Sclaptsi v The King

[2022] SASCA 122

Supreme Court of South Australia

(Court of Appeal: Criminal)

SCLAPTSI v THE KING

[2022] SASCA 122

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)

1 December 2022

CRIMINAL LAW - EVIDENCE

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES - POSSESSION OR USE GENERALLY

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES

CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS

Appeal against conviction.

The appellant was charged on Information in the District Court with one count of Aggravated Possession of a Firearm Without a Licence (Count 1) and one count of Trafficking in a Controlled Drug (Count 2). He elected to be tried by judge alone.

The appellant denied any knowledge of the presence of the firearm and cannabis which were found in a cavity between the roof and the ceiling in the appellant's shed.

The trial Judge, in his reasons, first considered Count 2. His Honour was not satisfied beyond reasonable doubt that the appellant knew that the cannabis was in the ceiling cavity however, his Honour found on the balance of probabilities that the appellant had falsely denied any knowledge of the presence of the cannabis and firearm. Accordingly, the Judge acquitted the appellant on Count 2.

The Judge convicted the appellant on Count 1. The verdict of guilty on Count 1 was based on the Judge's finding that the appellant was an occupier of the property on which the items were found and the rejection of the appellant's evidence that he was unaware of the presence of the firearm. In rejecting the appellant's evidence, his Honour relied on his earlier finding that the appellant had falsely denied any knowledge of the presence of the cannabis and firearm.

The appellant appeals on three overlapping grounds of appeal. The primary issue on appeal is whether it was open to the trial Judge to rely, in support of the verdict of guilty on Count 1, on a finding that the appellant knew that the cannabis was in the shed when the Judge acquitted the appellant on Count 2.

Held (by the Court), dismissing the appeal:

1.   The appellant was not denied the benefit of the 'earlier acquittal'.

2.   The tension between the verdicts is a product of the different onus applicable on each count on the element of the appellant's knowledge of the presence of the firearm and cannabis.

3.   The principle that the accused must be given the benefit of an earlier acquittal has no application on a concurrent trial of several offences before a judge alone.

Controlled Substances Act 1984 (SA); Firearms Act 2015 (SA) ss 6(2)(d), 6(3)(a), referred to.
Garrett v The Queen (1977) 139 CLR 437, distinguished.

SCLAPTSI v THE KING
[2022] SASCA 122

Court of Appeal – Criminal:    Kourakis CJ, Lovell and Doyle JJA

1. THE COURT:    The appellant, Mr Sclaptsi, was charged on Information in the District Court with one count of Aggravated Possession of a Firearm Without a Licence and a second count of Trafficking in a Controlled Drug. The aggravating circumstances alleged by the first count were that:

   ·the firearm was loaded; and

   ·Mr Sclaptsi committed the offence in connection with, or at the same time as, an act or omission which would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984 (SA).

2. The cannabis and the firearm were found next to each other in the ceiling cavity of a shed in the rear of Mr Sclaptsi’s shed.  The trial Judge published reasons at the conclusion of which he first entered a verdict of guilty on the aggravated possession charge in which his Honour found only the first matter of aggravation proven, and then a verdict of not guilty on the second count. However, in the Judge’s reasons, his Honour first considered and explained why he would acquit Mr Sclaptsi of the second count of trafficking in cannabis before giving his reasons for the verdict of guilty he proposed to return in respect of the first count.   We observe at the outset that if the Judge had commenced with a consideration of the first count, his Honour’s reasons for not finding the Controlled Substances Act aggravating circumstance proved would have naturally resulted in, and explained, the verdict of not guilty on the second count.

3. Mr Sclaptsi appeals against his conviction on three overlapping grounds, all of which are founded on the sequence in which the Judge determined each of the counts.   In particular the appeal focusses on the Judge’s findings in respect of the firearms count that Mr Sclaptsi knew that the firearm, and the cannabis, were in the ceiling cavity when the Judge had acquitted Mr Sclaptsi on the count of trafficking in that cannabis.  As shall be seen, the tension between the verdicts is a product of the different onus applicable on each count on the element of Mr Sclaptsi’s knowledge of the presence of those items.

