R v Micalizzi

[2004] NSWCCA 406

CITATION:	R v Micalizzi [2004] NSWCCA 406
HEARING DATE(S):	25 May 2004
JUDGMENT DATE:	22 November 2004
JUDGMENT OF:	Hulme J at 1; Simpson J at 10; Howie J at 59
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	appeal against conviction - supply not less than the large commercial quantity of a prohibited drug - whether the Crown had established, beyond reasonable doubt, relevant knowledge in the appellant - directions to the jury - application of Criminal Appeal Act s6(1): the proviso - application of Criminal Appeal Rules, Rule 4
LEGISLATION CITED:	Criminal Appeal Act 1912 s6(1) Criminal Appeal Rules, Rule 4 Drug Misuse and Trafficking Act 1985 s3, s25(2), s29, s33(3)
CASES CITED:	He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 R v Clark (2001) 123 A Crim R 506 R v Fung [2002] NSWCCA 479; 136 A Crim R 95 R v GPP (2001) 129 A Crim R 1 R v Lau [1998] 105 A Crim R 167 R v Williams (1990) 50 A Crim R 213 Singleton v Ffrench (1986) 5 NSWLR 425 Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348
PARTIES :	Crown Carmel Antonio Micalizzi - Appellant
FILE NUMBER(S):	CCA 2003/3139
COUNSEL:	Ms D Woodburne - Crown A Bellanto QC - Appellant
SOLICITORS:	S Kavanagh - Crown P White - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0870
LOWER COURT JUDICIAL OFFICER :	Holt DCJ

2003/3139
(60527/03)

HULME J
SIMPSON J
HOWIE J

Monday 22 November 2004

REGINA v Carmel Antonio MICALIZZI

Judgment

1 HULME J: In this matter I have had the advantage of reading the reasons for judgment of Simpson J. I agree with her Honour that the appeal should be dismissed. Subject to the following remarks, I agree also with most of her Honour’s reasons and in particular that the trial judge’s directions were confusing in a number of respects but that in light of the issues at the trial and what his Honour did say, there was no miscarriage of justice.

2 I can accept that the trial judge’s directions, given on a number of occasions, to the effect that the Crown must prove that the Accused knew that the amount of heroin was not less than a large commercial quantity and, differently expressed, that the Accused knew he was in possession of not less than a large commercial quantity of heroin, may at times have emphasised knowledge of quantity rather than of the nature of the drug. However, I do not regard this emphasis as sufficient to permit any realistic possibility that the jury could have been left in any doubt that the Crown had to establish knowledge of both drug and quantity. Furthermore at an early stage of the summing-up his Honour stated this expressly. He said:-

“Whilst knowledge and possession of the smaller amount of heroin – ie. a trafficable quantity that is not less than 3 grams – is necessary to fulfil the deeming provision of section 29, the knowledge and possession of not less than a large commercial quantity of heroin is necessary to establish the element in the charge. Namely, that he did supply not less than the large commercial quantity of prohibited drug, namely heroin. And of course that must be established, as I said – that he had possession of the large commercial quantity and knowledge that it was heroin – before that element has been proved beyond reasonable doubt.”

3 The last of the sentences just quoted makes the need for the jury to be satisfied of both quantity and the nature of the drug crystal clear.

4 I agree with Simpson J that any attempt to withdraw the confusing directions concerning s29 would probably have resulted in further confusion. However, that did not preclude the effect or application of the section being further dealt with by telling the jury that, if the Crown established:-

(i) the undisputed fact that the Accused had had custody of the backpack,
(ii) the undisputed fact that at the time the backpack contained more than 3.5 kilograms of heroin,
(iii) that at the time the Accused had known or believed
(a) there was heroin or other prohibited drug in the backpack, and
(b) that the quantity or drug was 1 kilogram or more,

then the requirements of s29 were (or the element of “supply” was) made out.

5 Had such a direction been given with sufficient clarity and emphasis it seems to me the confusion in the earlier directions would have been overcome.

6 And it was counsel’s duty to specify any further direction or redirection appropriate to deal with that inadequacy or confusion. It was not enough for counsel simply to express a view or submission that the jury could be a bit confused. That is not an objection.

