R v Thomson; R v Dann

[2002] NSWCCA 400

Reported Decision: (2002) 134 A Crim R 252

New South Wales

Court of Criminal Appeal

CITATION:	R v Thomson; R v Dann [2002] NSWCCA 400
FILE NUMBER(S):	CCA 60335/02; 60336/02
HEARING DATE(S):	31 July 2002
JUDGMENT DATE:	30 September 2002
PARTIES :	The Crown (Appellant) James Anthony Thomson (Respondent) The Crown (Appellant) Brian Frederick Dann (Respondent)
JUDGMENT OF:	Santow JA at 1; Hidden J at 38; Adams J at 39

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/1263
LOWER COURT JUDICIAL OFFICER :	Shadbolt DJC

COUNSEL :	E Wilkins (Crown/Appellant) A Lucas (Respondents)
SOLICITORS:	S E O'Connor (solicitor for Public Prosecutions) (Crown/Appellant) The Law Practice (Respondents)
CATCHWORDS:	CRIMINAL LAW PRACTICE AND PROCEDURE - mutually exclusive counts in indictment - whether court should have ordered that the counts in the indictment be severed
LEGISLATION CITED:	Criminal Procedure Act 1986 (NSW) s64(2)(a)
CASES CITED:	R v Bellman (1989) 1 AC 836 R v Collins (1996) 1 Qd R 631 R v Healy (1995) 15 WAR 104 Regina v Paul Maharaj (NSWCCA, 14 December 1995, unreported)
DECISION:	(1) The order made by His Honour Judge Shadbolt on 22 May 2002, that the counts in the indictment be severed, be set aside; (2) No order as to costs.

CA 60335/02
CA 60336/02

SANTOW JA
HIDDEN J
ADAMS J

30 SEPTEMBER 2002

Regina -v- James Anthony THOMSON

Regina -v- Brian Frederick DANN

Judgment

1 SANTOW JA:

INTRODUCTION
This is an appeal of the Director of Public Prosecutions on behalf of the Crown, from an interlocutory application by Notice of Motion heard on 22 May 2002 and decided that day by Shadbolt DCJ. The appeal is from the Trial Judge’s decision to order the severance of the indictments against the Respondents/Defendants, Brian Frederick Dann and James Anthony Thomson.

MATERIAL FACTS

2 The two Respondents were charged by indictment, with two counts being expressed to be in the alternative. The first count is that “on 24 April 2001, at Sylvania in the State of New South Wales, [the Respondents] did supply a prohibited drug, namely Heroin.” The second count, in the alternative, is that “between 24 April and 5 September 2001, at Sydney in the State of New South Wales [the Respondents] did falsely represent that a quantity of heroin seized by police at 356 Princess Highway, Sylvania was theirs with the intent thereby to pervert the course of justice.”

3 It will be appreciated that the counts are contradictory, in the sense that the same facts are capable of supporting two alternative and mutually exclusive hypotheses. The first is that the Respondents supplied the heroin themselves. The second is that they did not supply the heroin, but made false confessions to having done so, with intent to pervert the course of justice. The evidence to be presented by the Crown is common to both counts. The Respondents had earlier each confessed to the joint possession of 13 grams of heroin, although the analysis revealed the weight of the drug to be 14 grams.

4 According to the Respondents’ Notice of Motion to sever, in the Local Court at the Downing Centre, the accused were committed for trial on a single count of “supply prohibited drug contrary to ss25(1) and 29 of the Drug Misuse and Trafficking Act, 1985”, the drug involved being heroin, the total weight of which was 14 grams with a purity of 17.5% (see paras 2 and 3 of the affidavit of the accuseds’ solicitor dated 17 May 2002).

5 It should be noted that this quantity of heroin, being in excess of 13 grams, is sufficient to constitute a “deemed supply” of the drug pursuant to those sections 25(1) and 29 of the Drug Misuse and Trafficking Act, 1985 (NSW). The Respondents have pleaded not guilty to the supply count. Transcript of the argument on the application for severance records that the Respondents’ Counsel advised the Trial Judge that none of the evidence in the Crown case was in dispute, but that the question of what inferences should be drawn from that evidence was in dispute; see transcript of argument 13.35-.39.

