Tago v The State of Western Australia
[2017] WASCA 157
•23 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TAGO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 157
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 9 AUGUST 2017
DELIVERED : 23 AUGUST 2017
FILE NO/S: CACR 117 of 2017
BETWEEN: TIKERI TAGO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BRADDOCK DCJ
File No :IND 565 of 2016
Catchwords:
Criminal law - Direction to jury about alleged lies by accused - Whether judge's redirections caused a miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
REASONS OF THE COURT:
Introduction
The appellant was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply. He seeks leave to appeal against conviction. The sole proposed ground of appeal complains that a miscarriage of justice arose from an inadequate redirection by the trial judge.
For the reasons that follow, there is no merit in the proposed ground of appeal and, consequently, leave to appeal should be refused.
The State case
The State case may be summarised as follows.
The appellant was one of four people involved in transporting 21 kg of methylamphetamine from New South Wales to Perth. The two main offenders were Sam Tago (the appellant's cousin) and a co‑accused Mr Phillip Simons. Mr Simons did not have a driver's licence. Sam Tago recruited the appellant to come from Brisbane to Sydney in order to assist in driving from Sydney to Perth.
The fourth person involved was a female co‑accused who was ultimately acquitted at trial. On the State case, her role was, like the appellant's, to be one of the drivers of the vehicle.
Initially, the appellant and Sam Tago drove one car, while the female co‑accused drove with Mr Simons in the other car. After the latter car had mechanical difficulties, the four then travelled together in one vehicle, driving across Australia to Perth.
Inside the car was 21 kg of methylamphetamine of a high purity.
On the evening of 19 July 2015, being the day they arrived in Perth, Sam Tago and Mr Simons supplied or sold 11 kg of the methylamphetamine to another person. Shortly after that, the appellant and the female co‑accused were stopped by police. The remaining 10 kg of methylamphetamine was found in a unit which the appellant admitted he occupied and to which he had a key. The 10 kg of high purity methylamphetamine, said to be worth about $2 million, was found in the drawers of a bedside cabinet in the bedroom of Mr Tago's unit.[1]
[1] ts 168 - 170.
The State case against the appellant was that he knew that the vehicle he was helping to drive from Sydney to Perth contained a prohibited drug which was going to be supplied to others.[2] The State contended that the appellant aided the commission of the offence of possession of a prohibited drug with intent to sell or supply in that he drove and made himself available as a reserve driver in order to assist the commission by Sam Tago and Mr Simons of the offence of possession of methylamphetamine with intent to sell or supply.[3]
[2] ts 175 - 176.
[3] ts 176.
In opening, the State anticipated that the primary issue would be whether the appellant knew that there was a prohibited drug in the vehicle and knew that the purpose of the trip was to transport the drugs.[4]
[4] ts 177.
The State case was circumstantial. The State contended that the only reasonable inference was that the appellant knew that there were prohibited drugs in the vehicle that he was helping to drive. The State suggested it was inherently improbable that he would spend four days in the vehicle travelling all the way to Perth without discussing the real purpose of the trip and the presence of the drugs.[5] Further, the State pointed to the unlikelihood that the main offenders would have left 10 kg of methylamphetamine in the bedside table of the appellant's unit if the appellant had been unaware of the presence of that methylamphetamine.[6]
[5] ts 177.
[6] ts 177 - 178.
In opening, the State said that the appellant gave an explanation to police that he thought he was going to Perth to help his cousin Sam Tago do some construction work for the Department of Veterans Affairs. The State asserted that that was an inherently improbable explanation, saying that it was unlikely that the appellant would agree to undertake a 10‑day round trip to do a single day of construction work in Perth.[7]
[7] ts 178.
The appellant's electronically recorded interviews with police
The appellant participated in two electronically recorded interviews with police. The first interview was conducted on 20 July 2015. The second occurred on 13 November 2015.
The State tendered the interviews as part of its case.
The defence case
In opening, counsel for the appellant accepted that 21 kg of methylamphetamine was transported in the car in which the appellant came from Sydney to Perth. He also accepted that a drug deal was done for the 11 kg.[8] The defence identified that the issue at trial would be what the appellant knew. Counsel suggested that the jury would not be satisfied beyond reasonable doubt that the appellant knew of the presence of drugs or that he intended to aid in the commission of the offence.[9]
[8] ts 190.
[9] ts 190 - 192.
Counsel emphasised that in both interviews with police, the appellant said that he did not know what was going on or that drugs were in the room where they were found. The appellant told police that he thought they were coming over to Perth to do some construction work for the Department of Veterans Affairs.[10]
[10] ts 192
The appellant did not give evidence at the trial.
The prosecutor's closing address at the trial
In his closing address at the trial, the prosecutor emphasised three discrepancies between the appellant's first interview with police and his second interview.
In particular:
(a)During the first interview the appellant told the police that he thought they had travelled from Sydney to Perth to build a retaining wall and they were starting work the following day. By contrast, during the second interview the appellant told the police that while they were travelling from Sydney to Perth he told Sam Tago that he did not like 'what, you know, what we're involved in' and Sam responded 'just trust me, I know what I'm doing [but] … don't go blabbering'.
