R v Tsokos

[2005] NSWCCA 216

CITATION:	R v Tsokos [2005] NSWCCA 216
HEARING DATE(S):	7 June 2005
JUDGMENT DATE:	16 June 2005
JUDGMENT OF:	Studdert J at 1; James J at 39; Howie J at 40
DECISION:	Appeal dismissed.

CASES CITED:	Shepherd v The Queen (1990) 170 CLR 573
PARTIES:	Regina v Spiro Tsokos
FILE NUMBER(S):	CCA 2005/406
COUNSEL:	G. Rowling (Crown) G. Heathcote (Appellant)
SOLICITORS:	S. Kavanagh (Crown) J.P. Ryan (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1090
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ

2005/406

STUDDERT J
JAMES J
HOWIE J

Thursday 16 June 2005

REGINA v SPIRO TSOKOS

Judgment

1 STUDDERT J: The appellant, Spiro Tsokos, stood trial in May 2004 charged with supply of a prohibited drug at Chiswick on 18 December 2002. The drug was methylamphetamine, and the amount was 302.4 grams, that being an amount not less than the commercial quantity. The appellant was found guilty by the jury and sentenced to a term of imprisonment of five years, with a non parole period of two years nine months.

2 The appellant appeals against his conviction. There is no appeal against sentence.

3 Before addressing the grounds of appeal, I propose in brief to outline the evidence. After surveillance, police officers stopped a car in which the appellant was a front seat passenger and of which the alleged co-offender was the driver. A bag containing a clear plastic heat-sealed bag was found on the floor in the area of the front passenger’s seat, and this bag contained 302.4 grams of methylamphetamine. The appellant denied knowledge of the content of the bag. The car was owned by the alleged co-offender’s girlfriend.

4 The Crown case was that the appellant and the alleged co-offender were engaged in a joint criminal enterprise to supply the methylamphetamine to two men identified in the intercepted telephone conversations that took place between the alleged co-offender and those two men. Additionally, the Crown relied on the content of a number of intercepted conversations between the appellant and the alleged co-offender, particularly those occurring between 15 and 18 December 2002. There was also evidence of observations of the appellant and of the alleged co-offender in the time leading up to discovery of the drugs in the car.

5 The appellant gave evidence. He denied any involvement in the supply and denied any knowledge of the presence of the drug in the car. The driver of the car was, according to the appellant, a friend of some six years standing, to whom he had lent money and who was selling materials on commission for the appellant in a business in which the appellant was engaged. In relation to the intercepted telephone conversations to the extent that they involved the appellant, his case was that there was an innocent explanation for them. In particular, a telephone call of 15 December 2002 related not to drugs but to a legitimate transaction concerning the sale of mouldings.

6 At no time did the appellant make any admission of guilt, either prior to the trial or during the giving of his evidence. The alleged co-offender pleaded guilty to the supply charge, and evidence of that plea was before the jury at the appellant’s trial.

7 This brings me to the grounds of appeal, which are three in number.

Ground 1: The trial miscarried because his Honour erred when directing the jury as to circumstantial evidence, which resulted in his misdirecting the jury as to the onus and also as to the standard of proof

8 The focal point of the prosecution case was the proof of the appellant’s possession of the drug found in the car. The appellant denied being aware of the content of the bag before the car was searched and the Crown relied upon circumstantial evidence to prove the requisite knowledge in the appellant.

9 It is in this context that it is submitted that the trial judge misdirected the jury when instructing them about the inferences it might draw.

10 The particular instruction complained of appears on p 15 of the summing up:

“I remind you that you may not draw any inference from direct evidence unless it is the only rational inference in the circumstances.”

11 The appellant complains that that direction was given immediately after reference to submissions put on behalf of the appellant and after the jury was reminded of a submission advanced on the appellant’s behalf that the facts invited an inference that the co-offender was in sole possession of the drug.

12 Plainly, the direction complained of should not be considered in isolation, but in the context of all relevant instruction that the jury was given.

13 The jury was instructed early in the summing up (SU 4) that the burden of proof was upon the Crown:

“So here the onus falls upon the Crown to prove that the accused committed the offence. The accused does not have to prove anything. He certainly does not have to prove he is innocent at all times for the Crown to prove that the accused is guilty.”

14 Then, his Honour went on to instruct the jury about the significance of the fact that the appellant had given evidence and returned to the question of the onus of proof in this context (SU 4-5):

“I pointed out to you when the accused presented evidence…and when he went into evidence that because the accused provided evidence and provided material to you, that did not mean that the onus of proof shifted to the accused. The accused does not have to prove anything…”

15 Then, at SU 5, the judge instructed the jury on the concept of reasonable doubt, telling the jury “that the Crown has to prove the guilt of the accused beyond reasonable doubt”. His Honour then proceeded to identify the essential elements of the Crown case in terms which are not the subject of criticism in this Court, identifying such elements as elements which the Crown had to prove beyond reasonable doubt (SU 7-10).