6 The Respondents had confessed to the ownership of 13 grams of heroin found stored in the kitchen cupboards at the home occupied by Mr Kaldon Karout, as well as a number of syringes and a Smith and Wesson gun. On 25 April 2001 the police arrested Mr Karout who denied all knowledge of the drugs and told police that he knew of the name of the owner of the drugs and he would come forward later with the name.

7 Some four months later, on 31 August 2001, the two Respondents attended Hurstville Police Station where they admitted ownership of the drugs and were arrested. They handed to police affidavits attesting to their version of events. Essentially they contended that they purchased 13 grams of heroin together. While they were working on Mr Karout’s property, they state that Mr Thomson went to the kitchen, weighed the drugs and took some drugs for use when Mr Karout unexpectedly returned home. Their accounts are that Mr Thomson then stashed the drugs in a cupboard and did not have an opportunity to retrieve them later. The Respondents contended that they had left the syringes in the kitchen a few days earlier. The remaining facts, not controversial for present purposes, and not such as to require further elaboration, are to be found in the Appellant’s written submissions of 29 July 2002. I turn now to what ensued in Court before the Trial Judge.

The first instance judgment under appeal.

8 The two accused had in the first instance moved the court to sever the indictment before Armitage DCJ. He declined to make such an order. The identical application was then made before Shadbolt DCJ who did make the order to sever the indictment.

9 After reciting the circumstances said to give rise to the application, the Trial Judge noted a number of discrepancies in the confessions and affidavits of the two accused. First there was the type of heroin purchased (Mr Thomson identified it as “rocky, powdery stuff” and Mr Dann as “a.block”, the police in fact finding powder). Then he notes that they contend that they purchased 13 grams and used some, but police found 14 grams. He notes that the story does not account for the price of heroin at the time and that there was no explanation for hiding it in a cupboard, when Mr Thomson could have placed it in his pocket. Finally, one of the accused, Mr Dann, said that he had prepared his affidavit himself whereas the other, Mr Thomson, said a lawyer prepared his for him. According to the Trial Judge, the two affidavits bore a remarkable similarity.

10 The Trial Judge concludes, “but overall, the fact that these two men would walk off the street into a police station and confess to a serious crime four months after the event when they were not under any suspicion of having committed it, after having spoken to the person on whom the suspicion would naturally fall [Mr Karout], would present to even the most ingenuous, a feeling of unease.”; AB, 45.

11 The Trial Judge noted that the Crown had highlighted the inconsistencies in the confession which could raise grave doubts as to their truth. Yet “the Crown would nonetheless advance the proposition to the jury that they should find on the first count beyond a reasonable doubt, that both of them did supply a prohibited drug, namely heroin.”; AB, 45-6.

12 It is evident that the Trial Judge in relation to the first count, based as it was on confessions of which there must be doubt, found it incongruous that the Crown would still advance it even as an alternative count. This was moreover when, according to the Trial Judge, the second count, “was in fact a more tenable position to take” insofar as it suggested that “they were ‘fall guys’ or that they were ‘taking the rap’ for someone else … .“

13 The essence of the Trial Judge’s reasoning, relied on to justify severance, is contained in the following paragraphs:

“These are not true alternatives and they raise two very significant problems. One of them is prosecutorial and one of them is a matter related to the burden and the standard of proof.

It was not, I thought, proper for a Crown to advance to a jury evidence in which the Crown has no faith and has evidence to the contrary of the truth of the evidence which it presents. Nevertheless, that would be done in this case. Although the Crown may have no faith in the evidence and although there may be patent and clear evidence that these confessions were concocted for ulterior motives, nonetheless the Crown would wish the jury to determine that matter beyond a reasonable doubt. But that is a prosecutorial matter. It is the propriety of doing that kind of thing.

What concerns me more is the fact that the jury would be required to consider whether or not it is satisfied beyond reasonable doubt that these two accused, by their confessions, supplied a prohibited drug, namely heroin.

The jury might well acquit on the first count because, like the Crown, it could not be satisfied of the truth of the confessions and therefore could not be satisfied overall on the Crown case beyond a reasonable doubt.

But that is not to say as a matter of objective fact, the confessions are false.

