R v Punevski - [2001] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- PUNEVSKI [2001] WASCA 121

CORAM: KENNEDY J
PIDGEON J
WHEELER J

HEARD: 3 MAY 2000

DELIVERED : 19 APRIL 2001

FILE NO/S: CCA 11 of 2000

BETWEEN: THE QUEEN
Appellant
AND
TRAJCE PUNEVSKI
Respondent

Catchwords:

Criminal law and procedure - Jury trial - Appeal by prosecution against jury verdict - Whether trial Judge directed jury to return a verdict of acquittal on two counts charging the respondent with possession of prohibited drugs with intent to sell or supply them to another - Direction as to verdict of acquittal on one count upheld - Verdict of acquittal on second count set aside - Evidence sufficient to sustain that conviction

Legislation:

Criminal Code (WA), s 688(2)(b)

Result:

Appeal allowed as to verdict on count 3, judgment of acquittal quashed and new trial ordered
Appeal dismissed as to verdict on count 2

Representation:

Counsel:

Appellant: Mr D Dempster
Respondent: Mr D P A Moen

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Andree Horrigan

Case(s) referred to in judgment(s):

Benson v Northern Ireland Road Transport Board [1942] AC 520
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Prasad (1979) 23 SASR 161
R v Prosser (1993) 70 A Crim R 391
Thompson v Mastertough TV Service Pty Ltd (1978) 19 ALR 547

Case(s) also cited:

Cox v Salt (1994) 12 WAR 12
Gebert v The Queen (1992) 60 SASR 110
Haw Tua Tau v Public Prosecutor [1982] AC 136
Plomp v The Queen (1963) 110 CLR 234
R v Bilick (1984) 36 SASR 321
R v Murphy (1985) 63 ALR 53
R v Robinson (1995) 80 A Crim R 358

