R v Mayger - [2009] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAYGER
[2009] SASC 143
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice David)
21 May 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
Evidence of police surveillance of premises occupied by appellant and co-accused admitted over objection – counsel for appellant argued that certain pieces of evidence were erroneously led.
Held: No error on the part of the trial judge in admitting the evidence. An appropriate direction on circumstantial evidence was given.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - PREJUDICE TO ACCUSED
Co-offender gave evidence against the appellant by CCTV - upon completion of evidence co-offender said “I just hope I sleep all right tonight, hey, and my family” - trial counsel for the appellant applied for mistrial - trial judge refused application - appellant argued that direction given by trial judge could not cure prejudice to the appellant.
Held: Impugned comment not of such a nature that it could not be cured by a clear direction.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - RE-EXAMINATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant objected to trial judge allowing re-examination where co-offender’s evidence-in-chief was inconsistent with evidence in cross-examination - re-examination went beyond question of which version was the truth - whether re-examination beyond permissible scope of re-examination - if re-examination improper and disregarded, counsel for the appellant submitted that verdict was unreasonable and against the weight of the evidence.
Held: The re-examination was not improper. It is therefore not necessary to consider whether the verdict was against the weight of the evidence.
Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32, referred to.
R v Lavery (No 2) (1979) 20 SASR 430; R v Szach (1980) 23 SASR 504, discussed.
R v Firman (1989) 52 SASR 391, considered.

R v MAYGER
[2009] SASC 143
Court of Criminal Appeal: Vanstone, Anderson and David JJ

VANSTONE J: In my opinion this appeal should be dismissed. I agree with the reasons prepared by David J.
ANDERSON J: I agree that the appeal should be dismissed for the reasons given by David J.
DAVID J: The appellant appealed to this Court against his conviction by verdict of a jury of the crime of possessing methylamphetamine for sale on 2 October 2005 at a premises at Salisbury North, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA).
The appellant had originally been charged with his former de facto partner, Christine Hudson. It was alleged that they had both been involved in an ongoing business of drug dealing from premises at 15 Plough Street, Salisbury North, which they had shared for several months prior to the appellant’s arrest. Christine Hudson eventually pleaded guilty to the charge and gave evidence for the prosecution at the appellant’s trial. She was given a suspended jail sentence.
At trial, the prosecution presented evidence that police attended the premises at 15 Plough Street, Salisbury North (“the premises”) on 2 October 2005 and arrested Ms Hudson. At the premises they found 37 press seal bags of yellow paste containing methylamphetamine. The bags were contained in a distinctive black box, which was connected by a magnet to the underside of the kitchen table in the premises. The combined weight of the paste found in the box was 10.2 grams, of which 1.37 grams was found to be methylamphetamine. The appellant was not present at the time but was subsequently arrested at the premises on 8 October 2005.
At trial, the prosecution called Christine Hudson, who gave evidence of the appellant’s involvement with her in drug dealing from the premises, both on the day that she was arrested and leading up to that time. Her evidence was that the appellant had moved in to the premises about a year before she was arrested, and from that time they had both been involved in the selling of methylamphetamine. She gave evidence that buyers would come to the premises and she would go to the door and sell them methylamphetamine in exchange for cash. The methylamphetamine was packaged in money bags. She said she obtained the methylamphetamine from the appellant, who brought it to the premises, but she did not know where he got it from. She gave evidence that sometimes the appellant would be at the premises when buyers attended and he would take part in the selling of methylamphetamine, but on the majority of occasions she had sold the methylamphetamine. Ms Hudson also gave evidence that the methylamphetamine located by the police on 2 October 2005 was the source of the enterprise and was brought to the premises by the appellant.
As can be seen, the prosecution case against the appellant was one of joint enterprise. His role in the sale of methylamphetamine was to bring it to the premises for Ms Hudson and himself to sell. Evidence was called by the prosecution to the effect that the premises had been under surveillance since December 2004.
A number of police officers were called at trial. Their evidence was that people were seen arriving in cars, staying for a short time and then leaving the premises. On occasions people had been detained and spoken to as they left the premises and bags containing drugs were located on them, similar to bags found inside the premises. Surveillance of the premises had continued until October 2005, when it was observed that the activity dropped off. Police officers gave evidence of various dates when they searched the premises. On occasions during the period from April to October 2005, the appellant was seen to be at the premises. There were specific occasions when people coming from the premises were detained and methylamphetamine was found on them. On the prosecution case, the purpose of that evidence was to establish that the premises was used for the enterprise of selling drugs. Christine Hudson also gave direct evidence of that fact.
