Tingley v The State of Western Australia
[2008] WASCA 193
•26 SEPTEMBER 2008
TINGLEY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 193 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:148/2007 | 13 AUGUST 2008 | |
| Coram: | WHEELER JA MILLER JA MURRAY AJA | 26/09/08 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed | ||
| B | |||
| PDF Version |
| Parties: | COLIN GEORGE TINGLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Conviction Inconsistent verdicts Unsafe or unsatisfactory verdict Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30 |
Case References: | MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Drury (1971) 56 Cr App R 104 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TINGLEY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 193 CORAM : WHEELER JA
- MILLER JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BOWDEN DCJ
File No : IND 1172 of 2006
Catchwords:
Criminal law - Appeal - Conviction - Inconsistent verdicts - Unsafe or unsatisfactory verdict - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 30
Result:
Appeal allowed
Conviction quashed
Category: B
Representation:
Counsel:
Appellant : Mr J B Prior
Respondent : Mr J A Scholz
Solicitors:
Appellant : Biddulph & Turley
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Drury (1971) 56 Cr App R 104
(Page 3)
1 WHEELER JA: The appellant was tried in the District Court on an indictment containing two counts. Count 1 alleged that, between 1 January 2006 and 11 March 2006, at Westfield, he cultivated a prohibited plant, namely, cannabis, with intent to sell or supply. The second count alleged that, on 10 March 2006, at Westfield, he sold or supplied cannabis to another. He was convicted of count 1 and acquitted of count 2.
2 The grounds of appeal as amended at the hearing of the appeal read as follows:
1. The verdict of 'guilty' for the offence of cultivating cannabis with intent to sell or supply to another (Count 1) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a) The verdict of 'guilty' for the offence of cultivating cannabis with intent to sell or supply to another (Count 1) is factually inconsistent with the verdict of 'not guilty' in relation to the count of sold or supplied cannabis to another (Count 2).
2. The verdict of 'guilty' in relation to Count 1 is unsafe or unsatisfactory as the evidence did not permit a finding beyond reasonable doubt that the Applicant cultivated the cannabis such cannabis being the same cannabis as alleged in Count 2.
3 The amendment, made as it was at the hearing of the appeal, has the result that the grounds are somewhat clumsily articulated. However, as I understand it, there is an overarching contention that the verdict in respect of count 1 is unreasonable or cannot be supported having regard to the evidence (s 30 Criminal Appeals Act 2004 (WA)). In support of that contention, it is submitted either that the evidence was insufficient to support a verdict of guilt in respect of count 1 (ground 2), or alternatively that the verdicts in respect of counts 1 and 2 are factually inconsistent in a manner which renders the verdict in respect of count 1 unreasonable (ground 1(a)). In my view, ground 2 is not made out, but ground 1(a) is. My reasons are as follows.
The evidence
4 One Whitbread was under police surveillance. At 4.30 pm on 10 March 2006, he called the appellant and the following conversation took place (CT is the appellant and RW is Whitbread):
(Page 4)
- CT: … So, what are you gonna be doing?
RW: Oh I'll come out fuckin, um, little bit later.
CT: Yeah?
RW: Um, same, same sort of setup.
CT: Yep.
RW: Um, I mean I could come out there now but the thing is they don't like it this time of the day.
CT: Yeah, yeah. Okay.
RW: Too early for a barbeque, if you know what I mean?
CT: Yeah I know what you mean.
5 Whitbread was seen by surveillance officers arriving at a shopping centre a little before 7 pm on 10 March. He entered a supermarket and left it shortly after 7 pm with a white shopping bag. He drove to the appellant's driveway. He walked to the appellant's front door, carrying a white shopping bag. No observation was made of him leaving the premises and returning to his vehicle; it appears that the observation was being carried out in a cul-de-sac and that this gave rise to certain problems. However, between 7.37 pm and 7.40 pm, both the appellant's vehicle and Whitbread's vehicle left the premises.