7 That the duty is as I have said is recognised in Singleton v Ffrench (1986) 5 NSWLR 425 at 440 where McHugh JA, with the concurrence of Samuels JA, said:-

“Counsel for the second defendant did not expressly ask for a direction that the learned judge should direct the jury as to the criteria for determining whether or not the conduct of the defendants was improper or unjustifiable or lacking in bona fides.
If a party is to rely as a ground of appeal on a misdirection in the summing–up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give.”

8 That statement was endorsed as applying in the criminal field in, inter alia, Clark (2001) 123 A Crim R 506 at [74] and [239] and GPP (2001) 129 A Crim R 1 at [16], [122] and [123]. See also Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 370F.

9 In light of the terms of rule 4, the failure to object, and the extent of the departure from trial counsel’s duty in this case, and being satisfied that there was no miscarriage of justice, I would not grant leave to rely on either of the grounds of appeal.

10 SIMPSON J: On 18 March 2003 the appellant was arraigned in the District Court in Sydney on an indictment containing a single count of supplying not less than the large commercial quantity of a prohibited drug (heroin), contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (“the Act”). The appellant entered a plea of not guilty to the charge and a jury was empanelled. On 3 April 2003 the jury returned a verdict of guilty. The appellant was duly sentenced. The appellant appeals against the conviction. He has not sought leave to appeal against the sentence imposed.

11 By s25(2) of the Act, a person who supplies an amount of a prohibited drug which is not less than the commercial quantity applicable to that drug is guilty of an offence; by s3 “supply” includes “having in possession for supply”; by s29 (subject to two presently immaterial exceptions) a person who has in possession not less than the traffickable quantity of a prohibited drug is, for relevant purposes, deemed to have that drug in possession for supply; by s3(1) and Schedule 1, heroin is a prohibited drug, the traffickable quantity of which is 3.0 grams, the commercial quantity of which is 250.0 grams, and the large commercial quantity of which is 1 kilogram; and by s33(3) the maximum custodial penalty applicable to the supply of a large commercial quantity of heroin is imprisonment for life.

facts

12 The case presented by the Crown may be stated simply, as follows.

13 During the afternoon of 24 June 2000, the appellant and another man (Gary Lammas) travelled in the appellant’s car, driven by Lammas, to the Haymarket area in the city. They left the car and waited for a short time before the appellant received a call on his mobile telephone. The call was from Vincent Fung. Shortly after receiving the call, the appellant met Fung on or near a street corner, and walked a short distance to Fung’s vehicle. Both men entered the vehicle and Fung drove along Castlereagh Street to Pitt Street. The appellant left the vehicle. He was then carrying a backpack which had not previously been in his possession. He returned to where his own vehicle was parked, Lammas occupying the driver’s seat. The appellant put the backpack into the back of the vehicle, through the rear passenger door and then entered the front passenger’s side door. Lammas drove off towards the Haymarket. Shortly after, they were apprehended by police.

14 The entire episode was the subject of police surveillance and photographs were taken.

15 Police took possession of the backpack and examined its contents which proved to be 3,519.7 grams of white powder contained in five separate packets. Later analysis showed the white powder to be heroin, of a purity ranging from 59% to 66%.

16 During the course of the episode described, and for some time previously, the appellant’s telephone calls had been monitored pursuant to telephone interception warrants. A large number of telephone conversations were recorded and transcribed.

17 At the trial there was no dispute as to any of the factual matters I have recounted. The sole issue was whether the Crown had established, beyond reasonable doubt, relevant knowledge in the appellant. In order to prove the appellant’s guilt of the offence charged (that is, supply of the large commercial quantity of heroin) it was necessary that the Crown prove that the appellant knew (or believed) that what was contained in the backpack was a prohibited drug, in not less than the large commercial quantity, that is, one kilogram: He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523.

18 The Crown did not attempt to prove any actual supply of the drug; it relied on s29 of the Act to establish that the appellant’s possession of the drug was for that purpose, and on s3 to translate possession for that purpose into supply.

19 The appellant gave sworn evidence, a summary of the salient points of which is as follows.

20 He was the general manager and principal shareholder of a tobacco import/export company, called Westernbrook Pty Ltd. This involved him in some overseas travel. He was also employed by two associated companies called Batox Pty Ltd and Wallace Laboratories Pty Ltd. He had an involvement in horses and horse racing. Although it never became at all clear, it seems that the evidence elicited from the appellant was intended to establish some link between Batox Pty Ltd, Wallace Laboratories Pty Ltd, and his horse racing interest. In pursuit of this interest he travelled overseas on occasions, when he visited various chemical companies in search of materials such as aspartame, pseudoephedrine, testosterone, progesterone and vitamins. He was interested in producing a cough medicine for horses, both for his own stock and with an eye to its export potential.