4. In summary, the prosecution evidence against Mr Sclaptsi was as follows.  Police attended Mr Sclaptsi’s home in Woodville West (the premises) on 31 January 2018.  Mr Sclaptsi was not at home but acting on information received the police searched his premises and found the sawn-off rifle, and two shopping bags of cannabis, in a cavity between the roof and the ceiling of the shed. When interviewed by police some five days later, Mr Sclaptsi told the police that he did not know that the firearm or the cannabis were secreted in his shed and that he suspected that he had been set up.  He gave evidence to the same effect at trial. The Judge acted on a submission put by the prosecutor that the count of trafficking cannabis be considered first. The Judge was not satisfied beyond reasonable doubt that Mr Sclaptsi knew that the cannabis was in the ceiling cavity even though his Honour found that Mr Sclaptsi had falsely denied any knowledge of the presence of the cannabis. The Judge convicted Mr Sclaptsi of aggravated possession of the firearm because he found that Mr Sclaptsi was an occupier of the house, a finding which was based on an agreed fact. As a result, a persuasive onus was thrown on Mr Sclaptsi to prove on the balance of probabilities that he was unaware of the presence of the sawn-off firearm. The Judge rejected Mr Sclaptsi’s evidence, relying on his Honour’s earlier finding that Mr Sclaptsi had falsely denied any knowledge of the firearm and the cannabis. The Judge found that Mr Sclaptsi knew that both the cannabis and the firearm were in the shed.

5. Mr Sclaptsi appeals against his conviction on the following grounds:

   1.The learned trial Judge erred in failing to give the appellant the full benefit of the acquittal on Count 2 and/or in diminishing the effect of that acquittal by re-considering the allegations upon which it was based, by reference to a modified onus applied in respect of Count 1.

   2.The learned trial Judge erred in conflating the question of whether the appellant had established on balance that he did not know and could not reasonably be expected to have known that the firearm was on or in the premises, with any onus to be applied in assessing his evidence as to the discreet issue of his knowledge of, or intention in respect of, the cannabis the subject of Count 2 or;

   3.In the alternative to ground 2, the trial Judge erred in having regard to a notional rejection of that evidence following an acquittal consistent with it, in considering whether the appellant had rendered inapplicable the definition of possession pursuant to s 6(2)(d) of the Firearms Act 2015 (SA).

6. Counsel for Mr Sclaptsi accepted that all three grounds depended on the validity of the proposition that it was not open to the Judge to rely, in support of the verdict of guilty on the firearm offence, on a finding that Mr Sclaptsi knew that the cannabis was in the shed when the Judge had acquitted Mr Sclaptsi on the charge of trafficking in cannabis.  

7. Mr Sclapsti’s appeal must be dismissed. The verdicts are explained by the reverse onus of proof applicable on the first count which was engaged by reason of the uncontested fact that Mr Sclaptsi was the occupier of the premises. Mr Sclaptsi was not denied the benefit of the ‘earlier acquittal’ on the second count for several reasons. First, in form at least, the verdict first returned at the end of the Judge’s reasons was the verdict of guilty on the firearms offence. Secondly, the finding that Mr Sclaptsi had falsely denied he knew of the presence of the cannabis was not used in proof of the elements of the offence of aggravated possession of the firearm. The prosecution case was proved by the uncontested fact that Mr Sclaptsi occupied the premises in which the firearm was found.  Accordingly, the finding that the prosecution had proved those elements of the aggravated firearms offence in respect of which it carried an onus, did not contradict Mr Sclaptsi’s acquittal on the trafficking count.  The adverse finding made on the balance of probabilities on the trafficking count was used only to reject the defence case on the firearms count on which Mr Sclaptsi carried the onus of proof. Thirdly, the principle that an accused must be given the benefit of an earlier acquittal has no application on a concurrent trial of several offences before a judge alone.

   The evidence

8. Relevantly to the matters raised on the appeal, the following facts were agreed at trial:

   1.As at 31 January 2018, Mr Sclaptsi was the sole occupant of the premises.

   2.The vegetable matter which the police testified they found in the ceiling of the shed on the premises was cannabis and had a total weight of 852 grams.

   3.The firearm found in the roof of the shed was a self-loading rifle. The barrel and timber stock of which had been reduced in length. The firearm was loaded with a magazine containing 15 live Winchester Super X rounds of 22 calibre ammunition.

