R v Lancefield
[1999] VSCA 176
•10 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 28 of 1999
| THE QUEEN |
| v |
| RAY ERIC LANCEFIELD |
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JUDGES: | PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 and 11 August 1999 | |
DATE OF JUDGMENT: | 10 November 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 176 | |
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CRIMINAL LAW – Possession of traffickable quantity of cannabis resin – Circumstantial evidence – Proof of possession dependent upon inferences – Guilty verdict only sustainable where only reasonable inference open – Proof of guilt beyond reasonable doubt – Trial judge directing jury to disregard "mere possibility" – Whether misdirection – Single act constituting two offences – Whether accused may be convicted of both offences.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. W.E. Stuart | Mr. M. Camilleri Solicitor For D.P.P. (Cwth) |
For the Applicant | Mr. P.G. Priest, Q.C. with | Leanne Warren & Associates |
PHILLIPS, C.J.:
This application should be granted and the appeal allowed. I subscribe to the reasons assigned by the other members of the Court. To the extent they differ, it is enough to say that the learned trial judge was drawn by defence counsel’s closing address into the error of explaining what is meant by proof beyond reasonable doubt or, in this case, its counterpart, the exclusion of any hypothesis reasonably open on the evidence that would be consistent with the innocence of the accused.
CHARLES, J.A.:
The applicant, who is now aged 54, was arrested on 22 April 1996 by Australian Federal Police officers, together with a co-offender, John David Preston, in connection with their possession of a traffickable quantity of cannabis resin which had been imported into Australia. On 30 July 1997 the Commonwealth Director of Public Prosecutions filed a joint indictment in the County Court at Melbourne against the applicant and the co-accused containing one count of attempting to obtain possession of a traffickable quantity of cannabis resin and one count of possession of a traffickable quantity of cannabis resin in both cases contrary to s.233B(1)(c) of the Customs Act 1901. Both pleaded not guilty. On 8 February 1999 the trial of both accused commenced in the County Court at Melbourne and on 15 February a verdict of guilty was returned against both accused in respect of both counts. On 23 February the learned judge sentenced both accused to be imprisoned on each count for a period of two years and six months, the sentence for each to commence on that date. His Honour further directed in each case that after the prisoner had served a period of 18 months, each should be released upon giving security by the recognizance of $1,000 to be of good behaviour for a period of 12 months. On 23 February the DPP applied to the judge for an order pursuant to s.19(1) of the Proceeds of Crime Act 1987 (Cth) for the forfeiture of $4,000 that had been seized from the applicant on 22 April 1996.
The applicant now seeks leave to appeal against conviction and sentence and the confiscation order.
The Crown case was as follows. On 10 April 1996 cargo arrived at Kingsford Smith Airport in Sydney on board Qantas flight QF6, including a cardboard box containing a red pressing machine. The box had been shipped from Thailand and the consignee was described as "Renster IDC Ltd., 1A Rings Road, Moorabbin". IDC Ltd. was in fact Inter Design Cabinets, a cabinet factory located at the stated address. (It was not suggested during the proceedings that IDC Ltd. was implicated in these alleged offences.) A customs officer went to the premises of United Parcel Service, a freight carrier at Ascot Vale, and became suspicious of the parcel when a drug detector dog reacted to the cardboard box. The red pressing machine inside the box was examined and from the smaller of two cylinders in the machine was extracted 392.3 grams of cannabis resin. Federal police officers placed in this cylinder 55 grams of the narcotics and packing material to make up the bulk, in order to carry out a controlled delivery, which later occurred on 15 April. On 15 April David Barbin, the proprietor of IDC Ltd. took possession of the machine from a policeman posing as a delivery man.
