Re the State of Western Australia
[2005] WASCA 189
•21 SEPTEMBER 2005
RE THE STATE OF WESTERN AUSTRALIA; EX PARTE OSMAN [2005] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:120/2005 | 21 SEPTEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA | 21/09/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | ABDUL MAJID OSMAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Application for extension of time to appeal Possessing methylamphetamine with intent to sell or supply Application for leave to appeal against conviction Whether errors in Judge's summing up Whether reasonable prospect of succeeding Determination by single Judge of Appeal |
Legislation: | Criminal Appeals Act 2004 (WA), s 27 Supreme Court (Court of Appeal) Rules 2005 (WA), r 43 |
Case References: | Cranssen v The King (1936) 55 CLR 509 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 R v Tait (1979) 24 ALR 473 Domican v The Queen (1992) 173 CLR 555 Griffiths v The Queen (1994) 69 ALJR 77 Kotzmann v The Queen [1999] 2 VR 123 Moors v Burke (1919) 26 CLR 265 R v Anderson [1996] 2 VR 663 R v Ireland (1970) 126 CLR 321 RPS v The Queen (2000) 199 CLR 620 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE OSMAN [2005] WASCA 189 CORAM : ROBERTS-SMITH JA HEARD : 21 SEPTEMBER 2005 DELIVERED : 21 SEPTEMBER 2005 FILE NO/S : CACR 120 of 2005 EX PARTE
ABDUL MAJID OSMAN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : IND 653 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Appeal - Application for extension of time to appeal - Possessing methylamphetamine with intent to sell or supply - Application for leave to appeal against conviction - Whether errors in Judge's summing up - Whether reasonable prospect of succeeding - Determination by single Judge of Appeal
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : No appearance
Solicitors:
Applicant : Simon Watters
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cranssen v The King (1936) 55 CLR 509
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
R v Tait (1979) 24 ALR 473
(Page 3)
Case(s) also cited:
Domican v The Queen (1992) 173 CLR 555
Griffiths v The Queen (1994) 69 ALJR 77
Kotzmann v The Queen [1999] 2 VR 123
Moors v Burke (1919) 26 CLR 265
R v Anderson [1996] 2 VR 663
R v Ireland (1970) 126 CLR 321
RPS v The Queen (2000) 199 CLR 620
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1 ROBERTS-SMITH JA: On 2 June 2005 following a two day trial before a judge and jury the applicant was found guilty of one count of possessing methylamphetamine with intent to sell or supply to another. He was sentenced to 40 months' imprisonment with eligibility for parole. The appeal relates only to the conviction.
2 The applicant filed an appeal notice containing four grounds of appeal on 13 July 2005. The last date for filing the notice was 23 June 2005 and so an extension of time is sought. Whether or not the extension time should be granted will turn on whether or not leave to appeal should be granted.
3 Appeals to the Court of Appeal from the Supreme or District Courts are now regulated by the Criminal Appeals Act 2004 (WA) ("the CA Act") which came into operation on 2 May 2005. By s 27(1) of the CA Act, leave of the Court of Appeal is required for each ground of appeal. Section 27(2) stipulates that the Court of Appeal must not give leave to appeal on a ground of appeal unless satisfied the ground has a reasonable prospect of succeeding. Section 27(3) provides that unless the Court of Appeal gives leave to appeal on at least one ground in an appeal, the appeal is to be taken to have been dismissed.
4 Before returning to the test for leave to appeal, two things may be noted. The first is that under s 27(4)(a) of the CA Act,the Court of Appeal may decide whether or not to give leave to appeal with or without written or oral submissions from the parties. The second concerns the powers of a single Judge of the Court of Appeal. A single Judge may exercise any power of the Court of Appeal conferred by the Rules in s 61 of the Supreme Court Act 1935 (WA), as amended by s 23 of the Acts Amendment (Court of Appeal) Act 2004 (WA).
5 Rule 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Rules") is headed "Single judge's jurisdiction" and covers a range of matters with which a single Judge may deal. They include extending or refusing to extend time; giving or refusing leave to appeal; exercising the powers of the Court of Appeal under s 27 of the CA Act in respect of applications for leave to appeal; amending any ground of appeal or adding any ground; striking out any ground of appeal that does not have a reasonable prospect of succeeding; or dismissing an appeal if none of the grounds has a reasonable prospect of succeeding or an applicant has not obeyed the Rules or any order made under them.
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6 Finally, with respect to procedure, in exercising jurisdiction as a single Judge, by r 7 a Judge may make a decision on the application of a party or on the Judge's own initiative; may decide an application on the basis of the documents filed without listing it for hearing; may hear and decide an application in the absence of any party other than the applicant; may order some or all of the parties to an application to do a number of things, including appearing and making oral submissions on a date set by the Judge; and may limit the time a party has to make oral submissions at a hearing before a single Judge.
