Stott v The Queen (No 2)
[2016] ACTCA 70
•21 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Stott v The Queen (No 2) |
Citation: | [2016] ACTCA 70 |
Hearing Date: | 2 November 2016 |
DecisionDate: | 21 December 2016 |
Before: | Refshauge, Penfold and Burns JJ |
Decision: | 1. The appellant be granted leave to further amend the Amended Notice of Appeal. 2. Under r 5531 of the Court Procedures Rules 2006 (ACT) the appellant be permitted to rely on the new appeal ground despite counsel’s failure to seek a re-direction at the trial. 3. The appeal against the appellant’s conviction on Count 1 on the Indictment dated 10 June 2015 be upheld and the conviction is set aside. 4. A new trial be ordered on Count 1 of that Indictment. |
Catchwords: | CRIMINAL LAW – Particular Offences – serious drug offences – trafficking in a controlled drug other than cannabis. CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – trial judge’s direction to jury erroneous – “reasonable possibility” – application of proviso –appellant lost chance of acquittal – appeal against conviction allowed – new trial ordered. |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 5531 Evidence Act 2011 (ACT) s 165 Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Filippou v The Queen [2015] HCA 29; 256 CLR 47 GW v The Queen [2015] ACTCA 15; 306 FLR 104 Weiss v The Queen [2005] HCA 81; 224 CLR 300 |
Parties: | Sharon Ann Stott (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Odgers SC (Appellant) Ms M Jones (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 12 of 2016 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Walmsley AJ Date of Decision: 16 March 2016; 9 May 2016 Case Title: R v Stott Court File Numbers: SCC 107 of 2015; SCC 114 of 2015 |
Refshauge and Penfold JJ:
Introduction
We are grateful to have had the opportunity to read in draft the judgment of Burns J, and we rely on background material, in particular as to the circumstances of the matter, provided in that judgment.
The direction given by the trial judge that is challenged in this appeal was as follows:
Members of the jury, just one final thing: the issue that was discussed just before you left the courtroom, that evidence that Harley Boardman gave about Mr Vo telling him that he actually put drugs into the washing machine, it’s a matter for you as to what you make of that evidence. You would take it into account unless you think there’s a reasonable possibility that either Mr Vo didn’t say that at all to him or Mr Vo did say it and he was not telling the truth. There are a number of possibilities and it’s entirely a matter for you as to how you deal with that evidence.
The direction had been discussed between counsel and the trial judge, and it had been agreed that his Honour would tell the jury that they could take Mr Boardman’s evidence into account unless they thought there was no reasonable possibility that Mr Vo said what Mr Boardman claimed he had said and that Mr Vo had been telling the truth. The trial judge gave a direction, but in the significantly different form quoted at [2] above. Neither counsel sought a re-direction.
Respondent’s submissions
The respondent conceded on this appeal that the direction was erroneous, but argued that this was not a sufficient basis on which to uphold the appeal, because:
(a)the direction had been unnecessary in any case;
(b)the direction was beneficial to the appellant, as it was framed as an instruction to the jury to accept potentially exculpatory evidence unless there was a reasonable possibility that that evidence was “wrong”;
(c)there was other substantial evidence of the appellant’s guilt, as set out by Burns J at [83] below;
(d)there was evidence that Mr Vo had on other occasions given two other quite different versions of the facts from the one that was implicit in his comments as reported by Mr Boardman (set out by Burns J at [88] below); and
(e)the trial judge gave correct directions about:
(i)the standard and onus of proof,
(ii)the jury’s responsibility for determining what evidence to accept and what evidence to reject,
(iii)how to deal with a circumstantial case, and
(iv)the significance, in a trial based on a circumstantial case, of the existence of another “reasonable conclusion ... inconsistent with the guilt of the accused”.
The effect of the evidence to which the trial judge’s erroneous direction applied, that is, that it was Mr Vo rather than Ms Stott who put the drugs into the washing machine, was potentially important in the case. In those circumstances, the Crown’s submissions do not establish that the misdirection was not significant.
Direction was unnecessary
First, the fact that a direction was unnecessary is entirely irrelevant to the question whether, having been given, the direction has adversely affected the trial.
Direction was beneficial to appellant
Secondly, the claim that the direction was beneficial to the appellant in that it told the jury to take the evidence into account unless there was a reasonable possibility that it was “wrong” can be readily dismissed.
Unlike some other tests applied in the context of assessing evidence, a finding that there is a “reasonable possibility” that evidence was wrong does not as a matter of logic exclude that there is also a “reasonable possibility” that the evidence was true and accurate. In this case, the jury was directed to dismiss Mr Boardman’s evidence if there was a reasonable possibility that it was wrong; this might have resulted in the jury dismissing it even if they thought there was also a reasonable possibility that it was true and accurate.
Strength of Crown case
Next, while the evidence mentioned at [83] below was substantial, and was all capable of contributing to a strong circumstantial case against the appellant, none of the components of that evidence identified by the Crown, by itself, was overwhelming or even particularly strong.
For instance, the fact that the appellant had an opportunity to place drugs in the washing machine between when the police arrived and when they entered the house establishes opportunity, but, among other things, does not exclude the opportunity for Mr Vo, Mr Boardman, or any other visitor to the house to have put the drugs in the washing machine at some unspecified time.
The fact that people in the appellant’s house might have been using drugs between when Mr Vo arrived and when the police arrived does not establish that anyone in the house was trafficking in a particular drug, and does not establish that if anyone was trafficking in the drug concerned at that time, it was the appellant rather than Mr Vo.
The fact that the appellant and Mr Vo made inconsistent claims about how much money was going to be paid for the car that Mr Vo was allegedly going to buy from the appellant suggests that the claims about the purchase of the car were not true, and that the claims were made in the hope of concealing some kind of illegal activity, but does not establish the nature of that illegal activity or who, if anyone, was engaging in it.
Inconsistent evidence given by Mr Vo
The three different claims said to have been made by Mr Vo (at [88] below) certainly suggested that Mr Vo was not, and would not have been, a particularly impressive witness.
