R v SH

[2014] NSWCCA 218

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v SH [2014] NSWCCA 218
Hearing dates:	8 September 2014
Decision date:	15 October 2014
Before:	Macfarlan JA at [1]; Fullerton J at [40]; Hamill J at [41]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - respondent found in possession of cardboard containing unascertained quantity of prohibited drug (lysergide) - charged with supply of not less than large commercial quantity of prohibited drug - weight of cardboard containing lysergide exceeded that required for large commercial quantity - whether evidence capable of establishing elements of offence when weight of lysergide not established - whether cardboard an "admixture" within s 4 of Drug Misuse and Trafficking Act 1985 (NSW) - "question of law alone" - question posed by ground of appeal does not arise - appeal dismissed CRIMINAL LAW - appeal under s 107 Crimes (Appeal and Review) Act 2001 (NSW) against directed acquittal - application by Crown during respondent's address for leave to amend ground of appeal - application refused - relevant considerations identified
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 107 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 25, 29, 43, Sch 1
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 Davern v Messel [1984] HCA 34; 155 CLR 21 Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 Green v The United States 355 US 184 (1957) HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Landsman v Director of Public Prosecutions [2013] NSWCA 369 OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v PL [2009] NSWCCA 256; 199 A Crim R 199 R v R2 (1990)19 NSWLR 513 Richards v Cornford (No 3) [2010] NSWCA 134 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 Williams v The Queen [1986] HCA 88; 161 CLR 278
Category:	Principal judgment
Parties:	Regina (Appellant) SH (Respondent)
Representation:	Counsel: N Williams (Appellant) G Bashir (Respondent) Solicitors: S Kavanagh, Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent)
File Number(s):	2013/43895
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2014-06-02 00:00:00 Before: Jeffreys DCJ File Number(s): 2013/43895

Judgment

1. MACFARLAN JA: This is an appeal by the Crown under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) against the acquittal of the respondent of an indictable offence. The acquittal followed the trial judge, in a trial by judge alone, directing himself to return a verdict of not guilty.

1. On 12 February 2013 SH, the present respondent, was found by police to be in possession of four pieces of cardboard, perforated into 696 squares. Thirty-two of the squares, weighing 0.29 grams, were found on analysis to contain lysergide which is a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) (see s 3 and Schedule 1) (the "Drug Act"). A government analyst, Ms Vanessa Shaw, was not able to determine the amount of lysergide contained in the cardboard. On the basis that the 32 squares which were analysed were selected at random, she issued a certificate under s 43 of the Drug Act certifying that the four pieces of cardboard perforated into 696 squares weighed 6.43 grams in total and contained lysergide.

1. Subsequently the respondent was charged on indictment with supply of lysergide in the amount of 6.43 grams, being an amount not less than the large commercial quantity for that drug (see Schedule 1 of the Drug Act). The indictment referred to s 29 of the Act which, subject to exceptions, deems possession of not less than the traffickable quantity of a drug to be possession for the purpose of supply.

1. Prior to his trial, the respondent sought from the trial judge, Jeffreys DCJ, an order quashing or staying the indictment on the basis that the evidence proposed to be called by the Crown was incapable of proving the elements of the offence with which he was charged.

1. Ms Shaw gave evidence at the hearing of the application, first, that the government laboratory at which she worked did not have the means to determine the amount of lysergide within the cardboard that she tested and, secondly, that the lysergide was embedded within "the paper fibres" of the cardboard (27/5/14, p 4; 28/5/14, p 8). When it was put to her in cross-examination that "if lysergide is sprayed onto a cardboard sheet it's not a mixture", she responded "I personally don't consider it a mixture".

1. In support of the indictment the Crown submitted that the effect of s 4 of the Drug Act was that the cardboard containing lysergide was itself an admixture of the prohibited drug and that the weight of the cardboard therefore determined whether the applicant was in possession of not less than the large commercial quantity of a prohibited drug. Section 4 is in the following terms:

"Admixtures

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug."

1. Section 3 of the Act contains a "definition" of the word "substance" which does not define its ambit but specifies certain matters intended to be included within it:

"substance includes preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers."

1. Jeffreys DCJ decided on the application that it was in the interests of justice for the trial of the respondent to proceed but stated that at the conclusion of the Crown case he intended to direct the jury to acquit. His Honour said:

"The Crown's position is that the evidence of the analyst is that normally, as she understands it, a liquid is either sprayed onto paper or cardboard and that liquid contains Lysergide. And then, because it is a liquid, it becomes, according to the analyst, embedded within paper. The analyst says that in her view the paper and liquid do not become a mixture, but that the liquid becomes embedded in the fibres of the paper.