Three or four weeks before 15 April 1996, an IDC Ltd employee called Griffiths had received a telephone call in which he was told that Lewis Bell intended to send a parcel to Griffiths from Thailand. After 15 April, Griffiths was telephoned by Lewis Bell and told that Bell was in Bangkok, and that one "Brian" would telephone Griffiths about collection of a package he had sent to IDC from overseas. At 12.17 p.m. on 19 April Griffiths was telephoned by a man who identified himself as Brian. Brian said to Griffiths that he was calling from Sydney and that he wished to collect the package from Griffiths for Lewis Bell. Brian gave Griffiths a telephone number 02 6766 3076 and asked Griffiths to ring Lewis on that number. Griffiths and Brian discussed the way that Brian could get delivery of the package from Griffiths.
On 19 April 1996 Qantas Airways received a telephone booking for two persons in the names of Ray Stuart and John Williams for a single journey flight for each man from Sydney to Melbourne on 19 April. The booking details in Qantas' computer records included two telephone numbers given as a contact by the person making the booking, the numbers being 0419 669 923 and 018 240 433. The second of these numbers was for a mobile telephone service allocated to Belmore Car Sales of 667 Canterbury Road, Belmore in Sydney, of which the applicant was the owner or operator. The first mobile telephone number was associated with John David Preston. This airline booking was automatically cancelled when the tickets were not paid for within a set time. The Crown also tendered through a Telstra officer, call charge records for the mobile number 0419 669 923 for the period 9 February 1996 to 17 May 1996 showing a series of calls between that number and 018 240 433 between 13 March and 21 April.
On 21 April, using the name Williams, the co-offender Preston again telephoned Qantas and booked a single flight air ticket for Mr. Williams and Mr. Stuart on QF 427 to travel from Sydney to Melbourne on 22 April 1996. A contact mobile number 0419 669 923 was given to Qantas, and $518 cash was paid for the two tickets.
At 12.30 p.m. on 22 April the applicant and Preston went to the Hertz Car Rental counter at Tullamarine, where Preston hired a blue Falcon NRM 837 completing a hire agreement for the purpose. Two telephone numbers were given as telephone contacts, one of which was 0419 669 923. The hire was for a minimum of three days and $360 in cash was provided for the hire.
At 2.30 p.m. on the same day Preston went to the factory premises of IDC at 1A Rings Road, Moorabbin, and identified himself as Brian and said he was there to collect the package for Renster. Preston placed the cardboard box inside the boot of the blue hired Ford and drove off, being at that stage alone in the vehicle. At 2.35 p.m. a Federal agent saw the applicant standing at the corner of Chesterfield Road and Rings Road and get into the passenger side of the blue Falcon driven by Preston, some six to seven hundred metres from IDC's premises. Federal agents then followed the blue Falcon as it travelled to the Hume Highway in the direction of Sydney and intercepted the car about five kilometres north of Craigieburn on the Hume Highway where the applicant and Preston were arrested.
When the arrests were made, a Federal agent seized the Qantas airline ticket in the name of J. Williams in a Hertz rubbish bag attached to the glove compartment of the blue Falcon. From the boot the agent retrieved the cardboard box containing the pressing machine. A second Federal agent searched the applicant, finding in his top shirt pocket an empty Winfield cigarette packet with two telephone numbers in it. The telephone number for IDC at the relevant time, 03 9532 5860, was one of these numbers. The second number on the packet was the same telephone number that Brian had given to Griffiths on 18 April 1996 to telephone Lewis Bell. The Federal agent also found in the applicant's shirt pocket a used Qantas airline ticket for travel from Sydney to Melbourne on 22 April in the name of R. Stuart.
On searching Preston, the police found a Nokia mobile phone and a small envelope with writing on it. The writing on the envelope included the words "Mickey Gee, 1A Rings Road, Inter Design Cabinets", "parcel", "Renster", and "Brian". Forensic evidence was that the applicant's right thumbprint was on the small envelope where the writing "Inter Design" appeared. Preston was also in possession of a Sydney railway ticket with the names "John Williams", "Stuart" and "Qantas" and the numbers 131313, which is an Australia-wide Qantas ticket booking telephone number.