21 This evidence was given in order to lay the foundation for the appellant’s claim that he did not know the nature of the contents of the backpack he had received from Fung, and to explain the content and language of some of the intercepted telephone conversations, and some overseas travel.

22 The appellant was then taken, in chief, to the events of 24 June. He said that, at about 12.15 pm, Fung had rung him and requested a meeting. (He later acknowledged that he had not, at that time, met Fung, and this was clear from the transcript of the conversation, in which Fung asked for a description of the clothing the appellant would be wearing, for identification purposes.) The two men agreed to meet at a specified city intersection at 3.00 pm, and the appellant asked Fung to ring him (the appellant) at 3.00 pm. Fung did so, and the two men met as arranged. Fung asked the appellant to follow him to his (Fung’s) car, and said that a friend (of Fung’s) had sent a parcel to be delivered to the appellant. The two walked to Fung’s car, Fung reached into the back of the car and extracted the backpack which he gave to the appellant, before driving the appellant back to his own car. The appellant did not look in the bag, which was closed, or attempt to open it. When he returned to his own car, he put the backpack on the back seat, making no attempt to conceal it. He said that he believed that the bag might have contained samples of the chemical materials to which he had earlier made reference, or possibly have been a gift from overseas friends for his newly born granddaughter.

the appeal against conviction

grounds of appeal

23 Two grounds of appeal are pleaded. They are framed as follows:

“Ground 1: His Honour misdirected the jury in that the directions of law in respect of ‘possession’, the deeming provision and particularly in their application to the facts.
Ground 2: His Honour erred in failing to direct the jury adequately as to the element of knowledge of the contents of the backpack.”


The grounds can be considered jointly.

the judge’s directions to the jury

24 Having given conventional preliminary directions, the trial judge turned to direct the jury on the elements of the offence with which the appellant was charged. He identified three elements in the following way:

“One, that the accused did supply, two, not less than the large commercial quantity, three, of a prohibited drug, namely heroin.”

25 He then proceeded to elaborate on these, in reverse order. He directed the jury that, as a matter law, heroin was a prohibited drug. He then turned to the second element, the quantity, and directed the jury that a large commercial quantity is not less than one kilogram.

26 He then turned to the element of supply. He directed the jury in the following terms:

“The ordinary meaning of the word ‘supply’ is to furnish or to make available something to someone. Here, of course, there is no evidence the accused supplied heroin to anyone in that sense. The definition of the word ‘supply’ in the Drug Misuse and Trafficking Act is said also to include having heroin in the accused’s possession for supply. When I say heroin, it could be another drug, but in this case it is having heroin in the accused’s possession for supply.”

His Honour then read s29 of the Act to the jury and told them that it is “a deeming provision” and went on:

“To prove that the accused supplied, or on the extended definition had in his possession for supply, using these deeming provisions of section 29 which I have just read to you, the Crown must prove beyond reasonable doubt, as is apparent from section 29: One, the accused had possession, and, two, the accused had knowledge, which is not specifically in section 29, but that is an element, that the accused had knowledge that the amount of heroin was not less than a traffickable quantity for the purposes of section 29 of the Act.
To prove the charge itself the Crown, of course, must show that the amount of heroin was not less than the large commercial quantity. The large commercial quantity which of course is the kilogram. So, of course, if the Crown establishes that there was more than the large commercial quantity that of course would also include the fact that there was a traffickable quantity, which is three grams.
As to those last two elements, to which I referred, the first element is possession. The Crown must prove that the accused had the substance in possession. That is, that the accused intentionally had the drugs in his custody or control to the exclusion of others except anyone who was acting in concert with him in the commission of the alleged offence.
The second element to bring it within the deeming provision is that the accused had knowledge that the amount of heroin was not less than a traffickable quantity for the purpose of s29 of the Act, and for the charge itself not less than a large commercial quantity as alleged in the indictment. I remind you of course the traffickable quantity is not less than three grams and the large commercial quantity is not less than one kilogram.”

His Honour repeated, in slightly different terms, the preceding paragraph.