When one considers the legislation, it seems to me that the only part of the legislation which assists the Crown case is that part of s 4 that reads 'substance containing any proportion of the prohibited drug'. It is quite clear that the Parliament was aware of discrete dosage units and it would be very easy in my view for the Parliament to have said that the weight of a substance such as Lysergide would include the medium, that is the cardboard or other piece of paper, upon which it was contained or in. I have been referred to the decision of the Court of Criminal Appeal in R v R2 19 NSWLR 513. In my view that is not of any particular assistance. I am told that there are no decisions in relation to the matter. It seems to me as a matter of statutory construction that it cannot be said that the prohibited drug which is within the cardboard square that the paper is contemplated within the legislation to be a substance containing any proportion of the prohibited drug [sic]."

1. On 29 May 2014 the trial proceeded before Jeffreys DCJ as a judge alone trial. At the conclusion of the Crown case, his Honour referred to his earlier judgment and said, relevantly:

"The evidence that has now been given is no more detailed in relation to weight than the evidence, which was before me at the time of the application.

Accordingly, in my view, there is no evidence that is capable of satisfying a tribunal of fact beyond reasonable doubt as to the amount of the lysergide as being in excess of .002 kilograms" (2/6/14, p 1).

1. His Honour accordingly directed himself to acquit the respondent, which he proceeded to do.

1. On 5 June 2014 the Director of Public Prosecutions filed in this Court a Notice of Appeal under s 107 of the Crimes (Appeal and Review) Act 2001. The appeal was stated to be on grounds "to be filed upon receipt of his Honour's reasons". Delay in transcription of his Honour's reasons should not however have prevented the Crown's identification of its ground or grounds of appeal within the period of 28 days after the acquittal specified by s 107(3) as the time within which an appeal is to be lodged. The Crown was represented when his Honour delivered his short judgment at the trial and when he had delivered his judgment of 28 May 2014 on the application to quash or stay the indictment. Its representatives should have notes of the oral judgments from which the ground or grounds of appeal could have been formulated.

1. The Crown subsequently identified the ground of appeal upon which it intended to rely by a document filed on 6 August 2014, stating the ground as follows:

"His Honour erred in finding that, in order to establish the element 'the amount of substance was not less than the large commercial quantity for that drug' no regard is to be 'had of the weight of any preparation, admixture, extract or other substance containing any proportion of the prohibited drug' as provided by s. 4 of the Drug Misuse and Trafficking Act 1985."

1. In its written submissions on appeal, the Crown reiterated that the ground of appeal was as quoted in [12] above but added:

"31. Underlying his Honour's determination in the present case were the following legal propositions:

(a) That the Crown was not able to establish the quantity element of the offence in circumstances where no assessment could be made of the lysergide alone;

(b) That the Crown was not able to establish the quantity element of the offence by relying on the combined weight of the drug and the perforated cardboard; and

(c) A conclusion that there was no evidence as to the weight of the drug being greater than any nominated quantity.

32. These are 'separate and distinct' legal propositions which his Honour applied to the facts in this case (PL at [72]). As such, they constitute errors giving rise to grounds of appeal involving questions of law alone."

1. It concluded its submissions with the following:

"45. The ultimate Crown submission is that there is no basis in fact or through process of reasoning, for a cardboard tab with embedded lysergide not to be considered an admixture ...

46. The Crown submits that the court would be satisfied that the essential element 'the amount of substance was not less than the large commercial quantity for that drug' has been established."

1. The respondent's written submissions on appeal included the following:

"6. There is no question of law alone formulated with precision by the Director: cf JS [R v JS [2007] NSWCCA 272; 175 A Crim R 108] at [75]. The 'ground' of appeal filed does not raise a question of law alone, and is, in any case contentious as the quotations attributed to his Honour are not to be found in his Honour's judgment entering a verdict of not guilty (or his earlier judgment declining to quash the indictment).

...

13. As stated above, the ground of appeal does not reflect the judgment of the primary judge. It is 'embarrassing' and the appeal should be refused as the jurisdiction of this Court under s107 [of the Crimes (Appeal and Review)] Act has not been invoked.

14. The respondent refutes the submission of the Director as to what are said to be the 'legal propositions' underlying the determination in the case, and in any case they are mixed questions of fact and law: AS [31]."

The Crown's application for leave to amend

1. After the Crown's address at the hearing of the appeal on 8 September 2014, and during the respondent's address, the Crown sought a half hour adjournment to enable it to consider whether it wished to seek leave to amend or supplement its ground of appeal. The adjournment application was granted and when the Court resumed the Crown sought leave to add or substitute the following ground of appeal:

"His Honour erred in his statutory construction of s 4 of the Drug Misuse and Trafficking Act 1985, in particular by not including cardboard (paper) as a substance containing any proportion of the prohibited drug in terms of s 4 of the Act".

