R v Serkoshian - [2005] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SERKOSHIAN
Reasons for Decision of The Honourable Justice Besanko
27 January 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Application for leave to appeal against conviction - applicant jointly charged with two other men with taking part in the sale of cocaine - applicant found guilty before Judge and jury in the District Court - leave to appeal refused with respect to a ground alleging that the trial Judge erred in refusing to discharge the jury due to a prejudicial comment by the prosecutor that the applicant was 'a regular seller of cannabis' - leave to appeal refused with respect to a ground alleging that the trial Judge erred in refusing to order that the applicant be tried separately from the other accused - leave to appeal refused with respect to a ground alleging that the verdict of guilty was inconsistent with the jury's failure to find the co-accused guilty of a separate count of taking part in the sale of cocaine - leave to appeal refused with respect to a ground alleging that the trial Judge erred in directing the jury that it was sufficient if the accused contemplated that a sale of the drug was going to take place. Application refused.
Controlled Substances Act 1984 s 32(1)(d); Criminal Law Consolidation Act 1935 s 352(1), referred to.
R v Harbach (1973) 6 SASR 427; Re Avory: Question of Law Reserved (2003) 87 SASR 392; Director of Public Prosecutions Reference (No 2 of 1995) (SA) (1995) 65 SASR 508; Questions of Law Reserved on Acquittal (No 1 of 1996) (1997) 68 SASR 117, considered.

R v SERKOSHIAN
[2005] SASC 30
Criminal

BESANKO J This is an application for leave to appeal against conviction. The applicant is Max Serkoshian and he was charged on Information with two other men with offences against the Controlled Substances Act 1984 (“CSA”). The applicant was charged with three offences (ie., counts 3, 5 and 11 on the Information). The other men charged on the same Information were Andrew Nicholas Solomon and Matthew John Solomon.
The first two charges on the Information were charges against Matthew Solomon, and in each case it was alleged that he had taken part in the sale of cocaine, contrary to s 32(1)(d) of the CSA. The third charge on the Information was a charge against all three men and alleged that between 4^th June 2002 and 17^th June 2002 they had taken part in the sale of cannabis, contrary to s 32(1)(d) of the CSA. The applicant was found not guilty of this charge. The fourth charge was a charge against Matthew Solomon. The fifth charge was a charge against all three men and alleged that between 7^th July 2002 and 13^th July 2002 they had taken part in the sale of cannabis contrary to s 32(1)(d) of the CSA. The trial Judge directed the jury to bring in a verdict of acquittal in relation to this charge.
The sixth, seventh, eighth and ninth charges were charges against Matthew Solomon.
The tenth charge on the Information was a charge against Matthew Solomon and the eleventh charge was a charge against the applicant. Both these charges alleged an offence of taking part in the sale of cocaine contrary to s 32(1)(d) of the CSA. There was a common substratum of fact for the two charges. In relation to the two charges, it was alleged by the prosecution that the applicant was intending to sell a quantity of cocaine to Matthew Solomon who was then intending to sell the cocaine to a person called “Mary”. The police carried out a raid on a hotel room on 6^th October 2002. Matthew Solomon and the applicant were in the room at the time of the raid and a quantity of cocaine was located in the room. There was evidence before the jury that the value of the cocaine located in the hotel room was in the order of $13,000.00. A sum of money was also found in the hotel room, but it seems that it was accepted by the prosecution that this sum of money did not relate to the transaction which the prosecution said was about to take place on 6^th October 2002, namely, the sale of cocaine from the applicant to Matthew Solomon.
The prosecution case against the applicant and indeed the other two men included a number of telephone conversations which had been intercepted and their contents recorded.
The jury failed to reach a verdict on the tenth charge, namely the charge against Matthew Solomon of taking part in the sale of cocaine. The jury reached a verdict of guilty on the eleventh charge, namely, the charge against the applicant of taking part in the sale of cocaine.