KENNEDY J: The respondent was presented in the Supreme Court on an indictment containing the following three counts:
(1) on 16 July 1997 at Balcatta, the respondent sold or supplied a quantity of a prohibited drug, namely, heroin, to another;
(2) further, that on 16 July 1997 at Balcatta, the respondent had in his possession a quantity of a prohibited drug, namely, 3, 4‑methylenedioxyamphetamine (MDA) with intent to sell or supply it to another;
(3) and further, that on 16 July 1997 at Balcatta, the respondent had in his possession a quantity of a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.
The respondent pleaded not guilty to each count. The jury were unable to agree on a verdict in relation to the first count in the indictment, and a retrial is to be conducted. In relation to the second and third counts, the jury returned verdicts of acquittal. The crown appeals against those verdicts which, it contends, were found by direction of the trial Judge within the meaning of s 688(2)(b) of the Criminal Code (WA), on the ground that in each case, the evidence properly admitted before the jury disclosed a prima facie case that the respondent was guilty of the offence charged.
What is claimed to be the direction of the learned trial Judge with respect to counts 2 and 3 is to be found in his Honour's summing up. It was not preceded by any submission on the part of the respondent that there was no case to answer and, indeed, his Honour did not give any prior indication to counsel of the step which he was proposing to take.
His Honour's summing up commenced in the following terms:
"Mr Foreman, Ladies and Gentlemen, it's my function now to sum up to you and I will say straightaway there is not sufficient evidence on counts 2 and 3 for you to convict the accused. The learned prosecutor, in fairness to him, hasn't attempted very hard at all to try and justify the Crown case against the accused on those two counts.
The evidence from the police officers was most unsatisfactory in connecting up the samples which they took from the house with whatever the analyst did. There was a mistake in one of the police officer's evidence. He said he just copied out another statement and made a mistake. The analyst, as you will remember, said he wrote down 'powder'. It should have been 'rock'. There's the problems with the lilac powder and the capsules. It's just all overwhelming and I am sitting here as a Judge with more information than you have got and I can't work it out and I'm sure no reasonable jury could.
So I'm directing you that there is not sufficient evidence to convict the accused on counts 2 and 3 on the indictment. There is the other aspect of it also and that is that the Crown did not produce evidence that the accused was the only one with access to his garage. The rule with respect to evidence is that no person in this community is to be found guilty beyond a reasonable doubt if there's another reasonable explanation open.
A reasonable explanation, amongst other things, leaving aside the failure of the police to do their job properly and connect up all these samples and present it to you in a coherent manner, was that the accused's son is apparently in gaol for drugs and a pistol that was found there is wrapped up in, so far as we know, his board shorts.
None of these matters were explained to you. I don't know whether the son has got half a dozen of his mates who stash drugs in this garage and neither do you. So no jury could safely convict the accused on those two - that's the second and third counts in the indictment. It could be his son's drugs, it could be anybody else's drugs.
So therefore although it's your job, I'm not going to direct you any more on that. I would ask you in due course to bring back verdicts of not guilty on counts 2 and 3. The evidence is completely unsatisfactory. They are very serious charges, of course. No person in this community should be convicted on a half‑baked case.
That's a different matter with respect to count 1, different altogether. So I'll only direct you on count 1. Having said all that, I will leave counts 2 and 3. You can bring in a verdict of guilty if you want to. That's your problem but I would suggest you might bring in a verdict of not guilty on counts 2 and 3."
Later in his summing up, his Honour said:
"He [the respondent] is charged with selling or supplying heroin in count 1, not anything to do with MDA and nothing to do with amphetamines and had I directed you in detail on counts 2 and 3, I would have told you in any event, as both counsel have done, that you have got to treat each count as a separate trial. We are really having three trials in one here but so far as count 1 is concerned, the only evidence you could consider on count 1 is evidence to do with that heroin and that is the alleged selling or supplying of the heroin. That's terribly important. You can’t use what we call evidence of propensity to be a drug dealer on these other two.
