Ribbon v The Queen

Case [2019] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

RIBBON v THE QUEEN

[2019] SASCFC 130

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)

25 October 2019

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS

Appeal against conviction.

In the early 2000s, Ribbon (R) started a business in Bangkok with his cousin, Harker (H), known as Complete Chemical Manufacturing (CCM). Weafer and M, associates of R and H, registered Complete Chemical Solutions (CCS), an Australian distributor of CCM products, on 25 January 2014. On 25 July 2014, a shipping container containing the subject substance was loaded onto a ship in Bangkok. The consignor was CCM and the consignee was CCS. On 17 August 2014, the subject consignment arrived in Australia. On 17 and 18 August 2014, Australian Border Force officers seized ten five-litre bottles, later found on formal analysis to contain pseudoephedrine in the total amount of 13.445 kilograms. An inert substance was substituted for the subject substance. On 20 October 2014, the AFP executed search warrants at R’s home and arrested him.

R was committed for trial in the District Court on a charge that he did import a commercial quantity of border controlled precursor, namely pseudoephedrine. The first trial commenced on 28 February 2018 but was ultimately aborted. At the second trial, the prosecution relied on three alternative Particulars to make out the element of “import”. Its case depended largely on listening device and telephone intercept material (the recordings material).

The appellant relies on the following Grounds of Appeal:

(a)     the Judge failed to direct the jury that it needed to be unanimous as to proof of at least one of the three Particulars in order to convict (Ground 3).

(b) the Judge misdirected the jury as to the effect of s 300.2 of the Criminal Code Act 1995 (Cth) (the Code) (Ground 10);

(c)     the Judge erred in admitting particular telephone intercepts on the basis that they were irrelevant and/or more prejudicial than probative (Ground 4);

(d)     the Judge undermined the presumption of innocence (Ground 2);

(e)     the verdict of the jury was unreasonable (Ground 7).

Held, per Peek J (Parker and Doyle JJ agreeing), allowing the appeal on Grounds 3, 4 and 10:

1.       As to Grounds 3 and 10:

(a) The Judge’s directions permitted the jurors to convict by finding proven any one of three “Particulars” such that there might not be a unanimous verdict reached on any one Particular. An extended unanimity of verdict direction…

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Ribbon v The Queen [2019] SASCFC 130
Case
[2019] SASCFC 130
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CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an appeal by Ribbon against his conviction for a drug offence. The appeal concerned the adequacy of the particulars provided by the prosecution and the directions given by the trial judge to the jury.

The central legal issues before the Full Court were whether the trial judge had erred in refusing to order further and better particulars of the charge, and whether the judge's summing-up contained misdirections regarding the need for jury unanimity on specific factual findings. The Court also had to consider the implications of the High Court's decision in *Lane v The Queen* for cases where the prosecution's case relies on multiple distinct acts or events.