However, it is apparent that on each of the two earlier occasions on which Mr Vo was said to have made a claim about his involvement with the appellant, his primary aim might have been to serve his own interests rather than to give a truthful account of the facts. That is, when he was first spoken to by police, he had a good reason for seeking to distance himself from any involvement in drug trafficking; by the time he had entered a plea of guilty and been sentenced on the basis that he would make a statement about events at the appellant’s house and would give evidence in her trial, he had good reason for cooperating with police.
It is not so clear that when Mr Vo found himself in prison with the appellant’s son, his interests were best served by admitting that by his conduct he had contributed to incriminating the appellant, even when that admission was accompanied by an apology.
Thus, the jury might well have found that, if Mr Vo in fact made the statement alleged by Mr Boardman, there was a reasonable possibility that it was true.
That is, the fact that Mr Vo had clearly not been telling the truth at all times does not exclude the possibility that on one occasion he had been telling the truth, and that the truth was that he was responsible for the drugs in the washing machine.
Trial directions were otherwise appropriate
In order to deal with the last of the Crown’s submissions set out at [4] above, it is necessary to quote the directions given by the trial judge about the acceptance or rejection of evidence by the jury, and about how to deal with a circumstantial case.
In relation to how the jury should approach the evidence of the witnesses, his Honour said:
... you have seen a number of witnesses apart from officer Katz, but of course including him. You must decide and you must assess the witnesses yourselves and you must decide whether to accept what they say as honest or reliable or accurate and you've seen each of them give evidence and you've watched them give evidence. It's a matter for you entirely as to whether you accept the evidence of the particular witnesses, and you must of course assess each witness separately.
Your ultimate decision as to what evidence you accept and what evidence you reject may be based on a whole lot of things including what somebody has to say or had to say and the way that the witness was - appeared - what's sometimes known as the demeanour of a witness at the time the witness said things, just a general impression that a witness might have made on you when giving evidence.
In relation to accepting the witness of witnesses, you're not obliged to accept the whole of the evidence of a witness. You might think that a witness was perhaps dishonest about something but honest and accurate about something else. It would be open to you, even if you didn't believe that a witness said to you, to believe other things that the witness said to you. Or it may be that you think a witness was mistaken about something. It does not follow that, just because somebody is mistaken about something, you reject everything they say.
You just have to think about the people you know and the discussions you have with people who you are close to, the people you work with. Sometimes they say things and you know that couldn’t possibly be right, but you don't perhaps want to get into a barney with them about it, but at the same time you know that generally they are fairly honest or accurate people; and so it is with witnesses. You may accept a part of what they say and reject a part. The fact that you do not accept a portion, as I say, does not mean you would necessarily reject the whole of somebody's evidence. It may of course, it may be that because of what somebody says, it's just so significant, that you think, "How could I accept anything that witness says?" On the other hand, it may not be so significant a matter, and you may think, "Oh well, they're wrong or they're lying or they're mistaken or they've forgotten about that, but it doesn't mean that I can't accept them in what they say about something else."
As to how the jury was to deal with the circumstantial case, his Honour said:
As you understand it from the Crown's address this morning, it's a circumstantial case that the Crown relies upon against Ms Stott. The Crown relies on circumstantial evidence and asks you to draw certain conclusions from the facts as to the existence of other facts.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what some witness says or he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act the Crown says constitutes an alleged crime, or the crime charged. That would be an example of the Crown proving a case by direct evidence, by calling a witness who says, "I saw him do that armed hold up", or it may be there's another kind of direct evidence. It may be again, this is perhaps in the context of armed hold ups, it may be there's a video recording showing an accused person committing the act that the Crown says that is an offence committed by that person.
Another kind of direct evidence may be where a person who it is alleged committed an offence admitted committing an offence to someone else; so that admission might then be said to be direct evidence. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, then it's capable of proving an accused's guilt. In a circumstantial case, which is what we are dealing with, the Crown lacks direct evidence of that kind.
It doesn't mean in a circumstantial case the case is weaker than a case based on direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being an offender, say doing an armed hold up, can be very unreliable because identification evidence can be honest but mistaken, but a case based on circumstantial evidence may be just as convincing and reliable as one based on direct evidence. It depends really on the nature and the number of the basic facts relied on by the Crown when considered as a whole, and you don't, of course, consider the facts individually or in isolation, you consider the facts as whole. It will depend on whether all the evidence leads to an unavoidable conclusion that the Crown has established the accused's guilt.
It's important that you approach a circumstantial case by considering and weighing as a whole all the facts that you find established by the evidence. It would be wrong to consider a particular fact in isolation and ask whether that fact proves the guilt of the accused or whether there's some explanation for it which is inconsistent with the guilt.
The correct approach is to determine first of all what facts you find established by the evidence. As I've said, any particular fact to be taken into account by you does not - the facts which you have to find and take into account do not need to be proved beyond reasonable doubt. What you need to find beyond reasonable doubt are the elements of the offences, and the elements of the offences I will come to, I'll explain them to you, I'll give you a document which sets out a summary of them to help you when you're considering your verdicts.
You consider all the facts together as a whole and ask yourselves whether you can conclude from them that the accused is guilty of the offence charged, of the particular count that you're considering at the time. You have, of course, to consider the counts or the charges separately and deliver separate verdicts for each of the counts.
If such a conclusion, that is that the accused is guilty of one of the offences that you're considering, does not reasonably arise from the Crown's circumstantial case, then it fails because you would not be satisfied beyond reasonable doubt and you would have to find the accused not guilty, but if you find that a conclusion is a reasonable one to draw from a combination of the established facts, before you could find the accused guilty of that offence that you're considering you must decide whether there's any other reasonable conclusion arising from the facts which is inconsistent with the conclusion that the Crown says is established.
If there is another reasonable conclusion arising from the facts which is inconsistent with the guilt of the accused then the circumstantial case would fail, because you would not be satisfied beyond reasonable doubt of the guilt of the accused. You should understand that drawing a conclusion from a set of established facts to find another fact proved involves a logical and rational process of reasoning. You must not base your conclusion on mere speculation or conjecture or supposition.
We do not disagree with the Crown’s submission that these directions were correct. However in our view those directions, combined with the incorrect direction about Mr Vo’s evidence, created a real problem in this case.
