R v McKenzie

[1999] TASSC 54

[1999] TASSC 54

CITATION:                 R v McKenzie [1999] TASSC 54

PARTIES:  R
  v
  McKENZIE, Ronald Leslie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  458/1998
DELIVERED ON:  17 May 1999
DELIVERED AT:  Hobart
HEARING DATES:  12 - 16 April 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Fact finding and evidence - Factual basis for sentence - Verdict - Sentence to be consistent with jury verdict - Special questions partially answered by jury - Effect.

Criminal Code 1924 (Tas), s381(c), (3) and (4).
Efionayi v Efionayi (1995) 16 Cr App R 380, applied.
R v Gill 52/1989, followed.
Walsh v Tattersall (1996) 188 CLR 77; Taylor v R 4/1997; Hill v R [1999] TASSC 29; Young (1990) 12 Cr App R 279; Dowdall and Smith (1992) 13 Cr App R 441, considered.

REPRESENTATION:

Counsel:
             Appellant:  T L McDermott
             Respondent:  L A Mason
Solicitors:
             Appellant:  T L McDermott
             Respondent:  Director of Public Prosecutions

Judgment Number:  [1999] TASSC 54
Number of Paragraphs:  21

Serial No 54/1999
File No 458/1998

THE QUEEN v RONALD LESLIE McKENZIE

RULING AT TRIAL  WRIGHT J

17 May 1999

1. The jury returned a unanimous verdict of guilty on a single count of trafficking.  They were also asked to answer certain questions, but it became apparent on my questioning the foreman, that they were only unanimous in answering question 1(a) which they answered in the affirmative.  As to question 1(b), and question 2, all that can be said is that there was no unanimous opinion expressed.  The questions were in the following form:

"questions for the jury

(tcc s383(1)(c), (3) and (4))

1 Do you find that the accused was in possession:

(a)  of 42 sachets containing methyl amphetamine on 30 January 1998	yes/no
(b)  of a large sachet containing approximately 133.4 grams of powder, including methyl amphetamine found at 17 Delwood Drive on 30 January 1998	yes/no

2 Do you find that the accused supplied methyl amphetamine to other persons on any (and, if so, which) of the following dates:

14.10.97
22.10.97
24.10.97
27.10.97
11.11.97
15.1.98
30.1.98 yes/no

NB The jury is not obliged to make any of these findings."

1. A sentencing judge is required to impose sentence upon a version of facts which is consistent with the jury verdict but which is otherwise in accordance with such matters and circumstances as he finds to be established beyond reasonable doubt, based upon his perception and evaluation of the evidence (R v Gill 52/1989).

1. The jury verdict in the present case, taken in conjunction with the answer to question 1(a), indicates that the jury has found, at the very least, that the accused had possession of 42 sachets of methyl amphetamine and, on the basis of this possession, they have almost certainly inferred that he had it in his possession for the purpose of trafficking when he was apprehended by the police on 30 January 1998.  However, I do not regard the jury's failure to achieve unanimity on questions 1(b) and 2 as precluding the Crown from asking me to make my own findings on these unresolved issues for the purpose of imposing sentence.

1. The simple fact is that the jury, as a jury, has not made findings on those issues.  Plainly, they misconceived their task by seeking to tender individual answers through the foreman.  In part, this may be due to the terms in which I made my request to them, pursuant to the Criminal Code, s381(c), (3) and (4). I think it reasonable to infer that, having made a personal judgment on each matter, and, having recorded that personal judgment on the individual question sheet which each juror had, the members of the jury thought that their role in the trial had been fully accomplished. Further discussion between them may or may not have achieved unanimity on questions 1(b) and 2 had they set out to achieve a collective assessment on those issues.

1. The jury's verdict of guilty on the count contained in the indictment was given after they had been in retirement for about 1½ hours.  It therefore seems to me not inappropriate to observe that had the jury been in retirement for over two hours without reaching a unanimous verdict, and had they then been capable of returning a majority verdict, one may reasonably have expected no better than a similar majority on each of the unanswered questions. 

1. Whether there was a majority response by 10 or more, either "Yes" or "No" on those questions, was not made known to the Court because I indicated to the jury that I did not wish to know the individual voting numbers.  I was then, and still am, of the view that this was the correct approach to the unique situation which had arisen.

1. Mr McDermott, counsel for the defence, raised issues as to the form of the indictment at the commencement of the trial but, although he was given the opportunity to do so, he elected not to submit that the indictment was bad for duplicity, (see Walsh v Tattersall (1996) 188 CLR 77; Taylor v R 4/1997 and Hill v R [1999] TASSC 29). Mr McDermott submitted that, rather than having the count contained in the indictment split into several separate counts alleging trafficking on all or any of the specific dates upon which the prisoner was involved in some kind of dealing with unidentified individuals, and two separate counts of trafficking on 30 January 1998 based upon the material in his freezer and the 42 sachets found on him when apprehended by the police, it would be preferable to keep a single count in the indictment and to ask the jury to answer questions of the kind which I subsequently gave to the jury during the summing up. I accepted this submission.

1. When the jury failed to give a collegiate answer to those questions after delivering their verdict, Mr McDermott submitted that I should follow a decision of the English Court of Appeal in Efionayi v Efionayi (1995) 16 Cr App R 380. This case seems to support the proposition that if the prosecution is made aware of a potential ambiguity which may flow from a verdict upon a particular count and if that ambiguity could be eliminated or avoided by amending the count so as to overcome such a problem, the prosecutor's failure or refusal to apply for such an amendment will result in the trial judge, when passing sentence, being required to perform that function on the basis of the facts most favourable to the convicted offender which is consistent with the jury's verdict of guilty.