In addition to the evidence of surveillance, the prosecution called a neighbour, Anna Leibhardt, who lived at 23 Plough Street, Salisbury North. Ms Leibhardt said she first noticed the appellant about the premises in 2005 and during the year there had been a lot of cars arriving and leaving the premises, both day and night. Ms Leibhardt said it was something like twenty cars per day. She also noticed a lot of passengers getting water from her tap and observed lots of syringes. Ms Leibhardt’s evidence was led to support both the observations of the police and the evidence of Christine Hudson that during 2005 the premises was used as a place for selling drugs.
When arrested by police on 8 October 2005, the appellant exercised his right not to answer questions and at trial he did not give evidence, nor did he call any evidence.
In short, the prosecution case relied upon the direct evidence of Christine Hudson as to the existence of a joint enterprise to sell methylamphetamine from the premises, supported by evidence of both Ms Leibhardt and the police surveillance about the nature of the premises, and to a lesser extent, the appellant’s presence at those premises. I turn to the grounds of appeal.
Grounds of appeal
Ground 1.1
The Learned Trial Judge erred:
1.1In refusing the appellant’s application to exclude evidence of activities of uncharged acts of alleged selling of amphetamine on the following occasions:
[Details provided.]
This ground of appeal deals with evidence of police surveillance of the premises from 14 October 2004 until October 2005 and also the evidence of Ms Leibhardt. At trial, counsel for the appellant objected to evidence of police observations about the premises leading up to 2 October 2005. Objection was also taken to the evidence of Ms Leibhardt. In his ruling as to the objection to that evidence the trial judge said:
As to 15 Plough Street, objection is taken to evidence of police observations about that address concerning observations of different people, more particularly such people arriving, staying for a short time and leaving. The prosecution case is that the accused and Carter [Hudson] were jointly involved in an ongoing commercial amphetamine operation from that house and that the finding of the drugs on 2 October at the Plough Street address was, or were, an instance of that activity.
Objection is also taken to the observations of residents in that street of similar comings and goings from that address. It is said that the combination of these observations support the inference that the premises were being used for that purpose and that the accused was a part of that enterprise.
Objection is also taken to evidence that the police stopped a number of people who were seen to have just come from that address and that, in some instances, those people were found to be in possession of what appeared to be amphetamine or possibly indicia of amphetamine use.
In my view, all of this evidence is relevant and admissible to support the inference that those attending were purchasing, or wishing to purchase, amphetamines from that address and that the accused was involved with that address and that alleged activity. Whether the jury would be prepared to draw that inference is a matter for the jury, but, in my view, the evidence is capable of supporting that inference.
In making this ruling, I acknowledge that some of the evidence is capable of improper prejudice to the accused but that is not sufficient to exclude the evidence in my view in the exercise of my discretion, in part because the improper prejudice is not so great and, in any event, can be cured by directions to the jury.
On appeal, counsel for the appellant has refined the argument. He now concedes that the principle of admitting the evidence of the surveillance as part of a circumstantial case seeking to prove that the premises was used for the sale of drugs could apply. He concedes that that is clearly established by R v Firman,[1] where evidence of telephone calls to premises was held to be relevant as tending to prove the existence of the business of selling drugs. In this case, the surveillance evidence was led for a similar purpose. However, Mr White, counsel for the appellant, now argues that there were individual items of evidence of surveillance which should not have been lead due to lack of relevance. Mr White outlined those instances which he now challenges. For instance:
[1] R v Firman (1989) 52 SASR 391.
·on 11 February 2005 the police chased a vehicle from the vicinity of the premises but were unable to apprehend it;
·on 18 February 2005 police stopped a person who had attended the premises but no drugs were located, although money bags and syringes were found; and
·there were other occasions when people who attended the premises were stopped but nothing was found.
As Mr White argues, this is to be contrasted to other observations which were clearly relevant, namely:
·people being found leaving the premises with drugs in bags, similar to those bags found on the premises on 2 October 2005.
Mr White argues that those pieces of impugned evidence were erroneously led.
In my view, the argument is misconceived. The trial judge gave a full and proper direction on the topic of circumstantial evidence. He told the jury in proper terms that where a particular fact has been established, the whole of the evidence can be looked at when considering inferences to be drawn from that fact. Some facts by themselves may amount to nothing, but when combined with the totality of the evidence, appropriate inferences can be drawn.
In my view, the whole of the evidence of the surveillance was entitled to be considered by the jury, given that the trial judge gave appropriate directions as to the use of that evidence.
I would dismiss that ground of appeal.
Ground 1.2
1.2In refusing the appellant’s application for a discharge of the jury following an outburst of the witness Hudson at the completion of her evidence – T179-180 and 190-193.