Whatever he might have or somebody else might have stacked in that yellow bucket by way of amphetamines or MDA or anything else, it's the heroin we are concerned about in count 1 and the evidence relative to that and I will tell you what it is in a couple of minutes but it is important that I say please put aside the evidence concerning the other two drugs in counts 2 and 3 when you are considering count 1 and, of course, put aside - it's your verdict. You can still bring in verdicts of guilty on counts 2 and 3 if you like but I am suggesting you don't, but that's up to you.
But in any event while you are considering counts 2 and 3, each is a completely separate matter. There are three trials going on here and you can only consider the evidence relative to each count on that count. Propensity or probability that he might be dabbling in drugs or even using them or anything else has really got nothing to do with it when you are coming to consider separate, very, very serious counts and of course dealing primarily with count 1.
Selling or supplying a quantity of heroin is an extremely serious offence in this community. So that's the degree of seriousness which a jury always approaches a thing like that on. So that's why it's important you only consider the evidence on the particular count in the indictment - one of the three you are then considering - when you are considering that count. You don't, sort of, flow on from the evidence from the others.
Having said that, I would like to say this to you: It is your responsibility to consider all the evidence that has been given in the case, not mine. Both counsel have said that to you. I can tell you what the law is and in doing so I will refer to some of the evidence but because I refer to it doesn't mean I think you should take note of it or I'm trying to indicate somehow or other that it is good or bad or indifferent. If you get that impression it would be wrong because I would be then treading on your territory. I'm only talking about count 1 now. I have already told you what I thought about the evidence on counts 2 and 3 but I'm really treading on your territory doing that too, to a degree, it's just that if I don't tell you that an appeal court certainly would, but with respect to count 1, as I say, it's a different matter altogether."
His Honour dealt extensively with the evidence relating to count 1 but then reiterated to the jury that he was only going to talk about that count. He added:
"I'm leaving the other one [sic] to your sole determination."
His Honour then proceeded to give general directions to the jury and concluded his summing up by saying:
"You will take the indictment and all the exhibits with you and I finally remind you that your verdict must be unanimous. If you were to find the accused guilty, all of you would have to agree that he was guilty of any of the three charges. Finally on that I remind you that there will be verdicts on these three charges when you come back, but I have suggested to you that you should find him not guilty on counts 2 and 3 because of the lack of police evidence to connect the various matters up correctly."
Immediately after the jury had retired, the Crown prosecutor suggested that his Honour was really directing the jury to acquit. His Honour agreed that this was correct. The Crown prosecutor pointed out that he had been given no prior warning that the trial Judge was going to direct the jury as he did in relation to counts 2 and 3, although he recognised the difficulties in the Crown's case on count 2.
Considering his Honour's directions as a whole, it appears to me that he was directing the jury, in terms of s 688(2)(b) of the Criminal Code (WA), to acquit the respondent on counts 2 and 3 and that the jury, from his remarks, would inevitably have understood that they were being so directed.
His Honour's phraseology varied somewhat. He commenced by telling the jury that there was not sufficient evidence on counts 2 and 3 for them to convict the respondent. He went on to tell them that the police evidence was "just all overwhelming" in relation to their connecting the samples taken from the house with the analyst's reports. In saying that it was all overwhelming, he was clearly emphasising its incomprehensibility. He then proceeded, in terms, to direct the jury that there was not sufficient evidence to convict the respondent on counts 2 and 3. He went on to suggest, in addition, that the drugs in question could have been those of the respondent's son or those of anyone else. He said that he was not going to direct the jury any more, but asked them to bring back verdicts of not guilty on counts 2 and 3, describing the evidence as completely unsatisfactory.
His Honour later told the jury that they could bring in a verdict of guilty if they wanted to, but then immediately qualified this by stating that the decision was theirs, but, in effect, that the appeal court would reverse any findings of guilty. He concluded with the statement that there should be verdicts on each of the three charges, but he suggested to them that they should not find the respondent guilty on counts 2 and 3 by reason of the lack of police evidence to connect the various matters up correctly.
Accepting, on this basis, that the learned trial Judge did direct the jury in terms of s 688(2)(b) of the Criminal Code (WA), the question which then arises is as to whether his Honour fell into error in so directing them. The applicable principles were established in Doney v The Queen (1990) 171 CLR 207. At 212 ‑ 213, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