   4.As at 31 January 2018, Mr Sclaptsi was not the holder of a firearms licence.

   5.Neither fingerprints nor DNA were found on the plastic bags containing the cannabis nor on the firearm.

   6.In January 2018, SAPOL received two separate intelligence reports that Mr Sclaptsi was trying to sell a gun which he kept in his garage.

9. The last mentioned fact was presumably agreed by Mr Sclaptsi because it was thought to support Mr Sclaptsi’s defence that he had been set up.

10. When police attended on 31 January 2018, they scaled fences to enter Mr Sclaptsi’s rear yard believing the roller door at the front was locked. They found that a shed in the rear yard was unlocked. It was divided into four rooms, two of which had been set up for growing cannabis hydroponically. Police gained access to the roof cavity by standing on a filing cabinet which was in one of the other rooms. There was a narrow gap between the roof and ceiling.  There they found the cannabis and the firearm. The firearm was in a black drawstring bag, which was, in turn, wrapped in a green plastic rubbish bag and sealed with black electrical tape. In the house police located implements for the smoking of cannabis, digital scales and small plastic bags.

11. Mr Sclaptsi gave evidence. He denied placing the items in the roof or having any knowledge of them. He agreed that he smoked cannabis. He admitted that he had grown cannabis in the rooms some years earlier but testified that he had not grown anything there in the last three years. He gave evidence that he never used the cavity to hide items and that he had never told anyone about the cavity. He said that he had not taken anyone through the shed in the year preceding his arrest.

12. He gave evidence that he had suspicions about who may have placed the firearm and cannabis in the cavity but was too frightened to name that person because he was wealthy and had access to large amounts of cannabis.

    The Judge’s reasoning

13. The nature of the grounds of appeal and the submissions in support make it necessary to set out the Judge’s reasons at some length.  The Judge summarised the prosecution case as follows:[1]

    [1]     R v Sclaptsi [2020] SADC 91.

    [61]I will briefly summarise the main points raised by the prosecution. The circumstantial evidence relied upon by the prosecution to prove possession of the cannabis and possession of the firearm is:

    (i)    The accused was the sole occupant of the house…

    (ii)     The rear yard of the property is not easily accessed by a third party…

    (iii)    The cavity in the roof is difficult to see and would only be known or discoverable by someone who lived at the premises and knew it well…

    (iv)    The accused said he had not shown anyone the cavity and nor had he told anyone about it. … In circumstances in which … there is no electricity to the room then the possibility of someone finding the cavity by chance is extremely remote.

    (v)     …[The] grow rooms were evidence of the accused’s interest in cannabis and they provided a possible source for that cannabis.

    …

    (ix)    The digital scales and the numerous small plastic press-sealed bags, which it is alleged were empty, are indicative of possession of the accoutrement of drug selling. This means the accused is more likely to have a drug to sell and this is relevant to his possession of the cannabis in the cavity and his intention as regards that cannabis.

    (x)     The inherent unlikelihood of a third party planting both a firearm and cannabis in the accused’s roof. It is submitted there is no logical reason why a person would forfeit both a firearm which has a value and cannabis worth more than $4,000 to set up the accused. The prosecution asks why would someone forfeit both when one item would be sufficient to achieve that purpose.

    (xi)    The absence of any reference to cannabis in the information given to the police by the third party suggests the third person was not aware of the cannabis. If the person was aware of the cannabis and they wanted to set-up the accused it stands to reason they would have referred to both items.

    (xii)   During the accused’s interview there are three exchanges with police which suggest he knows where the items were hidden prior to being told by anyone where police had located the firearm or the cannabis. Those exchanges therefore support an inference that he had esoteric knowledge of the location of both items.

    [Footnotes in original]

14. The Judge then summarised the defence case:

    [63]In answer to the prosecution’s submissions and in support of his evidence that he had no knowledge of either the cannabis or the firearm the accused submitted;

    (i)    There was ample opportunity for someone to enter the premises and plant the items in his shed given the accused was frequently absent from the house staying over at his girlfriend’s house.