The witness Hudson gave evidence by way of CCTV from another room in the court. At the completion of her evidence, this interchange took place between her and the trial judge:
HIS HONOUR
QYou are released now.
A.I just hope I sleep all right tonight, hey, and my family.
The next morning, as a result of that comment by Ms Hudson, counsel for the appellant asked for a mistrial. The trial judge refused the application on the basis that he could properly cure any potential prejudice to the appellant by directing the jury accordingly.
In his summing up the trial judge said the following to the jury when talking about Ms Hudson’s evidence:
… I direct you that you should ignore any gratuitous comments that she may have made or you may have heard after her evidence was concluded but before she actually left the precincts of the court.
Mr White now argues that such a direction could not have cured the prejudice to the appellant. He argues that the comment made by Ms Hudson could be interpreted as she and her family being under some threat from the appellant.
In my view, there is no basis for this Court interfering with the course the trial judge took. Looking at it objectively, the impugned comment was not of such a nature that it could not be cured by a clear direction.
I would dismiss that ground of appeal.
Ground 2
That the verdict was unreasonable [and] against the weight of the evidence due to the following factors:
2.1The concessions made by Hudson in cross-examination that exculpated the appellant: T172-178.
2.2The re-examination of Hudson was impermissible T177-182 and should have been disregarded.
2.3The evidence of Hudson was uncorroborated and the jury were warned by the Learned Trial Judge that it was dangerous to convict on her evidence unless it was corroborated: Summing Up pages 16-17.
This ground of appeal attacks the decision by the trial judge to allow re‑examination of Ms Hudson by the prosecutor. Mr White argues that if this Court considers that a mistake was made and the re-examination impugned should not have been allowed, then, the verdict was unreasonable and against the weight of the evidence. However, he does not argue that the verdict was unreasonable and against the weight of evidence if the re‑examination is allowed to stand. Therefore, this ground of appeal depends entirely upon his argument concerning that re-examination.
In order to understand the argument, it is important to set out certain passages from the evidence. In her evidence‑in‑chief, Ms Hudson said that she started selling methylamphetamine in 2005 when the appellant moved in to the premises. She said that buyers would come to the premises and that the methylamphetamine was brought there by the appellant for her to sell. On the basis of her evidence, the prosecution case was that although she did the actual selling on the majority of occasions and possessed the methylamphetamine that was discovered by the police on 2 October 2005 for that purpose, the appellant was part of a joint enterprise in that he supplied the methylamphetamine to be sold.
During cross-examination Ms Hudson was asked the following questions:
Q.You see, what I suggest to you, Ms Hudson, is that John wasn’t involved in supplying the amphetamine to the household; he just went about doing what he liked to do and was not involved in that. I suppose you wouldn’t agree with that now; is that right.
A.Pardon?
Q.Would you agree with that, if I suggested to you that he wasn’t involved in supplying and selling amphetamine with you.
A.Yeah.
Q.You do agree with that.
HIS HONOUR: I’m not sure the way it’s expressed.
XXN
Q.I’m sorry, I’ll make it clear to you. What I’m suggesting to you now is that John wasn’t involved in supplying and selling amphetamine with you; do you agree with that.
A.Yep.
Q.You do agree that he was not involved.
A.Yeah.
Q.What was in fact happening is that you had a habit of using amphetamine and you were selling it so you could afford to keep using it; is that right.
A.Yep.
Q.And that the person who was bringing it around was this person called Whippet; isn’t that right.
A.Yep.
I set out the full re-examination, which was objected to and is the subject of this ground:
Q.Do you recall that Mr Lister said to you a moment ago said this to you: the things that you said to the police after your arrest were similar to the things that you’ve said here today in this trial.
A.Yep.
Q.Do you agree with that, that you told the police similar things after your arrest to the things that you have said here this afternoon.
A.Yeah.
Q.Did you tell the police the truth.
A.Pardon?
Q.Did you tell the police the truth about the things that were happening at Plough Street and about the drugs that were found on 2 October.
A.Yeah.
Q.I’d just like to ask you about the answers that you gave to the final questions that Mr Lister asked you; okay.
A.Mm-hmm.
Q.Do you recall that he said this to you: that Mr Mayger was not involved in selling or supplying, I think he said, drugs from 15 Plough Street. Do you remember he said that.
A.Mm-hmm.
Q.He asked you if you agreed with that statement. Do you remember that, he asked you if you agreed with it.
A.Yeah.
Q.Do you remember that you said ‘Yes’, you agreed with that statement.
A.Yeah.
