The State of Western Australia v Warren [No 2]
[2016] WADC 91
•14 JUNE 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WARREN [No 2] [2016] WADC 91
CORAM: BOWDEN DCJ
HEARD: 2 JUNE 2016
DELIVERED : 14 JUNE 2016
FILE NO/S: IND 1840 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
REBECCA HOPE WARREN
Catchwords:
Admissibility of alleged admissions - Voluntariness - Fairness
State's application to lead propensity evidence
Legislation:
Evidence Act 1906 (WA)
Result:
Alleged admissions voluntary - State granted leave to lead propensity evidence
Representation:
Counsel:
The State of Western Australia : Ms E O'Donnell
Accused: Mr A E Monisse
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Not applicable
Case(s) referred to in judgment(s):
AJE v The State of Western Australia [2012] WASCA 185
Asplin v The State of Western Australia [2013] WASCA 72
Bunning v Cross (1978) 141 CLR 54
Collins v The Queen (1980) 31 ALR 257
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Director of Public Prosecutions v Ping Lin [1976] AC 574
Em v The Queen [2007] HCA 46
IMM v The Queen [2016] HCA 14
Mansell v The State of Western Australia [2009] WASCA 140
McDermott v The King (1948) 76 CLR 501
Mukevski v The State of Western Australia [2010] WASCA 138
Nguyen (1995) 78 A Crim R 582
Pollard v The Queen (1992) 176 CLR 177
R v Dalley (2002) 132 A Crim R 169
R v Li [1993] 2 VR 80
R v Williams (1992) 8 WAR 265
Stubley v The State of Western Australia [2011] HCA 7
Tasmania v Martin (No 2) (2011) 213 A Crim R 226
The King v Lee (1950) 82 CLR 133
The Queen v Ireland (1970) 126 CLR 321
The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Warren [2015] WADC 94
Tofilau v The Queen (2007) 174 A Crim R 183
Van Der Meer v The Queen (1988) 62 ALJR 656; (1988) 82 ALR 10
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1
BOWDEN DCJ: Ms Warren is charged with four offences.
Count 1 alleges that Ms Warren possessed 57.4 grams of methylamphetamine with intent to sell or supply on 29 March 2014 at Merriwa.
Each of counts 2, 3 and 4 allege Ms Warren offered to sell or supply methylamphetamine on various dates between 7 April 2014 and 11 April 2014. Ms Warren is alleged to be criminally responsible on these counts as an 'aider' pursuant to s 7 of the Criminal Code.
Brief outline of the facts
As to count 1, the State alleges that on 29 March 2014 police officers stopped a vehicle in Merriwa. Ms Warren and Mr Moller (the co‑accused) were the occupants of that vehicle. The police searched the occupants and surrounding area and located methylamphetamine inside a cylindrical package wrapped in black electrical tape lying on the grass near the vehicle.
After the roadside search Ms Warren was conveyed to the Joondalup Police Station and then taken by Officers Newing and Tipping to Curtin House. During that drive the State alleged Ms Warren made certain admissions. The admissions were not audio or visually recorded, however, the police took notes and Ms Warren read the notes asked for alterations to be made, initialled those alterations and signed each page of the notes.
As to counts 2, 3 and 4 the State, as I understand their case, allege that the co-accused offered to sell methylamphetamine to various third parties and Ms Warren aided him by either storing the drugs and, making herself available to do deliveries, making deliveries or a combination of all such activities.
The earlier directions hearing
At an earlier directions hearing on 28 May 2015 before Scott DCJ Ms Warren sought to exclude the alleged admissions on the basis that they were unrecorded. His Honour ruled that the admissions were admissible: The State of Western Australia v Warren [2015] WADC 94.
Judge Scott also determined that the four counts were properly joined on the one indictment and expressed the view that the evidence of all four counts would be cross‑admissible with respect to each charge.
The defence application
The accused says that the admissions allegedly made in the police vehicle should be excluded on the basis they were involuntarily and/or it would be unfair to admit them.