The Court found that the respondent had not adequately addressed the implications of *Lane v The Queen*, which concerned a homicide charge where the death could have resulted from one of two distinct physical interactions. In *Lane*, the High Court indicated that where a charge can be established by different factual scenarios, and those scenarios raise different legal considerations or defences, a specific unanimity direction may be required. The Full Court noted that the trial judge had refused to order further particulars, asserting that the accused knew the case he was facing. However, the Court observed that defence counsel's closing address, which asserted that the prosecution had to prove all three particulars, was incorrect. The judge had not corrected this misstatement, nor had he provided an extended unanimity direction, despite the potential for different jurors to have reached their verdict based on different factual findings within the particulars.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A number of the above points were well made; and in the italicised passage at paragraph 25 immediately above, the prosecutor (and the Judge) had their attention very firmly drawn to the potential necessity for an extended unanimity direction. None was later given and, unsurprisingly, the consequences of the lack thereof must now be determined (as to which, more is said below).The decision of the Judge to refuse further and better particulars On 22 March 2018, the Judge refused the application for further and better Particulars and later on 28 March 2018 gave detailed reasons for his decision, which concluded as follows:It is clearly asserted that within certain defined periods of a matter of days the accused specifically involved himself in importing the alleged commercial quantity of border controlled precursor in the three ways particularised. The evidence comprises the phone calls and recorded conversations that have him allegedly participating in, discussing and admitting those actions. The accused in my view therefore does know the case he is facing and is not prejudiced by any lack of further particularity in the charge as presently supplemented by the particulars. The accused can be under no misapprehension as to exactly what he was alleged to have done during certain limited defined periods of days. In some respects the particulars that the prosecution provide cannot descend into the exact whys and wherefores of what the accused did when attending on a certain number of days where for example the audio refers to outcomes which do not admit of the exact conduct performed by the accused to achieve that outcome. Indeed there is often an element of generality to the evidence called, which would be difficult to further particularise, as observed by the High Court in WGC v The Queen (2007) 233 CLR 66 earlier quoted.In the final analysis, in my view the charge is adequately particularised in the sense contemplated by s.277(1) of the Criminal Law Consolidation Act and the various authorities cited. And so the trial proceeded on the Particulars reproduced above (which will henceforth be referred to as ‘the Particulars’ or as ‘Particular One, Two or Three’).The position taken by defence counsel in his closing address to the jury During his closing address to the jury, Mr Edwardson submitted that the prosecution had to prove each of the three Particulars thus:Ladies and gentlemen, the particulars are not an afterthought. They are critical. They must be front and centre, first and foremost, because they shape the case the prosecution must prove before a person can be convicted. I have no doubt that his Honour will confirm that, as a matter of law, what I just told you is correct. … I want to turn to the particulars themselves. Let me remind you that the prosecution have set out to prove three particulars, all three, to make out the charge. [Emphasis added] This was not a correct statement of the position. Indeed, by reference to all that had been seen and done in the two trials, it should have been obvious that the Judge was likely to disagree with this proposition and that the matter should have been raised for discussion in the absence of the jury prior to closing addresses.

