R v Kirk - [2005] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KIRK
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
1 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant found guilty of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 - Objection by counsel for defendant to unexpected response to question in examination-in-chief given by investigating detective - Objection upheld after argument on voir dire - Trial Judge directed jury to ignore witness' response to question - Appeal against conviction on ground that trial Judge erred in refusing to declare a mistrial, or alternatively that direction given to jury inadequate to overcome potential prejudice - Consideration of principles relevant to determination of whether failure to discharge jury has caused miscarriage of justice - Consideration of adequacy of direction - Presumption that jurors will follow directions given by trial judges - No error shown - Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e), referred to.
Maric v R (1978) 52 ALJR 631, 20 ALR 513; R v Miller (1980) 25 SASR 170; Byrne v R (1986) 20 A Crim R 306; Van De Weil v R (Unreported, 3 August 1995, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Duggan and Nyland JJ, Judgment No.S5202); Crofts v The Queen (1996) 186 CLR 487; R v Simpson (1999) 75 SASR 195; R v Weaver [1968] 1 QB 353; Gilbert v The Queen (2000) 201 CLR 414, applied.
R v Harms [2000] QCA 419 (Unreported, 10 October 2000, McPherson, Davies JJA and MacKenzie J), considered.

R v KIRK
[2005] SASC 230
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J: I would dismiss the appeal for the reasons given by Bleby J.
BLEBY J: This is an appeal against conviction. The appellant, Kevin Allan Kirk, was found guilty by a jury of the offence of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. The particulars of the offence were that on 13 July 2003 at Adelaide, the appellant knowingly had an amount of cannabis exceeding 2kg in his possession for the purposes of selling it to another person. The prosecution case was that the appellant was involved in the interstate transport from Adelaide of a suitcase containing approximately 4kg of dried cannabis destined for sale in New South Wales.
On 12 July 2003 the appellant reserved two bus tickets by telephone. He was to leave Adelaide the following morning travelling to Melbourne, then to continue his journey on a bus bound for Sydney. The appellant’s ultimate destination was Liverpool, on the outskirts of Sydney. On the morning of 13 July 2003 the appellant was driven to the Franklin Street Bus Station by a friend to whom he had lent his car. He paid for and collected his bus tickets at the bus station.
At about 7:30am police officers attended the bus station with a sniffer dog and searched the luggage hold of the bus bound for Melbourne. A suitcase was identified by the dog and the police officers found it to contain 10 sealed plastic bags of cannabis each weighing about 1 pound. Attached to the suitcase was a red luggage tag indicating that it was bound for Liverpool. The police officers immediately attempted to locate the owner of the suitcase but were unsuccessful. By this time the appellant had left the bus station.
Witnesses for the prosecution gave evidence that at the time of the search, the appellant was the only passenger travelling to Liverpool. Two other passengers had booked tickets to Liverpool, but according to the bus driver they had not yet arrived at the time of the search. The bus driver identified the appellant from a photographic array as the person who had handed him the suitcase to be loaded into the luggage compartment. A booking clerk identified a person of the appellant’s name as having paid for and collected his pre-booked tickets. She also gave evidence that the same person returned to the ticket desk shortly thereafter and requested a luggage tag, and that she had instructed another clerk to give him a red Liverpool tag.
The appellant in evidence agreed that he booked, paid for and collected his bus tickets and that he was present at the bus station that morning. He claimed to have had no knowledge of the suitcase and gave evidence that he was carrying only a backpack. He said that after collecting his tickets he boarded the bus but then got back off to buy some Quick-Eze antacid, leaving his backpack on the bus. He said that after purchasing the Quick-Eze he received a telephone call from an unidentified person warning him that someone might be about to “trash” his house and damage his belongings and suggesting that he should return home immediately. The appellant gave evidence that he later identified the caller as being one of his friends. He said that he got straight into a taxi and departed the bus station realising after about five minutes that he had left his backpack on the bus. He said he thought he could reclaim it later from lost property. Employees of the bus company were not able to locate the backpack.
Persons at the bus station were questioned, and as a result the Kadina police were contacted. Officers attended the appellant’s house in Port Wakefield, but he was not at home. Later that morning the police located the appellant’s car at another Port Wakefield address. They searched the house and found the appellant hiding behind a door, whereupon he was arrested. The officers searched the appellant and also his car. The issue the subject of this appeal is a statement made in evidence by a detective being questioned about the search of the appellant’s car.