6 It is not entirely clear when Whitbread's vehicle was stopped by police, but somewhere between approximately 10 minutes and approximately 50 minutes after his leaving the appellant's premises, Whitbread was stopped in a carpark and his car was searched. Police found a large white bucket in the boot of the car. That bucket contained two white plastic bags, one of which was like a shopping bag, while the other was a white plastic rubbish bag. The bags contained a combined total of 910 g of cannabis, being cannabis bud, or head, material.
7 Police searched Whitbread's home, where small amounts of cannabis were found, together with some hydroponic equipment which was not set up. A man by the name of Conchie was present at Whitbread's home at the time of the search. Conchie's home was searched and a hydroponic setup was found, together with evidence that some cannabis plants had been harvested.
8 The appellant's house was searched. There was in it a locked room. The appellant had the key to the room and was the sole occupier of the
(Page 5)
- house. In the room, there was a quantity of hydroponic equipment, including timers, nutrients, lamps, buckets, growing cabinets, and scales. The electricity meter had been bypassed. There was evidence from police officers familiar with the hydroponic growing of cannabis that the appellant plainly had the facility to grow cannabis and to harvest it. The evidence was that the amount that could have been grown from the setup present at the house was of the order of 1,200 g to 2,400 g. During the course of the search, the appellant admitted that he knew about the hydroponic setup and that he had, in fact, grown cannabis. Some cannabis bud material was found in the house, together with $6,000 in cash (which the appellant explained as income in respect of work he had done, but which he had not declared to the Taxation Department), clipseal bags, and a notebook containing the words 'ganga for Jan'.
9 Leaving aside for the moment the question of the dates, there was plainly ample evidence from which a jury could have concluded that, during some period prior to 11 March 2006, the appellant had cultivated cannabis. It would have been open to them to infer from the size of the setup, from the clipseal bags, and from the words in the notebook, that all or some of that cultivation had been carried out with the intention to sell or supply. Leaving aside the question of the dates, it would have been surprising for a jury not to have convicted in respect of count 1.
The State particularises its case
10 However, the State case was much more specific than the mere recitation of the terms of the indictment, and of the evidence, would suggest. It was the State case that the cannabis the subject of count 1 was the same cannabis as that found in the boot of Whitbread's car. At the request of defence counsel, the State case was clarified in open court prior to the calling of evidence, by the State prosecutor, who said, in the absence of the jury:
... it certainly is the case that the state is alleging that the 910 grams of cannabis head material had been cultivated by the accused man himself. (blue AB 15)
11 In the presence of the jury, the prosecutor said:
You heard in my opening address making reference to cannabis being cultivated at the accused man's property. Of course, it is the state's allegation that the cannabis which the state says was later supplied to Mr Whitbread was cannabis that had been cultivated at the accused man's house; that is the cannabis in the white bucket, some 910 grams. Thank you. (blue AB 17)
(Page 6)
12 That is, both counts 1 and 2 required a finding by the jury that cannabis cultivated by the appellant had been sold by the appellant to Whitbread and was the same 910 g located in the bucket in the boot of Whitbread's car.
Direction to the jury
13 In his direction to the jury, his Honour said:
It is quite possible in law to return a different verdict to each of the charges. The mere fact that you find an accused guilty or not guilty on count 1 does not mean that the same verdict is returned on count 2. (blue AB 162)
14 That direction was, as a matter of law, perfectly correct. As a matter of fact, so far as the second sentence was concerned, it might have been open for the jury to acquit the appellant of count 1, and to convict of count 2. The jury might have not been satisfied beyond reasonable doubt that the cannabis supplied to Whitbread was cannabis which the appellant had personally cultivated. In that event, it would, in my view, have been open to the jury, placing weight upon the telephone conversation I have quoted (in the context of other telephone intercepts), the fact that Whitbread had been found with the cannabis shortly after his visit to the appellant, and the material which pointed strongly to the appellant being a dealer in cannabis, to conclude that, whether or not he had personally grown it, the appellant had supplied Whitbread with the cannabis found in the boot.