The State's application
The State applies for the ruling that if the jury is satisfied beyond reasonable doubt of the accused's guilt on any of counts 2, 3 and 4 they can use that evidence as propensity evidence in respect of count 1.
The defence application
Voluntariness of the alleged admissions
The State must establish on the balance of probabilities that the alleged admissions were voluntarily made.
If the alleged admissions were not voluntary they are inadmissible and no question of the exercise of discretion to admit them arise: The King v Lee (1950) 82 CLR 133, 144.
The alleged admissions must be made in the exercise of the free will of the accused. They would not be voluntary if they were obtained by fear of prejudice or an inducement held out by a person in authority or if obtained by violence, intimidation, fear, if the accused's will is overborne by duress, intimidation, persistent importunity or sustained or undue insistence or pressure: McDermott v The King (1948) 76 CLR 501, 511; Tofilau v The Queen (2007) 174 A Crim R 183.
The concept of voluntariness clearly encompasses a person's will being overborne by fear, inducement or violence. However, it also encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered and as a result feels compelled to participate in the interviewing process. In such circumstances the interview will be non-voluntary, even though the interview itself may be conducted in an ostensibly cooperative fashion: R v Li [1993] 2 VR 80, 81 ‑ 83; Nguyen (1995) 78 A Crim R 582.
Voluntariness requires a careful assessment of the effect of the actual circumstances of the case upon the will of the particular accused. It is relevant to consider the conduct of the police before and during interrogation together with the background of the accused (Collins v The Queen (1980) 31 ALR 257, 307), including her age, background and psychological condition: The Queen v Swaffield; Pavic v The Queen (1998) 192 CLR 159.
There is no requirement for there to be impropriety by police officers or an intention by them to procure alleged admissions: Director of Public Prosecutions v Ping Lin [1976] AC 574. The issue of voluntariness must necessarily turn on the circumstances of a case, not the copious citation of authorities. The emphasis is on common sense.
In considering the issue of voluntariness, the court does not determine the actual reliability of the alleged admission. It assesses the nature and effect of any inducement or pressure to make the alleged admission to determine whether it has been made because the will of the accused was overborne by the conduct of the person in authority: The Queen v Swaffield; Pavic v The Queen.
The evidence
Two witnesses gave evidence at the directions hearing, Detective Senior Constable Newing and Ms Warren.
A number of matters are not in dispute. It is not disputed that the vehicle Ms Warren and Mr Moller were travelling in was stopped by police officers in Merriwa.
Detective Newing attended the scene and the vehicle and surroundings were searched. Ms Warren was cautioned after some methylamphetamine was found in her bra and after being arrested in connection with that offence, she acknowledged that she understood that she did not have to say anything unless she wanted to do so and if she did talk it could be used in court. Ms Warren then answered numerous questions about the drug found in her bra. That search and the admission made by Ms Warren were audio and visually recorded.
A short time later she was cautioned by police again and specifically questioned in relation to the items located in a rectangular object wrapped in black tape which had been found in the surroundings. Ms Warren denied that she had touched that package or knew anything about it or knew that it contained drugs. She also answered questions about black electrical tape that was located in the vehicle and about some telephones that had been seized. Those answers were audio and visually recorded.
Ms Warren was then taken by other police officers to the Joondalup Police Station. Detective Newing could not recall for certain if Ms Warren was offered the opportunity to participate in a video record of interview at that station, although he was fairly certain that she was, and believed she declined to participate in such an interview. Ms Warren said she was not asked to participate in a video record of interview at Joondalup Police Station, was placed in a cell and went to sleep. In any event, whilst at the Joondalup Police Station Ms Warren was charged with the offence relating to the methylamphetamine located in the rectangular package.
At 7.35 pm Officers Tipping and Newing together with Ms Warren departed the Joondalup Police Station. Officer Tipping was driving and Ms Warren was in the back seat with Detective Newing.