The detective was asked in examination by the prosecution, “Did you search the red car in the driveway?” The witness responded, “I had a look in it, but I didn’t pull anything apart or…” Counsel then asked, “Did you notice anything?” and the detective said, “When I first went there, there was a smell similar to cannabis, but I couldn’t say it was”. The detective had not mentioned anything about a smell of cannabis in any relevant deposition he had made. There was no other evidence of any smell resembling that of cannabis associated with the appellant’s car. Counsel for the appellant immediately objected to the evidence on the ground that the police officer was not qualified to express the opinion. The jury then retired to enable argument to take place. The time was 11.03 am. It was the third day of a five day trial and the second day with a jury. Arguments were put to the trial Judge, in the absence of the jury, as to whether the statement was admissible. Counsel for the appellant made an application for the declaration of a mistrial.
The objection was based at first on whether the witness was qualified to give an opinion as to the apparent odour in the car. The fact that the witness had not referred to the odour in his witness statement was also raised. The two officers involved in searching the appellant’s car were examined on the voir dire. The trial judge ruled that they were experienced in dealing with cannabis and were therefore qualified to give an opinion regarding the presence of the odour of cannabis. The application for a mistrial was refused.
Subsequently, the objection was further developed and a second application for a mistrial was made. Counsel argued that the evidence would be unfair to the appellant, as the hypothesis advanced by the Crown, namely that the odour of cannabis could have been present in the car because the car had been used in transporting the cannabis found on the bus, could not be tested. All of the cannabis had been removed from the vacuum-sealed plastic bags in which it had been found and the plastic bags had been destroyed. Counsel for the appellant argued that although the smell of cannabis was detected by the sniffer dog, it was not apparent whether the odour would have permeated the layers of plastic such that it would have been detectable to a human, or to the extent that it would have left the car smelling of cannabis for some period of time after the removal of the cannabis itself. The trial judge again refused to declare a mistrial but upheld the objection and ruled that the evidence should be excluded. At 3.16 pm the jury re‑entered the court and the trial Judge gave the following direction:
I direct you you should ignore altogether the answer Detective Leech gave to that question to which Mr Retalic took objection. I will remind you what the question is, but I won’t remind you what the answer is; it will defeat the purpose of what I am now saying to you. You will remember that Detective Leech was asked “Did you notice anything in the car?”. I ask you and direct you that you should ignore altogether what he said by way of response to that. It’s inappropriate that I go on and give you some reasons as to why that is so. I am sure you are quite capable of putting it out of your mind. We all, I think, in ordinary life have to put aside and put out of our minds things that have been told in confidence. This is a bit like that. I repeat: I ask you to put that out of your mind and ignore [it in] any further consideration of your verdict in this case.
The appellant now appeals on the basis that the trial Judge erred in failing to declare a mistrial. The appellant submits that the statement, “there was a smell similar to cannabis” was so damaging to his case that no direction would have been sufficient to overcome the potential prejudicial effect, and that consequently the only safe course of action would have been to discharge the jury.
Alternatively, the appellant submits that the direction that the trial Judge did give was inadequate. The appellant contends that the direction given, by referring to the question asked of the witness and not to the answer, would have only served to focus the jurors’ attention on the excluded evidence. The appellant further submits that the basis on which the evidence was excluded should have been explained to prevent the jurors from speculating as to the possible reasons and in doing so, elevating the prominence of the excluded evidence in their minds. Finally, the appellant submits that the analogy drawn by the trial Judge to matters told in confidence was inappropriate. The appellant contends that people may well take such matters into consideration in decision-making whilst at the same time maintaining confidentiality. The appellant submits that the comparison was therefore unhelpful and possibly confusing.
It is well established that in an appeal against conviction where a refusal to discharge the jury is complained of, the court must decide whether the refusal has resulted in a miscarriage of justice. The relevant test is whether the court can be satisfied that the irregularity has not affected the verdict in that the jury would have returned the same verdict if it had not occurred[1]. Necessarily such considerations will include whether any direction given by the Judge was capable of overcoming the possible prejudice and other relevant matters[2]. The determination of these questions will turn on the individual circumstances of each case[3]. As Sachs LJ said in R v Weaver[4]:
It follows, as has been repeated time and time again, that every case depends on its own facts. It also, as has been said time and time again, thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.
[1]Maric v R (1978) 52 ALJR 631, 20 ALR 513; R v Miller (1980) 25 SASR 170 at 210-211; Byrne v R (1986) 20 A Crim R 306 at 312; Van De Weil v R (Unreported, 3 August 1995, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Duggan and Nyland JJ, Judgment No. S5202 at p. 3).