    (ii)     Accessing the rear yard was not particularly difficult as evidenced by two police officers being able to scale the fences and enter via the neighbouring property…

    (iii)    There is no impediment to entering the rear shed as it is unlocked.

    (iv)    Notwithstanding the accused states he has not shown or told anyone about the cavity, he had assistance constructing the grow rooms so others may know about it.

    (v)     Whilst the accused agrees that he set up the grow rooms to cultivate cannabis he did so in 2000 and he has not used them since 2015 when the electricity ceased to be connected to the sheds. There were also no lights in the shed, no ballast boxes, no carbon filters and no operating water system. The expert witness agreed the rooms were not in a state which would allow them to be used immediately.

    (vi)    The evidence of a leaf on the floor is insufficient to prove a temporal connection between the use of the grow rooms and the day the cannabis was located….

    (vii)   As to the items located inside the house, there is insufficient evidence as to the number of plastic press-sealed bags located by police. In any event the evidence is more consistent with the bags having been used previously, as stated by the accused in his evidence….

    …

    (ix)    There is nothing inherently unlikely about a person suspected by the accused of planting the item being prepared to forfeit both a firearm and the cannabis - particularly when the cannabis is less than 100% flowering material...

    (x)     The firearm was well wrapped and clearly not designed for ready access or the protection of the cannabis.

    (xi)    In light of the existence of an informant, that person could only have obtained the information about the firearm by being shown the firearm, by being told about it, or by being the person who put it there. In circumstances in which police located the cavity and the firearm within about five minutes of jumping the fence, it is reasonable to infer that police were in possession of more information than that contained in the agreed fact and the informant knew the firearm was hidden in the cavity. On that basis, it is reasonable to ask why the accused would show the firearm to anyone and why the accused would advertise or disclose where the firearm was hidden. The most reasonable hypothesis is therefore that the informant was the person who put the firearm in the cavity…

    …

    (xiv)  His claim that he is scared to give any detail is consistent with the evidence of DBS Schulz and common knowledge that a person who informs to police may be in danger of reprisals.

    [Footnotes in original]

15. The Judge found that the following considerations strongly supported an inference that Mr Sclaptsi had knowledge, and possession, of the cannabis:

    ·The inference from the making of the intelligent reports that a third party had been shown the cannabis and/or firearm by Mr Sclaptsi was as likely, if not more likely, than the defence hypothesis that they were planted by that third party.  

    ·Mr Sclaptsi’s evidence that he had never used the cavity as a hiding place, had never told anyone about it and had never shown it to anyone was inconsistent with the hypothesis that a third party either knew about the cavity or happened upon it when trying to find a place to hide the firearm. 

    ·It was improbable that someone would attempt to set up Mr Sclaptsi at the cost of losing both a firearm and cannabis worth more than $4,000 when any one of those items would have achieved that purpose.

    ·Mr Sclaptsi’s recent cannabis use disclosed a use or need for the cannabis located in the cavity.

16. The Judge then set out a part of Mr Sclaptsi’s interview by Police at a time before he was told that the cannabis and firearm were found in the roof cavity: 

    Lengyel    Okay. The cannabis and firearm were located together

    Sclaptsi     Yeah.

    Lengyel    In the rear shed area.

    Sclaptsi     Yeah.

    Lengyel    Do you know anything about the cannabis?

    Sclaptsi     No I don’t.

    Lengyel    Do you know anything about the firearm?

    Sclaptsi     No I don’t.

    Lengyel    Do you know whose firearm it is?

    SclaptsiNo I don’t. But, there is a camera from the Railway Station that might be able to give us, because this is a set-up in my view. Somebody’s put it up. I don’t deal with, I don’t have firearms. The simple fact is my father committed suicide with one, (inaudible) to have around us and our family so that’s one of the reasons firearms are no good with me. Okay, so, you know, I don’t agree with firearms.