It would be easy for a jury however, well aware of the concept that a verdict of guilt transforms the Crown case into objective truth, erroneously to believe that an acquittal transforms the defence case into innocence or in this case, the absolute falsity of the confessions which form the basis of the acquittals.

In short, it is so easy as to be inevitable that the jury would convert its lack of belief in the truth of the confessions so that it is not satisfied beyond reasonable doubt, into objective falsity when it comes to consider the second count. Therein lies the difficulty.

I consider juries are entitled to have cases put to them that do not require this kind of logical contortion and what I intend to do is to order that the Crown sever the two counts on the indictment. Which one they intend to proceed on first is a matter, of course entirely for the Crown. The only order that I make is that the counts on the indictment should be severed.”


Contentions on appeal.

14 It is clear that the Trial Judge did not have cited to him any of the decisions which have permitted what is described as “the exceptional course” of permitting a prosecution to prefer an indictment containing counts that are contradictory. This can only be where, at the close of the prosecution’s case, there remains a prima facie case in relation to each of these counts. Thus there was no citation of the important House of Lord’s decision in R v Bellman (1989) 1 AC 836 at 851, followed in Western Australian (R v Healy (1995) 15 WAR 104 at 110) and in Queensland (R v Collins (1996) 1 Qd R 631 at 637). Nor was reference made to cases which accepted the possibility of that course, such as Regina v Paul Maharaj (NSWCCA, 14 December 1995, unreported). The latter, in the majority judgment, clearly allowed of the possibility of contradictory counts co-existing, citing Bellman, though not in the circumstances of that case. There are no statutory provisions in those States which compel a different result from New South Wales.

15 The principal judgment, of Lord Griffiths, cites both general and specific examples of contradictory counts being preferred in an indictment. He points to the longstanding and accepted practice of charging counts of larceny and receiving as alternatives (at 849). Lord Griffiths concludes in the following terms:

“My Lords, for these reasons I find no support in law for the submission that mutually contradictory counts can never be joined in one indictment. I can find no overriding reason why justice requires there should be such a rule nor was it suggested that Bellman suffered injustice in the present case. As I have endeavoured to point out, there will be rare occasions when I think justice positively requires there should be such a joinder.”
“…I would answer the certified question by saying that there is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts and that if, at the end of the prosecution case, the evidence establishes a prima facie case on both counts, the matter should be left to the jury to determine the question of guilt, and the prosecution should not be put to their election upon which count to proceed.” (at 851)

16 Bellman is cited as authority for this proposition in England in the 2002 edition of Archbold, “Criminal Pleading, Evidence and Practice” (Sweet and Maxwell, London, 2002), P J Richardson (ed), at Chapter 1, para 113(a)). It can be taken to be the accepted law in that country.

17 Turning to the Australian cases which follow Bellman, in R v Collins (supra), offences of arson, breaking, entering and stealing and an alternative count of receiving stolen property were joined in the one indictment. The charges related to the one set of circumstances. The relevant issue in that case was whether the “receiving” count was properly joined as an alternative to the “break, enter and steal” count. The Court held that it was and concluded (at 637):

“The mere fact that the counts are mutually exclusive in the sense that they are based on contradictory explanations as to the circumstances surrounding the offences is not to the point: R v Bellman . It is the existence of some common link between them that justifies the joinder.”

18 In R v Healy (supra) the appellant was convicted of attempting to pervert the course of justice. The offence arose out of charges against the late Mr Laurie Connell arising from allegations of race fixing. The appellant, pretending to be a police officer, told Mr Connell in effect that he could get rid of the witnesses against him by various means. Mr Connell’s evidence was that the appellant was attempting to extort money from him by deceit. In a record of interview with police, the appellant said he was acting on the instructions of Mr Connell. The Crown presented alternative charges against the appellant of attempt to defraud and attempt to pervert the course of justice. Most of the argument on the issue of the joinder of counts related to issues of admissibility of evidence. However, the appeal Court accepted (at 110), in the course of dismissing the appeal, the principle that:

“The fact that the two counts were mutual exclusive does not in itself render their joinder improper. See eg, R v Bellman (1989) AC 836.”

19 In the present case, the Trial Judge gave no express consideration as to whether a suitable direction might remove the risk of the jury misunderstanding the effect of an acquittal on the first count nor (it can be taken) was he referred to any of this authority.

