R v Li
[2017] ACTSC 291
•4 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Li |
Citation: | [2017] ACTSC 291 |
Hearing Date: | 4 August 2017 |
DecisionDate: | 4 August 2017 |
ReasonsDate: | 12 October 2017 |
Before: | Penfold J |
Decision: | 1. The no-case submission made on behalf of the accused is upheld. 2. The jury is discharged from entering a verdict. 3. A verdict of acquittal is entered. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – acquittal – no-case submission upheld – jury discharged – offence of trafficking in methylamphetamine – relatively weak circumstantial Crown case – Crown’s evidence raised alternative hypothesis consistent with innocence of accused that could not reasonably be excluded by the jury. |
Legislation Cited: | Crimes Act 1900 (ACT), s 287 Criminal Code 2002 (ACT), ss 603(7), 604(1) |
Cases Cited: | Nguyen v The Queen [2013] ACTCA 11 Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 R vFilippetti (1978) 13 A Crim R 335 |
| Texts Cited: | Caucasian, English Oxford Living Dictionary, <en.oxforddictionaries.com/definition/Caucasian> Caucasian, Macquarie Dictionary Online, < |
| Parties: | The Queen (Crown) John Li (Accused) |
Representation: | Counsel Mr M Fernandez (Crown) Mr J Lawton (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 160 of 2016 |
Introduction
John Li was charged with one count of trafficking in methylamphetamine, following the discovery of a trafficable quantity of the drug in the fridge of the house in which he lived.
The trafficking charge arose under s 603(7) of the Criminal Code 2002 (ACT). To prove trafficking, the Crown sought to rely on the presumption that would arise under s 604(1) of the Criminal Code if it were proved that Mr Li had possessed the drugs in question.
On 4 August 2017, on the fifth day of the trial, counsel for Mr Li made a no-case submission, which I upheld. These are my reasons for that decision.
The evidence
The methylamphetamine was contained in a clip-seal bag inside a blue zippered bag, usually secured by a padlock, and in turn stored inside a green Woolworths shopping bag which was usually in the fridge. His wife had been aware of the presence of the bag in the fridge for some time, in circumstances that will be explained.
Mr Li worked as a disability support worker, which involved at least some night shift work; in his recorded interview with police, he referred to the night shifts as “sleepovers”.
The presence of the drugs came to light on 8 March 2016. The night before, after Mr Li went to work a night shift, Mr Li’s wife had checked the bags; she discovered that the padlock had been left off the blue bag, opened the bag, and saw several clip‑seal bags of a white crystalline substance inside the blue bag. Later that night, from her bedroom, she heard the garage door open and the kitchen door close. She saw that the light was on in the kitchen. After about 10 minutes, she heard a noise from the garage door again, and saw that the kitchen light was off. She went into the kitchen and saw that the green bag was in the fridge behind a bag of mandarins. The next morning, before Mr Li came home, she checked the blue bag, which was still unlocked, and discovered that only one of the clip-seal bags of white substance was still inside the blue bag. She photographed the remaining clip-seal bag, and took her camera to the police station, where she reported her discovery to police.
Mr Li’s wife gave evidence that the blue bag, secured by a small padlock, had initially been put into the fridge, some time before she reported its contents to police, by a man whom she knew as A Si. She had observed that the blue bag had a fabric finish, and had offered the man the Woolworths bag in which to wrap the blue bag.
After the drugs were seized, forensic testing revealed fingerprints on the Woolworths bag that were identified as those of a known offender; that person had however declined a police invitation to take part in an interview, saying that he could have touched a Woolworths bag at Woolworths. These fingerprints were apparently the only forensic evidence obtained from the green bag, the blue bag or the clip-seal bag.
Mr Li took part in a taped record of interview (TROI) after his arrest, which was played for the jury, who also received a transcript. For various reasons, I consider that it would have been necessary to give the jury fairly careful directions about what could be made of the interview.
First, the interview was conducted without an interpreter. Mr Li came to Australia from China, and his first language was Mandarin. Mr Li was told that he had the right to an interpreter, but said he understood English well enough to continue with the interview. However, it became clear as the interview progressed that Mr Li’s command of English was not particularly good, and that in particular his English vocabulary seemed limited.
Secondly, although Mr Li initially declined the police invitation to call a lawyer, he spoke to a lawyer after the interview had gone for nearly half an hour, and then told the interviewing police that he didn’t want to continue the interview. Despite this, the police officer continued with the interview, after the following exchange:
Q136Okay. All right, we’ll continue on.
