had been very recently produced there. The prosecution case was that, as police approached the appellant for the purpose of arresting him, he tipped onto the ground the contents of a bottle he was holding. He then dropped the bottle, which was retrieved. Scientific examination demonstrated that it contained methylamphetamine. The scientist compared the contents of the bottle with residues found within the laboratory inside the house and expressed the view that they were “very likely” to have come from the same source. That was based on parallels between the composition of certain by-products in each. In addition, traces of methylamphetamine and pseudoephedrine were found on the appellant’s hands and clothing. In his address to the jury, counsel for the prosecution suggested the jury could find on the whole of the evidence that the methylamphetamine in the bottle had recently been manufactured inside the premises. By contrast, defence counsel suggested that further comparative testing of the source of the drug could have been done, such that a definitive statement could have been made. He suggested the jury was left in a position whereby the evidence was inconclusive and it should not speculate as to what further testing could have revealed.Directions on the bottle

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would refuse permission to appeal on these grounds.Conclusion The appeal should be dismissed. ANDERSON J: I agree that the appeal should be dismissed for the reasons given by Vanstone J. KOURAKIS J: I agree that the appeal should be dismissed for the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

In summary, my view is this. The use to which the prosecution put the evidence was clear. It suggested the methylamphetamine in the bottle was the product of the production with which the appellant was charged. On its case, no question of inferring prior offending from the evidence arose. In those circumstances no particular direction was required. The use comprehended by the judge’s fallback direction was available. Although I do not consider that it was necessary (or advisable in terms of introducing a false threshold test, as already discussed) to direct in this way, and that it was apt to invite difficulties and complications which were not otherwise present, there was no error in law or fact, nor was there any unfairness to the appellant. The argument on this ground fails.Directions on the bottle as corroboration Ground 4 concerns the judge’s direction on the topic of corroboration of the evidence of the accomplice. In particular, it challenges the direction in which the judge left to the jury, as evidence capable of amounting to corroboration, the same small bottle already the subject of discussion. The judge said:There is also the evidence of the methylamphetamine in the bottle … allegedly held by him. … if you were satisfied beyond reasonable doubt that the bottle contents and the methylamphetamine under his nails and hands and clothes came from the same batch as that identified in the samples tested by [the scientist] from the equipment found in the kitchen of [Tarqui Drive] that would of itself amount to corroboration at law. I note that at the time of the argument on permission to appeal, this ground complained that the bottle should not have been left as an item of potential corroboration at all. Upon the appeal, counsel sought to argue only that the directions given on this topic were in error. Again, it will be noticed, the judge directed the jury in terms of satisfaction beyond reasonable doubt that the contents of the bottle and the methylamphetamine on the appellant’s hands and clothes, were part of the product of the recent manufacture within the house. I consider that, to put the matter in that way, was to unduly fetter the jury’s approach to use of the evidence. Again, no particular standard of proof is required of items of evidence left to the jury as potential corroboration. The direction also tended to introduce an element of circularity. Because if the jury were satisfied to the criminal standard that the contents of the bottle and the methylamphetamine inside the house had a common source, then there would be no need to consider the evidence of the accomplice and to apply the warning as to her evidence. The direction was unduly favourable to the appellant. The principle is that evidence left as corroboration of other evidence must be independent evidence tending to support or confirm the evidence to be corroborated in a material particular and it must confirm that the accused committed the crime. It must render that other evidence more probable: R v Baskerville [1916] 2 KB 658; R v Kilbourne [1973] AC 729, 758; R v Lander (1989) 52 SASR 424, 426. But the corroborating evidence need not be proved to any particular standard before it is used for that purpose. As the High Court said in Doney v The Queen (1990) 171 CLR 207 at 211:It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see R v Baskerville [1916] 2 KB 658; Reg v Hester [1973] AC 296, at 325.