Q.You recall that he said to you that, in effect, it was you who was involved in selling drugs at Plough Street and that the drugs were supplied by someone by the name of Whippet.
A.Yeah.
Q.Do you recall he suggested that to you.
A.Pardon?
Q.Do you remember that he put that to you just a little while ago.
A.Yeah.
Q.And you agreed with him.
A.Yeah.
Q.I just want to understand, if I can, your evidence that you gave a little while ago when I was asking you questions in particular about Mr Mayger and what he did at the premises.
A.Mm-hmm.
Q.Can I ask you this: by the answers that you gave to Mr Lister, are you changing the evidence that you gave when I asked you questions.
OBJECTION: MR LISTER OBJECTS
A.How do you mean?
HIS HONOUR:                   Just wait for a minute, Ms Hudson. That’s a legitimate question bearing in mind the first answer given in re-examination in the light of her earlier evidence to you.
MR LISTER:I’m sorry, I don’t see how anything needs clarifying. The jury has heard her answers.
HIS HONOUR:                   Well, I think, having listened to all of the evidence I think a point of clarification has been raised and I will allow the question.
QUESTION ALLOWED
REXN
Q.I want to clarify what the arrangement was when it came to Mr Mayger, if there was an arrangement when it came to selling drugs and supplying drugs at 15 Plough Street. Do you understand.
A.Yeah.
Q.Do you mean by the answers that you gave to Mr Lister a short time ago to change your evidence about what was happening at Plough Street.
A.What do you mean? I’m confused now.
Q.Let me ask you directly again about Mr Mayger -
A.Yeah.
Q.- and about the drugs at 15 Plough Street.
A.Yeah.
Q.You’ve given evidence and you gave evidence when you were asked questions by Mr Lister about how you sold drugs from 15 Plough Street.
A.Yep.
Q.Do you recall that.
A.Pardon?
Q.Do you recall giving evidence about that
A.Yeah.
Q.About how you sold drugs from 15 Plough Street.
A.Yeah.
Q.You gave evidence too, in answer to questions, about someone by the name of Whippet.
A.Yeah.
Q.When it came to Whippet, you were asked this question: ‘Was he someone that brought drugs to Plough Street to be sold from there?’, do you recall that.
A.Yeah.
Q.Your answer to that question was, I think, ‘A couple of times Whippet brought drugs to Plough Street’, do you recall that.
A.Yes.
Q.Apart from those couple of times when Whippet brought drugs to Plough Street, who else was it that brought drugs to Plough Street for selling from there.
OBJECTION: MR LISTER OBJECTS
HIS HONOUR:           That is a different question. I will allow the question.
QUESTION ALLOWED
A.John.
REXN
Q.Did you say ‘John’.
A.Mm-hmm.
Q.As between Whippet and John who did it the most, that is for the most part who brought drugs to Plough Street for selling.
A.Whippet.
Q.So when you said that Whippet brought drugs on a couple of occasions, what did you mean by that in terms of a number.
A.I don’t know. I’m just confused about this whole thing.
Q.Let me try and avoid that if I can and just get back, if I can, to the original question I asked you, first of all about Whippet. You agreed with the proposition that Whippet brought drugs on a couple of occasions; is that correct.
A.Yep.
Q.As I understand it, on other occasions it was John.
A.Yep.
Q.When you gave evidence earlier you said that the drugs that were there on 2 October that were located by the police were brought there by John, do you recall that.
A.Mm-hmm.
Q.Does that remain your evidence.
A.Pardon?
Q.Is that still your evidence.
A.Yeah.
Q.You gave evidence earlier that, when it came to selling drugs over that year, before 2 October, during that year before then, when it came to selling drugs, that it was normally you; do you recall giving that evidence.
A.Mm-hmm.
Q.But sometimes it was John.
A.Yeah.
Q.Is that still your evidence.
A.Yeah.

Mr White argues that the re-examination was improper. The basis of his argument is that on the face of it, there was a difference between the evidence of Ms Hudson when giving evidence‑in‑chief, which was to the effect that the appellant supplied methylamphetamine, and that part of the cross-examination quoted above, in which she agreed that he was not involved with her in the supplying and selling of amphetamine. Mr White argues that it would not have been improper to re‑examine Ms Hudson as to which version was the truth. However, he argues that that was not done and it was really a reiteration of her examination‑in‑chief. He puts that the re‑examination should have been confined to the question of which version is correct and no more. It is important to emphasise the basic principles of re‑examination. They are clearly set out in two authorities of this Court, namely R v Lavery (No 2)[2] and R v Szach.[3] In R v Lavery, Walters J said:[4]
[2]    R v Lavery (No 2) (1979) 20 SASR 430.