20 There are thus two questions to be determined on this appeal:

(a) In light of the authorities earlier cited, is there any rule of law that prevents the inclusion in one indictment of mutually exclusive counts,

(b) If no, was the decision of the Trial Judge nonetheless justified as an exercise of discretion, or was that exercise, carried out without reference to relevant principle, such as should be corrected?

21 Bellman and the authorities to which I have earlier made reference, make clear that it is rare for the prosecution to prefer an indictment containing counts that are contradictory. Nonetheless, where, at the end of the prosecution’s case, the evidence is sufficient to support a prima facie case on either of the two alternative hypotheses reflected in the contradictory counts, then the Court has a discretion whether or not to require severance. It may permit the tribunal of fact, whether jury or judge alone, to say “on their assessment of the witnesses and the inferences that they are prepared to draw from the evidence as a whole whether they are sure that either hypothesis is correct”; Bellman at 849.

22 The House of Lords Bellman was first answering a question on a certified point of law. But in doing so, it went on to uphold the conviction of Mr Bellman, so providing guidance as to the discretionary aspect as well. The certified question, answered in the affirmative, was whether “it was proper when an indictment contained mutually exclusive counts for both counts to be left to the jury for them to decide which, if either, count had been proven, or should the prosecution be obliged to elect during the course of the trial upon which count they wished to proceed.”

23 Lord Griffiths gave the leading judgment. He rejected the submission that contradictory counts can never be properly joined in the same indictment. He made clear that the exceptions to that proposition advanced by the defendant were not exhaustive of the circumstances, admittedly rare, where such contradictory accounts could, and indeed should, be allowed. Counsel for the defendant had pressed in argument that the exceptions were confined essentially to cases where, under common law, the charges included two cognate offences of the same character, in descending order of gravity. In that confined case, the jury could be left to elect to choose between the two charges. Counsel submitted that this necessarily required that the counts be underpinned by a common factual matrix and have a generic similarity. There also had to be a real possibility, not a fanciful one, that the evidence might support one rather than the other. The other conceded exception was the case of dual counts where the first constituted theft (or an offence with that element) and the second, in the alternative, dishonest handling. There the common factual substratum was evidence of recent possession of stolen property.

24 Lord Griffiths rejected this attempt so to confine the permissible category of mutually exclusive counts.

25 Thus in Bellman itself, the primary case for the Crown at trial was that the defendant had obtained sums of money from various individuals by means of false pretences. These were that the money would be used to buy drugs in the United States which would then be smuggled into the United Kingdom and sold at a vast profit. The Crown’s alternative count was that, if the defendant had not been deceiving those individuals and had in fact been intending to buy drugs in the United States, the defendant had conspired with others to evade the prohibition on the importation of controlled drugs. Lord Griffiths was of the view that at the conclusion of the Prosecutor’s case, the evidence was capable of supporting either view of the facts. Hence it was appropriate in that case for the jury to determine where the truth lay.

26 In pointing out the rarity of such cases, Lord Griffiths emphasised that in practice “the very fact that offences are being charged in the alternative obviously weakens the prosecution case and enables the defence to invite the jury to say that as the prosecution cannot make their minds up which crime the accused committed they, the jury, cannot be sure of his guilt”; at 847.

27 The criterion which Lord Griffiths adopted is whether “justice requires that an accused should face mutually contradictory counts”; at 847. He illustrated that in the hypothetical circumstance of a drug peddler, seen handing over a packet of white powder to an addict and receiving a sum for it. The addict disposes of the packet so that its contents are lost and cannot be analysed. On the assumption that there was no positive evidence of an analysis for the drug, Lord Griffiths saw no injustice in requiring the accused in that example to face the alternative counts of supplying a controlled drug and obtaining money by deception. He concluded that there was no prejudice or embarrassment to the defence by reason of the inclusion of both counts in the same indictment.

28 Under s64(2)(a) of the Criminal Procedure Act 1986 (NSW) there are safeguards. Thus the court’s discretion is enlivened to order a separate trial on any count or counts if of the opinion “that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment”. The alternative discretionary basis for ordering a separate trial is even broader. That basis is “that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment”.

