Tasmania v Roland

[2015] TASSC 38

[2015] TASSC 38

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Roland [2015] TASSC 38

PARTIES:  STATE OF TASMANIA
  v
  ROLAND, Mark Raymond

FILE NO:  261/2012
DELIVERED ON:  27, 28 July 2015
DELIVERED AT:  Burnie
HEARING DATE:  28 July 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Estoppel – Estoppel by judgment – Issue estoppel – Application of estoppel to what matters – Matters necessary to decision – Evidence of possession of firearms in trafficking charge does not controvert acquittal of family violence offence.

Tasmania v Finnegan (2011) 21 Tas R 116; R v Carroll (2002) 213 CLR 635; Bennett v The State of Western Australia [2012] WASCA 70; Ulutai v The Queen [2014] VSCA 110, referred to.
Aust Dig Estoppel [1025]

Criminal law – Particular offences – Drug offences – Dealing and distribution of drugs – Evidence – Relevance of possession of firearms to trafficking.

Sultana v The Queen (1994) 74 A Crim R 27; Blackwell (1996) 87 A Crim R 289; R v Edwards [1998] 2 VR 354; R v Georgiou [2009] VSCA 57, applied.
Aust Dig Criminal Law [2469]

REPRESENTATION:

Counsel:
             Crown:  J Shapiro
             Accused:  G A Richardson
Solicitors:
             Crown:  Acting Director of Public Prosecutions
             Accused:  G A Richardson

Judgment Number:  [2015] TASSC 38
Number of paragraphs:  21

Serial No 38/2015

File No 261/2012

STATE OF TASMANIA v MARK RAYMOND ROLAND

REASONS FOR RULING   PEARCE J
  28 July 2015

1. Mark Roland is charged with crimes under the Misuse of Drugs Act 2001. By indictment filed on 14 July 2015 he is charged with four counts of trafficking and one count of possessing a thing intended for use in manufacture of a controlled substance for sale, the thing being a document alleged to be an instruction document for methylamphetamine manufacture. Each trafficking count concerns a different drug, namely a substance which is or is similar to amphetamine or methylamphetamine, cannabis, a substance which is or is similar to MDMA and alprazolam. I have been asked to rule on the admissibility of evidence. Objection is taken by the accused to the admission of any evidence of possession by the accused of, firstly firearms, and, secondly, a drug which is not the subject of one of the counts in the indictment.

2. The Crown case is that the accused conducted, over a period of time, the business of selling drugs, the type of case referred to in Giretti (1986) 24 A Crim R 112. The accused cannot be convicted on a count unless the Crown proves beyond reasonable doubt that for a period during the period alleged in that count, not necessarily the whole period, that the accused was engaged in a continuous activity of a commercial and systematic kind.

3. Objection is made on alternative bases:

   (a)that the evidence is irrelevant;

   (b)that the evidence should not be received by operation of the Evidence Act 2001, s 137;

   (c)that the accused has already been convicted or acquitted of offences arising from the same conduct.

4. I have regard to the contents of the Crown papers to which I have been referred. The Crown intends to adduce evidence of searches, principally of premises occupied by the accused, at which firearms were found. Also found were various quantities of other drugs. I would not exclude that evidence on the basis that it is irrelevant. The evidence of firearms is relevant for the reasons explained in Sultana v The Queen (1994) 74 A Crim R 27 per Gleeson CJ at 29-30; R v Blackwell (1996) 87 A Crim R 289 at 290; R v Edwards [1998] 2 VR 354 at 368 per Eames AJA, and R v Georgiou [2009] VSCA 57 at [65]. Those authorities have particular application to a case brought on the basis that the accused was in the business of selling drugs. For the same reason I regard the evidence of the presence of other drugs as also relevant: see Atholwood v The Queen (2000) 110 A Crim R 417, a decision of the Court of Criminal Appeal in Western Australia. To adapt the words of the Chief Justice in that case at [9], if the accused was involved in a drug business at the time of the search, then in the absence of any alternative explanation, it was reasonable to regard other drugs found in the premises and drug paraphernalia as part of the business of the sale and supply of drugs, even if those drugs are not the subject of a particular count. I refer to the passage of the decision at [29] and following. The conclusion I have reached is reinforced by the decision of the Victorian Court of Appeal in R v Komljenovic (2006) 163 A Crim R 298. Evidence of possession and sale of drugs not the subject of the indictment can show a continuing trade in drugs of several kinds. That is particularly so in this case because of the circumstances, on the Crown case, in which the other drugs were found which suggest a connection with the accused and with other evidence tending to prove the Crown case. Special leave to appeal to the High Court against the Court of Appeal's decision in Komljenovic was refused.

5. I would not refuse to admit the evidence under s 137 of the Evidence Act. That section provides that "in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant". This is a balancing exercise involving the making of the judgment and not the exercise of the discretion. If the probative value is judged to be outweighed by the danger of unfair prejudice, exclusion must follow.