    [Original emphasis]

17. The Judge continued:

    [106]I am satisfied this exchange and the accused’s response to it is more significant. When cross-examined about this passage I formed the strong view the accused was stalling for time to find a way to answer the questions. He initially stated he could not explain why he had said that, he then stated he was ‘a little confused at the moment’ and then after the video was replayed to him he suggested that he meant it was ‘like a set up’. After further cross-examination, he stated ‘well, I think what I was trying to say it was a set up’. I am satisfied there was a degree of prevarication on the part of the accused when confronted with the statement I have emphasised in bold. His manner was clearly hesitant. His explanation that he, in effect, misspoke, was not convincing. Further I am satisfied that when the accused says, ‘Somebody’s put it up’, it is not a complete sentence. The way it is said to police is very much consistent with the accused beginning a sentence and then pausing and determining not to finish that sentence. The obvious reason being that he realised he was about to disclose he possessed more knowledge than he wanted to disclose. I agree with the prosecution that this statement is strongly indicative of the accused knowing that the items were hidden somewhere high and in particular, in the cavity between the roof and the ceiling.

1. In reaching his conclusion on the cannabis count, the Judge noted that he did not place much weight on Mr Sclaptsi’s demeanour generally. His Honour also warned himself that a rejection of Mr Sclaptsi’s evidence could not be used as a make weight for any rational explanation consistent with innocence left open by the prosecution evidence.

2. The Judge then dealt further with Mr Sclaptsi’s assertion in the interview that ‘somebody’s put it up’:

   [115]My satisfaction that he prevaricated in his evidence, the inferences to be drawn from his comment ‘Somebody’s put it up’ and the manner he said it, the unconvincing manner in which he gave evidence when cross-examined on that topic, that I consider he exaggerated his evidence at one point and was disingenuous at another, in combination with the other matters to which I have referred under ‘The remaining considerations’, strongly support an inference he had knowledge and possession of the cannabis and that he lied in court as to his knowledge of the cannabis. However, having regard to all the evidence and the inferences to be drawn I am left with a doubt as to his knowledge about the cannabis in the cavity. Those aspects of his evidence which were supported and credible, the absence of any testing of his claim that he could not disclose any information about the person he suspected, the absence of evidence and investigation on certain topics, the absence of evidence as to black electrical tape, green rubbish bags and sandwich sized resealable plastic bags being located, the absence of evidence indicating an intention to sell and my doubt that a recent cultivation had occurred all contributed to that doubt.

   [116]I have considered the combined strength of all the circumstances and having drawn all the inferences reasonably open arising from all the circumstances I have found proved, I cannot reject his evidence beyond reasonable doubt. I cannot exclude as a reasonable possibility that what the defendant told the police in his interview and repeated in evidence is true.

3. The Judge then qualified that finding as follows: 

   [117]I make clear however that having regard to all the evidence I would reject his evidence on the balance of probabilities as to his lack of knowledge of the cannabis and the firearm notwithstanding his denials on oath and the fact some aspects of his evidence are supported. The unsatisfactory aspects of his evidence, the unconvincing way he explained his comment in the interview, his prevarication at another point, his about-face when giving evidence that the cavity could be seen by someone standing in the room and his exaggeration on another topic, of themselves would cause me to reject his evidence if this different standard of proof applied. When those matters are considered in combination with the other evidence and the inferences to be drawn from that evidence I am satisfied there is an even stronger basis for rejecting his evidence. I am in fact satisfied on the balance of probabilities that he knew of the presence of the cannabis (and the firearm) in the cavity, that he was in possession of the cannabis and that he lied as to his knowledge of the cannabis.

   [Underlining added]

   [118]For the above reasons, I am not however satisfied beyond reasonable doubt the accused knew of the presence of cannabis in the ceiling cavity and that he had possession of the cannabis for his own purposes or for the purposes of another. I therefore acquit the accused of count 2.

4. The underlined sentences are findings of fact by the Judge that Mr Sclaptsi knew the cannabis and firearm were in the cavity and that having regard to his admitted sole occupancy of the premises, he was therefore in possession of both. Of course, those findings are not inconsistent with Mr Sclaptsi’s acquittal on the trafficking count. It is commonplace for juries to be told by judges and counsel that proof only that an accused probably committed the offence is insufficient and that a verdict of not guilty can only be returned if the prosecution prove guilt beyond reasonable doubt.