The pressing machine retrieved from the boot was examined by police and 55 grams was extracted from the smaller cylinder. On 2 May 1996 the Federal police disassembled the larger support cylinder of the machine and discovered that it contained 1090.3 grams of cannabis resin. The total weight of cannabis resin in the machine when it entered Australia was 1482.2 grams. The total street value of the cannabis resin seized at $30 a gram was $44,466, and at $50 a gram was $74,110. $30 was the applicable price in street trade in Victoria at the relevant time and $50 the street selling rate in Sydney.
The first three grounds of the application in relation to conviction, all of which related to the burden and standard of proof, were argued together by Mr. Priest, who appeared in this Court for the applicant. The grounds are in the following terms –
1.The trial judge erred in the directions concerning the drawing of inferences, and in particular –
(a)he sought to define "reasonable" and "reasonable conclusion or inference";
(b)by directing the jury to "focus" on whether there is a reasonable "explanation" put forward by the defence, the directions were apt to undermine or reverse [the] burden and standard of proof.
2.The trial judge erred in the directions concerning circumstantial evidence, and in particular the directions were apt to undermine or reverse the burden and standard of proof.
3.The trial judge erred in the directions concerning the burden and standard of proof, and in particular –
(a)the jury were directed that once they found the Crown's "explanation" to be reasonable, then they ought to look to the defence explanation;
(b)the directions were apt to undermine or reverse the onus and standard of proof.
At different times the trial judge correctly directed the jury that they had to be satisfied of guilt beyond reasonable doubt before convicting. Twice the judge directed the jury that they could not view a fact as a basis for an inference of guilt unless they were satisfied beyond reasonable doubt of the existence of that fact. That was, of course, a favourable direction: see Shepherd v. The Queen (1990) 170 C.L.R. 573. Furthermore, his Honour told the jury in relation to the expression "beyond reasonable doubt" that those words meant what they say and that there was no point in any further or better definition of them. Mr. Priest, however, submitted that notwithstanding the judge's acceptance of what was said in Green v. The Queen (1971) 126 C.L.R. 28 at 32-33, his Honour had then attempted further elaboration of that expression. In particular, he submitted, the trial judge had sought to contrast "reasonable" inferences, conclusions and explanations with those that were "fanciful' or "far-fetched" or "speculative" or "merest possibility". These attempts at elaboration, so the argument ran, amounted to serious misdirection and at best were confusing.
Mr. Priest also submitted that the judge had used the word "explanation" in conjunction with "hypothesis" when dealing with inferences and circumstantial evidence; at times, he said, the words appeared to have been used interchangeably and at others the directions had seemed to convey that the words had different meanings. To use the word "explanation" as a substitute for, or as a different term from "hypothesis", was, Mr. Priest submitted, calculated to reverse the onus of proof, since the expressions have quite different meanings, an hypothesis being a theory or premise which may be proved or disproved by facts, whereas an explanation is an account given of one's actions.
Particular complaint was made by Mr. Priest of the following passage in the judge's charge, where his Honour said –
"The significant word in all of what I have just said is the word 'reasonable' as it is used in the phrase 'a reasonable conclusion or inference', or 'another reasonable conclusion or inference'. In this context 'reasonable' means reasonable, - the result of rational thought. It also means reasonable based on the evidence. It has to be a conclusion that is reasonable from this evidence. It cannot be pulled out of the air. It has to be based on the evidence. And the word reasonable is used to contrast the necessary inference with an inference or conclusion which is fanciful or far-fetched or speculative or the merest possibil[it]y. And counsel, counsel for both accused, have used expressions, when dealing with this, of the 'merest possibility', or 'any possibility'. That is not the law. An inference that we are concerned with here is not one which is a mere possibility, it is a reasonable inference based on the evidence.