AUm, I don’t want to continue the interview, so yeah. Could I - - -
Q137Okay, okay. Look, that’s your choice but what I’m going to do – because I still have to do my job - - -
AYeah, yeah, yeah.
Q138- - - so I have to ask you some questions about this. So I will ask you those questions. If you don’t want to answer those questions then that’s entirely up to you and if that’s your legal advice then that’s okay, you just tell me, “No answer.” or something like that, okay? But I’m still going to ask the questions.
AYep.
No submissions were made on this issue, but it is not clear to me that a person who has said that he does not want to take part in a police interview is required to remain in the interview room while police continue to ask questions.
The no-case submission
The main task for the Crown was to establish beyond reasonable doubt that Mr Li possessed the drug, that is, that he intentionally had custody and control of the drug to the exclusion of others.
At the end of the Crown case, defence counsel submitted that the case should be taken away from the jury, because the evidence in the case was not capable in law of supporting a conviction.
The case against Mr Li was circumstantial, and defence counsel relied on the statement by King CJ, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5, that:
There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
The Crown case
The Crown case as to Mr Li’s possession of the drug relied on the following evidence:
(a)At the relevant time, Mr Li lived in the house with four other people, being his wife, her young daughter, and two Chinese students who had rented a room in the house for several weeks, and both of whom gave evidence through a Mandarin interpreter.
(b)There was no suggestion that any of those four other people had possessed the drugs. There was evidence that the house was visited from time to time by a number of other people, some of them relatives of Mr Li or associates of his wife, and one in particular who, it was said, had rented Mr Li’s garage (the renter).
(c)There was also evidence that later in the day on which the methylamphetamine was found in the fridge, police intercepted a delivery of a large quantity of cannabis that was on its way to Mr Li’s address (but there was no evidence that it was on its way to Mr Li by name).
The Crown case was, in effect, that Mr Li controlled access to the house, must have known that the blue bag was in his fridge, and must have known what was inside the blue bag.
The proposition that Mr Li controlled access to the house was put by reference to evidence:
(a)that he was one of the tenants named on the lease of the house (his wife was the other tenant);
(b)that he had a key to the house; and
(c)that he told police that he had not seen anything in the garage that was not his.
However, the extent of Mr Li’s control over access to the house was called into question by the evidence (all given in the Crown case):
(a)that the Chinese students had a key to the house;
(b)that an unidentified person (apparently the renter) had either a key or a remote control device with which to open the garage door, that from the garage there was unsecured access to the kitchen and the rest of the house, and that on one occasion at night that person had been seen by the students inside the house – he had explained that he was looking for the toilet; and
(c)that Mr Li’s wife was the person who dealt with the students about their rent, and also brought her own visitors into the house (including for Bible study).
The extent of Mr Li’s control of the fridge was also limited, as shown by evidence:
(a)that although Mr Li did most of the loading of the fridge after shopping trips, which sometimes involved rearranging the contents of the fridge so as to fit in the new goods, he had not sought to restrict his wife’s access to the fridge, and she prepared some of the meals for the family or for her and her daughter; and
(b)that the students were not forbidden to use the fridge, although they did not cook and did not store food in it; however there was evidence of one of them opening the fridge on one occasion looking for chilled water.
Furthermore, Mr Li’s work commitments, including night shifts, would have limited his ability to monitor access to the house, or to the fridge in particular.
The Crown’s proposition that Mr Li must have known that the blue bag was in the fridge was made in reliance on the following material:
(a)His wife’s evidence that Mr Li decided when food shopping would be done by reference to when there was not much food in the fridge.
(b)His wife’s evidence that she had taken to checking the presence of the green bag containing the blue bag, and that on several occasions the bags had disappeared from the fridge but had returned shortly afterwards; she said that she had observed the absence of the bags 7 or 8 times, in each case after:
(i)Mr Li’s brother-in-law visited;
(ii)Mr Li and his brother-in-law went into the kitchen and shut the door; and
(iii)“they” then left after 10 minutes.
(c)His wife’s evidence that when she asked questions about various goings-on in the house, she was told not to ask questions (apparently a “consciousness of guilt” argument, but not one that the Crown elaborated on, or identified as pointing to guilt of anything in particular).
(d)Counsel’s submission that “it beggars belief that [Mr Li] didn’t know”.