15 However, having regard to the way in which the State case was run, it seems to me that it was not open to any jury acting reasonably to convict the appellant of count 1, but acquit of count 2. I explain that view in more detail shortly.
16 So far as count 1 was concerned, his Honour also directed the jury that there were certain matters which the State had to establish beyond reasonable doubt. The first was that it was the appellant who did the relevant things. The second was that the appellant had cultivated a prohibited plant. The third was that the appellant had an intent to sell or supply the cannabis which he cultivated to another. His Honour went on to explain this by saying:
... that is, they have to show that the cannabis was in fact the cannabis cultivated that ended up in the boot of Mr Whitbread's vehicle. (blue AB 165)
(Page 7)
17 That was consistent with the State case. A verdict of guilty of count 1 could only be returned, then, if the cannabis in the boot was found to have been cannabis grown by the appellant.
Inconsistent verdicts - relevant principles
18 The relevant principles to be applied, in cases where an inconsistency between verdicts is alleged, were considered in detail in MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35. In reasons with which, on that point, Dawson and Toohey JJ agreed (at 351), Gaudron, Gummow and Kirby JJ summarised the relevant propositions in the following way:
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
...
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest
(Page 8)
- confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.' (366 - 368)
19 The case cited by their Honours when referring to the possibility that an inconsistency will have the result that an appellate court considers that "intervention is necessarily required to prevent a possible injustice" is R v Drury (1971) 56 Cr App R 104. That was a case with some similarities to the present. Drury had been convicted on two counts of obtaining goods by deception, and acquitted of one count of stealing. The stealing related to 28 boxes of oranges, while the counts of obtaining goods by deception related to his sale to two different people of a quantity of oranges which were part of the same consignment of 28 boxes referred to in the first count. Like the present case, there was plainly evidence which would have justified his conviction on all counts. Unlike the present case, it was conceded by his counsel on his appeal that there was an abundance of evidence to convict Drury of those counts of which he had been convicted. However, an examination of the facts demonstrated that the question whether he was guilty or not of the offence of theft depended upon the conclusion reached by the jury about Drury's reaction to certain instructions which Drury said he had been given by his transport manager. The element of dishonesty in relation to the count of obtaining goods by deception also, in effect, depended upon the jury's conclusion about the same matter. The jury in that case had been directed that it was open to them, as a matter of law, to reach different verdicts in respect of each of the counts, but was advised that the same question arose for decision in each of the counts. In that case, the Court of Appeal reached the view that, as the verdicts depended upon the same basic ingredients, they were "so violently at odds that we see no alternative but to hold that the convictions on the second and third counts, notwithstanding the cogency of the evidence ... must in the light of the acquittal on the first count be regarded as unsafe and unsatisfactory" (114).
Analysis of inconsistency
20 In effect, the State was inviting the jury to work backwards from the finding of the cannabis in Whitbread's vehicle, in relation to count 1 as particularised. The State did not have to tie its case to the cannabis in the boot of Whitbread's car. It would have been open, in my view, for the State to have relied upon the mere presence of the hydroponic setup, the
(Page 9)
- remains of cannabis plants, and the clipseal bags and other paraphernalia, to establish that the appellant had, indeed, been cultivating with the requisite intent. The State might have invited the jury to infer that the cultivation had been relatively recent, as otherwise evidence of it might reasonably have been expected to have been cleared away.
21 However, the State case, as I have noted, tied the count of cultivation with the cannabis in the boot of Whitbread's car. The State took upon itself the burden of proving, in relation to that count, that the appellant had cultivated the identical cannabis which had found its way into the boot of Whitbread's car. It is not surprising that this course was followed, as the case as particularised was one which would be easy for a jury to understand. The State invited the jury to infer that the cultivation was with the requisite intent, because the cannabis had been, in fact, supplied to Whitbread. There was no evidence whatever from which the jury might have inferred that, while the appellant had cultivated the cannabis which had been found in the boot of Whitbread's car, with the intent to sell or supply it, it had, in fact, been sold or supplied to Whitbread by some third person. That was simply not a reasonable possibility open on the evidence.