Ratio Decidendi

Legal Principle Established

Turning to the position of the respondent, it must be said, with respect, that the respondent has not adequately faced up to the decision of the High Court in Lane v The Queen[23] (Lane) and its obvious implications for the present case. The only mention of Lane in the respondent’s submissions in writing was as follows: 29. In this case, the prosecution’s particulars were a grouping of categories of evidence and so, as with any other evidence, it was open to the jurors to approach in their own way, the question as to whether any of the evidence established the importation of the substance by the appellant. It follows that any such individual approach did not have to be universal amongst the jury members in the circumstances of this case, let alone that any one fact (or group of facts) found to be established by any one juror would have to be accepted by all of the other jurors. His Honour’s direction at page 43 of the summing-up (AB 275) was appropriate.30. The appellant relies on cases which concern fraudulent statements (Brown[24]) or murder/manslaughter (such as R v Boreman[25], Lane v The Queen[26]) where there were more than one act which would have established the actus reus of the charges in question. Such cases are very different factually from the subject case where the object of the particulars was to describe and/or limit the ambit of the prosecution case in relation to the appellant’s involvement in the importation of the substance.[23] (2018) 92 ALJR 689.[24] (1983) 79 Cr App R 115.[25] [2000] 2 Cr App R 17. [26] (2018) 92 ALJR 689.Consideration Lane involved a charge of homicide arising over a death which may have been caused by either of two identifiable physical interactions between the defendant and the deceased. This general scenario has been considered by various Courts on a number of occasions.[27] In such cases, success on appeal has usually been associated with a cogent argument that different considerations may arise in relation to each of the respective different occasions such as potentially to bear upon an element of, or a defence to, the charge. It is notable that in such cases the period of time between the two physical contacts may differ greatly; to take what might be thought of as two ends of a spectrum, in Klamo[28] the period was about a week whereas in Lane the period was very short indeed. While a longer period (such as in Klamo) may sometimes serve to frame the problem more clearly, it by no means follows that a case involving a very short period of time will not be the subject of a successful appeal, as Lane itself demonstrates.[27] R v McCarthy (2015) 124 SASR 190 was one. Others are referred to therein. [28] R v Klamo (2008) 18 VR 644. Referred to by the plurality in Lane at 695, footnote 26. In Lane, the plurality in the High Court summarised the relevant facts thus:[29][29] (2018) 92 ALJR 689.6. The appellant and the deceased had been drinking at the Commercial Hotel in Casino. Each was in his mid‑50s, intoxicated to some degree, and previously unknown to the other. Each left the hotel with a companion, the deceased with Mr Schwager and the appellant with his son.[30] 7. After the men left the hotel, there was an altercation between them occurring on the footpath and roadway outside a dental surgery near the hotel. Much of the altercation was captured by a CCTV security camera located nearby.[31]8. The CCTV footage captured four events. In the first, the deceased turned the appellant around and forced him against the shopfront of the dental surgery. In the second, the deceased retreated towards the roadway with the appellant in pursuit. The deceased fell backwards on the roadway and struck his head (“the first fall”). In the third, Mr Schwager approached the appellant, who then punched Mr Schwager, causing him to fall to the ground near a telegraph pole. In the meantime, the deceased had risen to his feet and faced the appellant. In the fourth, the deceased could be seen to fall to the road a second time (“the second fall”). At that point he lost consciousness.[32] He died while in care at the Southport Hospital nine days later.[33] 9. The CCTV footage did not clearly depict the appellant punching the deceased before either fall. Although the CCTV footage did not show an actual striking of the deceased by the appellant, the CCTV footage was capable of sustaining a finding that the appellant delivered a powerful punch to the head of the deceased, causing him to fall and strike his head on the ground the second time. 10. A number of witnesses gave evidence about these interactions. Each was, to some extent, intoxicated. Each gave a somewhat different account of what he or she saw and heard. 11. Mr Perkins testified that his attention was first drawn by “a noise like of someone being hit”. He turned around and the first thing he saw was a person getting hit and landing on the street. He could not recall where the hit landed, which hand was used, or whether he saw the person actually fall. He saw the appellant punch another man in the face, who fell backwards against the telegraph pole, albeit he could not remember if that occurred before or after the other punch.12. Mr Armstrong was in the company of Mr Perkins. Mr Armstrong said that he saw the deceased and another man (who must have been Mr Schwager) sitting on the gutter. As the two men were starting to stand, Mr Armstrong claimed, he saw the appellant punch the deceased. He could not recall where the punch landed, and, under cross‑examination, could not remember whether the deceased fell on this occasion. He then saw the appellant punch Mr Schwager’s right cheek, and thought Mr Schwager went to the ground. Although his view was obstructed, he then heard sounds consistent with the appellant punching the deceased and the deceased hitting his head. The deceased fell to the ground.13. The trial judge told the jury that the CCTV footage was “directly contradictory” of how Mr Armstrong described the events. The trial judge told the jury that “the only punch [Mr Armstrong] clearly describes is one on Mr Schwager.” 14. Of the other witnesses, Mr Cupitt and Ms Livingstone said that they saw the appellant punch the deceased. Mr Marsh saw the appellant swing his arm at the deceased and then saw the deceased fall backwards and hit his head on the roadway, but he did not see the punch connect[34]. [Emphasis added] [30] Lane v The Queen [2017] NSWCCA 46 at [6].[31] Lane v The Queen [2017] NSWCCA 46 at [7].[32] Lane v The Queen [2017] NSWCCA 46 at [51]–[52].[33] Lane v The Queen [2017] NSWCCA 46 at [8].[34] Lane v The Queen [2017] NSWCCA 46 at [53].