For the proposition that Mr Li must have known that the blue bag contained methylamphetamine, the Crown relied on the following evidence:
(a)The presence in the house of “indicia of supply” of drugs, being substantial numbers of clip-seal bags and latex gloves, and a set of electronic scales (noting that Mr Li’s wife had given evidence that some of the clip-seal bags and some of the gloves belonged to her).
(b)That the methylamphetamine found in the fridge was extremely valuable.
(c)That until Mr Li’s wife found the blue bag unsecured the day before she reported it to police, there had been a padlock on the blue bag.
(d)That when Mr Li’s brother-in-law visited, Mr Li’s wife was excluded from the kitchen.
(e)That a small quantity of methylamphetamine (apparently the residue of a larger quantity that had been in the bag) was found in the garage in a clip‑seal bag of the same brand as the bag seized from the fridge, and that Mr Li’s TROI included the following exchanges, which the Crown apparently relied on as a concession that everything in the garage belonged to Mr Li:
Q66. Have you ever seen anything in the garage that doesn’t belong to you?
AI don’t really know because – in – in the garage is a mess so I just leave – ah, anything I don’t use, just to put in there and then – yeah.
…
Q74. … You haven’t seen anyone put anything in the garage … that doesn’t belong to you?
ANo. No.
It is apparent that much of the evidence identified by the Crown as tending to prove Mr Li’s knowledge of the contents of the blue bag has as a matter of logic no particular probative value about that knowledge. For instance:
(a)the “indicia of supply” represented by the presence of large quantities of clip‑seal bags may suggest Mr Li’s involvement in the supply of drugs of some sort, but does not logically link him specifically to the large quantity of drugs found in one bag in his fridge;
(b)the fact that the methylamphetamine was extremely valuable does not establish that anyone in particular knew that it was in the bag in the fridge; and
(c)the fact that the blue bag had a padlock on it suggests that whoever knew what was in the blue bag knew that it was valuable, but does not suggest that any particular person was the person who knew that.
Indeed, the use of a padlock would equally be consistent with the possessor of the blue bag not being the person who had more general control over access to the house and to the fridge.
A weak circumstantial case
Thus, the evidence relied on by the Crown raises a clear, albeit relatively weak, circumstantial case against Mr Li that could go to the jury.
However, the evidence also seems to raise an alternative hypothesis consistent with innocence, and the question in determining the no-case submission is whether that hypothesis can be excluded as not reasonably open on the evidence.
Alternative hypothesis
The alternative hypothesis relates to the renter, that is, the man who had access to Mr Li’s house via the garage.
Mr Li’s evidence was that he had met the renter at a place where they both played poker machines, and had rented the garage to him for $150 per week. Mr Li provided only very vague evidence about the man in his TROI; this was unsurprising, given that most of that “evidence” was obtained after Mr Li had spoken to his lawyer and had told police that he did not want to continue with the interview and did not want to answer any more police questions (at [11] above).
The evidence summarised as emerging from questions asked by the interviewing officers, some of which were answered by Mr Li with “I don’t remember”, was as follows:
Q149His name is Mic. You can’t remember his last name. You met him in the pokie machine area of a club of which you can’t remember and you always play at the same time so that’s how you became friends. You described him as being about a hundred and seventy-two to a hundred and seventy-three centimetres tall with short hair, light to medium hair colour. He’s European in appearance, clean-shaven and of a fit build, and you had never seen him drive a car before. Is all that correct?
Many of the questions that were relied on in this summary were answered by Mr Li with “I don’t remember”. He declined to answer one question, and gave no audible reply to another question. Mr Li also declined to answer the officer’s question whether the summary was correct.
While Mr Li was certainly vague about the identity of the renter, that person’s existence, and his access to the house, were supported by evidence from the two Chinese students, who had come across him in the house one night, ostensibly looking for the toilet, and who had on another occasion, when they had gone out without their house key, been allowed into the house, by the renter, via the garage door.
Despite leading their evidence, the prosecutor seemed to be suggesting that there was some doubt about the existence of the renter, pointing out that the male student had described him as looking “Indian” while the female student described him as being “Caucasian” and “not Chinese”.
In his TROI, Mr Li described the renter as having skin a little bit darker than his, and said that he was “definitely not Asian”.