“The knowledge of the accused, to which I have been referring to, must be proven to extend to a knowledge and belief that the accused was in possession of not less than a large commercial quantity of heroin. It is actual knowledge or belief which must be proved, not what some person in the position of the accused may have known or believed. ...
If you find the accused had possession of heroin and the knowledge that it was a traffickable quantity, then the Crown will be deemed to have established that he had possession of that heroin for supply, and, accordingly, that this is a supply of heroin.
Returning from the deeming provision to the elements of the charge, if you find the accused did supply not less than the large commercial quantity, and had knowledge of this quantity of the prohibited drug, being heroin, then you would find the accused guilty. If you find any element of this offence not proved, or the matters referred to in section 29, the deeming provisions, not proved beyond reasonable doubt you would find the accused not guilty.”

His Honour repeated the foregoing direction, told the jury that the elements of the offence were made to sound more complicated because of the deeming provisions, and invited the jury to request a repeat of the directions should they wish to do so.

27 The jury retired just after 1.00 pm on that day and deliberated until 4.00 pm when they dispersed. Just after 10.00 am the following morning they sent a note to the judge in the following terms:

“Your Honour, could you please explain again the meaning of supply particularly in relation to knowledge and its application in respect of the law.”

28 His Honour suggested to counsel that he might repeat the directions earlier given and reminded counsel of what they were. As to this counsel then appearing for the appellant objected that the jury might be “a bit confused” about:

“It is the issue, not only of possession of the backpack but that he knew that what was in the backpack was heroin.”

He did not press any application for a variation in the directions, or objection to the re-directions that his Honour had clearly foreshadowed he would give.

29 After discussion with both counsel, his Honour recalled the jury and re-directed them in the following terms:

“However, to prove supply – and I will run through in a moment what I said yesterday – the Crown relies on the deeming provision of section 29, which says a person who has in his possession an amount of a prohibited drug which is not less than the traffickable quantity. Now that is where the three grams comes in. So, for the purpose of working out if there is a deemed supply, you are dealing with a traffickable quantity, which is three grams. But, working to decide whether he is guilty of the offence, it is necessary to find that he was in possession of a large commercial quantity. A large commercial quantity is not less than one kilogram, and here you may remember the evidence was that there were roughly three and a half kilograms.
With that background I will give you the direction again, particularly in relation to supply and knowledge, which is an essential element of the Crown case. Knowledge of the 3.5 kilograms of heroin.”

30 His Honour then interrupted himself to ask counsel for the appellant “Does that cover it ... ?” to which the response was in the affirmative. His Honour went on:

“The second element was that the amount of the drug supplied was not less than the large commercial quantity. As I said, I can tell you that the Drug Misuse and Trafficking Act provides that a large commercial quantity of heroin is not less than one kilogram.
Now I come to the issue of supply. That the accused did supply not less than the large commercial quantity of heroin. The ordinary meaning of the word ‘supply’ is to furnish or make available something to someone. Here, of course, that is not relied upon by the Crown because there is no evidence the accused supplied heroin to anyone in that sense.
The definition of the word ‘supply’ in the Drug Misuse and Trafficking Act , where this deeming provision is, has another definition of the word ‘supply’, which is: Having heroin – in this case - in the accused’s possession for supply. That means supply according to the Act. That is another meaning for supply. Section 29 of the Drug Misuse and Trafficking Act provides as follows: [His Honour again read s29 of the Act.]

So, to prove that the accused supplied, or on that extended definition had it in his possession for supply, the Crown seeks to use the deeming provision of section 29. Now, for the Crown to prove what is required under section 29 of the Act, the Crown has to prove, one, that the accused had possession, and, two, the accused had knowledge that the amount of heroin was not less than the traffickable quantity for the purposes of section 29 of the Act. This might sound slightly confusing but it is not. That is for the deeming provision you see, to work out whether there is a supply.
But, then, to work out whether the Crown has proved the three elements in the indictment the Crown has to prove that the accused knew or believed that there was not less than a large commercial quantity of heroin that he, the Crown, alleges, had at that stage in his possession.
So, going back to the section 29 deeming provision, to see if the Crown has established that it should be deemed that he had possession for supply of the alleged drugs, the first element is possession. The Crown must prove that the accused had the substance in possession. That is, that the accused intentionally had the substance in his physical custody or control to the exclusion of others except anyone who was acting in concert with him in the commission of this alleged offence.
Secondly, the issue of knowledge. This applies not only to the deeming provision, but also to the element in the offence itself that the accused knew or believed that the amount of heroin was not less than the traffickable quantity for the purposes of the section 29 deeming provision, but also not less than a large commercial quantity as alleged, and which the Crown has to prove to prove its case as stated in the indictment. Namely, that the accused supplied not less than a large commercial quantity of heroin.
The knowledge of the accused must be proven to extend to a knowledge and/or belief that the accused then had that he was in possession of not less than a large commercial quantity of heroin in relation to the allegation in the indictment. But, as I said, for the purposes of section 29 deeming provision, it only has to establish the traffickable quantity of 3 grams.
The knowledge required is actual knowledge or belief which must be proved, not what some person in the position of the accused may have known or believed. However, knowledge and belief may be inferred or concluded from consideration of the surrounding circumstances provided any such inference or conclusion is a rational one and is not based on speculation or conjecture, and provided also that it is the only rational inference or conclusion open on the evidence.”