During that journey a conversation involving Ms Warren occurred. Detective Newing said he asked Ms Warren if she wanted to make a statement or provide any further information in relation to the drugs. He said that at some stage during the journey Ms Warren was upset and crying but on other occasions she was happy to talk to the police. Detective Newing said he took notes whilst he was in the vehicle of what Ms Warren said. Prior to taking those notes he asked her if she was happy for him to take notes and she replied yes. The notes were exhibit 2 in the directions hearing and contain admission against Ms Warren's interest.
Detective Newing denied that he or Officer Tipping put any pressure on Ms Warren and specifically denied that Ms Warren was told she would be going to gaol or lose her kids, or told that it was a really serious offence or asked whether she wanted the kids to lose her so soon after losing their father or saying that the kids would be taken away by welfare and she would not see them again. Detective Newing denied that the police offered Ms Warren protection from a named third person or that he mentioned the third person's name during the course of the interview.
Ms Warren said she did not know what was going on and did not understand anything. She said that whilst in the vehicle Detective Newing did most of the talking but Officer Tipping was also commenting every now and again.
Ms Warren said Detective Newing asked if she would make a statement in relation to the drugs or give any other information in relation to the drugs and she said no. She said Detective Newing said it would be better for her if she made a statement and it would help reduce her sentence. She said Officer Tipping told her that she could lose her children and this upset her and she started crying. Ms Warren told the court the children had lost their father due to a suicide about one month prior.
Ms Warren said Detective Newing then asked her again if she would make a statement and she again replied no. She said she was beside herself, crying her heart out and freaking out.
She said the officers did not let up and Officer Tipping kept repeating that she could lose her children, that a statement would help her with her sentence, that the kids could end up with welfare and that she would not see them again and said to her that she did not want the kids to lose her just after they lost their father.
Ms Warren said that Detective Newing told her that she could lose her kids, that it was a serious issue, and that a statement would help reduce the sentence because she was looking at a long time in gaol.
Ms Warren said she felt pressured by both officers. She feared that what she had been told would occur and that she would go to gaol and lose her children and she felt she had no choice so she started to tell Detective Newing things. She said she spoke because the police officers pressured her and she felt emotionally forced to talk to the police.
She agreed that Detective Newing wrote down what she told him with two exceptions.
Detective Newing said that after Ms Warren made the admissions the police vehicle diverted to Curtin House to see if Ms Warren would make a formal statement, which he intended to type.
Detective Newing said at Curtin House Ms Warren was not prepared to participate in a visually recorded interview or sign a statement but read over the notes, requested some alterations, initialled the alterations and signed each page of the notes.
Ms Warren said that when the police vehicle stopped she was taken to a small room and asked to go on video and she said no, she was then asked to provide a statement and she said she would not do that and then she was asked to sign the notes. Ms Warren said she read through the notes before she signed them and asked for two alterations to be made. She initialled the alterations and signed each page of the notes. One of the alterations was that the notes read that she had told the police said 'Blake is a supplier of drugs …'. She said she did not say that and asked for it to be removed. She put her initials next to the deletions.
Ms Warren agreed that the police officers did not repeat any of what they said in the police vehicle whilst she was in the small room, however, what had been said was still operating on her mind and she felt pressured and so she signed the notes.
Detective Newing said he then took Ms Warren from Curtin House to the Watch House. Ms Warren said she was not taken to the Watch House by Detective Newing or Tipping. She said they took her from the small room out to the back of Curtin House, through a garage area and handed her to a tall, red haired uniform police officer who then took her on the short trip over to the Watch House.
Ms Warren said Officer Tipping mentioned providing protection to her and referred by name to a third person.
Assessment of evidence
There is no doubt that if I was to accept the evidence of Ms Warren the alleged admissions would not have been obtained voluntarily.
Ms Warren alleges the police officers made statements to her about not seeing her children, going to gaol and having her sentence reduced if she provided a statement. If the police made these statements, or any of them, it would render any alleged admission involuntarily or made due to inducement's and therefore inadmissible. However, I do not accept Ms Warren's evidence for the following reasons.
Ms Warren's evidence, in effect, was that she did not know what was going on and did not understand anything. She said she was crying her heart out at and freaking out and was so overborne and fearful of what had been said to her that she made the statements to the police and then signed the notes.