Now, logic, rational thought, common sense and your collective experience of life, together with your recollection of the evidence, will tell you whether an explanation is reasonable in this sense.
So first consider the explanation or inference contended for by the Crown. If it is reasonable in that sense, then you go to the next stage. If it is not reasonable in that sense, then, of course, you would acquit both of these persons.
If however the Crown's explanation based on the evidence and on the circumstances and so on is a reasonable explanation, then you ask 'Is there any other reasonable explanation of this collection of facts and circumstances, and if so, is it consistent with innocence on the part of that accused man'. If there is such a reasonable inference, consistent with innocence, then you cannot convict that person.
So your focus at this stage, members of the jury, is upon whether there is an explanation, one, based on the evidence and not on guesswork; two, which is reasonable in that sense, which is not fanciful, far-fetched, speculative or a mere possibility, and that focus applies to the inference the Crown urges, and to any urged by either of the accused men."
Mr. Priest submitted that the jury would have understood these directions as an invitation to look at the inference contended for by the Crown, and, if it was reasonable, to look to see whether the applicant had offered an alternative reasonable explanation. If no alternative reasonable explanation was offered, implicitly it was suggested that conviction followed. Mr. Priest further submitted that it was a serious error to instruct the jury to "go to the next stage" if the "explanation or inference contended for by the Crown" was "reasonable". These directions, he submitted, were apt to reverse the onus of proof in inviting the jury to look for "an explanation" which was urged by either of the accused men. Furthermore, it was submitted, that insofar as the directions were an invitation to convict if the Crown's inference was reasonable, and there was no alternative reasonable inference offered then they were seriously flawed, since they diluted the standard of proof and the Crown must always prove the case beyond reasonable doubt. Failure of an accused to put forward an alternative hypothesis consistent with innocence does not, Mr. Priest submitted, relieve the prosecution of the burden to prove the case to the requisite standard.
Defence counsel during her address had put to the jury that the evidence called for the prosecution left open a variety of possibilities (at least five) consistent with the innocence of the applicant. These possibilities, which, we were told by Mr. Stuart for the Crown, were all advanced with force and as if there was evidence to support them, included the possibility that the applicant had been offered a free flight to Melbourne purely for the purpose of enjoying a car trip back to Sydney with Preston, or that the applicant had come to Melbourne thinking Preston was going to pick up smuggled diamonds or gun parts or false money. Most of the possibilities suggested would, I should have thought, have been immediately rejected by the jury as speculative and fanciful even without further comment by the judge. It is, however, plain that in the circumstances the judge felt obliged to give the jury some assistance by restoring the balance.
Mr. Stuart submitted to us that the applicant's argument on this aspect of the charge had to be viewed in terms of the factual setting of the case. The two accused had come to Melbourne flying under false names. At Melbourne Airport Preston had hired a car and the two travelled straight to Moorabbin. There Preston must have dropped off the applicant before picking up the box containing the pressing machine at the premises of IDC. He had then picked up the applicant at the end of the road near these premises and the car proceeded towards the Hume Highway, until the two were arrested north of Craigieburn. The Crown case, Mr. Stuart argued, though circumstantial, was a strong one. The variety of possible fact situations forcefully advanced for the defence were all implausible or fanciful and wholly unsupported by evidence. Mr. Stuart submitted that the judge was therefore quite entitled to redress the balance, and, in the passages quoted above, had gone no further than was necessary for that purpose.
There are of course repeated warnings to be found in cases of the highest authority that judges charging juries should not depart from or attempt an explanation of the phrase "beyond reasonable doubt". For example in Dawson v. The Queen (1961) 106 C.L.R. 1, Dixon, C.J. said at 18 that –
"... it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempt to substitute other expressions of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions."
See also Brown v. The King (1913) 17 C.L.R. 570 at 584 per Barton, A.C.J.; Thomas v. The Queen (1960) 102 C.L.R. 584, at 587, 595, 604-5; Green at 32-34.