31 His Honour then invited comments or submissions from counsel, both of whom expressed themselves satisfied with the redirection.

32 The jury retired further to consider its verdict at 10.40 am and at 11.37 am returned with a verdict of guilty.

33 In written submissions it was argued on behalf of the appellant that these directions were “confusing and gave little or no assistance.”

34 This was a trial in which the issues were remarkably simple. No factual matter in the prosecution evidence was disputed. The appellant was arrested whilst having in his custody the back pack. The back pack contained heroin. The quantity of heroin was more than 3.5 kilograms, well over the large commercial quantity. In order to establish that the appellant was in possession of the heroin for the purposes of s25(2) of the Act, it was also necessary that the Crown establish that the appellant knew or believed that the substance in the back pack was a prohibited drug. Given that the indictment specified that the appellant was in possession of not less than the large commercial quantity of heroin, it was also necessary that the Crown establish that the appellant knew or believed that there was 1 kilogram or more of heroin in the back pack. Once the prosecution established those two aspects of the appellant’s state of mind, s29 and s3 operated to convert possession into supply.

35 The only factual matter in issue was whether the Crown had proved, to the requisite standard, the appellant’s state of mind, or knowledge, in relation to the identity and the quantity of the substance in the back pack. In other words, the two questions for the jury were whether the prosecution had proved beyond reasonable doubt that the appellant knew or believed that the content of the back pack was a prohibited drug; and secondly, that the quantity was 1 kilogram or more. The Crown was called upon to prove the appellant’s knowledge of these two matters by inference: in this it relied substantially upon the extensive telephone intercepts in which the appellant was said to have used language that was ostensibly innocuous, but was in fact coded. For example, in some conversations reference was made by the appellant or those to whom he was talking to “girls” or “horses”. Police evidence was called to establish that these were, in the context of the conversations, properly to be interpreted as code words for heroin. Hence the appellant’s evidence of his involvement and interest in horses and related activities.

36 What complicated the exercise was the need perceived by the judge to explain to the jury (and to read to them) the deeming provision contained in s29. In my opinion, it is not good practice to read legislation to a jury. Where it is necessary to refer to a legal principle derived from statute, it is the effect of the provision, so far as it is relevant to the issue before the jury, and not its precise terms, that should be conveyed.

37 Here, there was no issue about s29. There was no dispute that the back pack in fact contained 3.5 kilograms of heroin. Axiomatically, that exceeded the 3 grams required to bring into play the deeming effect of s29. The appellant’s knowledge, either of the substance, or the quantity, was irrelevant to s29. It was, therefore, certainly unnecessary and strictly erroneous to tell the jury that if they found that the appellant had possession of heroin “and the knowledge that it was a traffickable quantity” the Crown would be deemed to have established that he had possession of the heroin for supply. That direction was unduly favourable to the appellant, but its real vice lay in its potential to confuse.

38 Because the indictment alleged a supply of heroin, and the prosecution evidence established no more than (in ordinary language) possession of the heroin, it was appropriate that the judge explain to the jury the legislative mechanism by which possession is converted into supply. This could have been done by a simple statement that the law presumes that a person who is in possession of 3 grams or more of a prohibited drug has possession of that drug for the purposes of supply, and that having possession of a prohibited drug for the purposes of supply is, at law, supplying the drug. Since the appellant did not rely on either of the exceptions to the deeming effect of s29, it was, in this case, unnecessary to say more than I have outlined. It was quite unnecessary to add to the jury’s burden by referring to traffickable quantity or by reading from the section. Its effect could (and should) have been translated into a simple statement of what the law provides, with specific reference to the facts of the case. I agree with the appellant’s submission that the directions were made unduly complex and had the capacity to confuse the jury. That they did in fact do so is suggested by the question the jury asked. Regrettably, the redirections were no more than a repeat of what had already been said. They did nothing to clarify the position. In my opinion there is substance in the complaint made on behalf of the appellant.