5. It is necessary to emphasise that the finding goes further than a mere rejection of Mr Sclaptsi’s evidence. Rejection of Mr Sclaptsi’s evidence, in itself, was a sufficient basis on which to return a verdict of guilty on the firearm offence because Mr Sclaptsi bore a persuasive onus on the issue of his knowledge of its presence.   That finding having been made in the very reasons given for acquitting Mr Sclaptsi of the cannabis offence, it is difficult to see how repeating the finding in the reasons given on the firearm count constitutes a failure to give Mr Sclaptsi the benefit of that acquittal. 

6. When considering whether Mr Sclaptsi had discharged the persuasive onus he bore on the firearm charge, the Judge reasoned as follows:

   [133]That I found the accused not guilty of count 2 does not mean I must disregard the presence of the cannabis in the same cavity as the firearm. Its presence remains a fact to which I can and do have regard. When considering whether the accused has proven he did not know about the firearm I have taken into account the evidence which provides a potential link between the accused and the cannabis. It was suggested by the accused’s counsel that even if I was satisfied the accused knew of and possessed the cannabis I could still find the accused truthful and reliable as to his lack of knowledge of the firearm. I reject that submission. For the same reasons, I would reject his evidence as to the cannabis on the balance of probabilities I reject his evidence about his knowledge of the firearm. I consider the likelihood of the accused storing the cannabis in the cavity but someone else, unbeknownst to him, secreting the firearm in the same cavity is fanciful. That the firearm was further into the cavity and harder to reach than the cannabis does not alter my view. In any event, my satisfaction on the balance of probabilities that he lied about his knowledge of the cannabis seriously undermines his credibility as to not knowing about the firearm.

   [134]I have detailed why I am satisfied it was more probable than not that the accused was in possession of the cannabis and why I would reject the accused’s evidence as to his lack of knowledge of the cannabis if the onus was on the balance of probabilities. For the same reasons, I am not satisfied on the balance of probabilities that the accused did not know about the firearm in the cavity. I have had regard to the whole of the evidence but some evidence is I consider of greater weight. I consider the combination of the accused’s statement in his interview exhibiting esoteric knowledge of the location of the firearm, his evidence when trying to explain that statement, those matters which undermined his truthfulness to which I have previously referred and the other matters to which I referred under ‘The remaining considerations’ to be highly significant. I reject his evidence on the balance of probabilities that he misspoke when he said, ‘put up’ rather than ‘set-up’, his evidence that he had not used the cavity before to hide items, that he had not told or shown anyone the cavity and that he did not know of the presence of the firearm. I am in fact satisfied on the balance of probabilities that he did have knowledge of the firearm in his shed because he placed the firearm there.

   [135]I further note that the lack of detail provided by the accused as to the basis of his suspicion causes me to have further doubts about his evidence and his claimed lack of knowledge. As I have also indicated, his claim he cannot provide any information is difficult to accept. I make clear however that even if I did not have regard to the paucity of his evidence on this topic I would not have been satisfied, on the balance of probabilities, of his credibility and reliability on the topic of his knowledge of the firearm.

   [136]In those circumstances s 6(2)(d) applies and I am satisfied beyond reasonable doubt that the accused is in possession of the firearm.

   [137]In light of agreed facts 6-9 and 11-12 and in light of my above findings I am satisfied beyond reasonable doubt of each of the elements of the offence of possessing a prescribed firearm without a licence.

   [Underlining added]

7. At the conclusion of his reasons, the Judge first returned his verdict of guilty on the first count of aggravated possession of a firearm without a licence.  However, the only circumstance of aggravation found by the Judge was that the firearm was loaded.  The Judge did not find the second aggravating circumstance proved. The Judge then returned a verdict of not guilty on the trafficking in cannabis charged in Count 2.

   The case of Garrett v The Queen[2]

   [2]    Garrett v The Queen (1977) 139 CLR 437 (Garrett).

8. Mr Sclaptsi’s counsel relied heavily on the decision of the High Court.  Garrett was charged with the rape of a woman, G, with whom he had been in a relationship.  Garrett had been charged with an earlier alleged rape of G but had been acquitted.  The evidence of their relationship, G’s complaint and Garrett’s acquittal of that earlier charge were adduced by the prosecution.