22 It follows that, as a matter of logic, once the jury failed to be satisfied of the conclusion that the cannabis in the boot of Whitbread's car had been sold or supplied to Whitbread by the appellant, it was not open to the jury to be satisfied that the appellant had cultivated that cannabis with the intent of selling or supplying it to Whitbread.
23 I have considered the question of whether the verdict could be regarded as a "merciful" one, or as the verdict of a jury which, having convicted the appellant of cultivation with intent, saw no need to burden him with an additional conviction for, in fact, selling or supplying. There is, of course, a faint possibility that those were considerations upon which the jury acted. However, it appears to me much more probable that the jury, in the present case, faced with the ample evidence of the appellant's cultivation of cannabis, and the elaborate nature and scale of his cultivation, simply concluded that they could convict him of cultivating cannabis with intent to sell or supply it even if they were not satisfied that he had cultivated the particular cannabis which was found in Whitbread's vehicle. The inconsistent verdicts, then, strongly suggest that the appellant was convicted in respect of a case he had no opportunity to meet and that, however ample the evidence to support the conviction, it must be set aside as unreasonable.
(Page 10)
24 I would allow the appeal, quash the conviction in respect of count 1, and substitute a verdict of acquittal.
25 MILLER JA: I agree with Wheeler JA.
26 MURRAY AJA: I am grateful to have had the opportunity to read in draft the judgment published by Wheeler JA, with which Miller JA agrees. I regret that I have come to a different view. However, I am relieved, by her Honour's careful discussion of the matter, from the need to do more than state my views relatively shortly.
The indictment
27 It is necessary for me to set the indictment out in full. It charged two offences:
(1) Between 1 January 2006 and 11 March 2006 at Westfield, Colin George Tingley cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another.
(2) On 10 March 2006 at Westfield, Colin George Tingley sold or supplied a prohibited drug, namely cannabis, to another.
- Those were charges of cultivation of cannabis with intent to sell or supply, and the sale or supply of cannabis, contrary to the relevant provisions of the Misuse of Drugs Act 1981 (WA). The charges were in standard form. They satisfied the law as to their proper particularisation.
28 The statutory scheme is that provided by the Criminal Procedure Act 2004 (WA). Section 85 establishes sch 1 and s 85(2)(b) requires that an indictment must comply with sch 1 div 2. Under s 131(3), further particulars of a charge may be ordered. The relevant provision of Div 2 of sch 1, for present purposes, is cl 5, as follows:
5. Alleged offence to be described
(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
(a) describe the offence with reasonable clarity;
(b) identify the written law and the provision of it that creates the offence;
(c) identify with reasonable clarity -
- (i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii) where the offence was committed;
- (d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and
(e) if the offence relates to property, comply with clause 6(4) and (5).
- (2) For the purposes of subclause (1) -
(a) it is sufficient to describe an offence in the words of the written law that creates it;
(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;
(c) a charge is not defective only because an element of the offence is not stated; and
(d) it is not necessary to allege -
(i) any matter, or any particulars as to a person or thing, that need not be proved; or
(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
29 At the conclusion of his opening address, prosecuting counsel said that when the man Whitbread was apprehended by the police on 10 March 2006 and the car he was driving was searched, in the boot the police found a large white bucket containing two plastic bags. In those bags there were quantities of cannabis bud or head material, the total weight of which was 910 grams. The prosecutor made it clear that it was the State's case that that cannabis had been supplied by the appellant to Whitbread at the appellant's house in Westfield, not far from where Whitbread was apprehended a little earlier that afternoon. That was said to be the cannabis sold or supplied by the appellant to Whitbread as alleged in count 2 (ts 14).