Ms Warren claim that she was in such an emotional state that her will was so overborne by the police officers seems inconsistent with her undisputed evidence that she read the notes carefully, request two alterations then initialled the alterations and signed each page. This evidence as a whole undermines her credibility. If her will was so overborne it seems inherently more plausible to me that she would have complied with the police officers request to provide either a video record of interview or a statement.
Additionally, a number of matters emerge from the scene video (exhibit 3). Ms Warren agrees that she was cautioned and knew that she did not have to talk to the police and knew that what she said could be used against her in court. Notwithstanding that caution she answers questions about the drugs located in her bra, how she smoked methylamphetamine and where the smoking implement was located etc.
Later on when the caution was repeated and Ms Warren is specifically asked about the packaged wrapped in electrical tape, she answers questions about whether she has touched the package, what was inside the package, whether she knew it was a prohibited drug and questions about the electrical black tape and the phones that were located. Whilst she knew of and understood her right to silence she was prepared to talk to the police officers. This sits more consistently with the evidence of Detective Newing that Ms Warren was prepared to talk to the police whilst travelling from the Joondalup Police Station, than with Mr Monisse's suggestion that it took the pressure from the police officers to remove her right of silence. Even on Ms Warren's evidence earlier that day she was prepared to answer questions in full knowledge that she did not have to and knowing what she said could be used against before any alleged pressure was applied. It demonstrates Ms Warren's preparedness to answer questions voluntarily.
At the end of the day whilst I accept that Detective Newing was on occasions argumentative when cross‑examined and vague about other matters, I accept his evidence that the remarks attributed by Ms Warren to the police were not made and accordingly, I am satisfied on the balance of probabilities that the alleged admissions were voluntarily made.
Unfairness
Once it is established on the balance of the probabilities that the alleged admissions were made voluntary, the onus is on the accused to establish on the balance of probabilities that the alleged admission should be excluded in the exercise of the court's discretion.
The court's discretion can be exercised if it is unfair to the accused to admit the alleged admission or public policy considerations make the admission of the evidence unacceptable or the prejudicial effect of the statement outweighs it probative value. There can be overlap between the three discretions.
The Queen v Swaffield;Pavic v The Queen confirms that the basis of the fairness discretion is to protect the rights and privileges of the accused.
This discretion is associated with the right of the accused to be tried fairly and looks to see whether or not it would be unfair to use an accused's out of court statements against her and concentrates on that question rather than whether or not the police have acted improperly: Van Der Meerv The Queen (1988) 62 ALJR 656, 666; (1988) 82 ALR 10.
The factors to consider in the exercise of this discretion take their meaning from the circumstances of the case: Bunning v Cross (1978) 141 CLR 54 [77]; Mukevski v The State of Western Australia [2010] WASCA 138 [22].
These factors include considering whether the reliability of the evidence was affected by the manner in which it was obtained, the probative value of the evidence, the seriousness of the offence charged, whether the evidence was unfairly obtained, and other circumstances relevant to the case.
The prime concern of the unfairness discretion is the potential unreliability of the alleged admission but it is not the exclusive or only concern: Em v The Queen [2007] HCA 46; Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1.
If a statement is found to be reliable, the accused bears a heavy onus of establishing there is unfairness which requires the discretion to exclude be exercised: R v Williams (1992) 8 WAR 265.
If the statements were obtained in circumstances where their reliability may be impugned, that would result in it being unfair to use those statements against the accused: Van Der Meer v The Queen.
Ms Warren does not dispute, with two exceptions, that what she said to the police was accurately recorded by them. She maintains that what she said was not true. When the prosecutor endeavoured to challenge Ms Warren on the issue of whether what she said was true, Mr Monisse objected and the prosecutor moved to other areas. Insofar as the truthfulness of what Ms Warren admits she told the police is concerned, I am not in a position to determine that one way or the other.
The probative value of the evidence taken with other evidence is high. The signed notes are capable of being construed by the jury as showing knowledge by Ms Warren of the drugs the subject of the charge and of her participation in their distribution.