6. "Probative value" is defined in the Evidence Act, s 3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the prosecution will be drawn: KMJ v Tasmania (2011) 20 Tas R 425. In the circumstances of this case I would regard the evidence both of the firearms and of the other drugs as of high probative value. The circumstances in which the firearms were found, and the nature of the firearms, fall squarely within the considerations discussed in Sultana and the other cases to which I have referred. Not only that, there is also evidence that the firearms may well have formed part of the stock in trade of the business, that is, for exchange for drugs. The Crown intends to adduce, without objection, evidence of a transaction whereby stolen firearms and associated items were exchanged for drugs.

7. I do not see that there is a substantial risk of unfair prejudice. What amounts to "unfair prejudice" under s 137 was considered in KMJ. Evidence is not unfairly prejudicial to an accused for the purposes of s 137 merely because it makes it more likely that the accused will be convicted. The prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way. In W v The Queen (2006) 16 Tas R 1, Blow J (as he then was) at 43, referred to the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at par[644] as "... a very useful exposition ...". That exposition is as follows:

   "By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

8. There is some danger that the jury will use the evidence as evidence of propensity. However it is commonly the case that juries hear evidence of uncharged conduct which carries that risk and are carefully directed against use of the evidence on that basis. The risk of unfair prejudice can be adequately dealt with by direction. I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice.

9. The next evidence objected to is the evidence of firearms found during a search of the home of the accused on 25 November 2012. On complaint 55214/12 the accused was charged with offences under the Firearms Act 1996 arising from the search. He pleaded guilty on 17 December 2012 and was sentenced. The Crown intends to adduce evidence on this trial of his possession of those firearms. The evidence arises from the same search which gave rise to the plea of guilty and sentence. The accused submits that the evidence should not be permitted because it offends the principle of double jeopardy. The principle of double jeopardy is based on the notion that a person should not be prosecuted twice for the same crime. The rationale for the rule was stated in the judgment of the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 in a passage endorsed from Green v United States [1957] USSC 146:

   "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

10. In indictable matters the issue of double jeopardy is found in the doctrine of res judicata or the related pleas of autrefois acquit and autrefois convict. It is recognised in the Criminal Code, s 11, As far as it is relevant here, under the Code, s 355, an accused may plead that he has already been acquitted or convicted summarily, of an offence in respect of which he might have been indicted upon the charge to which he is called upon to plead. The pleas autrefois acquit and autrefois convict are preserved by s 358. They are pleas in bar and are defences to a charge. In this case the accused has not entered such a plea. He has pleaded not guilty. The issue here is not whether there is autrefois convict. Rather, it is what evidence may be led in proof of the charge. The contention of the accused is that the evidence of the facts which were the subject of the Firearms Act prosecution, should not be permitted on this trial. However, as to the complaint including those charges, no issue of autrefois convict or the related evidentiary issue arises. The application of those principles depends upon the accused being accused of a crime, the elements of which are the same as, or included in, the elements of the offence for which an accused has been tried to conviction or acquittal. The accused in this trial is not in jeopardy of being convicted of a crime of which possession of firearms is an element. The accused is not facing trial on firearms offences. He is to be tried for crimes under the Misuse of Drugs Act. What the Crown must prove is that he was trafficking, in the sense that he was in the business of selling drugs. The evidence of his possession of the firearms found in the search is circumstantial evidence of that fact, but is not an element of it. There is no risk that he will be tried or punished twice for the same conduct. There is no oppression or abuse of process. It is not intended to lead evidence of the conviction. There is no reason why evidence cannot be led of the accused's possession of firearms on 25 November 2012.

11. The remaining issue gives rise to different considerations. The accused's house was also searched on 1 June 2012. Firearms were found. By complaint 52732/12 dated 6 June 2012 the accused was charged with breach of a Family Violence Order contrary to the Family Violence Act 2004, s 35. Under s 16 of that Act a court of summary jurisdiction may make an order including such conditions as the court considers are necessary or desirable to prevent the commission of family violence against an affected person, or to protect any other person named in the order. The conditions may include a requirement that the person against whom the order is made is to not possess firearms specified in the order, or forfeit or dispose of any firearms in his or her possession. The order alleged in the complaint to have been made was not made in Tasmania. It was made by a Magistrates Court of Queensland. The Tasmanian legislation provides, by s 27, for registration of orders made in another State. Registered orders have the same effect as an order made in Tasmania and may be enforced as if they were made and served in this State. The complaint alleged that the order made against the accused was made in Queensland on 30 November 2011, was in effect on 1 June 2012, and had as a condition that the accused "surrender all weapons possessed … to a police officer as soon as practicable". The legislation in place in Queensland when the order was made was the Domestic and Family Violence Protection Act 1989 (Qld). That Act has now been repealed. It provided that the court making the order may impose conditions on persons against whom the order is made. It defined the term "weapon" by reference to the Weapons Act 1990 (Qld). In that Act the term includes a firearm. The complaint against the accused alleged that the order was breached on 1 June 2012 because the accused had in his possession on 1 June 2012 three firearms and a quantity of ammunition.