30 So much having been made clear as to the way in which the prosecution put its case, defence counsel, in the absence of the jury, asked
(Page 12)
- a different question. He asked what cannabis plants it was alleged were cultivated with intent to sell or supply cannabis in count 1, 'so that I know whether the State are relying on a presumption or whether they are taking on the burden of proving the allegation of intent beyond a reasonable doubt' (ts 15). The prosecutor responded that the State was unable to rely upon a specific number of plants but, he said, the allegation was 'that the 910 grams of cannabis head material had been cultivated by the [appellant]' (ts 15).
31 What counsel was saying, although he went rather further than he needed to, was that he could not particularise, for the purposes of count 1, the number of plants allegedly cultivated by the appellant. He could not therefore rely upon the presumption of intent to sell or supply provided by the application of s 11(b) of the Misuse of Drugs Act. Implicitly, he recognised, I think, that he would need to prove that intent as part of his case.
32 But, relevantly for present purposes, this was by no means a particularisation of either count on the indictment. It was a statement that the prosecution would seek to make out its case upon count 2 by proving that the sale or supply of the cannabis was of the whole of the 910 grams found in the boot of Whitbread's car.
33 When the jury were brought back into the courtroom they were provided with copies of the indictment. They could therefore see, in printed form, the charges to which the appellant had pleaded not guilty and they had already been told by the trial judge, in his opening remarks, that each charge would ultimately have to be considered separately by the jury 'and the fact that there are two charges does not mean that you have to return the same verdict on each of the charges' (ts 4). As Wheeler JA has observed, his Honour necessarily incorporated that observation in the general directions he gave when summing up the case to the jury at the end of the trial.
34 That having been done, the prosecutor told the jury that:
the cannabis which the State says was later supplied to Mr Whitbread was cannabis that had been cultivated at the accused man's house; that is, the cannabis in the white bucket, some 910 grams (ts 17).
- Again, it can be seen that there was a clear implication that the State would say, quite unnecessarily, in support of count 1 that the 910 grams found in the boot of Whitbread's car was all cultivated by the appellant at his house in Westfield. Importantly, that also was no particularisation of
(Page 13)
- any element of either offence charged. It remained an observation about how the prosecution proposed to prove its case. It seems that it proposed that in relation to count 2 it would rely upon proof that all of the 910 grams of cannabis found in the two bags in the boot of Whitbread's car was sold or supplied to him by the appellant.
35 So far as count 1 was concerned, it proposed to prove that the cultivation at the appellant's house of an unknown number of cannabis plants had produced the 910 grams of cannabis material and, linking that production with the supply, it could rely upon that evidence, together with the other evidence it opened to the jury, to establish the intent to sell or supply with which it alleged the cultivation was accompanied. Understood in that way, this was a piece of evidence to be relied upon in proof of count 1, not a restriction in the nature of the case implied by the particularisation of any element of the offence charged in count 1. That all the evidence bearing upon the nature of the activity at the appellant's house, including, but not limited to the production of 910 grams of cannabis material, was relied on by the prosecution to prove count 1, was made clear by counsel when opening the State's case.
36 In my opinion, that was the way in which the prosecutor's statements were understood by defence counsel, who then opened the defence case to the jury. He said that despite what the prosecutor said he intended to prove, 'what you have to decide this case on once you retire to deliberate on your verdict, you have to decide it on the evidence, not what my friend says now and not what he says at the end of the case' (ts 17). Rather than accept this approach, defence counsel urged, the jury should have regard to the fact that Whitbread, it would be proved, was involved in the cultivation of cannabis 'at another place' (ts 18). In fact, counsel observed, the police went to that other house where a hydroponic set-up much larger than that found at the appellant's house was located. Whitbread, counsel said, would be proved also to have been found in possession of cannabis at yet another address, his own house (ts 18).
37 Counsel continued, with the flourishes appropriate to an address to a jury, by saying:
What I want to suggest to you, ladies and gentlemen, and what I want you to keep an eye out for when you are listening to the evidence, can you be satisfied beyond a reasonable doubt that the cannabis which Rodney Whitbread was found with in his boot, the 910 grams, can you be satisfied beyond a reasonable doubt that that cannabis was in fact grown by Mr Tingley and came from Mr Tingley as opposed to someone else. Right? I'm telling you that right now up-front.
