R v Norman - [2005] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NORMAN
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction in the District Court - whether trial judge misdirected jury in relation to the onus of proof - whether the conviction in respect of count 2 was infected by the direction - appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence imposed in the District Court - whether sentence manifestly excessive - whether trial judge erred in failing to suspend the sentence of imprisonment - appeal dismissed.
Summary Offences Act 1953 (SA), s 41, referred to.
Liberato v The Queen (1985) 159 CLR 507, discussed.
Murray v The Queen (2002) 211 CLR 193, considered.

R v NORMAN
[2005] SASC 89
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: I would dismiss the appeal against each conviction and the appeal against sentence. I agree with the reasons given by Vanstone J.
DUGGAN J. In my view the appeals against conviction and sentence should be dismissed for the reasons given by Vanstone J.
VANSTONE J: Tracey Leanne Norman appeals with leave against her conviction in the District Court for possessing methylamphetamine for sale and unlawful possession of $26,650, and against the single sentence imposed for those offences, being imprisonment for two years and six months with a non-parole period of ten months.
The appellant was tried before a jury in the District Court sitting at Mount Gambier. The information before the court charged only the two counts. Both offences were alleged to have occurred on 2 January 2004. On that day police attended at the appellant’s home in possession of a search warrant. During the search they located in the appellant’s handbag 2.48 grams of methylamphetamine paste (containing 0.43 grams of methylamphetamine) along with $500 in cash, and, in a bedside drawer, two paper bags containing a total of $26,150. Also found were various hand-written notes recording monetary amounts against various names. The appellant told police that some of the money had been won on horses and poker machines and that $10,000 of it belonged to her mother. The appellant did not dispute at trial that all these items were in her possession. She said that the methylamphetamine was for her own use.
Because the quantity of methylamphetamine was less than 2 grams, the statutory presumption as to purpose of possession did not arise. Count 2 was an offence against s 41(1) Summary Offences Act 1953. That section provides as follows:
41. Unlawful possession of personal property
(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
As can be seen, subsection (2) places an onus on a defendant who claims lawful possession. The appellant sought to discharge that onus by giving evidence that a large part of the cash in her possession was the proceeds of lawful prostitution by her, that is prostitution which was not solicited.
The grounds on which the appeal against conviction was argued arise from the terms of the summing up to the jury by the learned trial Judge.
The first ground complains of the italicised words in the following passage:
In relation to count 1, the question whether Mr Crowe has proved intention to sell it I think is the main question for you. Mr Apps was correct to point out that the charge is that all or part of the contents of those three small bags was intended for sale. Even in Myers where much is sold, not everything is for sale. Even if Ms Norman has in the past sold, the question remains: “were the amphetamines found on her on 2 January this year for sale?” It was quite a small amount. She says it was for her personal use. Are you sure that that is not true? Mr Crowe has to prove to you that it was not for personal use.
Ms Powell QC for the appellant argued that the highlighted words constituted a misdirection in that they impermissibly hinged the jury’s decision on acceptance or rejection of the appellant’s evidence, as opposed to the jury’s evaluation of the prosecution case. It was further asserted that the suggested misdirection effectively infected count 2 by reason of observations made by the Judge comparing the evidence available on each count. On that topic he said:
At the end of the case you must consider all the evidence from all sources. You must consider each of the counts separately. The fact of conviction on one count does not carry the necessary implication that you must convict on the other count. It seems to me that the evidence relating to one count is substantially the same as the evidence relating to the other count, but there may be differences and you are not bound to either convict of both or acquit of both.
and a little later:
Much of the same evidence applies to this question as applies to the question whether the drugs were for sale.
In support of her argument, Ms Powell relied on a passage from the judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507. Whilst his
Honour was in dissent in respect of the disposition of that matter, I do not think there could be any challenge to the general thrust of his observation. He said (515):
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
I do not take his Honour to be suggesting in that passage that a trial Judge in summing up is to use any particular formula of words to express the onus of proof. Rather I take the passage to express the view that if a jury is to be addressed in terms of who is to be believed – prosecution witness or defendant – it is necessary to ensure that that issue is given its proper context and meaning in terms of the onus of proof. In Murray v The Queen (2002) 211 CLR 193 the High Court dealt with a case where after directing in terms of which of the competing versions the jury would accept, the trial Judge failed to give directions as to how the onus of proof would relate to such acceptance.
However it does not seem to me that those authorities avail the appellant in this case. In the first place Brennan J was speaking of a situation where the jury was evaluating the evidence of two opposed witnesses, whereas here there were, on the one side, inferences to be drawn from the appellant’s possession of the drugs, lists and money, and on the other, her exculpatory evidence. If the jury rejected her evidence then it was, in practical terms, inevitable that they would find that the drugs were for sale. In the context of this simple case, there was really no middle ground. Secondly, what Brennan J was cautioning against was leaving the jury with the impression that a mere preference for one or the other witness would decide the issue. That was not an impression which the jury in the instant case could have gleaned, because not only did the Judge speak of the jury being “sure” that the appellant’s evidence was not true, but additionally, he immediately went on to cast the issue in the wider and, technically correct, setting, by speaking of proof by the prosecution of the appellant having had the methylamphetamine for sale; and he framed the issue repeatedly in those correct terms. I cannot think that the jury were misled.
As to the linking of the two charges by expressing the view that the evidence on each was substantially the same, I consider that the observation was accurate, so far as it went. Having found that there was no misdirection in respect of count 1, this complaint falls away.
I turn to the appeal against sentence. The appellant asserted that the sentence was vitiated by two errors. First counsel pointed to the failure of the Judge in his remarks on sentence to make a clear finding on the source of the money. Plainly the jury rejected the appellant’s explanation that most of it had come from unsolicited prostitution. In the summing up, the Judge explained to the jury that even if they accepted that a proportion of the money was from prostitution – but not unsolicited prostitution – that would mean there was a failure by the appellant to discharge the onus. In my view that was rather a speculative possibility. The point was that if, for whatever reason, the jury did not accept the appellant’s explanation on the balance of probabilities, then she stood to be convicted on count 2. That is what occurred. I do not think the Judge was necessarily obliged to make a finding as to the source of the money in circumstances where establishing a particular source was not a prerequisite to a finding of guilt. It was unlikely the source would have an impact on the appropriate sentence in any event. Having said that, the clear inference was that the money was substantially the proceeds of drug sales. The Judge sentenced the appellant on the basis that she was a dealer, but not on a large scale. The possession of the money must have been one basis for that conclusion, even though the Judge did not say so.
The appellant complains of an assertion in the remarks as they related to count 1, to the effect that “… the ordinary penalty is one of immediate imprisonment. That happens to 99% of people in your situation.” The comment was perhaps unwise and even inaccurate, but I think it was only an attempt to communicate the seriousness of the appellant’s offending. The Judge went on to consider the appellant’s argument for suspension, which centred upon the fact that she had a 15 year old son. I take the view that notwithstanding these two criticisms, the sentence was not attended by any error of fact or approach.
The appellant was 35 years of age at the time of sentence. Although she had appeared previously in the Magistrates Court for various offending, she had never been sentenced previously to imprisonment. However, she did not come to the Court as a first offender and nor could she claim credit for a plea of guilty. There have been a number of cases in this Court in recent years dealing with the range of penalties appropriate to possessing methylamphetamine for sale, where that possession takes place against a background of prior dealing. In my view the sentence imposed was clearly within that range and all the more so since it had to reflect a penalty for count 2 as well. The non-parole period imposed was merciful, on any view.
I would dismiss the appeal against both conviction and sentence.