I do not consider that there was anything unfair as a result of the police officers' questioning Ms Warren in the car. The question of whether the alleged admissions are admissible, absent an audio visual recording has been dealt with by Judge Scott: The State of Western Australia v Warren.
Mr Monisse submitted that as the police had already arrested Ms Warren and she, on Detective Newing's evidence, had declined to participate in a video record of interview at the Joondalup Police Station and it was unfair for her to then be questioned in the police vehicle travelling, at least originally, to the Watch House. In some cases I agree that such conduct would be unfair.
However, Ms Warren does not dispute that she had been cautioned twice earlier in the day and knew that she did not have to talk to the police and that what she said could be used in court. She saw Detective Newing take the notes, she was shown the notes, she read them carefully, she does not, with two exceptions, dispute that they accurately record what she said and she was given the opportunity to make any alterations. Ms Warren agrees that she instructed the police to make alterations. She agrees the police made some alterations, although she disputes the extent of the alterations. She initialled and signed the notes. Ms Warren maintains that she was given the opportunity to participate in a video record of interview at Curtin House but declined to do so. Detective Newing said Ms Warren was given an opportunity to make a statement at Curtin House but declined. On any version of the evidence Ms Warren was able, if she wished, to give a more expanded version of what she wished to say. Considering all of these circumstances I do not consider there was any unfairness in the manner the alleged admissions were obtained or in those admissions being used in court.
Count 1 is a serious offence as is reflected by the maximum penalty of 25 years. Clearly, the public interest in the conviction and punishment of those guilty of crimes is entitled to greater weight in the case of crimes of great gravity: R v Dalley (2002) 132 A Crim R 169 [7].
Although not specifically raised by Mr Monisse, I also consider the question of the public policy discretion.
As has been recognised in The Queen v Swaffield; Pavic v The Queen the unfairness/public policy/prejudicial discretions may well overlap, however, in considering the public policy discretion unfairness to an individual is but one factor to be considered. The public policy discretion involves striking a balance between the public interest in placing the court in possession of all relevant admissible evidence and the desirable goal of bringing convictions to wrongdoers on the one hand and of ensuring that law enforcement officers do not act unlawfully or are encouraged to obtain evidence by inappropriate means: Pollard v The Queen (1992) 176 CLR 177, 201; The Queen v Ireland (1970) 126 CLR 321; Bunning v Cross.
I do not consider that the alleged admissions were obtained by any unlawful means. Whilst I consider that it could be inappropriate to question a suspect in a vehicle without that conversation being audio visually recorded in circumstances where notes were taken in the presence of the accused, she saw the notes being taken, read carefully the notes, was given opportunities to make alterations to the notes, did cause alterations to be made, initialled the alterations, signed the notes and was given an opportunity on her evidence to participate in a video record of interview or on Detective Newing's evidence to make a formal written statement, I do not think it can be said that to admit this evidence encourages police officers to obtain evidence by inappropriate means.
I also consider the question of whether the prejudicial effect of the statement outweighs it probative value.
The alleged admissions are of course prejudicial to Ms Warren that is the very reason the State want to lead them. They are not unfairly prejudicial, they are highly probative and I would not exercise my discretion to exclude the alleged admissions.
The State's application
The State says that if the jury are satisfied beyond reasonable doubt of the accused's guilt in respect of either counts 2, 3 or 4, the evidence of the accused's commission of any or all of those offences is propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA).
The State says that it shows the conduct of the accused in relation to methylamphetamine and a tendency to deal with methylamphetamine and that would be significantly probative of whether she possessed methylamphetamine on 29 March 2014 and had the intention to sell or supply that drug.
They say that it rebuts any suggestion that it was the co‑accused alone who possessed the drug and negates any suggestion of an innocent association with the drugs the subject of count 1.
The defence says that the State is seeking to rely on post‑offence conduct constituted by counts 2, 3 and 4 to establish guilt for count 1 which relates to a period of at least two weeks before the earliest date of counts 2, 3 and 4.