(b)During the first interview the appellant told the police that, shortly before the police arrived at the unit which the appellant occupied, Mr Simons and Sam Tago had gone out to get tools. By contrast, during the second interview the appellant told the police that, shortly before the police arrived at the appellant's unit, Mr Simons and Sam Tago had gone out to get dinner.
(c)During the first interview the appellant told the police that, at a hotel in Sydney, Sam Tago told him they were going to Perth. By contrast, during the second interview the appellant told the police that it was not until the next day, when they were driving through the Blue Mountains, that Sam Tago told him they were going to Perth.
The trial judge's summing up
Given the limited scope of the ground of appeal, only some parts of the judge's charge to the jury need be referred to.
The judge gave conventional directions that the jury were the sole judges of the facts, that nothing the judge said about the facts detracts from the jury's responsibility to decide the facts and that they were free to disregard any comments the judge may make as to the facts.[11] The judge said she would not attempt to persuade the jury to take any particular view of the facts and said that 'I can't emphasise too strongly how important it is for you as a jury to come to your own conclusions about the facts of the case'.[12] The judge also told the jury that the members of the jury were the sole judges of the weight to be given to any evidence.[13]
[11] ts 544 - 545.
[12] ts 545.
[13] ts 547.
The judge referred to the fact that, in his interviews with the police, the appellant said that he knew nothing of the drugs in the vehicle. The judge directed the jury that the weight to be given to that evidence was a matter for the jury as the judges of fact.[14]
[14] ts 549.
The judge identified that the critical issue for the jury's decision was whether the State had proved beyond reasonable doubt that the appellant knew that there were drugs in the car.[15]
[15] ts 554, 556 - 557, 567.
In the direction the subject of this appeal the judge identified lies that her Honour said were relied on by the State as part of their case against the appellant. The judge said as follows:
The State has submitted to you in relation to both Ms Walker [that is, the female co‑accused] and Mr Tikeri Tago [that is, the appellant] that they have lied to you, and that those lies support the State case.
…
In relation to Mr Tikeri Tago, [the prosecutor] relied upon the differing versions between the two interviews that were given, the formal interviews by Mr Tikeri Tago. For example, in the first interview he said he was going to build a retaining wall in Perth. And then contrast that with what he said in the second interview about what he was involved in, and what he had found out, and what he said to his cousin about that.
And furthermore that he told the police the first time that he was told in Sydney that he was going to Perth, and the second time said it was when they were - in the morning when he was driving, he asked where they were driving to and was told Perth. So as I said, the State has led that evidence and relies upon it to show that the accused is lying, and that that would support the prosecution case.[16]
[16] ts 565 - 566.
The judge then gave a conventional Edwards[17] direction in relation to the matters the jury must determine in deciding whether a lie could support the State case.[18]
[17] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
[18] ts 566.
The judge outlined the parties' respective cases. In summarising the State case against the appellant, the judge referred, among other things, to the following as matters relied on by the State:
(a)The fact that 10 kg of methylamphetamine was left in the appellant's room.
(b)The State contended that the appellant's story was implausible in that it is unlikely that he would travel four days in a car to Perth in order to do one day of construction work, and then drive four days back to the east coast.[19]
(c)The State asserted that the accounts given by the appellant in his interviews were false.[20]
[19] ts 569.
[20] ts 569.
The judge outlined the appellant's case. No complaint is made in that respect. In essence, the defence case was, as opened, that the State had not proved beyond reasonable doubt that the appellant knew that the car contained drugs.
The redirection
Very soon after the jury retired, counsel for the appellant informed the judge that, as he understood the State case, the State did not allege any Edwards lies against the appellant.[21] The prosecutor agreed that this was so.[22] However, counsel for the appellant said that he did not seek a redirection, as he had no desire for further emphasis to be placed on alleged lies told by the appellant.[23]
[21] ts 579.
[22] ts 580, 587. (The State's position at trial appeared to change from opening, where the appellant's alleged lies were said to indicate a consciousness of guilt (ts 180). That may well explain why the judge directed as her Honour did.)
[23] ts 579, 585.
After an exchange with counsel for the co‑accused, the appellant and the State, the judge indicated that she considered it appropriate to correct what she had said. The judge indicated to counsel the gist of what she proposed to say, namely that it is only what was said by the female co‑accused in relation to the purpose of the trip that the State says is a lie that supports the case for the State. The other matters said to have been lies are relied on by the State simply as matters to be taken into account in the assessment of the weight to be given to the evidence of the person said to have told the lie.[24]
[24] ts 587.
Thereafter, counsel for the appellant did not say anything as to the terms of what the judge proposed to say.
The judge then redirected the jury in the following terms:
Members of the jury, I'm sorry to drag you out of your room so soon but there were a couple of matters I wanted to make quite sure I'd made myself clear about.