39 A further criticism made of the directions concerns the following passage (which was repeated during the redirections given in response to the jury question):

“The second element to bring it within the deeming provision is that the accused had knowledge that the amount of heroin was not less than a traffickable quantity for the purpose of section 29 of the Act, and for the charge itself not less than a large commercial quantity as alleged in the indictment ...”

40 The criticism made is that this failed to separate and identify the two matters of which proof of the appellant’s knowledge was essential before a jury could convict. It was necessary that the Crown prove that the appellant knew both (i) that the substance in the back pack was a prohibited drug; and (ii) that the quantity was one kilogram or more. The direction assumed knowledge that the substance was heroin and focussed upon proof of the appellant’s knowledge of the quantity. I think this criticism is also valid, although it is to be noted that, in the immediately preceding passage, the judge had directed the jury that, in order to prove possession, the Crown had to prove that the appellant:

“intentionally had the drugs in his custody or control to the exclusion of others except anyone who was acting in concert with him in the commission of the alleged offence.”

41 This direction was, I assume, intended to cover the appellant’s knowledge of the identity of the substance; but, in my view, it made that far from clear.

42 The direction as given (twice) ran together the two separate matters of which proof was essential.

43 Directions of the kind which it is now contended should have been given have been approved by this court in R v Lau [1998] 105 A Crim R 167 at [173 – 174]; R v Fung [2002] NSWCCA 479; 136 A Crim R 95. In my opinion the second complaint has also been made good.

44 It is clear from what I have written that I accept the contention made on behalf of the appellant that the directions given lacked the clarity required, and failed to give the jury the assistance they deserved. The more difficult question is whether it should also be concluded that the directions were so deficient as to have resulted in a miscarriage of justice.

45 S6(1) of the Criminal Appeal Act 1912 provides:

“(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

46 The grounds advanced are the lack of clarity and precision in the directions going to the sole disputed issue in the trial. That lack of clarity and precision has been made out does not mandate a conclusion that a miscarriage of justice has also been made out. It is not every misdirection that will result in a miscarriage of justice: see R v Williams (1990) 50 A Crim R 213.

47 The Crown has advanced four reasons for arguing that no miscarriage of justice has been established. They are:

(i) the sole issue in the trial was clearly identified for the jury at all times, and from the outset, by both counsel in opening addresses; and that issue remained clear through to the very end. (As I have earlier suggested, the issues in this trial were remarkably simple);

(ii) the direction that the knowledge of the accused had to be shown to extend to the quantity or the substance in the back pack necessarily incorporated knowledge of the nature or identity of the substance contained in the back pack;

(iii) trial counsel did not perceive any difficulty such as to cause him to request a variation or further direction;

(iv) the direction was in fact more favourable than the direction given in Lau and Fung , the two authorities supporting the appellant’s contention.

48 As to the third of these, fairness to trial counsel requires recognition of something said by him at the time the redirections following the jury’s question were being discussed in the absence of the jury. The Crown Prosecutor said that the Act is confusing; the judge gave his opinion that the confusion arose from the charge of supply of a large commercial quantity; counsel for the appellant then said:

“I hear what my friend says, it also in my respectful submission could easily be that they are a bit confused about – it is the issue of not only the possession of the back pack but that he knew that what was in the back pack was heroin.”

49 The judge said that he had already given such a direction.

50 Counsel certainly did not pursue any submission that the two aspects of knowledge should be clearly put to the jury. After the redirections were given, he was given the opportunity to make further submissions and declined to do so.