“Caucasian” is an expression that is commonly used in this country to describe “white” people, but it originally referred to “peoples whose skin colour ranged from light (in northern Europe) to dark (in parts of North Africa and India)” (English Oxford Living Dictionary, <en.oxforddictionaries.com/definition/Caucasian>). Furthermore, the term was originally used to describe one of four classes used in a 19th century racial classification system, the other three classes being described as Negroid, Mongoloid and Australoid (Caucasian, Macquarie Dictionary Online, < macquariedictionary.com.au>). The “Mongoloid” class includes most of the groups that would commonly described as “Asian” (the Macquarie Dictionary lists “Mongols, Manchus, Chinese, Koreans, Japanese, Annamese, Thais, Myanmar, and Tibetans” as included in that class).
There is therefore no reason to assume that a Mandarin speaker would use the term “Caucasian” to mean “white” rather than to carry its older and broader meaning, a meaning that would include a person of Indian appearance. There is certainly no basis for concluding that three Mandarin speakers who respectively describe a person as “Caucasian”, “Indian” and “not Asian” could not be referring to the same person.
The alternative hypothesis is that the renter was the person who was storing the drugs in Mr Li’s fridge, and that Mr Li either:
(a)did not know this at all; or
(b)possibly, was aware that the renter was using his fridge for some purpose but was not involved with the activity in any way that could amount to Mr Li having exclusive possession of the drugs.
There is some support in the evidence for this alternative hypothesis, including:
(a)that on Mr Li’s wife’s evidence:
(i)a man had come into the kitchen, apparently in the absence of Mr Li, to put the bag into the fridge initially; and
(ii)at least on the night before Mr Li’s wife alerted police, a person had come into the house through the garage in Mr Li’s absence, and had gone to the fridge to remove two or more bags of methylamphetamine;
(b)that there is no evidence that the renter was making any particular use of the garage except to access the house;
(c)that the almost empty bag of methylamphetamine was found in the garage; and
(d)that the car driven by the renter was described by one of the students in the same terms as the car involved in the delivery of cannabis to Mr Li’s house, that is, as a Silver Camry.
It was not clear to me, having regard to the Crown’s initial submissions, how this alternative hypothesis could be excluded by the jury. Accordingly, I invited the Crown to identify specifically the basis on which the jury could exclude the alternative hypothesis.
Instead of dealing with the alternative hypothesis, the Crown fell back on the evidence supporting the hypothesis of Mr Li’s guilt. In particular counsel dealt with the significance of the presence of the almost empty bag of methylamphetamine in the garage by asserting that it was strong evidence in the case against Mr Li. There were in my view two problems with this response.
First, although the bag in the garage provided some circumstantial evidence against Mr Li as the occupier of the whole premises, that did not exclude it from also providing circumstantial evidence against a person who, according to the evidence, had unrestricted access to the garage and whose access to the house was only via the garage.
Secondly, if Mr Li had in fact been engaged in drug supply as suggested by the “indicia of supply” pointed to by counsel, he seemed to have been very careful in his activities; the Crown did not tender any forensic evidence linking Mr Li with any kind of drug supply or with any of the “indicia of supply” found in his house. Discarding a clip‑seal bag containing 0.35 gm of methylamphetamine (which at more than 1/20 of a trafficable quantity appears likely to have been a worthwhile “personal use” quantity) in the garage, without any apparent attempt to conceal it (in an exhibited photograph, the bag is partly obscured by another plastic bag, although significantly the part of the bag which identifies it as a clip-seal bag is clearly visible), does not seem consistent with what must have been Mr Li’s usual behaviour if he was in fact supplying drugs to others.
Relevant cases
Two further authorities referred to in the context of the no-case submission should be mentioned briefly.
First, Mr Li relied on the case of R vFilippetti (1978) 13 A Crim R 335, in which the New South Wales Court of Appeal (Street CJ, with whom Slattery and Maxwell JJ agreed) said at 338:
The difficulty confronting the Crown in this case comes from the large number of persons occupying this comparatively small house and all using the lounge room where the buddha sticks were found. The only Indian hemp found in the appellant's bedroom was the small quantity that has been mentioned and this was not relied upon by the Crown as involving any criminal offence on the part of the appellant. The finding of the buddha sticks in the chair in this lounge room where all six occupants of the house apparently had equally free access, and so far as the evidence goes in fact made equally free use, would not readily establish that there was exclusive physical control of these buddha sticks in any one of the occupants unless there were some other evidence to accompany the finding of the buddha sticks.