1. It is plain enough that the Crown's case throughout the present trial was that the evidence of the accused's dealings with unidentified individuals was not, of itself, sufficient to sustain individual counts of trafficking or even one composite count, based upon those dealings alone.  That evidence, however, was led and admitted on the basis that it provided circumstantial evidence as to the nature and purpose of the accused's possession of the amphetamine which was found on his person and at Delwood Drive on 30 January 1998.

1. It seems to me that amendment of the indictment so as to include additional counts of trafficking during the period from October 1997 to 30 January 1998 would have been unlikely to result in convictions on those counts and it would have been inappropriate for the prosecution to have sought the addition to the indictment of charges which had no reasonable prospect of being sustained (see Young (1990) 12 Cr App R 279). Although, for completeness, the jury was asked in the questions submitted to them, "Do you find that the accused supplied methyl amphetamine to other persons on any (and, if so, which of the following dates: 14.10.97; 22.10.97; 24.10.97; 27.10.97; 11.11.97; 15.1.98; 30.1.98)", it would have surprised me a little if they had given a unanimous affirmative answer to any part of this question. It will be noted that neither this question, nor questions 1(a) and (b), asked the jury whether they found that the accused had "trafficked" in amphetamine at the relevant times, as it seemed to me that such a course would have been tantamount to requiring them to make findings of up to eight additional crimes of trafficking on an unamended indictment.

1. In Dowdall and Smith (1992) 13 Cr App R 441, the English Court of Appeal expressed strong opposition to splitting a count to obtain a jury verdict on disputed versions of fact, either of which would support a guilty verdict. This should only be done where there is a difference in law between the two versions contended for.

1. As a result of these English authorities and the competing principles which may be distilled from them, I think the appropriate conclusion to reach is that each case must depend on its own facts and, if as happened in Efionayi, the Court should conclude that the prosecution's conduct of the case or its reluctance to make appropriate amendments has disadvantaged the accused, the most favourable version of facts from his perspective should be adopted for sentencing purposes.

1. In the present case, I am quite unable to conclude that the absence of unanimous jury findings on questions 1(b) and 2 has disadvantaged the accused.  He neither gave nor adduced evidence.  A resolution of the factual inferences to be drawn from the prosecution evidence depends therefore not upon competing issues of credit, but rather upon the sufficiency of the prosecution evidence to support the issues of fact raised by the questions submitted to the jury, coupled with the jury's determination that the evidence satisfied them to the requisite degree that the accused had trafficked in methyl amphetamine on or between the dates alleged.  Some jurors may have reached that ultimate conclusion by different routes, but this is frequently the case in criminal trials.  It would be unfortunate indeed if accused persons could successfully argue that a trial judge must always approach sentence from the standpoint most beneficial to the defence case unless the jury makes specific unanimous findings to explain or illuminate the outcome in those cases in which the prosecution provides several alternative paths to a guilty verdict.

1. Other highly undesirable practices could also arise.  This became evident to me in the present case once it became obvious that there was no unanimity of the jury as to the unanswered questions.  In the first place, I was tempted to ask what the voting had been on each issue but, plainly enough, this would have amounted to an unwarranted intrusion into the processes which had taken place in the jury room and, for this reason, I desisted.  In the second place, the jury had already returned its verdict and there remained no legitimate basis which I could see to detain them further.  They were not obliged to answer the questions.  This is specifically provided in the Code, s383(4).  They could not be detained to "correct" their verdict as provided in s383(5).  Their verdict was in a correct form and was justified by the evidence.

1. The consequences of the jury's handling of the questions, though unanticipated, did not, in my opinion, result from any shortcomings or delinquencies in the prosecution case and did not cause any prejudice or injustice to the accused.

1. Having had an opportunity to consider the submissions made by both counsel, I think that the only logical, sensible and appropriate course for me to follow is to regard questions 1(b) and 2 as having been unanswered by the jury and, as a consequence, I propose to make my own findings on relevant issues for the purpose of imposing sentence.

1. I proceed, therefore, to do so. I am completely and affirmatively satisfied beyond reasonable doubt that the prisoner was in possession of 42 sachets of methyl amphetamine when apprehended by the police on 30 January 1998.  Also, I am satisfied beyond reasonable doubt that he had that material in his possession for the purpose of trafficking.

1. I am also satisfied beyond reasonable doubt that the prisoner had possession of the large bag of powder containing methyl amphetamine found at 17 Delwood Drive in a packet of corn cobs in the freezer later that day and that he had possession of that material for the purpose of trafficking.

1. As to the specific dates referred to in question 2, I am satisfied beyond reasonable doubt as to the facts deposed to by each of the police officers comprising the surveillance team.  It is plain that their observations led to a justifiable suspicion as to the prisoner's being engaged in some illegal enterprise which, in turn, led to his apprehension and arrest on 30 January 1998.  However, I am aware of significant evidence or, at least, allegations, of which the jury was unaware, viz, that the prisoner was also trafficking in cannabis at the relevant times and this leads, paradoxically, indeed ironically, to cause me some hesitation before making the finding which the Crown asks me to make, viz, that the prisoner was selling methyl amphetamine on each of these occasions.

1. In the final analysis, I am satisfied that on the balance of probabilities the prisoner was engaged in some illegal enterprise on each of the occasions mentioned and I would be similarly satisfied that he was selling, rather than buying, whatever it was that he was dealing in, but I find myself unable to say that I am satisfied beyond reasonable doubt that he was selling methyl amphetamine on all or, indeed, any one of those specific occasions.

1. It is on the basis of these findings that I approach the question of sentence.