1. The respondent opposed the application.

1. For the following reasons I consider that the Crown's application for leave to amend should be refused.

1. First, the Crown's existing ground of appeal was notified only well after the expiration of the period specified by s 107(3) of the Crimes (Appeal and Review) Act for the Crown to appeal (see [11] above). Whilst of itself only of limited importance, that is a factor that should nevertheless be taken into account.

1. Secondly, by his written submissions the respondent gave the Crown clear notice before the appeal hearing that he contended that the existing ground of appeal did not reflect the judgment of the trial judge and that the "legal propositions" referred to in paragraph [31] of the Crown's submissions were in fact mixed questions of fact and law (see [13] and [15] above). The Crown took no action in response and persisted in its address at the appeal hearing with its existing ground of appeal.

1. Thirdly, the Crown's application for leave to amend was not made at the outset of the appeal hearing, nor even during the Crown's address, but only in the course of the respondent's address. It was therefore by any standard exceedingly late and was made only shortly before the appeal hearing would otherwise have concluded.

1. Fourthly, the respondent would be prejudiced in terms of his ability to respond to the new ground of appeal unless the Court fixed a further hearing to occur at a later date. The respondent's counsel indicated in the course of argument on the amendment application that if the amendment were granted, she would not be in a position to respond immediately. That was not an unreasonable position to adopt as the submissions on appeal to that point had demonstrated that identifying the precise basis upon which his Honour directed the respondent's acquittal and therefore the appropriate formulation of any question of law which might form the foundation of the Crown's appeal was not a simple task. It would not have been appropriate simply to grant the respondent leave to lodge a written submission as this would have deprived him of the opportunity of having his counsel address the Court orally and respond to any questions it might have.

1. Fifthly, it is, for the following reasons, a relevant consideration that the Crown's appeal was one from an acquittal in criminal proceedings.

1. As Mason and Brennan JJ remarked in Williams v The Queen [1986] HCA 88; 161 CLR 278 at 301 in relation to a Tasmanian statutory provision relevantly comparable to s 107 of the Crimes (Appeal and Review) Act, the jurisdiction of the Court of Criminal Appeal to allow a Crown appeal against acquittal is of an exceptional character and constitutes an exception to the right of an accused person "to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction" (citing Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 at 413, as approved by the High Court in Davern v Messel [1984] HCA 34; 155 CLR 21). Whilst, as Gibbs CJ pointed out in Davern at 33, there may be a question as to when a hearing can properly be described as one "on the merits", that which took place before Jeffreys DCJ can in my view aptly be so described because the whole of the Crown case was led before the respondent was acquitted. In Davern at 55, Mason and Brennan JJ described the "main foundation" for the "Mastertouch principle" as "the rule against double jeopardy, though the principle may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings".

1. Likewise in R v PL [2009] NSWCCA 256; 199 A Crim R 199, Spigelman CJ (with the concurrence of McClellan CJ at CL and R A Hulme J) referred to s 107 as being a statutory provision "which overturns a fundamental principle of the criminal law", that is, the principle against double jeopardy (at [24]). His Honour considered this principle again in R v JW [2010] NSWCCA 49; 77 NSWLR 7. That decision was concerned with s 68A of the Crimes (Appeal and Review) Act which precludes the principle of double jeopardy being taken into account in Crown appeals against sentence. The section does not however apply to an appeal against acquittal such as that with which this case is concerned.

1. In JW at [56] and [57], his Honour cited observations of Black J in Green v The United States 355 US 184 (1957) at 187-188 (quoted in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [10]) as follows:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

1. In light of these authorities, the Court should be slow to afford any indulgence to the Crown which would have the effect of prolonging or expanding the Crown's appeal where the need for indulgence arises out of the Crown's failure to frame and pursue its appeal in a careful and timely fashion.

1. Sixthly, the proposed new ground of appeal does not clearly raise a relevant question of law. Contrary to the suggested ground (in its allegation of error in "not including" cardboard within s 4), it was not his Honour's role to include or exclude cardboard, paper or any other matter from the ambit of s 4 of the Drug Act. What may have been a relevant question of law on this topic, depending upon the view taken as to the basis of his Honour's decision, is whether cardboard containing an unascertained proportion of a prohibited drug listed in Schedule 1 to the Act embedded within its fibres is capable of being a "substance" within the meaning of s 4 of the Act. This would be a question of law because the question "can be stated and considered separately from the facts [in the case] with which it may be connected" (Williams at 287). To put it another way, a question of law would be raised because the inquiry is whether a postulated fact (possession of cardboard containing an unascertained proportion of a prohibited drug within its fibres) was necessarily outside the statute (Landsman v Director of Public Prosecutions [2013] NSWCA 369 at [22] citing Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; 79 NSWLR 606 at [47]).