7 I return now to the test for granting leave to appeal under s 27 of the CA Act. At common law it was generally sufficient for an applicant to show they had an arguable case. The test was even less rigorous under some statutory provisions such as s 187 of the Justices Act 1902 (WA), now repealed, which set out a presumptive right to appeal unless the Judge considered the appeal was frivolous or vexatious or that the grounds of appeal advanced did not disclose an arguable case.
8 Section 27(2) of the CA Act is in quite contrary terms. It embodies a presumptive refusal of leave unless the applicant satisfies the Court a particular ground has a reasonable prospect of succeeding. This necessarily requires showing more than that the ground is merely arguable and if the Court is not brought to a state of positive satisfaction of that, it must refuse leave.
9 A Court or Judge considering whether a ground has a reasonable prospect of succeeding must necessarily make an assessment having regard, amongst other things, to the nature of the appeal and the principles which would have to be applied by the Court of Appeal on the appeal proper. In the case of an appeal against sentence, two of the fundamental principles in that respect are, first, that it is an appeal against the exercise of the judicial discretion and so subject to the well known constraints articulated in House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509 and R v Tait (1979) 24 ALR 473. Specific error of fact or law must be shown. Alternatively, the sentence must be shown to be so manifestly excessive or inappropriate as to show the exercise of the discretion must have miscarried in some otherwise unidentifiable way.
10 The second fundamental principle is related to the first. It is that an appeal court may not substitute its own opinion for that of the sentencing Judge merely because its members would have exercised their discretion a different way: Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672. Of course, as I have indicated, the present application is for leave to
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- appeal against conviction and I come back now to the substance of this application.
11 The appellant's case was filed on 19 August 2005. Having read that, it seemed to me appropriate to list the application for leave to appeal for hearing ex parte pursuant to r 7(d) and (e)(ii) of the Rules.
12 There is an amended appeal notice dated 18 August 2005. Ground 3 on the original notice has been abandoned. The grounds of appeal as they now stand are:
"1. The Learned Trial Judge erred in his summing up to the jury when, concerning s 11 of the Misuse of Drugs Act 1981, he stated '… because there is no evidence to the contrary that he had some other intention when he was in possession of it' (emphasis added),rather than if he was in possession of it.
2. The Learned Trial Judge confused the relevant onus when he said 'if you accept that he is not in possession of it' whereas he should have stated if you are not satisfied beyond reasonable doubt he was in possession of it.
…
4. If not sufficient so as to individually found a miscarriage of justice, the above two grounds when viewed cumulatively, are such that a miscarriage of justice occurred."
13 The facts as put forward in the appellant's case are that the issue at trial was whether or not the applicant was in possession of 13.8 grams of methylamphetamine that was found in the frond of a palm tree in the backyard of his property. Further, as pointed out by the learned trial Judge, the issue at trial was whether or not he was in possession of the methylamphetamine and, if he was in possession of it, whether he had any intention to sell or supply all or any part of it to any person or persons. The prosecution case, it is said, was circumstantial.
14 It is necessary when considering these grounds to look at exactly what it was the learned trial Judge said in his directions to the jury bearing on these matters. First of all, at t/s 35 his Honour when making preliminary remarks to the jury panel said, amongst other things:
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- "The burden of proving the charge rests upon the prosecution represented by Mr de Vries, and the prosecution will lead evidence from witnesses …"
15 He added that if the members of the panel were to be on the jury, they could only return a verdict as to whether or not the applicant was guilty of the charge on the basis of what they heard in the courtroom from the witnesses called. At t/s 37, once the jury had been chosen and sworn, his Honour repeated that and also repeated that what they needed to decide was whether or not the applicant was guilty of the charge and had been so proved guilty beyond reasonable doubt. He said the applicant was presumed to be innocent of the charge and it was up to the prosecution to prove his guilt.
16 At t/s 41 his Honour again returned to the presumption of innocence, saying that the applicant was presumed to be innocent of the offence and remained innocent until the jury were to find him guilty, which they could only do if the prosecution had proved his guilt beyond reasonable doubt.
17 In his Honour's summing up to the jury at the conclusion of the trial (at t/s 128) his Honour said in reference to evidence which they could accept that they could accept everything that a person who gave evidence said or could accept nothing that a person says or could accept part of what the person said. It was entirely a matter for them. He emphasised it was their role to decide the facts. At t/s 130 his Honour identified the issue. He said:
"That's what this trial is about: was he in possession of that methylamphetamine and if he was in possession of it, did he have any intention to sell or supply all or any part of it to any person or persons?
Now, the prosecution has decided that that's the charge they're going to put against him and it's for the prosecution to prove that charge beyond reasonable doubt."
18 He reiterated that and then explained that beyond reasonable doubt is the highest standard of proof known to the law. He reiterated that the applicant was presumed innocent and it was for the prosecution to prove his guilt, not for him to have to prove he did not commit the offence.