9. Garrett appealed on the grounds of the wrongful admission of the evidence and the erroneous directions as to its use in the summing up.  The impugned direction of the Judge on the use of the evidence that Garrett had been charged with raping the victim on an earlier occasion was as follows:[3]

   So it is with the evidence that you have heard about the past prosecution for rape and the accused’s acquittal on that charge. Again it would be an entirely wrong use of the evidence you have heard about that, meagre as it is, to say on the one hand, well, she couldn’t pin it on him las time but it is a different story this time, or on the other hand, to say - she cannot make it stick this time any more than she could make it stick last time. Such an approach would be plainly wrong. The fact is that we do not know and cannot know the basis of the jury’s verdict, and we are not to speculate about it. We are not trying that case; we are trying this one. We do not know whether the verdict means that the jury thought the accused was innocent in the true sense, or whether they thought the charge was not proven. We do not know whether they believed Miss Golding or not. We do not know whether there was any corroboration - I shall talk to you about this later – and if there was not, whether the jury simply heeded the judge’s warning that it might be unsafe to convict without it. So you are to draw no inferences either for or against the accused or for or against Miss Golding from the fact of that prosecution and its outcome. But again the fact is relevant in other ways.

   The crown says – do you think it is likely that a young woman who has previously charged a man with rape, albeit unsuccessfully, and particularly after the stormy history of their early association, is likely to have freely and voluntarily and willingly submitted to sexual intercourse with him now? While the accused says, this is not the first time she has made a false accusation against him, it is part of a pattern. So you see, ladies and gentlemen, that in order to weigh up the case for the Crown and the case for the accused you needed to know the facts of the previous charge and its outcome. Indeed, you could not have understood the references which the accused made to it when he was questioned by the police, if you had not known about it. But you are not to speculate about the circumstances that gave rise to it, or attempt to use those circumstances about which you know so little as a basis for the decision you have to make on the facts of this case.

   [3]     Garrett v The Queen (1977) 139 CLR 437 at 442-443.

10. Barwick CJ with whom Stephen, Mason and Jacobs JJ agreed, held that the evidence of the earlier prosecution was inadmissible.  However, the evidence in this case of the presence of the cannabis and the firearm in the ceiling cavity was plainly admissible on both counts and for that reason the counts were tried together.  That cross-admissibility is not disputed by Mr Sclaptsi.  He relies on the High Court’s criticism of the Judge’s directions on Garrett’s trial.  However, the circumstances in Garrett that the verdict of not guilty was not returned in the same trial, and that the evidence of the earlier rape was not admissible, are important context for the High Court’s holding on the impugned direction.

11. On the appellant’s submissions that the appellant earlier acquitted could not be questioned in subsequent proceedings Barwick CJ said:[4]

    ... It is apparent, in my opinion, that the trial judge, in an understandable endeavour to dissuade the jury from embarking on a consideration of the facts relating to the former charge of rape, did in substance tell the jury that the acquittal of the applicant was a neutral fact. But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit. To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called. Further, having regard to what I have earlier said as to the admissibility of the prosecutrix’s evidence as to the events of November 1975, his Honour’s explanation to the presence of that evidence before the jury was, in my opinion, unacceptable. Consequently, had that evidence been admissible, I would have thought the portions of the summing up which I have quoted would have themselves been wrong to a significant degree.

    As to the first of the above submissions, in my opinion the former acquittal could not be called in question be evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself.

    The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds.  Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion.

    It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested inadmissible.

    [Underlining added]

    [4]     Garrett v The Queen (1977) 139 CLR 437 at 444-445.

12. This case does not fall within the principle stated in the first underlined sentence because the finding that Mr Scalptsi had not proven that he was ignorant of the presence of the firearm, and the cannabis, did not tend to overturn the verdict of not guilty on the cannabis trafficking charge.  That is so because the elements necessary to support a conviction on the former did not include knowledge of the presence of the firearm, let alone of the cannabis.  Nor could the verdict of not guilty on the cannabis charge support a plea of autrefois acquit in the way described in the second and third underlined sentences.  Those conclusions do not apply to a trial by judge alone in which both counts are heard together.  The apparent tension between the inscrutable verdicts of a jury dissipates in the face of the reasons of a trial judge which explain the contrasting verdicts by reference to the onus of proof.

    Conclusion

13. We would dismiss the appeal.