(Page 14)
- Keep an eye out for that and I'm saying it for my friend as well. You know, no surprises here and no tricks. That is where we are coming from. You prove beyond a reasonable doubt that the cannabis, that 910 grams in Mr Whitbread's boot, you prove that that came from Tingley and not from somewhere else.
The appeal
38 As has been seen, ultimately the appellant was convicted of count 1, the cultivation of cannabis plants with intent to sell or supply cannabis, and he was acquitted of count 2, the sale or supply of cannabis on 10 March 2006, effectively the sale or supply of the 910 grams of cannabis to Whitbread. Wheeler JA has set out the grounds of appeal, as amended. With respect, I have nothing to add to her Honour's discussion of the proposition behind ground 2 that the verdict of guilty of the offence of cultivation with intent was unreasonable or could not be supported having regard to the evidence. Her Honour concludes that ground 2, which is intended to express that proposition, is not made out. I respectfully agree.
39 I turn then to the question whether the verdict of guilty of the offence of cultivation with intent should be set aside on the ground of its inconsistency with the acquittal of the offence, as it was put by prosecuting counsel, of the sale or supply of 910 grams of cannabis to Whitbread.
The test of inconsistency
40 As Wheeler JA observes, where reliance is placed upon the inconsistency of verdicts, not in a legal sense, but in the sense of factual inconsistency, the question will often simply be whether:
the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the jury's duty. … It is only where the inconsistency rises to the point where the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. It all depends upon the facts of the case: MacKenzie v The Queen (1996) 190 CLR 348 per Gaudron, Gummow and Kirby JJ at 368.
41 We should not overlook that where a guilty verdict is challenged on the ground of its factual inconsistency with an acquittal, rather than by relying on the incapacity, legally, for the two verdicts to sit together, what is being put to the appellate court is that the guilty verdict is unreasonable, having regard to the acquittal of another related offence, an acquittal of
(Page 15)
- which the appellant must be given the full benefit: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. That case was one of alleged factual inconsistency which was to be dealt with under s 6(1) of the Criminal Appeals Act1912 (NSW). The local equivalent for us is s 30(3)(a) of the Criminal Appeals Act 2004 (WA), which provides that the Court of Appeal must allow the appeal if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.
The trial judge's directions
43 This was a case where unanimity was required. A ballot having been conducted under the Juries Act 1957 (WA) to reduce their number to 12, the jury retired to their deliberations at 3.50 pm. They returned with their verdicts half an hour later. As I have said, they found the appellant guilty of count 1 and not guilty of count 2.
44 The trial judge commenced his directions to the jury with instructions of the kind envisaged in MFA. His Honour told the jury that the findings of fact were solely a matter for them, and only to be made on the evidence. It was entirely for the jury what evidence they accepted and what evidence they did not accept. His Honour gave the jury appropriate directions about the onus and standard of proof, including instruction about drawing inferences adverse to the accused. In that context, his Honour returned, as I have said, to the observation made in his opening remarks at the commencement of the trial, reminding the jury that
(Page 16)
- there were two charges, each of which was to be considered separately and that a verdict of guilty, or indeed not guilty, in relation to one count did not mean that the same verdict was to be returned in respect of the other (ts 136).
45 When the trial judge turned to count 1 he naturally included, among the elements of the offence which must be proved beyond reasonable doubt by the prosecution, that the accused cultivated a prohibited plant. The judge directed the jury appropriately that cannabis was such a plant. He gave them the definition of cultivation within the meaning attributed to the term 'to cultivate' in s 3 of the Misuse of Drugs Act (ts 138). His Honour then said, about the intent to sell or supply:
The third element that the state must prove is that the accused man had an intent to sell or supply the cannabis he cultivated, to another; that is, they have to show that the cannabis was in fact the cannabis cultivated that ended up in the boot of Mr Whitbread's vehicle.