12. In the absence of evidence that the firearms in the possession of the accused on 1 June 2012 were in his possession in Queensland on 30 November 2011, and he had not surrendered them, the complaint of a breach of the Family Violence Act could not have succeeded. The order made in Queensland required the accused to "surrender all weapons possessed". The complaint did not allege a condition of an order that the accused not possess firearms in the future. The complaint did not allege any other breach. It seems that the significance of this became apparent to the prosecutor in Tasmania because, on 14 January 2013, the Magistrates Court was informed that no evidence was to be tendered on the complaint and it was dismissed.

13. It is submitted on behalf of the accused that no evidence of the firearms found at his home on 1 June 2012 should be admitted, because to do so would deny the accused the full benefit of the dismissal of the complaint, which amounts to an acquittal from that charge, and would undermine the incontrovertible nature of the acquittal. The accused relies on the determination of Blow J in State of Tasmania v Finnegan (2011) 21 Tas R 116. In that case his Honour said, at [4]:

    "There is a body of High Court authority that makes it quite clear that, when there is an acquittal in relation to a charge of a crime or offence, the defendant or accused person who has been acquitted is entitled to the full benefit of that acquittal in subsequent criminal proceedings and that, on a subsequent criminal trial, the acquittal in the earlier proceedings is incontrovertible. That rule has emerged from the High Court decisions in Garrett v R (1977) 139 CLR 437, R v Storey (1978) 140 CLR 364, and Rogers v R (1994) 181 CLR 251."

14. A little later in his reasons, at [8], his Honour said this:

    "I think it must follow that, at least as a general rule, when a magistrate acquits a defendant as a result of a prosecutor informing the magistrate that no evidence will be tendered, then that defendant in subsequent criminal proceedings is entitled to the full benefit of the acquittal, and that therefore no evidence may be adduced in those subsequent criminal proceedings of the defendant doing acts which could have led to a conviction on the charges which have been dismissed. That result, I think, is consistent with the reasons for the rule in question which were discussed and thoroughly analysed by Gleeson CJ and Hayne J in R v Carroll (2002) 213 CLR 635. Those reasons have to do with 'the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality'; per Gleeson CJ and Hayne J at par[23]. They do not have anything to do with the sanctity of the conclusions of juries per se. They have to do with much more general matters. So, as a general rule then, an acquittal may not be controverted in subsequent criminal proceedings, and in particular it may not be controverted by the leading of evidence of acts within the scope of charges that have been the subject of acquittals."

15. During a short voir dire I heard evidence about why the prosecution decided not to proceed with the charge after the matter had been listed for hearing at least once, but adjourned. I regard the evidence as irrelevant to the issue I am to determine. Whatever the reason that led the prosecution to tender no evidence in respect of the family violence offence complaint, the rule is that an order amounting to an acquittal must not be controverted in later proceedings. However, I think that the cases referred to by Blow J in Finnegan do not support a proposition as broad as that advanced by the accused in this case, or lead to the conclusion that the evidence sought to be led in this case should be excluded. The admission of evidence of the firearms alleged to have been found during a search on 1 June 2012 does not deprive the accused of the benefit of an acquittal of the family violence charge, and does not inevitably challenge the verdict of acquittal. In R v Carroll the High Court considered an argument concerning perjury proceedings which involved the same issue that had been the subject of the acquittal of the respondent for murder. The verdict of acquittal necessarily meant that the jury had not rejected the respondent's denial that he killed the child. That inconsistency being manifest, Gleeson CJ and Hayne J said at [42] that "the case for a stay of proceedings was irresistible". Their Honours pointed out that the principle that an acquittal is incontrovertible rests upon an acceptance that what is decided in litigation is final. However, their Honours provided an important qualification at [50]:

    "Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z [2000] 2 AC 483], R v Arp [1998] 3 SCR 339] and R v Degnan [2001] 1 NZLR 280] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial."

16. Their Honours referred to Rogers and Garrett and commented that "those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition". In the same case Gaudron and Gummow JJ, after referring to Rogers and Garrett, referred to Storey in these terms:

    "However, in R v Storey, Stephen, Mason, Jacobs and Aickin JJ held that relevant evidence tending to show that the accused was guilty of an offence of which the accused had been acquitted may be admitted, but only if the jury can be and is directed not to interpret it in such a way as to deny the acquittal. In Storey, the two accused had been acquitted on a charge of forcible abduction; at their subsequent trial for rape, evidence was admitted which tended to show the forcible abduction of the victim, but without it being made clear to the jury that the evidence must not be taken as proving guilt on the previous charge. This Court dismissed the Crown appeal against the quashing of the conviction."