The applicant seeks leave to appeal in relation to the conviction on the eleventh charge. He seeks leave with respect to the following grounds of appeal:
“1.The learned trial Judge erred in refusing to discharge the jury due to the prejudicial comment by the prosecutor in her opening address that the applicant was ‘a regular seller of cannabis’.
2.The learned trial Judge erred in refusing to order that the applicant be tried separately from the other accused.
3.The verdict of guilty should be set aside as being inconsistent with the jury’s failure to find Matthew Solomon guilty of count 10.
4.The learned trial Judge erred in directing the jury that it was sufficient if the accused contemplated that a sale (of the drug) was going to take place. (An ongoing process of sale was required.)”
The question for me on this application for leave to appeal is whether any of these grounds are reasonably arguable.
I should mention that the applicant submits that ground 4 raises a question of law, and therefore leave to appeal is not required (s 352(1) Criminal Law Consolidation Act 1935). Nevertheless, he seeks leave out of an abundance of caution. Although I heard no detailed argument on the point, I think ground 4 raises a question of mixed fact and law and therefore leave to appeal is required. An appeal is of right only in relation to a ground that involves a question of law alone.
Ground 1 (the prosecutor’s comment)
In the course of her opening, the prosecutor made the following comments to the jury:
“The prosecution contends that Mr Serkoshian was a regular seller of cannabis and that between the dates specified on the information, Andrew or Matthew Solomon took steps to gather cannabis and packaging materials with a view to assisting them to obtain cannabis that he would transport and sell interstate.”
The applicant submits that there was no evidence that he was a regular seller of cannabis, and that these comments by the prosecutor in her opening address to the jury were highly prejudicial to him.
The Director of Public Prosecutions (“the Director”) submits that this ground of appeal is not reasonably arguable because the comments by the prosecutor could not possibly have given rise to a miscarriage of justice.
I do not think the comments by the prosecutor gave rise to a risk of a miscarriage of justice, and I refuse leave to appeal in relation to ground 1. The statement made by the prosecutor referred to the applicant as a regular seller of cannabis whereas the charge upon which he was convicted (count 11) related to cocaine. The applicant was acquitted of the third charge which did relate to cannabis and an acquittal was directed in relation to the fifth charge which also related to cannabis. The comments by the prosecutor were made in her opening, and a number of weeks elapsed before the jury retired to consider its verdicts. Furthermore, during her closing address, the prosecutor said:
“You might remember I said in my opening address I said that it was alleged that Max Serkoshian was a regular seller of cannabis. I want to take you to the specific evidence that the prosecution relies on in support of that proposition. It’s the evidence that you need to have regard to and not my statement that he was a regular seller of cannabis.”
Counsel for each of the three men made the point during the course of their respective closing addresses that there was no evidence to support the suggestion that the applicant was a regular seller of cannabis. In particular, I refer to the submissions made by the applicant’s counsel (transcript pages 1219 – 1220).
Finally, I note that the trial Judge said this during the course of his directions to the jury:
“I direct you, because there has been some debate about this in addresses, that in considering count three there is really no satisfactory evidence that Max is a person who is a regular seller of cannabis. What you will rely upon are the objective facts presented on this count to prove that Max Serkoshian was coming down from interstate, was meeting at this hotel for the purposes of obtaining cannabis and on-selling it.”
In those circumstances, I do not think the comments made by the prosecutor in her opening address to the jury could have led to a miscarriage of justice and I do not think ground 1 is reasonably arguable.
Ground 2 (separate trials)
The applicant submits that the trial Judge should have ordered that he be tried separately from the other men. He does not submit that this was not an appropriate case for joinder of the various charges, but rather submits that in the exercise of his discretion, the trial Judge should have ordered separate trials. As I understand it, the applicant submits that there was a large amount of evidence showing Matthew Solomon’s involvement with drugs which was not admissible against him. Nevertheless, there was a risk (so it was said) that the jury would use the evidence against Matthew Solomon coupled with the evidence of the applicant’s association with Matthew Solomon in an impermissible way against the applicant.