"The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v The Queen (1983) 152 CLR 657 at 689. There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict."
At 214 ‑ 215, their Honours said:
"The question whether, in the words used in Galbraith [R v Galbraith [1981] 1 WLR 1039, at 1042], evidence has a 'tenuous character' or an 'inherent weakness or vagueness' may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury's consideration.
Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on a jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v The Queen [No 2] (1984) 153 CLR 521 and Morris v The Queen (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v District Court (NSW) (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial."
See also R v Prosser (1993) 70 A Crim R 391 and Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482.
King CJ in R v Prasad (1979) 23 SASR 161, at 163, summarised the position as follows:
"If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts. That, as it seems to me, would be contrary to law."
Glass J admirably summarised the position in his article, "The Insufficiency of Evidence to Raise a Case to Answer" (1981) 55 ALJ 842 at 845 as follows:
"The usurpation of the jury's function of weighing evidence is contrary to accepted principle governing jury trials. Although that proposition has been eroded to the extent that three judges on appeal may now say that a conviction though open on the evidence would be unsafe, it would not be warranted to confide that power to a single judge guided only by his own unaided and uncorrected assessment of the testimonial weight."
Count 1 in the indictment related to the alleged sale by the respondent of two lots of heroin to Vasko Velkovski and his brother, Jovan Velkovski, at the Northlands Tavern in Balcatta for the sum of $19,000. A police officer was conducting surveillance at the tavern. There was evidence that the respondent passed over a package which was said to contain the heroin. The Velkovski brothers left the tavern with the package and drove to a house in Marangaroo. As the package was being unwrapped inside the house, the police broke into the house and seized two snap‑lock plastic bags, each containing a white block. On analysis, the contents of the bags were said to consist of 55 grams of heroin. This gave rise to count 1 in the indictment.
The police then executed a search warrant at the respondent's home at 49 Beryl Street, Balcatta. An amount of 0.53 grams of heroin was found in the respondent's garage. Evidence was given that, based upon the chemical analysis of the heroin found in the possession of the Velkovski brothers, and of the heroin discovered at the respondent's house, the samples had a common origin.
Also found in the respondent's garage was a yellow Polyfilla bin containing two separate jars, each containing capsules. The powder in those capsules, was asserted by the Crown prosecutor in his opening to total 41.64 grams of 3, 4‑methylenedioxyamphetamine, known as MDA. This gave rise to count 2 in the indictment.
A package wrapped in newspaper was also discovered in the same bin. Inside the package, the Crown prosecutor claimed, was a snap‑lock plastic bag containing white powder which, it was said, on analysis was found to be methylamphetamine weighing 24.9 grams. This gave rise to count 3 in the indictment. The Crown case was subsequently that the bag contained not white powder but white rock.
Detective Senior Constable S J Clark was the designated exhibits officer in relation to the search conducted at the respondent's house. It was his responsibility to take control of the exhibits and to mark them for identification. He compiled what was known as the exhibits log, which is designed to record details of exhibits which have been seized. Photographs of the various exhibits, and of their contents, were taken either at the respondent's house or subsequently at the drug squad office. The exhibits log, the relevant page of which is annexed to this judgment, contained 10 columns, of which column 1 set out an identification number and letters. Column 2 was headed "Description of Exhibit in Full". Column 3 identified the police officer who had located the exhibit. Column 4 identified the location where the exhibit had been found. Column 5 contained a Conveyance Bag No which, in each case, was BB30488. This was the bag in which the exhibits were conveyed to the drug squad office, where the material for analysis was placed in a new bag. Column 6 was headed "P11". It related to a drug inventory book, which was designed to record all movements of drugs. Column 7 contained what was referred to as a New Bag No. Column 8, which is headed "Property Receipt" contained only two entries, both in relation to exhibit 23(B)(i), the description of which was "'Wescobee' honey jar containing plastic bags with pink tablets and capsules containing powder". Detective Clark, in his evidence, described the capsules as being white. The two entries were "Part 1" and "Part 2". Their meaning was not explained. For the same exhibit, in column 9, under the heading "Holding Order", appeared the details:

"Jar/bags
Tabs/caps
contents
Caps."

"Tabs" and "Caps" no doubt referred to tablets and capsules.

Column 10 was headed "Dist", which presumably referred to "distribution".
Under the heading in column 2, "Description of Exhibit in Full", there appears in relation to exhibit 23(B)(ii) only the word "Package", and the same description is to be found in relation to exhibit 23(B)(iii). There is no distinction drawn between the two entries.
Initially, Detective Clark had produced a copy of another log which had been compiled from his original log by some unidentified person, but which contained two additional columns. Detective Clark had not compiled that log and it was subsequently withdrawn as an exhibit and a copy of Detective Clark's original log was substituted. That created its own problem, because the only linking of the photographs with the various exhibits was contained in the log which had been withdrawn. There was at least one error in the marking of a photograph. Detective Clark himself was unable to relate the photographs either to the material sent for analysis or to the analyst's certificates, which are referred to later. Amongst other consequences, there was nothing in the log to distinguish between exhibits 23(B)(ii) and 23(B)(iii). It is apparent that the information recorded on the exhibit log prepared by Detective Clark was inadequate.
Expert evidence was given by Mr C R Priddis, who is a forensic chemist with the Western Australian Chemistry Centre and an approved analyst under the Misuse of Drugs Act 1981. He gave evidence that the relevant items had come to his laboratory in a sealed drug movement envelope. The items were delivered in either plastic jars or plastic bags. He said that there were identification marks on "most of the jars". Three certificates issued by Mr Priddis under the Misuse of Drugs Regulations 1982 (WA) identified the contents of each of the three plastic jars as containing MDA.
The first certificate was identified by the laboratory reference no 97F0146002, and by the police reference no D40103, which is the number to be found under the heading of P11 in the exhibit log. The certificate recorded that what had been received by Mr Priddis for analysis had been a sealed drug movement envelope, no BB30496, "enclosing lilac powder in a plastic jar". The markings on the plastic jar as received by Mr Priddis were TP23(B)(ii). A reference to the exhibit log, as I have already indicated, shows TP23(B)(ii) as the exhibit number for what was described only as "package". The powder, on analysis, was found by Mr Priddis to be MDA. It weighed 24.7 grams and had a purity of approximately 14 per cent.
The second certificate had a laboratory reference no 97F0146004, and again had the police reference no D40103. Mr Priddis recorded what that he had received for analysis had been a sealed drug movement envelope no BB30496 containing lilac powder in a plastic jar. The markings on this jar were said by Mr Priddis to be TP23(B)(iv). A reference to the exhibits log describes that exhibit number as relating to a Calcium Citrate container, containing 24 capsules. The weight of the powder, which, on analysis by Mr Priddis, was found to be MDA, was 4.74 grams. It had a purity of approximately 14 per cent. A photograph of the Calcium Citrate container, with the capsules alongside it, clearly shows 27 (and not 24) transparent capsules containing a white substance. Mr Priddis confirmed what was obvious, that the description of the exhibit in the exhibit log was not consistent with his description of the material in the certificate of analysis.
The third certificate, identified by the laboratory reference no 97F0146008, and by the police reference no D40103, recorded that what had been received by Mr Priddis for analysis was a sealed drug movement envelope, no BB30496, enclosing lilac powder in a plastic jar. The markings on the plastic jar were once again said to be TP23(B)(ii). The powder was found by Mr Priddis to be MDA. It weighed 12.2 grams and had a purity of approximately 15 per cent.
Photographs had been taken of each of the exhibits sent for analysis, but none of the items photographed could be described as depicting "lilac powder", and the evidence of Mr Priddis was that the other tablets and capsules shown in a photograph of exhibit 23(B)(i) were not consistent with being "lilac powder". There was no evidence of tablets or capsules being sent for anlaysis, or of the capsules being opened by the police.
Mr Priddis gave evidence of another analysis which he undertook, in relation to which he issued a certificate with the laboratory reference no 97F0146006 and again having the police reference no D40103. The material was said to consist of white powder in a plastic jar which was marked TP23(B)(iii). The material was found by Mr Priddis to be Dextrose, a substance which is commonly used as a "cutting" agent. The powder weighed 68.5 grams.
A fifth certificate, identified by the laboratory reference no 97F0146005, and by the police reference no D40103, recorded that what had been received by Mr Priddis for analysis consisted of compressed white powder in a plastic jar which was itself contained in a sealed drug movement envelope no BB30496. The description on the plastic jar was "white rock", and the marks on the jar were TP23(B)(ii). This is the third reference to this exhibit, the description of which "in Full" was "Package". On analysis, the jar was found to contain methylamphetamine weighing 24.9 grams, having a purity of approximately 6 per cent.
In relation to the fifth certificate Mr Priddis acknowledged that an error had been made at the laboratory regarding the description of the contents of the jar referred to. He had recently checked his records at the laboratory, which had included photographs. It indicated that the substance sent to him for analysis was not a white powder but definitely a white rock material. His case notes described the substance being analysed as "white rock", and he explained that this was purely a transcription error. He said that the laboratory's computer generates a certificate according to how the material is registered at the time. It is generally registered as powder, and it is then necessary to change that description to suit the material. In this case, he had failed to change "powder" to read "rock". He identified the white rock as being consistent with the photograph of exhibit 40.
Counsel for the respondent at the trial indicated quite clearly that he was requiring the Crown to identify the material, the subject of the certificates of analysis. There is no reason to doubt that the material submitted for analysis was a lilac powder, but the source of that powder was never established. Nor was it explained why the powder was delivered for analysis in three separate plastic jars. In addition, the learned trial Judge was rightly concerned with the way in which the evidence was being brought forward. While Detective Clark and Mr Priddis were giving their evidence, the jury had no photographs and no certificates before them by which they could follow what must have appeared to be an interminable list of numbers. While both counsel were endeavouring to clarify a significant number of discrepancies, the conclusion is irresistible that the questions and their answers conveyed nothing to the jury. The final result is that, in relation to the MDA, there is no evidence to "sustain a guilty verdict" or "no evidence upon which a jury could convict". It follows that the learned trial Judge was not only

entitled, but was required, to direct the jury to acquit the respondent on that count.

The position with respect to the methylamphetamine is, in my opinion, to be distinguished. In this case, there is some evidence identifying the material analysed Mr Priddis with the white rock or white substance shown in the photograph, exhibit 40, which was found in the respondent's house. There is also some evidence from which an inference could be drawn that the methylamphetamine and the heroin discovered at the respondent's residence was in his possession. In particular, there is the evidence of Mr Priddis that the heroin which was claimed to have been sold by the respondent to the Velkovski brothers had a common origin with the heroin located at the respondent's house. In the circumstances, in my opinion, there was evidence which satisfied the test laid down in Doney v The Queen and his Honour erred in directing the jury to acquit the respondent on count 3. Although I would therefore quash the verdict of acquittal on this count and order a new trial, it will be necessary for the Director of Public Prosecutions to review very carefully the evidence in this matter and, in particular, the errors which have been revealed in the course of the investigations conducted in connection with the prosecution.
PIDGEON J: I agree with the reasons of Kennedy J and the orders proposed. I would add some observations on the jurisdiction of this Court to hear the appeal. The jurisdiction is given by s 688(2) of the Criminal Code 1913 which reads:
"(2)An appeal may be made to the Court of Criminal Appeal on the part of the prosecution -
(a)against any decision allowing a demurrer to an indictment or arresting judgment on an indictment or quashing an indictment or staying or adjourning proceedings on an indictment; or
(b)against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the judge or other authority entitled to give directions on law to the jury at the trial; or
…"
A subsection in this form was inserted in the Criminal Code 1903 by the Criminal Code Amendment Act 1911, s 668(2). It was re‑enacted in