29 That, with respect, the Trial Judge appears not to have fully appreciated the availability or scope of the discretion he undoubtedly had, and the basis of principle for exercising it, points to the likelihood of error in dealing with the second, discretionary question. But it does not foreclose that question in favour the Appellant. The question is still whether, in the circumstances, justice required that the accused should face the mutually contradictory accounts. That must take into account the kind of direction which the Appellant contends would have overcome what the Trial Judge called, “this kind of logical contortion” in the earlier quoted passage.

30 The Appellant correctly states that it is a relatively simple matter to instruct a jury that if they be not satisfied beyond reasonable doubt of the guilt of either Respondent on the “supply” count (the first of the two counts) this does not inevitably mean that they would be satisfied beyond reasonable doubt that either Respondent is guilty on the alternative “pervert the cause of justice” count.

31 The jury would be clearly directed that it is open to them to find each Respondent not guilty on both counts. Further, that they had a duty to do so if they were not satisfied of guilt beyond reasonable doubt on both the main “supply” count and on the alternative “pervert the cause of justice” count. The Trial Judge would no doubt illustrate this direction by telling the jury that if they believe in each case that the confession might be true, but are not satisfied beyond reasonable doubt that it is, they must acquit each Respondent on the “supply” count. This of course would also necessitate an acquittal on the alternative “pervert the course of justice” count. This is because, in these circumstances, the jury could not be satisfied beyond reasonable doubt that the confession was false, though equally not satisfied beyond reasonable doubt that it was true. It is to underestimate the capacity of a jury, properly instructed, to assume that a jury would erroneously believe that an acquittal on the first count must mean that the confessions had to be treated as absolutely false; that is precisely what proper directions should avoid.

32 The Trial Judge thus, with respect, fell into appealable error where he concluded, without considering either the Bellman principle or the possibility of directions that, “it is so easy as to be inevitable that the jury would convert its lack of belief in the truth of the confessions so that it is not satisfied beyond reasonable doubt, into objective falsity when it comes to consider the second count.” However, it is not apparent at this stage of the case that there is such inevitable unfairness or prejudice to the Respondents from retaining both counts, being unfairness or prejudice which not even appropriate directions of the kind described could avoid.

33 I have expressed the position in these terms, mindful that there is a further safeguard. It is only at the close of the Prosecution’s case that the determination of whether to sever should be made. By then it should be apparent whether or not there is a prima facie case in relation to both counts. There are clear dangers in determining that question prematurely.

34 The respondent attempted to distinguish Bellman. This was on the basis that while the facts themselves in that case, may have led to a different conclusion, the facts themselves would not have changed, depending on which count succeeds. Whereas, it is said that in the present case the facts would change depending on which charge succeeds. But that distinction presupposes that the facts in Bellman were not similarly subject to being held to differ, depending on which charge succeeded. In truth they would differ, depending on the charge which succeeded, or whether both failed. There the facts dependant on determination were whether those who supplied money to the defendant drug dealer knew, or did not know, the drug smuggling purpose. The quality of the defendants’ acts would vary accordingly. So too here. The requirement is rather that the two charges depend on a common substratum of facts substantially similar, but not necessarily identical.

Summing up

35 Bellman is persuasive authority for the proposition, followed in Australia, that there is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts, so long as:

(i) the evidence establishes a prima face case on both counts at the conclusion of the prosecution case;

(ii) the evidence in relation to each count is substantially similar, though not necessarily identical;

(iii) a direction can be made which sufficiently removes the risk that the jury will fail to understand the implications of an acquittal on the first count for the second count.

36 It cannot be said at this point that the present case is incapable of satisfying those requirements. That will be capable of determination only at the conclusion of the prosecution case. Meantime severance of the two counts should not be required.

CONCLUSION AND ORDERS

37 I would conclude that the Appellant succeeds in its appeal. I propose the following orders:

(1) The order made by His Honour Judge Shadbolt on 22 May 2002, that the counts in the indictment be severed, be set aside.

(2) No order as to costs.

38 HIDDEN JA: I agree. I must say that I find Judge Shadbolt’s concern about the course proposed by the Crown entirely understandable. However, it is a course sanctioned by authority to which His Honour was not referred.

39 ADAMS JA: I agree.

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