16 One of the essential elements was correctly identified by the judge as being the matter of possession. As to this, the jury was given the following instructions (SU 9-10):

“I want to now dwell on the question of possession because the question of possession is probably the most important question that you have to ask yourself in this case. Are you satisfied beyond a reasonable doubt that the accused possessed the drug? Insofar as possession is concerned, the Crown must prove beyond a reasonable doubt that the accused intentionally had the substance in his physical custody, or in his control, to the exclusion of others except anyone who was acting in concert with him in the commission of the alleged offence. I will say it again. The Crown must prove beyond a reasonable doubt that the accused intentionally had the substance in his physical custody or control to the exclusion of others except anyone who was acting in concert with him in the commission of the offence. The Crown must also prove beyond reasonable doubt that in intentionally having such custody or control the accused did so with the knowledge or belief that the substance over which he had custody or control was a prohibited substance. That means the accused had to know that the substance was methylamphetamine. So, that is the first matter. The Crown has to prove beyond a reasonable doubt that the accused had the drugs in his possession.”

17 Then, his Honour (SU 10-11) identified as an issue whether the appellant jointly possessed the drug with the alleged co-offender. At SU 11:

“Did the accused jointly possess the methylamphetamine with the man Workman? So, how does the Crown seek to prove that? The Crown relies on inferences which it asks you to draw from the evidence in the case.”

18 His Honour proceeded to give instruction as to the meaning of inferences and as to the process of drawing inferences in daily life. Having done so, his Honour proceeded to give this instruction (SU 11):

“Now in a criminal trial you must be satisfied of the guilt of the accused beyond a reasonable doubt. Amongst other things, that means you should be extremely careful about drawing any inference.”

19 In the content of the instruction that followed, his Honour directed the jury (SU 13):

“In the context of a criminal trial where proof is required beyond a reasonable doubt, you may not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. In the present case, the Crown asks you to draw the inference that the accused acted in a joint criminal enterprise with Workman to supply drugs and that he had joint possession of the drugs found in the car. Mr Bellanto, for the accused, submits that on the evidence there are inferences you may draw different to the Crown; that the accused and Workman were involved in a legitimate commercial transaction involving a building product and did not involve drugs. Further, Mr Bellanto says you may draw the inference from the evidence that Workman was in sole possession of the drugs found in the car.”

20 His Honour then proceeded to give the jury instruction on the concept of joint criminal enterprise, and in the course of that instruction told the jury that the Crown asked it to draw an inference from evidence which he proceeded to review that the appellant was acting in a joint criminal enterprise with Workman.

21 It was in this context that the instruction complained of in this first ground of appeal was given (SU 14-15):

“I am now going to move on and say that the Crown asks you to draw an inference from the following evidence that the accused acted in a joint criminal enterprise with Workman to supply methylamphetamine and the accused had joint possession of methylamphetamine with Workman.
1. The Crown relies on the telephone calls between the accused and Workman being the calls of: 15 November 2002, 29 November 2002, 5 December 2002, 12 December 2002, the two calls on 15 December 2002, the call of 16 December 2002 and the three calls of 18 December 2002.
2. The Crown relies upon the calls between Workman and Adam: in the call of 7 December 2002, two calls of 12 December 2002, the call of 14 December 2002, the three calls of 15 December 2002 and the four calls of 18 December 2002.
3. The Crown relies upon the telephone call between Victor and Workman of 18 December.
4. The Crown relies on the evidence that on 18 December 2002 Workman left the accused’s premises with the accused at 3.31 pm in the car registered number UKJ 883.
5. The Crown relies upon the evidence that the car was stopped by police some twelve minutes later and the drugs the subject of the charge were found on the floor of the front passenger side of the car, the accused being the front passenger of the car.
Mr Bellanto on the other hand asks you to draw other inferences from the evidence. In particular he submits that you can also draw the inference from the evidence that the accused and Workman on 18 December 2002 and before that time were involved in a legitimate commercial enterprise to sell building mouldings to a purchaser who was to meet with the accused and Workman at a hotel at Chiswick at 3.30 pm on 18 December 2002. Further, Mr Bellanto submits, that you can draw an inference that Workman was in sole possession of that drug. I remind you that you may not draw any inference from direct evidence unless it is the only rational inference in the circumstances.”

22 On behalf of the appellant, it is submitted that the concluding sentence in the above instruction could have been treated by the jury as a misdirection on the onus of proof. It is submitted that what the judge said effectively amounted to a direction that the jury ought not to acquit unless the inference of innocence contended for by the appellant was the only rational inference in the circumstances.

23 As the earlier instruction to the jury made clear, it was the Crown that relied in part upon inference to prove its case and his Honour correctly reminded the jury in the context of the instruction on inferences of the need for the jury to be satisfied of the guilt of the appellant beyond reasonable doubt. The jury was instructed in the context of considering the Crown case on inferences that it must not draw an inference from the direct evidence unless that was the only rational inference in the circumstances. The jury was reminded of inferences suggested by Mr Bellanto to be possible inferences and the instruction alerted the jury not to draw any inference relied upon by the Crown unless it was the only rational inference. Hence, the jury would have understood from this instruction that unless the inferences raised by Mr Bellanto for their consideration were rejected as not being available rational inferences, then the Crown case would fail.