The problem is that in the context of those general directions, the trial judge gave the jury a specific, inconsistent, direction about how to treat the apparently exculpatory evidence given by Mr Boardman.
That direction was inconsistent with the standard direction given to juries, and given to this jury by the trial judge, about their role in assessing the evidence and determining which evidence to accept and which evidence to reject.
The direction was also inconsistent with the proper directions in relation to circumstantial cases, and more generally in relation to the onus of proof, that were given by the trial judge in this case.
For that reason, the mere giving of the incorrect direction suggested that Mr Boardman’s evidence fell into a special category of evidence which had to be tested in a particular way, and proved to a particular standard, before it could be considered by the jury in assessing the circumstantial case and, significantly, before the jury could use it in assessing whether there was on the evidence a rational alternative hypothesis (described by the trial judge as “another reasonable conclusion”) consistent with the appellant’s innocence.
The evidence the subject of the direction had two unusual characteristics: it was evidence possibly exculpatory of the appellant that was given by the appellant’s son, and it was evidence that, because of the absence of Mr Vo, could not be properly tested in the trial.
It is easy to imagine the jury believing that Mr Boardman’s evidence of Mr Vo’s comment was a special case, and was subject to a special test for acceptance or use by the jury. In such circumstances, the fact that the trial judge gave proper general directions about the jury’s role in determining what evidence to accept and what evidence to reject, and about how to assess a circumstantial case, would not have displaced the impression conveyed by the specific direction about Mr Boardman’s evidence that his evidence was a special case.
If anything, the inconsistency between the general directions and the special direction would have contributed to a conclusion that Mr Boardman’s evidence required special, different, treatment.
If the jury had thought there was a reasonable possibility that Mr Vo had made the comment and that the comment was true, then the jury could have been left with a reasonable doubt about the appellant’s guilt. However, the trial judge’s direction prohibited the jury reasoning in that way if, as was entirely feasible (see [8] above), they also thought that there was a reasonable possibility that Mr Vo had not made the comment or that if he did make the comment it was not true.
Conclusions
For the reasons given above:
(a)we consider it possible that the jury might have been led to believe, incorrectly, that they were required to approach Mr Boardman’s evidence in a different way from the way they were entitled to deal with the other evidence; and
(a)we cannot conclude that the appellant did not, because of that incorrect direction, lose a chance of acquittal; and
(b)therefore, we consider that the trial involved a miscarriage of justice.
Accordingly, we agree with Burns J:
(a)that the appellant should be given leave to further amend the Amended Notice of Appeal;
(b)that an order under r 5531 of the Court Procedures Rules 2006 (ACT) should be made permitting the new appeal ground to be relied on despite counsel’s failure to seek a re-direction at the trial;
(c)that the appeal against the appellant’s conviction on Count 1 should be upheld and the conviction should be set aside; and
(d)that there should be a new trial on Count 1.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Refshauge and Justice Penfold. Associate: Date: 20 December 2016 |
BURNS J:
On 16 March 2016, the appellant was convicted, following trial by jury, of two offences on an indictment dated 10 June 2015:
(a)Count 1 - that on 18 January 2015 at Canberra in the Australian Capital Territory she trafficked in a controlled drug other than cannabis, namely methylamphetamine; and
(b)Count 2 - that on 18 January 2015 at Canberra in the Australian Capital Territory she possessed a prohibited weapon and was not authorised by permit, or otherwise by the Prohibited Weapons Act 1996 (ACT) to possess the weapon.
On 9 May 2016, the trial judge sentenced the appellant as follows:
(a)on Count 1 the appellant was convicted and sentenced to five years imprisonment; and
(b)on Count 2 the appellant was convicted and sentenced to one month imprisonment to be served concurrently.
His Honour set a non-parole period of two years and eight months.
The appellant appealed from the convictions and sentences imposed. Originally, the grounds of appeal were extensive, but at the hearing of the appeal the appellant abandoned the pleaded grounds and sought leave of the Court to further amend her Amended Notice of Appeal to raise two grounds only, one concerning the convictions with regard to Counts 1 and 2, and one with regard to the sentence imposed on Count 1. The respondent opposed the amendment, chiefly on the ground that the proposed amendment sought to challenge a direction by the trial judge that had not been the subject of a request for redirection at the trial, and consequently leave was required pursuant to r 5531 of the Court Procedure Rules 2006 (ACT) (the Rules). As I am satisfied that leave should be granted for the appellant to further amend her Amended Notice of Appeal to raise the issue notwithstanding r 5531, and that the appeal should be allowed on the basis of this new ground, I will focus on the submissions made by the parties directly relevant to this issue. There were, for example, submissions made towards whether the jury should have been directed to accept the uncontradicted evidence of Harley Boardman about the statements made by Charlie Vo, but it is unnecessary to address that issue to resolve the appeal. The grounds of appeal as set out in the proposed Further Amended Notice of Appeal are:
(a)the trial judge erred in directing the jury with respect to evidence of an admission made by Charlie Vo; and
(b)the sentence imposed in relation to Count 1 is manifestly excessive.
At the hearing of the appeal the appellant abandoned the appeal against conviction with respect to Count 2.
The appeal against conviction therefore relates solely to the directions the trial judge gave to the jury with respect to the evidence of an admission made by Mr Vo.
Brief Overview
Section 37O(2) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) requires this Court to allow an appeal against conviction if the Court considers that the verdict is unreasonable, or cannot be supported having regard to the evidence, or where there was any wrong decision on a question of law in the proceeding from which the appeal is made. This requirement to allow the appeal is subject to a proviso found in s 37O(3), which permits the Court to dismiss an appeal against conviction notwithstanding that the point raised by the appeal may be decided in favour of the appellant, if the Court is satisfied that no substantial miscarriage of justice has actually occurred.
On 18 January 2015, the police executed a search warrant in relation to the appellant’s premises. When police entered a friend of the appellant’s, Mr Vo, and one of the appellant’s children were sitting in the lounge room. The police found:
(a)approximately $31,800 in the armchair console;
(b)approximately $14,405 in the appellant’s bedroom;
(c)139.005 grams of methylamphetamine located in snaplock bags concealed in the washing machine in the laundry;
(d)27.909 grams of methylamphetamine located in a water tank cooler of an air-conditioning unit of the appellant’s son’s bedroom, Mr Boardman; and
(e)three amounts of methylamphetamine weighing a total of 0.766 grams located on top of a fridge in the kitchen.