The Court of Criminal Appeal will only interfere with the exercise of a discretion against separate trials if there has been a miscarriage of justice or improper prejudice has been created against an accused (R v Harbach (1973) 6 SASR 427 per Bray CJ, Mitchell and Sangster JJ at 433).
The Director submits that in the course of one telephone conversation, which was relevant in relation to the eleventh charge and admissible against the applicant, there was reference to the term “games”. It was the prosecution case that this was a reference to cocaine. It was the prosecution case that this term was not generally used, but may be used by particular syndicates. The Director submits that even if there had been separate trials, the prosecution would have led, and would have been permitted to lead, evidence of some of the other telephone conversations in order to explain what the participants to the relevant telephone conversation meant by the word “games”.
I did not understand the Director’s submission to be challenged and I accept it. Having regard to what an appellant must show before the Court of Criminal Appeal will interfere with the exercise of a discretion against separate trials, I am not satisfied that this ground of appeal is reasonably arguable.
Ground 3 (inconsistent decisions by the jury)
As I have said, the prosecution case in relation to the eleventh charge was that the applicant was intending to sell a quantity of cocaine to Matthew Solomon. The prosecution case in relation to the tenth charge was that Matthew Solomon was intending to sell the quantity of cocaine which he obtained from the applicant to a person called “Mary”.
The applicant accepts that in theory these are two different transactions, but argues that having regard to the evidence, it was inconsistent for the jury to find the applicant guilty on the eleventh charge, and yet be unable to reach a verdict against Mr Matthew Solomon on the tenth charge.
I do not think that this ground of appeal is reasonably arguable. The two transactions are separate transactions, and as I understand it, at trial, both counsel for the applicant and counsel for Matthew Solomon acknowledged that the jury might find sale proved in relation to one transaction but not in relation to the other transaction.
Ground 4 (trial Judge’s directions on requirements for sale deficient)
The relevant passage in the trial Judge’s directions to the jury is set out on pages six and seven of the trial Judge’s directions to the jury.
As I understand it, the applicant submits that while the trial Judge emphasised the fact that the applicant must have contemplated a sale taking place and that it is not necessary that an actual sale be completed, he failed to direct the jury that it was necessary that they be satisfied that the applicant took part in the process of sale. The applicant refers to the decision of the Court of Criminal Appeal in Re Avory: Question of Law Reserved (2003) 87 SASR 392 and in particular the reasons for judgment of Perry J at [93] and [94].
I note that after referring to two decisions of the Court of Criminal Appeal in Director of Public Prosecutions Reference (No 2 of 1995) (SA) (1995) 65 SASR 508 and Questions of Law Reserved on Acquittal (No 1 of 1996) (1997) 68 SASR 117, Perry J said (at [58])):
“Pausing there, it seems to me that in both the 1995 reference and the 1996 reference the conclusion that the accused was participating in a sale for the purposes of s 32 was predicated upon proof of facts capable of sustaining the inference that the relevant conduct occurred in the course of a sale which was under way, or in the course of an existing trading operation directed towards effecting a sale or sales.”
Counsel for the applicant told me that the presence of Matthew Solomon and the applicant in the hotel room on 6^th October 2002 and the location of a quantity of cocaine in the hotel room were not disputed at trial. The question for the jury was whether the applicant was taking part in a sale of the cocaine by him to Matthew Solomon.
I think that there are two answers to the applicant’s submission. First, the trial Judge does in fact refer to steps taken in the process of the sale in the relevant passages in his directions to the jury. Secondly, having regard to the way in which the prosecution presented its case, and having regard to the facts before the jury which were not disputed, I do not think that it can be argued that the process of sale (assuming that the jury found that it was a sale) was not underway. In other words, even assuming for the moment that there was a deficiency in the directions given to the jury by the trial Judge, I do not think that in the circumstances there was a risk that that has given rise to a miscarriage of justice. I do not think that this ground of appeal is reasonably arguable.
Conclusions
Although at this stage the applicant need do no more than establish that a ground of appeal is reasonably arguable, I am not satisfied that any of the grounds of appeal advanced by the applicant are reasonably arguable. I dismiss the application for leave to appeal.