24 The Crown here contends that the reminder about inferences contained in the last sentence of the instruction complained of was a reminder directed at the Crown case.

25 Senior Counsel appearing for the appellant at the trial sought no redirection or further direction at the conclusion of the summing up and presumably viewed the instruction in context as being an instruction directed at the prosecution case.

26 Whilst the instruction set out in the concluding sentence recorded in para 21 above could have been more happily expressed, viewed in the context of all the instructions that the jury was given, it seems to me that the jury was sufficiently instructed as to the ambit of the burden of proof which the Crown carried that the words complained of occasioned no risk of the trial miscarrying. The jury had been told in plain language (para 14 above) that the appellant did not have to prove anything.

27 It was further submitted that the summing up was deficient because the judge failed to instruct the jury that it ought not to convict if there was any rational hypothesis or reasonable possibility consistent with innocence. Reliance was placed upon Shepherd v The Queen (1990) 170 CLR 573 and in particular upon the judgment of Dawson J at 578. Contrary to the thrust of the submission here advanced, his Honour did not, in the passage referred to, state that the direction, the absence of which is here complained of, must be given in every case involving circumstantial evidence. Dawson J was referring to the giving of a direction, where circumstantial evidence is relied upon, that guilt should not only be a rational inference, but that it should be the only rational inference that could be drawn from the circumstances. It was as to that direction that his Honour said:

“Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence.”

28 Shepherd is not authority for the submission advanced. The “rational hypothesis” direction was not sought at the trial and r 4 applies.

29 I do not consider it was encumbent upon the trial judge in this case to give an instruction in the terms here sought, as the directions given in the summing up made it sufficiently clear where the onus lay at all times.

30 In my opinion, there is no substance in Ground 1 and, indeed, absent any relevant complaint at the trial, I would refuse leave to pursue it.

Ground 2: His Honour erred when he described inferences which may be drawn by the jury as “justifiable” inferences or “valid” inferences

31 This ground arises by reason of the following instruction (SU 11):

“Now, in a criminal trial you must be satisfied of the guilt of the accused beyond a reasonable doubt. Amongst other things, that means you should be extremely careful about drawing any inference. You should examine any possible inference to ensure that it is a justifiable or valid inference.”

32 It was submitted that in giving instruction about “justifiable” or “valid” inferences, the judge gave instruction which was likely to mislead and confuse. However, once again the instruction complained of must be considered in context, and I have referred earlier, when considering Ground 1, to the further instruction about inferences which followed and which ended with the instruction in clear terms:

“In the context of a criminal trial, where proof is required beyond a reasonable doubt, you may not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.”

33 In my opinion, there is no substance in this ground. Rule 4 applies, and I would refuse leave to rely upon this ground.

Ground 3: His Honour erred when giving examples of inferences which he described as “justifiable” or “valid”

34 The instruction here complained of was given at SU 12:

“Let me give you another example where you may draw a valid inference, a justifiable inference, and one where you may not. Say you, in Sydney, ring a friend of yours who lives in Melbourne. You ring 03, the prefix for Melbourne, you speak to your friend at 9 o’clock in the morning. You’re sure it is your friend because you recognise your friend’s voice and you talk about subject matters which are common to both of you.
Say you are walking along Martin Place three hours later and you see your friend in Martin Place. Your friend has his suitcase and on the suitcase is a Qantas baggage label. You may draw a justifiable inference that your friend flew from Melbourne to Sydney. There is no other possible rational inference available. It takes longer to drive or cycle. It only takes an hour or so by plane, so you can draw the inference that your friend flew. But, you may not draw the inference that the person must have flown Qantas because you saw the tag on the bag. The person may have flown Virgin and taken the name tag off and kept the other name tag on because they had flown Qantas previously before or the person may have flown Virgin and at some later stage put a Qantas tag on the bag so that you could not draw the justifiable inference the person must have flown Qantas. You can be suspicious, but you cannot draw the justifiable inference insofar as a criminal trial that the person flew Qantas.”

35 It is submitted that in the illustration given his Honour erred in instructing the jury that there was no other possible rational inference available. It was submitted that there was, namely that the friend could have had his 03 prefix telephone number redirected to a Sydney or a mobile telephone number.

36 I do not consider there is any substance in this ground. Even if the illustration which his Honour was giving was inappropriate because there may have been some other inference available, this could not have caused the trial to miscarry. The illustration was only a means to instructing the jury as to the caution that had to be exercised in drawing an inference in the proof of the Crown case. If there was some other rational inference that could have arisen in the example the judge put before the jury, its existence did not bear upon whether it was legitimate in the present case for the jury to draw the inferences upon which the Crown relied.

37 Rule 4 applies in relation to ground 3, and, no objection to the instruction having been taken at the trial, I would also refuse leave to rely upon this ground.

38 For the reasons stated, I propose that this appeal should be dismissed.

39 JAMES J: I agree with Studdert J.

40 HOWIE J: I agree with Studdert J.

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