The judge had, as I have said, early in his charge told the jury that they could not convict an accused unless they were satisfied of his guilt beyond reasonable doubt, and that there was no point in any further or better definition of the expression. His Honour repeatedly stressed to the jury that if at the end of their deliberations their state of mind was that they were not satisfied by the evidence beyond reasonable doubt that the accused was guilty, then their verdict in relation to that person should be "not guilty".
When he came to the passage quoted above, his Honour was, of course, dealing with the problems posed by circumstantial evidence and, having regard to the various possibilities advanced by defence counsel, with the extent of the burden carried by the Crown in this regard. Here also, there is no lack of authority for the correct test. As Dixon, J. put it in Martin v. Osborne (1936) 55 C.L.R. 367 at 375 –
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the ordinary course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."
Or, as Dawson, J. said in Shepherd v. The Queen at 578 –
"Where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances."
See also Knight v. The Queen (1992) 175 C.L.R. 495 at 502-504.
When the judge came to deal with the other supposedly rational inferences that could be drawn from the circumstances, his Honour used language not greatly dissimilar from that used by the trial judge in Green, in that judge's description to the jury of what was not a reasonable doubt. The judge in Green had told the jury to ask themselves "is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt;" (see the passage from the charge quoted at length in 126 C.L.R. at 30-31). In their judgment, Barwick, C.J., McTiernan and Owen, JJ. dealt with the problem faced by a judge in circumstances where defence counsel has put a series of unreal possibilities to the jury in the following way, at 33 –
"If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt."
Both the passages previously cited from Green's Case were discussed in an illuminating passage in the judgment of King, C.J. in The Queen v. Wilson (1986) 42 S.A.S.R. 203, at 206-7, which merits quotation at length. His Honour said –
"It is clear from the passages cited above that the High Court in Green's Case set about discouraging judges from qualifying the direction as to onus of proof beyond reasonable doubt by references to fanciful or unreasonable doubts except in cases in which that was considered to be rendered necessary by the arguments of counsel. Where the judge considers such a qualification to be necessary, it is essential that he frame the qualification in terms which do not diminish the jury's sense of their obligation not to convict upon supposed proofs about which they, as reasonable persons, feel a doubt. The qualification, when made, should be in terms, such as those suggested by the passage cited above from Green's Case, which cautioned the jury against regarding possibilities which are in truth fantastic or completely unreal as affording a reason for doubt, or in terms, often used, which remind the jury of the capacity of the human mind to conjure up fanciful, nervous or unreasonable misgivings about matters which are not in reality in doubt. It is permissible, if thought necessary, to warn a jury against unreasonable mental processes, but it is not permissible to suggest that they should disregard a doubt which, at the end of their deliberations, they think to exist, or that they are required to subject such a doubt to a process of analysis in order to determine its quality. If at the end of their deliberations, the jury have a doubt, that doubt is ipso facto, as Green's Case establishes, a reasonable doubt.
As was stressed in Green's Case, judges have been admonished time and time again to adhere to the conventional formula that the burden is on the prosecution to prove the charge and each ingredient of the charge beyond reasonable doubt. No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain. The judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt."
See also R. v. Pahuja (1987) 49 S.A.S.R. 191 at 194-195.
The judge, as I have said, made repeated reference to the burden and standard of proof. His Honour was plainly very much concerned to balance the reliance defence counsel had placed on what were doubtless regarded as fanciful possibilities, and, having read the address of defence counsel, I do not doubt that his Honour was entitled to redress the balance. But, with great respect to the very experienced judge, I think that in the passage quoted above from the charge he went beyond the point necessary to restore a proper balance in the mind of the jury. The jury had been told by his Honour that the process of deciding what inferences could be drawn from circumstantial evidence involved two stages. They were first to consider the explanation or inference contended for by the Crown and decide whether it was a reasonable one. They may well have thought that his Honour's direction required them then to consider any other possibilities they regarded as reasonable and, in effect, to weigh them against the Crown's explanation. In particular, they may have thought it was their function to see whether the applicant had offered an alternative reasonable explanation, and, if no alternative reasonable explanation had been offered, the implicit suggestion was that conviction followed. Furthermore, the jury may have thought that in this process they were not to take into account any possibility, unless it exceeded the level of "mere" or "any" possibility, even though they had some possibility in mind which gave them cause for retaining a doubt as to the guilt of the accused.