1. Identification of a relevant question of law suffers from the difficulty that it is not entirely clear upon what basis the trial judge reached his decision. The respondent submitted that he determined that the cardboard in question was not a "substance" within the meaning of s 4 as distinct from determining that cardboard could never be that. Although I am inclined to a different view, the point is arguable.

1. Whether the cardboard with which the present case is concerned was in fact a "substance" within the ambit of s 4 would be a question of fact, or at least a question of mixed fact and law (Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395-7). The answer to that question would involve consideration, inter alia, of whether the cardboard in fact "contain[ed]" any lysergide (see s 4 of the Act) or whether, as the respondent submitted, consideration of the whole of the evidence of Ms Shaw demonstrated that that had not been proved to be the case.

1. It would also involve consideration of the respondent's argument that the Crown had not proved that the cardboard was any more than a container or other vehicle to facilitate use of the drug and that it was not therefore itself a "substance" within the meaning of s 4. In support of this submission, he contended there was no evidence before the trial judge that the cardboard squares were designed to be swallowed, the only relevant evidence on this topic ("Usually the tab is placed inside the mouth, either on or under the tongue") suggesting that they were not. The effect of the argument was that if the cardboard was simply intended to be put in the user's mouth until the lysergide was withdrawn and then to be discarded, the cardboard served no different function than a container or syringe from which the user extracted a drug.

1. Seventhly, the importance which the law attaches to the statement of charge against an accused person is relevant. There is an analogy between a statement of charge and the notice of appeal in this case. The respondent had been acquitted and the notice of appeal (as supplemented by the subsequently notified ground of appeal) constituted the Crown's identification of the reason or reasons why the respondent should be put on trial again. The respondent was in those circumstances entitled to have the ground or grounds of appeal identified with some precision and in a timely fashion (compare Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, particularly at [24]-[28]).

1. Eighthly, it is well-established that a party who exercises a right to appeal on a question of law (whatever be the precise statutory description of that right) must "identify with a degree of precision the decision with respect to a matter of law which is sought to be challenged on the appeal" (HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [104]; reversed on other grounds in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; see also Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [23]). The proposed new ground of appeal would not do this. Nor would the "legal propositions" as stated by the Crown in [31] of its written submissions (see [13] above) which, as the respondent submitted, were questions of mixed fact and law.

1. Ninthly, the principles applicable to applications for amendment in civil cases may be applied by way of analogy.

1. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], French CJ made the following observation in the context of an application for leave to amend a statement of claim in civil proceedings:

"[5] ... [b]oth the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system".

1. His Honour's comment concerning inefficiencies is as applicable to the need for a further appeal hearing as it is to the vacation or adjournment of trials. In the same case, the plurality observed at [100], by reference to authority, that "a judge is entitled to weigh in the balance the strain ... litigation imposes upon litigants". As Allsop P said in Richards v Cornford (No 3) [2010] NSWCA 134 at [42], "[t]he reality of the personal strain of litigation is now clearly recognised by the Courts". These observations are applicable a fortiori to an accused in criminal proceedings (or, as here, a respondent who has been acquitted but is at risk of retrial and conviction of a criminal offence).

1. In light of these factors and in the circumstances that I have identified, the Crown's application for leave to amend its ground of appeal should be refused. A grant of leave would require a further appeal hearing. The Crown has had ample opportunity properly to define and notify its case to the respondent. It has not done this, through no fault of the respondent who clearly and in a timely fashion drew the below-mentioned deficiencies in the Crown's appeal to its attention. As was found to be the case in R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 at [42], there would be an element of unfairness and oppression in allowing the Crown to change its case on appeal at this late stage. As with Mr Carroll, the present respondent "might be thought to be entitled to a modicum of stability in what is put against him by the Crown" (at [42]).

THE EXISTING GROUND OF APPEAL

1. This ground is set out in [12] above. It does not reflect any finding made by the trial judge. The trial judge did not, as the ground suggests, find that s 4 of the Act was inapplicable to the determination of the amount of a drug that is the subject of an offence. This would have been contrary to the clear language and intent of s 4. To the extent that there may have been a doubt as to whether s 4 applied in the case of a deemed supply under s 29, it was removed by the decision of this Court in R v R2 (1990) 19 NSWLR 513.

1. In these circumstances, the question posed by the ground of appeal must be answered "does not arise" because the trial judge did not make the finding that he allegedly erred in making. As a result, the appeal should be dismissed.

1. FULLERTON J: I agree with Macfarlan JA.

1. HAMILL J: I agree with Macfarlan JA.

**********

Decision last updated: 15 October 2014