the same form in the current Criminal Code as s 688(2). One of the purposes of the 1911 Act was to set up in this State a Court of Criminal Appeal and to give a right of appeal to a convicted person as was given in England by the Criminal Appeal Act 1907 (UK). It differed from the English enactment inasmuch as in England no right of appeal was given to the prosecution against a verdict of acquittal. In Benson v Northern Ireland Road Transport Board [1942] AC 520 Viscount Simon LC at 526 referred to an extremely important and universally accepted principle of the law that a verdict of acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court. His Lordship referred to cases where it was held that before there can be an appeal against an acquittal, it must be given by statute and that the words must be clear, express, and free from any ambiguity. The history of the right of appeal by the prosecution against an acquittal, both in the United kingdom and in Australia, was outlined by Deane J in Thompson v Mastertough TV Service Pty Ltd (1978) 19 ALR 547, at 550 et seq. His Honour referred to the statutory exceptions in Australia to the common law principle. He said that it is a well‑established principle of construction that a statute is not to be taken as affecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words of point clearly and unambiguously to that conclusion.

The section under consideration in the Criminal Code is one of the few instances in Australia where a right of appeal against an acquittal is given to the prosecution. It is much wider than the right given by s 401(2) of the Tasmanian Criminal Code Act 1924 being one of the enactments considered by Deane J (at 555). There, the right of appeal against an acquittal must be on a question of law alone pursuant to leave granted or a certificate of the court of trial that it is a fit case for appeal.
The right of appeal given by s 688(2) against any verdict of acquittal on an indictment is limited by the section to a case where "such verdict has been found by direction of the Judge". The normal circumstance in which there would be a verdict of acquittal founded by a direction of the Judge is where a Judge at the conclusion of the prosecution case either on his own motion or on a submission by defence counsel of "no case" reaches the view that the evidence at law is insufficient to sustain a conviction and directs a jury to bring in a verdict of not guilty. Although this is normally done at the close of the case for the prosecution, there is authority that it may be done at a later time (see Archbold 2001 ed

para 4 ‑ 292). The use of the words "on law" in the subsection would indicate that the section contemplates a direction at law.

In the present case, I consider that his Honour's opening remarks set out in the reasons of Kennedy J do amount to a direction that at law there is not sufficient evidence on the counts concerned for the jury to convict. This is contained in the sentence, "It's my function now to sum up to you and I will say straightaway there is not sufficient evidence on counts 2 and 3 for you to convict the accused …". His Honour gave reasons as to why the evidence was unsatisfactory. He then said, "So I'm directing you that there is not sufficient evidence to convict the accused on counts 2 and 3 on the indictment". These sentences standing alone must amount to a direction at law that the only verdict which the jury can bring in is one of not guilty.
I do not consider that this is detracted from by a later observation of his Honour when he said, "You can bring in a verdict of guilty if you want to. That's your problem but I would suggest you might bring in a verdict of not guilty on counts 2 and 3". His Honour later said, "You can still bring in verdicts of guilty on counts 2 and 3 if you like but I am suggesting you don't, that's up to you".
I consider that, having regard to his Honour's earlier direction, no jury acting rationally would bring in a verdict of guilty. I consider therefore that the verdicts brought in by the jury were verdicts which had been found by direction of his Honour, and in these circumstances I consider an appeal by the prosecution is within the jurisdiction of the Court and is competent by reason of s 668(2).
WHEELER J: I agree with the reasons to be published by Kennedy J, and with the orders his Honour proposes.