There is a further matter. The judge, in the passage quoted, on a number of occasions told the jury that for an inference to be reasonable it had to be "based on the evidence". I am, again with respect, not sure what his Honour meant by this phrase and the jury may also have been left in some confusion by its repeated use in this context. No evidence had been called on behalf of the applicant, and the jury would have been entitled to pay regard to that fact (see Martin v. Osborne per Evatt, J. at 382, anticipating Weissensteiner v. The Queen (1993) 178 C.L.R. 217 by nearly 60 years). But the jury may have been led by the judge's emphasis on the phrase to assume that they could not in the circumstances consider as reasonable (and must therefore disregard), any of the possibilities suggested by defence counsel, or any other possibility which occurred to them, unless evidence had been given to support that inference by or on behalf of the applicant. On this view, the relevant part of the charge was, in my respectful view, apt to reverse the onus, or at least to dilute the standard of proof. And, as Mr. Priest contended, the failure of the accused to put forward an alternative hypothesis consistent with innocence could not relieve the prosecution of the burden of proving its case to the requisite standard.
In coming to this conclusion I do not attach any weight to the argument that the judge had used the word "explanation" in conjunction with "hypothesis" and "possibility", or that the use of the word "explanation" as a substitute for "hypothesis" was calculated to reverse the onus of proof. The words do, of course, have different meanings, but here both counsel had used them interchangeably in their addresses, and his Honour was merely following counsel's lead. The jury would not, I think, have been confused, or led into error, in this way.
It follows that in my view, with all respect, the relevant part of the charge was defective. Notwithstanding the repeated references elsewhere by his Honour to the standard and onus of proof, and the jury's need to be satisfied beyond reasonable doubt, I think (in much the same way as did the High Court in Green at 31) that these references were controlled by the passages from the charge earlier quoted in this judgment. The conclusion is much to be regretted. The judge had clearly sought to leave the jury in no doubt as to their proper function. The Crown case was a very strong one. No evidence had been called for the applicant. No relevant exception was taken by defence counsel after the charge was concluded (as to which see R. v. Wright [1999] VSCA 145). But, as Mr. Stuart accepted during his very competent and fair submissions, if the relevant part of the charge was in conflict with the decision of the High Court in Green or diluted the standard of proof, then it would not be appropriate to apply the proviso.
It follows that the applicant's appeal must be allowed on grounds 1, 2 and 3. It is therefore unnecessary to consider the other grounds, but, in case a retrial is to be had, it is desirable to mention briefly ground 6. That ground complains that a miscarriage of justice occurred as a result of a verdict being taken, a conviction recorded, and sentence being passed, on both counts in the indictment. Mr. Priest's submission under this ground was that the sole reason for the existence of two counts in the indictment was the actions of the police in removing part of the cannabis resin from the press for the purpose of a controlled delivery. It followed that it was simply the behaviour of the police which had exposed the applicant to double punishment for what was in reality a single criminal transaction. Mr. Priest submitted that a person should not be exposed to the possibility of an additional sentence of 25 years' imprisonment because of the way the police had dealt with the drug. Reliance was placed on R. v. Sessions [1998] 2 V.R. 304, especially per Hayne, J.A. at 312-315. At the outset of the trial defence counsel should, he argued, have sought a stay of one count, or alternatively the charges should have been left as alternative charges only. The trial miscarried, so the argument ran, by the judge having received a verdict on the second charge, and the conviction on the first count (attempted possession) ought now to be set aside.