I note that the armchair console (which contained approximately $31,800) was referred to inconsistently in the evidence as “armchair console”, “lounge console”, “arm rest console” and “the console”. For convenience I will simply refer to it as the “armchair console”.
It was the Crown case at trial that the appellant trafficked in the drugs found in that she either possessed, concealed or guarded them, with intent to supply the drugs or believing that someone else intended to sell them. The Crown relied on circumstantial evidence to establish the guilt of the appellant.
It was the defence case that the appellant had no knowledge of any drugs in her house. Particularly, that the money in the armchair console belonged to Mr Vo, as did the drugs in the washing machine. There was evidence at trial that Mr Vo was “known for trafficking illicit substances”. The money found in the appellant’s bedroom was put forth at trial as being money lawfully obtained and not connected to drug dealing. It was the defence case that the methylamphetamine found in Mr Boardman’s room was placed there by one of his friends and without the knowledge of the appellant. The appellant’s DNA was found on elastic bands around the money found in the armchair console, and it was the defence case that this was a result of innocent transference. It was also the defence case that Mr Vo was visiting the appellant for an innocent purpose unrelated to drugs, as he was a friend of the appellant’s who had previously visited her.
At trial there was no dispute as to the following:
(a)a search warrant was executed at 10.30 am on 18 January 2015 at the appellant’s residence;
(b)the appellant lived at these premises, which was an ACT Housing property and she was the sole tenant on the lease;
(c)the appellant lived at the premises with her two sons, Mr Boardman and TT;
(d)there were drugs, cash and a canister of oleoresin capsicum spray found at her house by police during the course of executing the search warrant;
(e)Mr Vo attended the appellant’s house at about 8.15 am on 18 January 2015;
(f)Mr Vo was a drug dealer;
(g)the drugs found in the course of the search were methylamphetamine; and
(h)a trafficable quantity of methylamphetamine was found.
To properly address the ground of appeal in relation to conviction, it is necessary to summarise the evidence led at trial.
Evidence at trial
Evidence of Brett Katz
Detective Senior Constable Brett Katz was the officer in charge of the investigation against the appellant. The evidence of the police search of the premises was mainly led through him. As a result of certain information, a warrant was obtained to search the appellant’s residence, which was executed on 18 January 2015.
The appellant had CCTV cameras positioned on the corner of her house, looking towards the front yard and driveway. The appellant had screens inside her house, which displayed that footage. The appellant’s house was situated at the end of a cul-de-sac. The footage showed that at approximately 8.15 am Mr Vo arrived by car at the appellant’s house and entered the appellant’s premises. Mr Vo is then shown to exit the premises and obtain a black laptop bag from his car and re-enter the premises. During the execution of the search warrant drug paraphernalia was found inside Mr Vo’s bag, which included an ice pipe and scales. The footage also depicted the arrival of the police at approximately 10.25 am. Detective Senior Constable Katz with Constable Clancy and Constable Power attended. Three police vehicles attended with their lights flashing and there was evidence that the police sirens were also activated. The footage depicted a dog from the appellant’s yard run towards police. The appellant then came out of her premises and approached police. She indicated that there was another dog in the yard and she would secure the dogs before letting the police through the gate. She went into the premises after picking up a small dog and walked back outside seconds later. The police officers then entered the yard and went inside the house with the appellant at approximately 10.29 am. The footage also showed that after Mr Vo arrived at the appellant’s premises at 8.15 am, until police arrived at 10.25 am, no one else arrived at or left the premises. The police seized the CCTV footage and it was tendered at trial.
A floor plan of the appellant’s premises was tendered at trial. The front door opened into the laundry of the appellant’s house and to get to the front door from anywhere else in the house the appellant would have to walk through the laundry. The respondent submitted this was relevant as most of the drugs were found in the washing machine in the laundry. The respondent also submitted that from the time the lights on the police van would have been visible from the lounge room, as the window of the lounge room faces on to the yard and the cul-de-sac, until the police entered the house with the appellant, the appellant would have walked through the laundry twice. The first time being the time she came out and greeted police and the second after she put the dogs inside.
A statement of Constable Shea Clancy was also read by Detective Senior Constable Katz at the trial, which detailed her recollection of the search of the appellant’s premises. Inside the premises in the lounge room she observed Mr Vo sitting on a lounge chair next to the armchair console and one of the appellant’s children, TT, sitting on another lounge in the room adjacent to Mr Vo. Mr Vo told Constable Clancy that he was at the appellant’s premises to purchase a car from the appellant. At 10.39 am on 18 January 2015 Constable Clancy commenced a record of conversation with the appellant and Mr Vo. The record of conversation was suspended on a number of occasions for various reasons. At 1.27 pm on that date, during a suspension of the record of conversation, she heard Mr Vo ask Detective Senior Constable Katz if he could leave, as the vehicle he had hired needed to be returned to the hire company before 2.00 pm. At approximately 8.20 pm the search warrant on the appellant’s premises and the record of conversation were completed.
During this conversation with police the appellant said that Mr Vo had attended her premises to purchase a motor vehicle, which she was selling on behalf of someone called “Gerhard”. On 11 February 2015, Constable Clancy attended Gerhard’s Quality Cars in Fyshwick, where she had a conversation with the business director Gerhard Fischer. Mr Fischer told her that the appellant assisted him by introducing him to potential buyers of his cars. In return the appellant did not receive any commission or exchange of money from him.