19 It is, I think, in the context of the grounds of appeal, worth emphasising from the passage which I have just quoted that his Honour did correctly identify the two crucial issues or questions, being whether
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- the applicant was in possession of the methylamphetamine and then going on to say, "if" he was in possession of it, whether he had an intention to sell or supply.
20 At t/s 132 his Honour again reiterated it was for the prosecution to prove beyond reasonable doubt that the applicant did commit the offence and again spoke about the presumption of innocence in the context that there was no obligation on the applicant to give evidence and they could therefore draw no inference from his exercise of his right to silence.
21 At t/s 133 his Honour again returned to the facts of the case in the context of a discussion about circumstantial evidence. He said there:
"What we're looking at here is a different type of case where the prosecution have to rely on circumstances in which the drugs were found in order to prove that Mr Osman was in possession of them and had an intention to sell or supply all or any part of them to any person or persons."
22 He reiterated that the prosecution had to prove each of the elements beyond reasonable doubt and a few minutes later explained it in this way, saying that there were five elements which the prosecution had to prove beyond reasonable doubt. The first was the identity of the offender, that the right person was on trial; secondly, that the substance was a prohibited drug; thirdly, that he was in possession of that methylamphetamine; fourthly, that he knew or believed that the substance was methylamphetamine; and finally that he had an intention to sell or supply any part of it to any other person or persons.
23 Those, he said, were the five things the prosecution had to prove. His Honour then went on to deal with them individually (and at t/s 134) said:
"The issue in this case is really whether he was in possession of the prohibited drug and when we're talking about possession possession includes having control or dominion over, having the ability to do with something what you wish to do with it. …"
24 He expanded on his directions about possession and knowledge in that context and (at t/s 135) turned to the intention to sell or supply which he said was the final element the prosecution had to prove. He elaborated on that and (at t/s 136) explained the situation in which a person may have possession, but no intent to sell or supply. His Honour said:
(Page 9)
- "A person may have more than two grams of methylamphetamine, but that person may be a user, may be an addict, and the person will say, 'Well, I bought it in bulk as it cost me less money. I got it cheaper and it's going to last me for a couple of weeks and I use a couple of grams a week' or whatever 'and it's going to last me a month. So that's my explanation as to why I had more than two grams' …"
25 His Honour said if that were to raise in the jury's mind a reasonable doubt in relation to the issue of possession, the accused would have to be given the benefit of the reasonable doubt and would be found guilty of simply being in possession without any intention. His Honour then went on to say:
"Now, this isn't this type of case because in this case what Mr Osman says, 'I was never in possession of it.' If you find that he was in possession of it, then the fact that he has been found in possession of more than two grams raises the presumption of innocence, raises the presumption that he's in possession with an intent to sell or supply, because there's no evidence to the contrary that he had some other intention when he was in possession of it because he said, 'I was not in possession of it'." (My emphasis).
26 That is the first aspect of the direction which is specifically challenged by the applicant in ground 1. It can be seen, I think, that all that his Honour was saying in that paragraph was predicated by the word "if" when he said, "If you find that he was in possession of it, then …" and went on to explain what the jury may think on the evidence thereafter. The next paragraph (which is at t/s 137) is in these terms:
"If you accept that he's not in possession of it, you don't even get to the issue of whether he had any intention. If he's not in possession of it, he can't have any intention to do anything with it. But if you find that he was in possession of it, then it would be sufficient for you to find him guilty of having an intention to sell or supply all or any part of that 13.8 grams by the very fact that he had more than two grams in his possession."
27 The brief extract from his Honour's directions quoted in ground 1 is seriously incomplete and set apart from the context in which his Honour said it. When the sentence is read as a whole and in the context of his Honour's directions, both generally, but more particularly about the
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- way in which the statutory presumption operates and the onus and burden of proof, it can categorically be said there is simply no scope for the complaint alleged in this ground. I would go so far as to say the ground is mischievous. Not only does it have no reasonable prospect of success, but it is certain to fail.
28 As to ground 2, the quote identified in the applicant's papers refers to t/s 139. The quotation actually appears, as I have indicated, at t/s 137. That sentence occurred immediately after that to which I have just referred. Again it is necessary to put it in the context of his Honour's remarks overall. I have, I think, sufficiently adverted to them.
29 Whilst if the sentence here complained of appeared in isolation or without the very strong and clear directions repeatedly given by his Honour about the elements of the offence and the onus and burden of proof, the ground may have had a point, but that is not the situation. His Honour was referring to the evidence in the case and was addressing the issue of intent to sell or supply, not the element of possession. There is no room for thinking that one sentence in that context could possibly have led the jury into thinking there was an onus on the applicant to prove he did not have possession. There is no substance in this ground. It has no prospect of success at all.
30 Ground 3 is abandoned, and given my conclusions on grounds 1 and 2, ground 4 falls away. The application for extension of time will accordingly be refused.
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