In response Mr. Stuart submitted that the presence of two counts on the indictment was warranted since the counts related to different quantities of narcotics and different elements were involved in the two charges. Count 1 related to an attempt to obtain possession of a traffickable quantity of cannabis resin (the 337.3 grams of cannabis resin removed from the smaller cylinder of the machine by police for the purpose of the controlled delivery). Count 2 related to the actual quantity of cannabis resin remaining in the pressing machine being the 55 grams returned by the Federal police to the smaller cylinder and the 1,090.3 grams found in the larger cylinder of the machine after the controlled delivery was completed.
In my view the laying of two counts in the indictment in these circumstances was proper and the presence of two counts properly reflected the true criminality alleged by the prosecution, in terms of the quantity of narcotics attempted to be obtained, as well as that actually obtained. The practice of laying two counts in these circumstances was approved by the Court of Criminal Appeal of Western Australia in R. v. Lee (1990) 1 W.A.R. 411, at 425-426 and 429. The taking of verdicts of guilty on both counts is also in my view supported by what was said by McHugh, Hayne and Callinan, JJ. in Pearce v. R. (1998) 194 C.L.R. 610 at [24, 25 and 26]. It was nevertheless plainly appropriate that concurrent sentences be imposed in relation to the two counts.
It follows that the appeal against conviction should in my view be allowed, and a new trial ordered. This makes it unnecessary to deal with the application for leave to appeal against sentence. I note, however, that Mr. Stuart conceded in argument on ground 1 of this application that the electrocardiogram taken on 21 April 1999 showed evidence of cardiac infarct and this was followed by the life-threatening aortic dissection some two months later. In these circumstances, he conceded that it would be open to conclude that the risk of serious illness foreshadowed in the plea was greater than could have been foreseen by the judge and accordingly that the fact of the applicant's cardiac illness and the consequences to his health would make his imprisonment more burdensome than would have been expected at the time sentence was imposed. It would accordingly have been necessary for this Court to re-sentence the applicant, had the application to appeal against conviction failed.
As a consequence of the quashing of the conviction, the forfeiture order made against the applicant under s.19(1) of the Proceeds of Crime Act 1987 (Cth) must also be set aside.
CALLAWAY, J.A.:
I agree in the reasons of Charles, J.A., except [25-26], and in the orders that his Honour proposes. I should prefer to express in my own words the reasons why I consider that the learned judge fell into error in the passage from the charge set out at [16].
The first, second and fifth paragraphs of that passage, read together and in context, were inconsistent with the following statement of principle in the joint judgment of Barwick, C.J., McTiernan and Owen, JJ. in Green v. The Queen (1971) 126 C.L.R. 28 at 32-33:
"In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes': Windeyer J., Thomas v. The Queen [(1960) 102 C.L.R. 584 at 606]. A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case." (Emphasis added.)
See also The Queen v. Wilson (1986) 42 S.A.S.R. 203 at 206-207.
I do not overlook that the impugned passage formed part of a direction on circumstantial evidence, but the customary direction that the jury must acquit the accused if there is a reasonable hypothesis consistent with innocence is no more than a corollary of proof beyond reasonable doubt: see Knight v. The Queen (1992) 175 C.L.R. 495 at 502, Shepherd v. The Queen (1990) 170 C.L.R. 573 at 578 and The Queen v. Kotzmann [1999] VSCA 27 at [15].
Mr. Stuart submitted that the third and fourth paragraphs of the impugned passage said no more than what Dawson, J. described, in Shepherd v. The Queen at 578, as "the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances". It must also be remembered that each of those paragraphs describes a situation in which it is the jury's duty to acquit. I nevertheless agree that, in context, those paragraphs were likely to distract the jury from the simple task of considering whether an hypothesis consistent with innocence was reasonably open on the evidence: see Knight v. The Queen at 503-504..
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