Ultimately the matter appears to come down to the question of whether the Crown had satisfactorily produced material that the jury could regard as negating possession on the part of the other occupants of the house, particularly the mother, of these buddha sticks. It will be recalled that so far as physical contact with the chair is concerned, the mother was in fact sitting in the chair and had to be asked to move before the buddha sticks were found. The appellant's protests as to who put him in are equivocal, and, although they undoubtedly do nothing to help his case, they do not, whether standing alone or taken in conjunction with the other evidence, amount to a sufficient basis to permit the jury to find beyond reasonable doubt that he had impliedly admitted that the buddha sticks were in his exclusive physical control.
While the evidence in this case certainly points to Mr Li rather than any of the other residents of the house as the resident most likely to have possessed the methylamphetamine in the fridge, there is clear evidence (in particular Mr Li’s wife’s evidence of the delivery and removal from the fridge, in Mr Li’s absence, of bags presumed to contain methylamphetamine) that must cast doubt on the proposition that the methylamphetamine in the fridge was in Mr Li’s exclusive possession.
The Crown sought to rely on the case of Nguyen v The Queen [2013] ACTCA 11 (Nguyen), in which the ACT Court of Appeal upheld my refusal to withdraw trafficking charges from a jury in a case involving an accused who lived in a house in which others from time to time lived or stayed. In that case, however, there was a substantial amount of evidence pointing to the accused, rather than anyone else who from time to time occupied the house, as the person with possession of the drugs. The Court of Appeal described the evidence as follows:
1.At 6.30 am on 26 September 2008 police executed a search warrant at [an address in] Conder. No one was present. Police seized a number of items associating the appellant with the premises and also found drugs. Amongst the items associated with the appellant which were found in the main bedroom were the following:
• an ACT proof of age card in the name of the appellant issued seven months earlier, on top of a chest of drawers;
• a framed photograph of the appellant and his girlfriend also on top of the chest of drawers;
• a receipt from a St George Bank ATM in the name of J Nguyen for a cash deposit of $5,640 dated 10 days earlier, in a wardrobe;
2.In the kitchen and pantry were found:
• photographs of the appellant on the fridge;
• a tax invoice from Access Auto Works addressed to the appellant at the address searched, dated eight days earlier.
• membership cards in the name of the appellant to Tuggeranong Valley Leagues Club, Canberra Labor Club, Canberra Tradesmen’s Union Club, Canberra Southern Cross Club, Cabramatta Rugby League Club and the ACT Public Library.
3.Drugs were found in the top drawer of a bedside chest of drawers in the main bedroom and in a locked drawer in the kitchen labelled “J’s G.S. draw”, marked “DO NOT TOUCH”. That drawer was adjacent to an unlocked drawer labelled “J’s personal draw”, also marked “DO NOT TOUCH”. The locked drawer containing drugs was able to be unlocked with a key located on a shelf at the bottom of the wardrobe in the main bedroom.
The Court of Appeal at [20] also adopted a submission from the respondent, as follows:
There was ample evidence from which the jury could conclude that the appellant resided at the house and that the main bedroom was his bedroom. The drawer in the kitchen contained the bulk of the methylamphetamine and the key to that drawer was found in the appellant’s bedroom. The MDMA was found in the top drawer of the main bedroom.
The Court went on at [22]:
Notwithstanding the speculative possibility suggested, for which there was little other support, that some other person, and not the appellant, might have had control or possession of the drugs, there was sufficient material from which the jury could properly conclude that the appellant not only resided at the premises where the drugs were seized, but that he had possession and control of them.
As is apparent from those extracts, in the case of Nguyen, there was:
(a)substantial evidence linking the accused with the presence of the drugs in his home;
(b)evidence of the accused’s capacity to exclude others from the locations where the drugs were found; and
(c)what was no more than a “speculative possibility” that the drugs might have belonged to another person.
This case is different in that the evidence linking Mr Li directly with the drugs is weaker, and the evidence linking other people with the drugs is stronger; some of it is speculative, but some of it directly links people other than Mr Li with the location of the drugs and the container in which they were stored. Nguyen does not provide a basis on which the no-case submission in this case must be rejected.
Conclusion
Since the prosecutor could not identify a basis on which the jury could exclude the possibility that the methylamphetamine found in Mr Li’s fridge was being stored there by the renter and was not in Mr Li’s possession, I considered myself obliged:
(a)to uphold defence counsel’s no-case submission; and
(b)under s 287 of the Crimes Act 1900 (ACT), to discharge the jury from entering a verdict, and to enter a verdict of acquittal myself.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 12 October 2017 |
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