46 It was not surprising that the trial Judge put it in that way, given the way the prosecution presented its case, but it was favourable to the appellant because, of course, there was a whole body of circumstantial evidence which has been reviewed by Wheeler JA, which presented a strong case, not only of cultivation, but cultivation with intent to sell or supply, even if the jury were not satisfied beyond reasonable doubt that all of the cannabis cultivated at the appellant's Westfield house ended up in the boot of Mr Whitbread's car.
47 Immediately after the judge concluded his description of the elements of the offence, his Honour went on remind the jury what that body of circumstantial evidence was. His Honour referred to the fact that the house was solely occupied by the appellant. He referred to the locked room, that the appellant had the key, the various items in the room which provided strong indication of a hydroponic growing system, the bypassing of the meter, scissors, scales, clipseal bags, etc. There was the total sum of $6,000 in cash found in two clipseal bags secreted between the side of the fridge and a wall, separately from the much smaller sum of $300 which the accused said belonged to his son.
48 There was the fact that he did not initially explain to the police where he got the money from and then gave as the explanation, that he had earned the money but that it was not to be declared for taxation purposes. There was the notebook in which there were apparently financial calculations and the words 'Gungar for Jan!' The evidence was that 'ganga' is a colloquial term for cannabis. There was the small amount of
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- cannabis head material found in a waste bin inside the house and finally, of course, there was the appellant's own admission to the police that the equipment found in the house had been used to grow cannabis there.
49 The trial judge said that it was the prosecution case that from various items of circumstantial evidence an inference was to be drawn that the cultivation by the accused was with intent to sell or supply, and in that connection his Honour added, 'They also say that you can infer that the cannabis in the boot was cultivated by the accused between the dates alleged' (ts 139). His Honour went on to refer to the evidence which would support the conclusion that the 910 grams of cannabis head material found in the boot of Whitbread's case was supplied by the appellant.
50 There was some overlap, of course, between the summary made by counsel of the case of the respective parties in relation to count 1 and that which they respectively made in relation to count 2, to which the trial judge then turned, accurately stating the elements of the offence and summarising the cases of prosecution and defence. His Honour made particular reference to the state's reliance upon the telephone conversation which occurred at 4.30 pm on 10 March 2006, to which Wheeler JA has referred, and the evidence about Whitbread's visit to the appellant's house later on that day.
51 However, his Honour immediately and properly reminded the jury that the defence case was that the evidence was insufficient to establish that the cannabis found in the boot of Whitbread's car was not there when he visited the appellant, that Whitbread had access to cannabis from a hydroponic set-up established in his house, and that he had a close connection with the man Conchie, at whose residence a substantial hydroponic set-up was found, in relation to which there were photographs of cannabis drying in racks, showing a white bucket similar to that found in the boot of Whitbread's car. His Honour reminded the jury that the defence pointed to the fact that there was nothing forensically to connect the cannabis in the boot of the car with the appellant or his house.
52 Towards the end of his charge to the jury, the trial judge made a summary of the evidence, in respect of which there was no real dispute. It is convenient for my purposes, rather than recite the evidence myself, to incorporate that summary into this judgment as follows:
Now, you will appreciate that I don't intend to summarise all of the evidence in this case but I will provide a brief summary to you. You will appreciate that as far as the surveillance evidence is concerned, it
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- establishes this. At 6.31 the police saw Mr Whitbread's vehicle in Yangebup. At 6.52 they saw it arrive at the Westfield shopping centre. At 6.55 the observation evidence was that he was grocery shopping. At 7.03 he was seen to leave the Supa Valu store and head along Westfield Road; at 7.03 the gold vehicle was seen to arrive at Tall Karri Court, Westfield.
At 7.05 the police officer, Surveillance Operative 53, saw Mr Whitbread walking from the direction of the car towards the front door of the premises. The police officer said that he was carrying a white plastic shopping bag. It appeared to contain items but the contents were not able to be observed. The observation was for a short period, three to four seconds, from a short distance away - around about 10 to 15 metres away.