[2]Crofts v The Queen (1996) 186 CLR 487 at 440-441; R v Simpson (1999) 75 SASR 195 at 199-200.
[3] R v Weaver [1968] 1 QB 353, Van De Weil v R supra.
[4] [1968] 1 QB 353.
The appellant submits that, in the context of the contested issues at trial, the probable impact of the inadmissible statement was serious. It is argued that the information was highly prejudicial in circumstances where the appellant had denied any knowledge, as well as possession, of the cannabis. The inference that the car was used in the transport of the cannabis found on the bus is said to be obviously damaging, however any potential association of the appellant with cannabis generally is also said to be highly prejudicial. It is further submitted that the statement was given prominence by the timing of the disclosure in the course of the trial and the fact that it was not a particularly long case nor one with a large amount of evidence.
The appellant’s argument elevates to an unreasonable level the significance of the detective’s statement, given an assessment of all of the issues at trial. The potentially damaging nature of the statement must not be considered merely in isolation, but in the context of the overall case. It cannot be judged to be the most prominent, or even a relatively major issue in a case where the jury had to consider numerous pieces of circumstantial evidence, unrelated to the evidence of the detective regarding the search of the appellant’s car, upon which the prosecution relied to establish guilt. The jury had to assess, among other things, the identification evidence of the bus driver and the booking clerk, the evidence that the appellant was the only passenger who was present and booked to travel to Liverpool at the time of the search, and the possible explanations for the appellant’s sudden departure from the bus station. It should also be noted that the actual statement itself was not unequivocal. The witness said he could not be sure that the odour was cannabis.
It is fair to say that there was a reasonably strong circumstantial case against the appellant. When the excluded statement is considered against the backdrop of all of the other evidence presented, its potential impact is not sufficient to have warranted the discharge of the jury. There is no reasonable possibility that the jury would have come to a different verdict had the jurors not heard the detective’s statement. The statement was not so damaging as to render impossible a fair trial following the disclosure. It was a relatively innocuous answer against the background of a strong prosecution case. There was no error in failing to declare a mistrial.
The direction given by the trial Judge was also adequate. The appellant complains that in failing to repeat the witness’ answer and declining to outline the reasons for the ruling, unnecessary and unfair emphasis was placed upon the detective’s statement. The trial Judge was in a difficult position. Had he elaborated in giving the warning, the opposite criticism would be inevitable in that a lengthy discussion of the reasons for its inadmissibility and repetition of the statement itself could also focus the jury’s attention on the excluded evidence. As the jury retired, they understood that the objection was based on Detective Lee’s qualifications to express the opinion that he had. The ruling that the evidence was inadmissible was in fact not based on that objection but on fairness to the appellant. If, on their return some hours later, there had been some further explanation of the real reason for exclusion of the evidence, the jury would inevitably have been left with the impression that Detective Lee was indeed qualified to express the opinion and had done so, to the detriment of the appellant.
There are advantages and disadvantages associated with both the direction given and the alternative proposed by the appellant. There is no justification for interfering with the approach which the trial Judge considered at the time to be the least prejudicial and which, upon reflection, probably was.
As already outlined in these reasons, this was not a case where directions to the jury were incapable of obviating the possible prejudice to the appellant. Although the analogy drawn by the trial Judge to matters told in confidence in everyday life may not have assisted the jury, nor would it have rendered the jury members so confused that the direction would not have been understood. The trial Judge repeated the direction to ignore the detective’s answer numerous times. It was clear that the jurors were not to take it into account in reaching their verdict. To suggest that they would have been misguided as to the meaning of the direction would be tantamount to arguing that juries are incapable of following simple instructions. There is a presumption that juries will comprehend and follow the directions they are given. As Gleeson CJ and Gummow J commented in the case of Gilbert v The Queen[5];
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.
[5] (2000) 201 CLR 414 at 420 and also at 425-426 per McHugh J. See also R v Harms [2000] QCA 419 (Unreported, 10 October 200 McPherson, Davies JJA and Mackenzie J).
There were some submissions put by both counsel in this appeal which contemplated how the jury might have dealt with the excluded evidence had they ignored the trial Judge’s direction. I do not propose to deal with them. There is no reason to assume that the jury did not follow the direction it was given. To entertain that hypothesis and to speculate as to how the jury would have then proceeded would be a dangerous and inappropriate course.
The appeal should be dismissed
ANDERSON J: I would also dismiss the appeal for the reasons given by Bleby J.