They argue that similar fact evidence must show that the accused has 'misconducted him in a way similar to the conduct being alleged against him in the proceedings before the court': Oxford Concise Dictionary of Law, 2nd ed, page 385. They say that the tendency that the prosecution rely upon is broad and ignores the different levels of alleged involvement that may arise with prohibited drugs.
The defence accept that methylamphetamine was involved in all four counts but say there are differences between the alleged offending such that it cannot be said that the proposed evidence has significant probative value. They point out that count 1 involves possession of a large quantity of methylamphetamines, whereas counts 2, 3 and 4 concern her aiding the co‑accused in offering to sell or supply very small quantities of methylamphetamines.
The defence say a finding of guilt on counts 2, 3 and 4 could not have significant probative value in relation to count 1 as it could not rationally affect the assessment of the probability of the accused's possession of methylamphetamine with intent to sell or supply on 29 March 2014 as alleged in count 1.
State's application - conclusion
Section 31A of the Evidence Act 1906 (WA) requires the evidence to be:
(a)relationship and/or propensity evidence;
(b)have significant probative value; and
(c)the probative value of the evidence compared to the degree of risk of an unfair trial must be such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The evidence of the conduct of the accused in relation to counts 2, 3 and 4 is clearly propensity evidence and it is also evidence of a tendency that she has or had and is also relationship evidence. The definition of relationship and propensity evidence is extraordinarily wide: Asplin v The State of Western Australia [2013] WASCA 72.
In determining whether the evidence has significant probative value there is a need for a logical nexus between the proposed evidence and the facts in issue: Tasmania v Martin (No 2) (2011) 213 A Crim R 226 [35].
The evidence is of significant probative value if it rationally affects, directly or indirectly, the assessment of the probability of a relevant fact in issue to a significant extent and/or explains a statement or event that would otherwise appear curious or unlikely: Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 ‑ 61 (Steytler P); Stubley v The State of Western Australia [2011] HCA 7 [11].
The accused has not made any formal admission of any fact in issue and the State is entitled to present its case on the basis that all facts are in dispute. The State need to establish, inter alia, that the accused possessed the methylamphetamine and did so with intent to sell or supply. The probative value of the disputed evidence is to be taken at its highest from the State's perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
The significance in the conduct of Ms Warren in relation to counts 2, 3 and 4 is not that the conduct is identical to that alleged in count 1, but that it is capable of showing she is engaged in drug dealing in mid‑April 2014. The evidence is significantly probative because it provides a foundation for an inference that the accused had a tendency in mid‑April to deal in drugs and the existence of that tendency makes it more probable that she possessed the methylamphetamine with intent to sell or supply on 29 March 2014. The probative value of the evidence lies in its capacity to affect the assessment of the probability the accused possessed the methylamphetamine the subject of the charge with intent to sell or supply: IMM v The Queen [2016] HCA 14; Gageler [102] ‑ [105]. In addition, it also goes to rebut an innocent explanation or association with the drugs found on 29 March 2014.
There is no doubt that events which occur at one period of time can bear upon the attitude or a tendency of a person at a later or earlier period of time: The State of Western Australia v Atherton [2009] WASCA 148.
Fair‑minded people who are members of the public and not lawyers, and who have informed themselves at least of the most basic considerations relevant to arrive at a conclusion founded on a fair understanding of all relevant circumstances would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: Dair [66] (Steytler P).
The risk that the proposed evidence will be misused is generally that a jury will have a strong tendency to believe Ms Warren is guilty of the count they are considering because they will reason she is a person likely to do such acts and will have a tendency to condemn because of their findings in relation to counts 2, 3 and 4.
Any risk of the evidence's misuse can be overcome by a jury direction about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39]. It is accepted that a jury will accept and faithfully apply the directions of a trial judge: Mansell v The State of Western Australia [2009] WASCA 140 [49].
I consider fair‑minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The jury will be instructed that if satisfied beyond reasonable doubt of the accused's guilt on any of counts 2, 3 and 4 (offering to sell or supply a prohibited drug), that finding can be used by them in determining along with other evidence whether they are satisfied beyond reasonable doubt of the accused guilt in respect of count 1.
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