51 I have come to the view that no miscarriage of justice has been shown. This is largely for the reasons argued on behalf of the Crown. The issue for the jury’s determination was solely whether the appellant had been shown to have the requisite knowledge – that is, both of the nature of the substance in the back pack; and of the quantity of the substance in the back pack. The appellant had given a quite implausible explanation for the telephone conversations tendered as incriminating; and an equally implausible explanation for his having obtained the back pack from Fung and his belief as to what its contents might have been. Despite what I perceive as deficiency in the directions, I am satisfied that the jury could have been under no misapprehension about the narrow issue on which they had to decide the appellant’s guilt. Indeed, closer scrutiny of what is suggested on behalf of the appellant exposes the weakness of the argument. The argument is that, while the judge adequately (if confusingly) directed the jury on the need for the Crown to prove the appellant’s knowledge of quantity, he did not adequately direct them in relation to the need for the Crown to prove the appellant’s knowledge that the substance in the back pack was a prohibited drug. But the jury could not possibly have been under any illusion about that: once they understood that the Crown had to prove the appellant’s knowledge of quantity, it was patently clear that it also had to prove his knowledge of the nature of the substance: if that were not so, they could have convicted the appellant if satisfied that he knew the back pack contained a kilogram of some substance, although he might have thought it to be butter. Accordingly, in my opinion, no miscarriage of justice has been demonstrated.

Criminal Appeal Act , s6(1): the proviso

52 The proviso permits this court to dismiss an appeal, even where there is substance in the complaint or complaints made in relation to the conduct of the trial:

“if it considers that no substantial miscarriage of justice has actually occurred.”

53 Since I have already concluded that no miscarriage of justice has been demonstrated, it follows that I also consider that no “substantial miscarriage of justice” has occurred. Accordingly, even if I were wrong about the effect of the confused directions, I would, in this instance, conclude that the application of the proviso should lead to the dismissal of the appeal.

Criminal Appeal Rules, Rule 4

54 Counsel for the Crown has argued that, by reason of Rule 4 of the Criminal Appeal Rules, the appellant requires the leave of the court before being permitted to argue either of the two pleaded grounds; and that, having regard to trial counsel’s omission to seek appropriate directions, such leave should not be given. In order to consider this submission, it is worth recalling the precise words of Rule 4. They are:

“4. No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of Court, be allowed as a ground for an appeal or an application for leave to appeal unless objection is taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.”

55 This court has frequently been called upon to consider whether the rule should be applied in such a way as to permit the dismissal of an appeal in circumstances where, had the point been taken at the trial, it would have justified a successful appeal. It has emphasised the obligation upon trial counsel to assist the trial judge and to ensure that directions given accurately state the law (and, where relevant, the facts); and do not omit any directions called for by the circumstances of the case.

56 Here, the first complaint that I have concluded has been established does not concern the substance of the law on which the jury was directed, but the manner in which the law was explained. Counsel did make some attempt, short of formulating proposed directions himself, to achieve a greater degree of clarity in the directions given to the jury. Whether that attempt was adequate involves a different consideration, one on which I do not find it necessary to embark. Once the directions had been given, it is not easy to see what counsel could have done to rectify the confusion created – at least, short of redrafting the direction and requesting the judge to redirect in accordance with his own formulation. Further, withdrawal of the direction concerning the effect of s29 would, in all probability, only have resulted in further confusion. In this instance I do not think leave under Rule 4 should be refused, in relation to that aspect of the appeal.

57 The same does not apply with equal strength to the second aspect, the failure, in the directions, to ensure that the two aspects of the appellant’s knowledge were clearly delineated. Counsel might well have urged such an approach upon the trial judge; as indicated in paragraph [39], he touched upon this but did not really pursue it. However, again, the complaint goes not so much to the substance of the direction given, as to its style and formulation. I would not refuse leave under Rule 4 to argue either of the matters that were put before this court.

58 I propose that the appeal against conviction be dismissed.

59 HOWIE J: I have read the judgment of Simpson J and the additional comments of Hulme J on the issue of whether leave should be given under rule 4 to rely upon ground 1. I generally agree with Simpson J as to the orders proposed for disposing of the appeal and the reasons for making those orders.

60 However, I accept that, generally speaking, counsel appearing for either party is required to formulate the direction, warning or comment required by the trial judge where counsel believes that what the trial judge has said to the jury is insufficient to ensure a fair trial for the accused or the Crown. In the present case, if counsel for the accused was unhappy with what the trial judge had said or what he was proposing to say to the jury on a matter of law, such as a direction on possession, then in my view it behoved counsel to say more than he did in the present case.

61 However, it is unnecessary in the present case to determine whether the failure of counsel in the present case enlivened rule 4. The rule is concerned, according to its terms, with the failure to object rather than with the failure of counsel to perform his or her duty to the fullest extent.

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Last Modified: 11/29/2004