…
The second matter concerns the alleged lies that the State relied upon in relation to the case. I think I may have slightly misunderstood the way in which [the prosecutor] was putting his case. The only lie that the State relies upon as being potentially evidence directly supporting the State case is [the female co-accused's] lies about the purpose of the trip, if you find them so to be, that she was on holiday and not being paid rather than a working trip and may be expecting to get $1,000.
Those matters are the matters that the State relies upon as being evidence potentially of guilt - or a guilty mind. She told the lie because she was concerned that the truth might implicate her. That's the State's position.
In relation to the other matters that have been referred to as lies, those are matters that you may take into consideration but it's not suggested that they directly go to support the State's case. That is to say, in relation to - for example, in relation to [the female co-accused], where she did or didn't meet up with the other co-accused, whether it was later or sooner at the Wentworth [sic] Hotel.
And in relation to [the appellant] his utterances that may or may not have been strictly in accordance with the truth are not relied upon by the State to indicate directly that he had a guilty conscience when he was talking to the police.
Those are matters that you can take into consideration when you're assessing generally the credibility, the believability of what has been said by those individuals elsewhere in their interviews. So I wanted to clarify that because, members of the jury, I gave you instructions as to how they are to be used and it only applies in relation to the one matter concerning the purpose of the trip for [the female co-accused]. Is that clear, members of the jury?
Thank you. If you'd now like to retire again to consider your verdicts.[25]
[25] ts 588 - 589.
The ground of appeal
The single ground of appeal is in the following terms:
A miscarriage of justice occurred when, in redirecting the jury, her Honour failed to adequately address an earlier error made in the summing up in relation to the lies in the appellant's records of interview relied upon by the prosecution.
Particulars
1.1The two lies relied on by the State as 'Zoneff lies' were not adequately identified and addressed in the redirection;
1.2the two Zoneff lies were not relied upon at all by the State to reveal a guilty conscience;
1.3the jury were entitled to have regard to whether all the appellant's interviews were the truth.
The merits of the appeal
The appellant makes three complaints about the redirection, reflected in the particulars of the ground of appeal. For the reasons explained below, none of these complaints has any merit.
First, the appellant contends that in redirecting the jury, the trial judge should have identified again the two lies relied on by the State to which her Honour referred earlier in her summing up.[26] A redirection, like any part of a trial judge's direction, is not to be viewed in isolation. It must be understood in the context of the direction that had preceded it. There is no basis to doubt that the jury would have understood the judge to be referring to the lies her Honour had identified in the course of directing the jury about the State's reliance on lies by the appellant.[27] Moreover, before the trial judge, counsel for the appellant expressly refrained from seeking a redirection on the ground that he did not wish undue emphasis to be placed on the appellant's alleged lies. Her Honour's approach in not identifying the content of what the State alleged to be lies accommodated that concern.
[26] Particular 1.1; Appellant's submissions [37]; appeal ts 2.
[27] ts 565 - 566.
Secondly, the appellant fixes on the word 'directly' in the judge's statement that the appellant's alleged lies were not relied on by the State 'to indicate directly that he had a guilty conscience when he was talking to the police'. The appellant contends that her Honour should have told the jury that those alleged lies were not relied upon at all as evidencing a consciousness of guilt.[28] In our opinion, it is clear that the effect of the redirection, understood as a whole, was that the only lie relied upon by the State as evidence of guilt was a lie alleged to have been told by the female co‑accused. In the redirection, her Honour specifically said that this lie was the one matter that her earlier directions as to how lies were able to be used as evidence of guilt applied. The judge further told the jury that other alleged lies were matters that could be taken into consideration in assessing the credibility of what was said by the appellant (and female co‑accused) in their (respective) interviews.
[28] Particular 1.2; appellant's submissions [40] - [41]; appeal ts 2.
Thirdly, the appellant complains that the impression created by the judge's redirection was that the relevant statements of the appellant were lies, when the judge should have told them that whether that was so was a matter for them to assess looking at the whole of the interviews.[29] There is no merit in this assertion. The judge referred to 'alleged lies' relied on by the State. Later in the redirection she referred to other matters that had been 'referred to as lies'. Her Honour also referred to the appellant's utterances 'that may or may not have been strictly in accordance with the truth'. The judge's directions as a whole made it clear that the determination of all questions of fact generally, and the weight to be given to what the appellant told the police, were matters for the jury and the jury alone to assess. Nothing in the judge's redirection suggested that the trial judge was directing that the alleged lies were lies, rather than that the jury must consider that question for itself, as part of its fact‑finding task.
[29] Particular 1.3; appellant's submissions [42] - [44]; appeal ts 2.
In our opinion, there is no discernible risk that the jury could have been misled in any of the respects alleged by the appellant. That view is reinforced by the fact that experienced defence counsel appearing for the appellant did not take any exception to the terms of the redirection.
Conclusion
For these reasons, the proposed ground of appeal has no reasonable prospects of succeeding. Leave to appeal must be refused, and the appeal dismissed.
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