Photographs of the inside of the appellant’s premises were also tendered at trial. The first depicted an air-conditioning unit in a bedroom that had been opened. Inside that unit there was a clip-seal bag of crystal substance, which was subsequently identified as methylamphetamine. The third image depicted a small amount of crystal substance on the top of a bar fridge in the kitchen, subsequently identified as methylamphetamine. The fourth image depicted a sum of money that was located in the armchair console of the couch in the lounge. At the hearing of the appeal, the respondent conceded that this console did not have enough space for both the drugs and the money to be stored. This was also accepted by the appellant. I interpolate here to observe that I was unable to discern which bundles of money, as shown in the armchair console in the photographs, corresponded with the bundles secured by the elastic bands that were found to have the appellant’s DNA. The fifth image depicted money that was hidden in a bedroom, and the sixth depicted money located in the bed, under the pillow of the bed. The seventh image depicted a vacuum sealed bag containing other clear bags containing a crystalline substance located in the washing machine of the laundry area, which were subsequently identified to be methylamphetamine. There was no dispute between the parties in relation to the items that were found and where they were found.
Three certificates relating to the quantity of methylamphetamine in the three separate locations referred to at [39] were tendered pursuant to s 15A of the Public Health Act 1997 (ACT). In summary:
(a)139.005 grams of methylamphetamine located inside the snaplock bags concealed in the washing machine in the laundry;
(b)27.909 grams of methylamphetamine located inside a snaplock bag in a water tank of a portable air-conditioner in the bedroom of one of the appellant’s sons, Mr Boardman; and
(c)three pieces of methylamphetamine weighing a total of 0.766 grams located on top of a fridge in the kitchen.
During cross-examination Detective Senior Constable Katz gave evidence that the ice pipe in Mr Vo’s bag would be used for smoking methylamphetamine. He discounted the proposition that the pipe would be used for giving samples to potential clients of methylamphetamine as “Generally, people use their own ice pipe”.
The recording of the conversation that occurred with the appellant during the execution of the search warrant was played for the jury. I will now refer to it in greater detail.
The appellant’s statements during the course of the search warrant
The appellant made the following statements during the police’s execution of the search warrant at her premises:
(a)her son, Mr Boardman; a former associate, Dave Williams; a friend, Adrian Vandie; and herself all had keys to her house;
(b)everyone that visits her house has access to the lounge room, although the belongings in that room belong to her;
(c)Mr Vo is her friend;
(d)Mr Vo attended her premises on that day to purchase a Suzuki four-wheel drive;
(e)she was selling the car on behalf of Gerhard;
(f)she intended to sell the vehicle for $6,500 - $7,000;
(g)she had known Mr Vo for “maybe years” and had his number stored in her mobile phone;
(h)she was unsure whether she had sold the car to Mr Vo and he had not given her money for the car;
(i)she was unsure whether she had seen the clear clip seal bag containing methylamphetamine found in the air-conditioning unit of Mr Boardman’s room before;
(j)she did not believe that the drugs found in the air-conditioning unit belonged to Mr Boardman;
(k)she did not wish to comment on the money found in the lounge room or whether it belonged to her;
(l)the last time she accessed the compartment in the lounge where the money was located was prior to police arriving;
(m)when she last looked in the compartment no one but herself, Mr Vo and her son, TT had been in the house;
(n)she buys and sells cars on behalf of Gerhard for work;
(o)she used to work as a “primary producer” and has had a few wins on the poker machines;
(p)she gets paid money and sometimes in favours for selling cars;
(q)she last received money for selling cars “a while ago”;
(r)she “stashes” the money she receives in her room;
(s)she estimated she had a “few thousand” stashed in her room;
(t)she was unable to tell police anything about the bag of methylamphetamine found in the washing machine;
(u)she could not remember the last occasion she had accessed the washing machine;
(v)she owned the washing machine;
(w)she denied the drugs belonged to her and made no comment as to who they belonged to; and
(x)she did not think she had ever touched the bag that contained the methylamphetamine.
Charlie Vo
Mr Vo was served with a subpoena to attend to give evidence at the trial, which commenced on 7 March 2016. Mr Vo answered his subpoena on 7 March 2016, however, failed to answer it the following day. The trial judge issued a warrant for his arrest at the request of the Crown. Mr Vo was unable to be located and consequently did not give evidence at the trial.
Some of the statements made by Mr Vo during the execution of the search warrant were led during the cross-examination of Detective Senior Constable Katz. To summarise, Mr Vo told police that he was prepared to pay up to $16,000 for the vehicle and that he brought approximately $5,000 to pay the deposit. He placed that money “inside” the couch, where it was in fact found. He said this was “just a reaction”. Mr Vo initially told police that he had placed five bundles of $1,000 each inside the armchair console. When he was shown the bundles of money he told police that he only had one bundle of $5,000 and the rest of the bundles did not belong to him. He also told police that he wrapped the bundles in elastic bands and said “it was just an elastic band”.
Detective Senior Constable Katz gave evidence that on 4 March 2016 Mr Vo entered a plea of guilty to an offence of attempt to participate in the sale or supply of a drug of dependence. Mr Vo was also sentenced on that date and gave an undertaking that he would give a statement to police concerning these events and that he would attend court to give evidence in the trial of the appellant. Detective Senior Constable Katz also gave evidence that Mr Vo was effectively a “drug mule” and that he moved money and drugs between the Australian Capital Territory and New South Wales.
Mr Vo provided a statement to police dated 4 March 2016 following his sentence hearing, which was tendered at the trial of the appellant. In his statement Mr Vo stated that he went to the appellant’s house on 18 January 2015 to buy “meth” from the appellant. He took $5,000 with him for that purpose. He placed the $5,000 in the seat of the couch as a “split reaction” upon the arrival of police.
Evidence of Harley Boardman
Mr Boardman is the appellant’s son and lived with the appellant, together with his younger brother, TT, at the time the search warrant was executed. He was not at home when the search warrant was executed. He knew Mr Vo through the appellant and had known him for approximately two years. He gave evidence that he had met him approximately a dozen times at a friend’s house, and several times at the appellant’s house. He gave evidence that he observed his friends purchase drugs from Mr Vo on one occasion at a friend’s house. He never purchased drugs from, nor sold drugs to Mr Vo. He also gave evidence that he did not see his mother buy any drugs from Mr Vo or sell any drugs to him. He never saw Mr Vo come to the appellant’s house with drugs.
Mr Boardman gave evidence about the drugs that were located in the broken air-conditioning unit in his bedroom. He initially said they were not his and he did not know who put them there, although he subsequently altered this evidence.