1. I refer also to the decision of the High Court in Washer v Western Australia (2007) 234 CLR 492. The line of authority to which Blow J referred has been considered in subsequent cases by intermediate courts of appeal in Australia. The Court of Appeal in Western Australia undertook a detailed review of the cases in Bennett v The State of Western Australia [2012] WASCA 70. That case concerned evidence of convictions relied on by the Crown rather than acquittals. The Court of Appeal in Victoria reviewed the authorities in Ulutui v The Queen [2014] VSCA 110, as did the Court of Criminal Appeal in Gilham v The Queen (2012) 224 A Crim R 22. In Gilham, the New South Wales Court of Criminal Appeal held that the trial judge did not err in allowing the Crown to adduce evidence which cast doubt upon the applicant's previous acquittal of murder of his brother while prosecuting the later charges of murder against his parents. The Court said at [22]:

   "[T]he Crown was entitled to undermine the earlier acquittal solely as an incident of, or step along the way to, proving that the applicant murdered his parents. The Crown could not, and did not, mount a standalone argument that the applicant was criminally responsible for murdering [his brother]. The Crown made that insinuation only to the extent necessary to prove that the applicant murdered his parents."

2. In Ulutui the Victorian Court of Appeal found that a trial judge did not err by admitting evidence of an assault of which the accused had been acquitted as evidence of motive for other later crimes of violence. In that case, the Court reviewed the authorities and concluded that evidence of the assault did not contravene the rule that an acquittal may not be controverted in later proceedings. It said at [50]:

   "This was not a case in which there was any inherent inconsistency between the appellant's prior acquittal on the Coles assault and evidence of the charged offences. The jury was not required to determine whether the appellant was guilty of the Coles assault in order to find that he was guilty of the charged offences. Moreover, the jury was not required to come to any conclusion with respect to any element of any of the charged offences that was inconsistent with any element of the appellant's acquittal for the Coles assault. The jury was not asked, and nor in context was the jury required, to determine whether the appellant had committed an offence against the criminal law in relation to the Coles assault."

3. I have come to the same conclusion. I regard the following as relevant in this case:

   ·     To the extent that the principle arises from the notion of double jeopardy it can have no application. The accused is charged with drug trafficking, not a family violence offence.

   ·     That the accused had possession of firearms on 1 June 2012 is not an element of the crimes with which he is now charged. The jury will not be asked to come to a conclusion with respect to any element of the trafficking offences which is inconsistent with any element of the accused's acquittal of the family violence offence. It was submitted that possession of firearms is an element of the conduct of a business of selling drugs in the Giretti sense. I do not accept that submission. What must be proved is the ongoing and commercial sale of controlled drugs such as to amount to a business. Evidence of possession of firearms is circumstantial evidence of such a business, not an element of the charge.

   ·     Evidence of the accused's possession of firearms is not to be adduced to prove that he was in fact guilty of the offence of which he was acquitted, but rather as circumstantial evidence of his guilt of the trafficking charges.

   ·     The evidence relied on by the Crown as circumstantial evidence in the case against the accused for conducting the business of selling drugs does not require proof beyond reasonable doubt.

   ·     There has been no judicial determination that the accused was not in possession of firearms on 1 June 2012.

   ·     Tendering no evidence on the family violence offence did not necessarily involve acceptance by the prosecution that it could not prove beyond reasonable doubt that the accused was in possession of firearms on 1 June 2012.

   ·     There was not, and could not have been, any question raised in the proceedings for a family violence offence, about whether the accused trafficked in drugs which is the issue in this trial.

   ·     I regard it as unlikely that there will be any evidence in this case of the acquittal of the accused on the family violence charge, and so directions to the jury about the effect of the acquittal are not likely to be required.

4. The conclusion I have reached after consideration of all the authorities to which I have referred, is that evidence of the accused's possession of firearms is not inadmissible merely because it may support the inference, though not necessarily, that the accused was guilty of the offence of which he was acquitted. I am satisfied that no question of double jeopardy is raised. The evidence does not undermine or subvert the acquittal itself, and the accused is entitled to the full benefit of it in the sense that he can never be tried again for the offence to which it related, or an offence involving common elements. At its highest, and subject to the matters I have already referred to, the acquittal involves the proposition that the prosecution could not prove possession of the firearms beyond reasonable doubt, a question which does not arise in this trial. In any event, there is no manifest inconsistency. In the circumstances of this case the rule against double jeopardy does not prevent the Crown seeking to prove a different crime through circumstantial evidence which incidentally has the effect of calling into question a previous acquittal.

5. The objections made to the evidence by the accused are overruled.