At 7.39 the white tray-top was seen to be travelling east along Lake Road, Westfield. There was one occupant of the vehicle and it was not Mr Whitbread. At 7.42 the vehicle of Mr Whitbread was seen to be travelling on Lake Road towards Albany Highway and at 7.49 the evidence was that the vehicle had been stopped by the police. At 8.23 Mr Whitbread was interviewed on the video that you have and the amount of cannabis was located in the back of his vehicle.
Now, the police searched the accused's residence, and you will have with you all of the items that in fact - or a log with all of the items that they located - the electronic scales, cannabis resin, clipseal bags in the kitchen, in the sports bag, kitchen cupboard and kitchen fridge and in the robe, some cannabis head material, scissors, cannabis head in the kitchen bin, a quantity of documents, some plant nutrient, light meters and the like.
The police also executed a search warrant on Mr Whitbread's house in Yangebup. They located a small amount of cannabis in clipseal bags, some bags of rock-wool growing agent, and some buckets, tubs, some fittings for a hydroponic set-up. They also executed a search warrant down the road, on the premises that has been referred to as Williambury Drive. That was a house owned by Mr Whitbread and it was the residence of Mr Conchie and his girlfriend, Ms Hatch.
Inside the garage behind a wall there was a hydroponic set-up that had airconditioning, lights fully set-up and a capacity to grow some nine plants. No plants were found there. No cannabis was found, although the evidence was that there was, I think, some stems and some root balls. Ms Hatch's phone was also located. There was images on the phone of cannabis drying on the screens. The former police officer agreed that it appeared to be taken at the Williambury Drive address. Cannabis was not found, although the screens were found. Now, you will appreciate that you also have with you the search video, where the accused person was spoken to by police officers and gave his explanation for various items of cannabis and also items such as the scissors, items such as the notes and the like (ts 145 - 146).
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There is no inconsistency
53 The important aspects of the way in which the case was put to the jury, for the purpose of considering whether, in the light of their acquittal of count 2 the jury's verdict of guilty of count 1 must be regarded as unreasonable, are as follows. The jury were told that they were to decide the question of guilt or innocence separately in relation to each count, but the review of the cases of the parties would have made it clear to them, if it was not otherwise clear, that there was considerable overlap in the evidence.
54 Importantly, while they were reminded that the prosecution case was that the whole 910 grams found in the boot of Whitbread's car had been cultivated by the appellant at his house and supplied from there to Whitbread on the evening of 10 March 2006, and they were told, in effect, that it was that supply of 910 grams which was the subject of count 2 on the indictment, they were not told, in relation to count 1, that they could not convict of that count unless they found that the 910 grams of cannabis came from the appellant's house. On the contrary, they were told to have regard to all the evidence which was reviewed for them which related to the cultivation with intent.
55 As I have said, there can be no question that there was a powerful circumstantial case of cultivation with intent to sell or supply, even if the jury were unpersuaded beyond reasonable doubt, that any more than a portion of the 910 grams of cannabis was supplied by the appellant to Whitbread, or indeed, if they were unpersuaded beyond reasonable doubt that any of it was so supplied. Then, of course, apart from the circumstantial evidence, there was the direct evidence of the appellant's admissions to the police.
56 After all, although Whitbread was briefly observed, after grocery shopping at the Westfield shopping centre, to take into the appellant's house a white plastic shopping bag apparently containing something, he was not seen to leave the house and therefore there was no direct evidence that he took anything away or that, if he did, that something was 910 grams of cannabis.
57 In short, it seems to me that while the prosecution case in relation to the cultivation within the period specified in the indictment was very strong, the case to establish supply of 910 grams of cannabis by the appellant to Whitbread on the evening of 10 March 2006 was weak. In my respectful opinion, while noting the contrary view, this case shows every sign of a jury taking seriously its obligation to be satisfied of guilt
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- beyond reasonable doubt on the whole of the available evidence. They were able to reach that standard of persuasion in relation to count 1, but not count 2. In my opinion, the verdict of guilty of count 1 was not unreasonable. I would dismiss the appeal.
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