Mr Boardman also gave evidence about the drugs in the washing machine during evidence-in-chief, which is as follows:
MR SAHU KHAN: Do you know there were some drugs found in the washing machine? --- Yeah
Did you own them? --- No.
Do you know who owned them? --- Well, from what I’ve been told from Charlie Vo himself when I was in gaol with him that he was the one who owned them.
Did he tell you why he left it at your house? --- Yeah, because when he seen the police rock up, he freaked a little bit and he went and put them in the washing machine, so I don’t know.
...
And Vo had, according to you, owned up to the drugs in the washing machine? --- Yes, that’s correct.
Did he say what he was going to do with them? --- No.
Did you ask him, “Why would you want to bring drugs at my house”? --- I asked him like how that ended up in my washing machine, and that’s when he told me. He told me to say sorry, he said sorry to me, and wanted me to, when I spoke to mum, to apologise to her as well.
Did you tell the police this? --- No, I was never questioned by the police.
You also know that there was a lot of money found in your house? --- Yes.
Did that money or any part of it belong to you? --- No.
Was there any arrangement, or were you aware that Vo was going to go to your mother’s place on 18 January? --- When I seen him earlier that morning, yeah, he told me that he was going to my mum’s house to buy a car later on that morning.
Where did you meet him? --- That’s when I ran into him at my friend’s house.
What time was that? --- I can’t be a hundred per cent sure. It was after 12 o’clock.
...
When you say 12 – not midday? --- No.
Midnight? --- Yeah.
Mr Boardman also gave evidence that he observed a drug deal between a friend of his and Mr Vo in the early hours of 18 January 2015. They were at a friend’s place. He considered that approximately one or two ounces of drugs were purchased. He gave evidence that he then went to his house to get changed, together with the friend that had purchased the drugs. He was aware that around 18 January 2015 the police were interested in having him answer questions in relation to some matters. He was also aware that his mother had a CCTV system installed, which showed people coming and going from the front gate and coming towards the house. When he approached the appellant’s house in the early hours of 18 January 2015 he did not go through the front gate, instead he came down through the back alleyway to the back fence and entered the house by going over the back fence, climbing on top of the garage and going through the kitchen window. His friend accompanied him into the house this way and they also both exited the house this way. This was out of view of the camera the appellant had covering the front of the house. He also gave evidence that he did not have a key to open the back door.
Mr Boardman gave evidence that after they entered the house his friend said that he did not want to carry that amount of drugs on him and asked whether he could leave some of the drugs at his place. Mr Boardman told his friend to put the drugs in the air-conditioning unit in his bedroom. He did not inform his mother or brother, TT, of the drugs in the air-conditioning unit. Mr Boardman was aware that Mr Vo was attending his mother’s place and Mr Vo had told Mr Boardman that he intended purchasing a car.
He also testified that during January 2015 an ounce of methylamphetamine would have sold for anywhere between $5,000 to $10,000. He said it was less expensive if you obtained the drugs from out of state, and as Mr Vo was from out of state it would be closer to $5,000.
In re-examination, the Crown prosecutor attempted to clarify the evidence that Mr Boardman had given in evidence-in-chief, that he did not know who put the drugs in the air-conditioning unit. When questioned, Mr Boardman thought he had said that he did know who put the drugs in the air-conditioning unit. I will set out some of the re-examination in detail:
When you answered initial the question, “who put the drugs there” you said now you were prepared to tell lies to protect your friend? --- Yeah.
Yes? --- Yes, I guess so. Not really, but I don’t know. It’s just – you don’t understand what it’s like to be up here, you know what I mean, like there’s a hundred things going through my head right now, and it’s so nerve racking, and like, yeah, I don’t know.
Mr Boardman, if I put to you that if you tell the truth, it will be so much easier? --- I am telling the truth, but I don’t want to get anyone else in trouble.
...
At that time when you were protecting your friend, you were basically living in – you had the drug culture, you said? --- Yes.
So when you stopped being in the drug culture, by the time you stopped being in the drug culture, you knew that your mother was charged with these offences? --- Yes.
So your mother was in trouble for something that she should not have been charged with? --- Yes.
Other witnesses
First Constable Adrian Janssen, Detective Senior Constable Ryan O’Hara and Senior Constable David Power all gave evidence that they attended the appellant’s premises on 18 January 2015 in relation to the execution of a search warrant to look for drugs on her premises. First Constable Janssen was cross-examined briefly on the way in which this money was found. I will not detail the evidence of these witnesses any further.
Ayesha Seymour, a Senior Forensic Biologist with the Australian Federal Police also gave evidence at the trial. She gave evidence as to a DNA analysis she conducted on six elastic bands, which were those bundled around the money found at the appellant’s premises in the armchair console. She prepared a report dated 21 April 2015, which was tendered at the trial. The result of that DNA analysis established that the appellant could not be excluded as being the major component of the DNA profile in relation to four of the elastic bands, and there was, at least, strong support for the proposition that she provided the major component. Two of those elastic bands were found unsuitable for identification purposes. Defence Counsel focused much of his cross-examination on the way in which DNA could be transferred and issues of contamination, and evidence was given that it is a possibility that the DNA could have been transferred. It was the defence case at trial that the presence of DNA said to be that of the appellant and found on the elastic bands around the cash in the armchair console was the result of innocent transference.
The trial judge’s directions
The portion of the trial judge’s directions the subject of the appeal and said to be erroneous is as follows:
Members of the jury, just one final thing: the issue that was discussed just before you left the courtroom, that evidence that Harley Boardman gave about Mr Vo telling him that he actually put drugs into the washing machine, it’s a matter for you as to what you make of that evidence. You would take it into account unless you think there’s a reasonable possibility that either Mr Vo didn’t say that at all to him or Mr Vo did say it and he was not telling the truth. There are a number of possibilities and it’s entirely a matter for you as to how you deal with that evidence.
(emphasis added)
The parties’ submissions
The appellant’s submissions
The appellant referred to the direction that was sought by trial counsel, which the trial judge agreed to deliver. She submitted that the focus for this Court is the direction that was given by the trial judge, rather than whether the direction sought by trial counsel should have been given.