[3]    R v Szach (1980) 23 SASR 504.
[4]    R v Lavery (No 2) (1979) 20 SASR 430, 435.
I agree with Wells J. that it was proper for the learned trial Judge to allow the re‑examination and that the evidence given by the witness in re-examination was admissible. One of the objects of re-examination is to afford the witness an opportunity to explain the real character of the matter or transaction which has been brought out in cross-examination, particularly where his credibility has been assailed and the statement got out of him in cross-examination, if left unexplained, would be apt to discredit him. It is proper for counsel in re-examination to ask suitable questions of the witness to enable him to give a full account or explanation of a matter or transaction which is susceptible of more than one construction. When the nature of the cross-examination and the effect of the suggestions it contains tend to damage the credit of a witness, I think counsel is entitled to elicit from the witness in re-examination an explanation of the whole of the matter or transaction to which an answer given in cross-examination relates. In my opinion, The Queen v Nation provides authority for allowing the kind of re-examination of which the appellant complains in this case.
[Footnote omitted.]
Also Wells J said:[5]
The principles governing the purpose and bounds of re-examination have undergone some vicissitudes during the last three decades. Some twenty five to thirty years ago the submission was often heard in the Courts of this State, “This re-examination should not be allowed because the answers given in cross-examination on which it is based admit of no ambiguity.” Ambiguity in an answer given in cross-examination is, of course, an obvious justification for re-examination designed to resolve the doubt created, but to say that re-examination is confined to questions aimed at removing ambiguities is absurd. For re‑examination is allowed for much wider and more important purposes. It is to be permitted, in my opinion, whenever an answer or answers given by a witness in cross‑examination would, unless supplemented or explained in the manner proposed by the re-examiner, leaves the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as a witness is able to present it. Cf. R. v. Pullman.
[Footnote omitted.]
That principle was confirmed in R v Szach[6] per King CJ when he said:[7]
Re-examination is permitted for the purpose of explaining matters arising out of the cross-examination. It is to be permitted “whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it”: Reg. v. Lavery, per Wells J. at p. 451. In re‑examination a party may in many cases “adduce evidence which would otherwise be inadmissible, for the purpose of explaining away or qualifying matters which have emerged in cross-examination and from which inferences adverse to that party’s case could otherwise be drawn.” Reg. v. Clune (No 1). It is probably impossible to devise a formula which would set the bounds of re-examination for every case. The variety of circumstances in which re-examination may be legitimate is too great. The fundamental requirement is that re-examination must in some way arise out of the cross-examination. Commonly re-examination is allowed to clear up ambiguities in answers given in cross‑examination, to enable a witness to give his version fully of a topic which has been touched upon but left incomplete by the cross examiner, and to re-establish the credit of a witness where answers given in cross-examination could be used to affect adversely the Court’s view of the truthfulness or reliability of the witness.
[Footnotes omitted.]
[5]    R v Lavery (No 2 (1979) 20 SASR 430, 451.
[6]    R v Szach (1980) 23 SASR 504.
[7]    R v Szach (1980) 23 SASR 504, 568-9.
In my view, the re-examination in the present case had a proper basis. The answers given in the cross-examination quoted above needed further explanation. It was unclear, when Ms Hudson acceded to the proposition that the appellant “wasn’t involved in supplying and selling amphetamine with you”, as to what she understood by that proposition. The prosecution case was that she was basically involved in the selling of the methylamphetamine, and the appellant provided it to her for that purpose. There could have been a distinction between the supplying and selling the methylamphetamine to another person by Ms Hudson, as distinct from the supplying of the methylamphetamine to the premises for that purpose. That confusion had to be cleared up. There was a further lack of clarity by the reference in cross-examination that the person bringing the methylamphetamine to the premises was a person called Whippet. Once again it needed to be established in re‑examination whether Whippet was the person who supplied methylamphetamine to the premises to the exclusion of the appellant, or in addition to the appellant. It is clear that the re‑examination did not progress smoothly and there was a certain confusion between the prosecutor and the witness. Nevertheless, the re‑examination was proper.
Although it is now not necessary to consider whether the verdict was unreasonable against the weight of evidence, on any view that ground would be doomed to failure. The trial judge gave a strong and clear direction about the dangers of the evidence of Ms Hudson, as she was an accomplice. He directed the jury that there was no other material capable of corroborating her evidence and it would be dangerous to convict. Bearing in mind that warning, the assessment of her evidence was very much a matter for the jury.
In my view, this ground of appeal fails.
Conclusion
I would dismiss the appeal.