The appellant referred to the following portion of the trial judge’s direction as set out at [68] as being erroneous: “You would take it into account unless you think there’s a reasonable possibility that either Mr Vo didn’t say that at all to him or Mr Vo did say it and he was not telling the truth”. The appellant submitted that the direction given by the trial judge at [68] involved a “wrong decision of any question of law” for the purposes of s 37O(2)(a)(ii) of the Supreme Court Act.
The appellant submitted that the words “take into account unless”, are different from saying “you would accept unless”. Mr Odgers SC on behalf of the appellant deconstructed the directions of the trial judge at [68] during the course of oral submissions. He said the following:
... his Honour has directed them that “it’s a matter for you as to what you make of that evidence”. We would say “make of that evidence” means how you use it ... We say the second sentence then qualifies that proposition by indicating to them in words which we say convey that you would not take it into account “if” – now that’s just reversing the words, but when you say “you would take it into account unless” – that conveys that if the words that follow “unless” are satisfied then you would not take it into account.
... the last sentence again repeats “it’s a matter for you as to how you deal with that evidence”, but we would say that read consistently with the second sentence what the jury would have understood is “we can take into account unless certain conditions are satisfied. If those conditions are satisfied we can’t take it into account. If we can take it into account then it’s up to us what weight we give it, how we deal with it, what we make of it”.
The conditions that are referred to are a reasonable possibility that Mr Boardman is not a reliable witness regarding what Mr Vo said, effectively that it is a reasonable possibility that Mr Vo did not say the words that Mr Boardman said he did. The other being that if it is a reasonable possibility that Mr Vo was not telling the truth to Mr Boardman the jury would also not take the evidence into account.
The appellant submitted that the jury should have been directed to take into account the evidence that Mr Vo stated that he actually put drugs into the washing machine unless they decided it was not a reasonable possibility that Mr Vo said that or they decided that it was not a reasonable possibility that Mr Vo was telling the truth. Instead, the trial judge directed the jury to take into account the evidence unless they decided it was a reasonable possibility that Mr Vo did not say that or they decided it was a reasonable possibility that Mr Vo was not telling the truth.
In her written submissions the appellant also stated:
Even in respect of the issue whether it was reasonably possible that Vo, if he did make the admission, was not telling the truth, it was erroneous to direct the jury that they “would take it into account unless you think ... there’s a reasonable possibility that Mr Vo ... was not telling the truth”. The jury would have understood this is a direction that they should not take the evidence into account if it was a reasonable possibility that Mr Vo did not “put [the drugs] in the washing machine” ... That effectively reversed the onus of proof. It directed the jury to disregard the most significant evidence in favour of the appellant if it was a reasonable possibility that it was untrue.
The respondent conceded that the direction at [68] was erroneous, although it asserted that it was nonetheless “beneficial” to the defence. The appellant took issue with this submission and considered that under no circumstances could the direction of the trial judge be construed as beneficial to the defence. The appellant submitted that the jury were told that they should disregard evidence, which assisted the defence on the question of whether the appellant was in possession of the drugs found in the washing machine. The appellant submitted that the trial judge’s direction was a legal error that constituted a miscarriage of justice.
The appellant then turned to whether the proviso found in s 37O(3) of the Supreme Court Act applies in this case, referring to Weiss v The Queen [2005] HCA 81; 224 CLR 300 (Weiss). The appellant submitted that Weiss only establishes the proposition that the proviso cannot be applied unless the appellate court themselves are satisfied of guilt beyond a reasonable doubt. The appellant also referred to the High Court case of Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at 55:
But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, “if the condition (the conclusion that no substantial injustice has occurred) is satisfied” the proviso must be applied.
(citations omitted)
The appellant submitted, having regard to the authority in Filippou, that the first question to be considered is whether the appellant lost a chance of acquittal that was fairly open on the evidence. The appellant further submitted that the proviso could not be applied in this case, as the evidence of Mr Boardman about what Mr Vo said was very relevant to the defence case. She submitted that this Court could not be satisfied that she did not lose a chance of acquittal by reason of the trial judge’s directions.
In relation to the application of r 5531 of the Rules the appellant submitted that the failure of counsel to seek a redirection of the direction given by the trial judge at [68] should not stand in the way of a conclusion that the jury were misdirected regarding an important item of evidence that favoured the defence and that the erroneous direction may have affected the jury’s consideration of that evidence, resulting in a miscarriage of justice. The appellant submitted that if the direction resulted in a miscarriage of justice, an order under r 5531 must be made: GW v The Queen [2015] ACTCA 15; 306 FLR 104 at 109.
The respondent’s submissions
The respondent conceded that the direction of the trial judge at [68] was erroneous, although it submitted that the direction was “unnecessary”. It went on to submit, however, that the trial judge’s directions on this issue should be considered in the context of his directions when read as a whole. Specifically, the respondent noted that the trial judge gave the usual directions about the standard and onus of proof and how the jury was to approach a circumstantial case. The trial judge also gave a warning under s 165 of the Evidence Act 2011 (ACT) (the Evidence Act) in respect of the contents of Mr Vo’s statement dated 4 March 2016. His Honour also gave the usual directions in relation to the jury’s obligation to assess whether they accept or reject the evidence of witnesses. The respondent specifically pointed to the following as ameliorating the effect of the impugned direction:
If there is another reasonable conclusion arising from the facts which is inconsistent with the guilt of the accused then the circumstantial case would fail, because you would not be satisfied beyond reasonable doubt of the guilt of the accused.
In the written submissions of the respondent, much attention was focused on the directions sought by trial counsel and whether trial counsel should have sought a redirection on that part of the trial judge’s directions now impugned. While I note the respondent submitted that the direction that was sought by trial counsel was not required, it accepted that the direction had been given and that it was erroneous, so that the main issue in relation to the appeal against conviction is whether the proviso should apply.
The respondent also took us to the High Court decision of Weiss, particularly under the heading in the judgment “The statutory task and the proviso” at 316:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.
(citations omitted)
The respondent also referred us to the judgment of McHugh J in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 144:
In R v Storey, Barwick CJ said:
“[T]he question before a Court of Criminal Appeal is not disposed of by the discovery of error in the trial. If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury ... would have failed to convict the accused; or were the errors such that if they were removed a reasonable jury might well have acquitted.”
In Driscoll v The Queen, Barwick CJ noted that the important words in Fullagar J’s reasons in Mraz were “may thereby have lost a chance which was fairly open to him of being acquitted”. His Honour said that passage should not be read as if every departure from the relevant law or procedure meant that there has been a miscarriage of justice. In Wilde v The Queen, Deane J accepted that there might be error, impropriety or unfairness in a trial but these may not “prejudice or colour the overall trial” so as to affect the verdict.
(citations omitted)
The respondent submitted that in the light of the evidence in this matter the jury would not have acquitted the appellant of Count 1, notwithstanding the direction that was given. The respondent then set out the matters it relied upon to show that the application of the proviso is inappropriate. I have already set out the evidence at trial in some detail above, however, I note that in particular the respondent pointed to the following:
(a)the appellant had an opportunity to place the drugs in the washing machine as she walked through the laundry at least twice following the arrival of police;
(b)there was insufficient room in the armchair console for both the money and the drugs (which the appellant agreed);
(c)there was an inference available that in the time between Mr Vo arriving and the police arriving the people present at the house were using drugs;
(d)the appellant’s DNA was found on four of the six elastic bands that were bundling together the money found in the armchair console, which amounted to approximately $20,000;
(e)the appellant’s DNA being found on those rubber bands leads to the inference that the appellant handled that money; and
(f)Mr Vo and the appellant gave inconsistent versions in relation to the amount Mr Vo was going to pay to purchase the car from the appellant.
The respondent also referred to the appellant’s answers in her record of conversation during the execution of the search warrant that I have set out at [54]. The respondent referred to the statements of Mr Vo that were led through Detective Senior Constable Katz and set out above.
The respondent submitted that Mr Vo asserting that he owned the drugs and had put them in the washing machine was not inconsistent with the Crown case at trial, as Mr Vo did not go that further step and say “and the appellant didn’t know anything about them”. The respondent submitted that the large quantity of money supports an overwhelming inference that the money was connected to the drugs. It also submitted that the inference was open that at some time that day the appellant had possession of the drugs either because she was going to give Mr Vo possession of the drugs following the transaction or because she had received the drugs from him following the transaction. The respondent pointed to the appellant’s DNA being on the elastic bands as being consistent with this inference.
The respondent also submitted that the two and a half hours that had elapsed from Mr Vo arriving to police arriving was significant. The respondent submitted if Mr Vo did come in with the drugs and money in the black laptop bag as seen in the CCTV footage, the time he was there becomes significant as the laptop bag had been opened, the money was in the armchair console and the drugs were in the washing machine.
The respondent noted that it was important to appreciate for the purposes of this appeal that there were three sources of Mr Vo’s hearsay statements tendered in the course of the trial. Those sources being:
(a)Statement of Mr Vo made to police on 4 March 2016, which was tendered by the appellant during the course of cross-examination of Detective Senior Constable Katz.
(b)Statements made by Mr Vo to police during the execution of the search warrant elicited by the appellant in cross-examination of Detective Senior Constable Katz.
(c)Evidence of Mr Boardman about hearsay statements by Mr Vo to him.
The respondent submitted that there were, therefore, three different versions of events from Mr Vo in evidence:
(a)he attended the appellant’s premises to purchase a car and had $5,000 cash as a deposit (stated by Mr Vo to police when the premises were being searched and elicited during cross-examination of Detective Senior Constable Katz);
(b)he attended the appellant’s premises with $5,000 in order to purchase methylamphetamine (4 March 2016 statement); and
(c)the drugs in the washing machine were his, and he had concealed them when the police attended (evidence of Mr Boardman).
The respondent noted that there was no application by either party to limit the use of the evidence of Mr Vo’s hearsay statements pursuant to s 136 of the Evidence Act. The respondent submitted that Mr Vo’s version where he attended the appellant’s premises to purchase a car was clearly a lie.
Conclusion
It was conceded by the respondent that the direction given by the trial judge was erroneous. This concession was rightly made. The jury should have been directed that the evidence of Mr Boardman regarding the statements made to him by Mr Vo should have been taken into account by the jury if they considered there was a reasonable possibility they had been made by Mr Vo and there was a reasonable possibility they may be true.
I accept that the Crown case was strong, but the jury were effectively directed to discount evidence, which was before them as evidence of the truth of the statements made by Mr Vo, if they thought there was a possibility that what Mr Vo had said was untrue. The jury could have accepted the evidence of Mr Boardman regarding the provenance of the methylamphetamine found in the air-conditioning unit, meaning that the statements made by Mr Vo assumed particular importance. If Mr Boardman was assessed as a credible witness regarding his conversation with Mr Vo, the jury would be entitled to reason that Mr Vo was apologising for having placed the drugs and the money in the appellant’s residence when police arrived, providing support to the appellant’s assertion that she did not know of their presence. There was no identified reason for Mr Vo to lie to Mr Boardman about these matters, whereas there are clear reasons why he would attempt to minimise his culpability in his dealings with police, and attempt to deflect blame on to others. The evidence of the appellant’s DNA being found on some of the rubber bands securing bundles of cash found in the armchair console was not definitive proof of the appellant’s guilt, and the weight which the jury may attribute to that evidence may depend greatly upon whether it accepts as a reasonable possibility that Mr Vo placed the money, or some of it, in the armchair console.
If the jury had been properly directed, it is not possible to say that they would nevertheless have convicted the appellant. To put it another way, I am satisfied that the appellant lost a chance of acquittal by reason of the misdirection.
I would make the following orders:
(a)The appellant is granted leave to further amend her Amended Notice of Appeal;
(b)Leave is granted to the appellant under r 5531 of the Court Procedure Rules 2006 (ACT);
(c)The appeal against conviction on Count 1 is allowed and the conviction is quashed; and
(d)The appellant be re-tried on Count 1.
| I certify that the preceding sixty-two [93] paragraphs numbered [32] – [93] are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Nathan Deakes Date: 20 December 2016 |
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