Washer v The State of Western Australia [2007] HCA 48 8 November 2007 P6/2007
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
D Grace QC with C B Boyce for the appellant (instructed by the Office of David Grace QC)
S Vandongen with S F Rafferty for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Washer v The State of Western Australia
Evidence – Admissibility – Relevance – Appellant convicted of conspiracy to possess a prohibited drug with intent to sell or supply it to another – Appellant had been previously acquitted of a conspiracy covering different times, parties and object, to possess a prohibited drug with intent to sell or supply it to another – Trial judge admitted evidence tending to show the appellant was a drug dealer (the "drug dealing evidence") – The drug dealing evidence had been adduced in the earlier trial in which the appellant was acquitted – Trial judge directed the jury not to use the drug dealing evidence to infer that a person who dealt in drugs on one occasion was more likely to do so subsequently – Whether the drug dealing evidence was relevant to the offence of which the appellant was convicted – Whether evidence that the appellant had been acquitted of the previous charge was relevant and admissible.
Words and phrases – "the full effect of an acquittal", "the full benefit of an acquittal".
GLEESON CJ, HEYDON AND CRENNAN JJ. Following a trial before Wisbey DCJ and a jury in the District Court of Western Australia, the appellant was convicted of conspiring with John Di Lena and Andrea Scott, between 18 May 2000 and 2 June 2000, to possess a prohibited drug, methylamphetamine, with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 (WA). The alleged conspiracy involved the proposed importation into Western Australia from Queensland of a large quantity (1.96 kg) of methylamphetamine. It was alleged that John Di Lena was the principal organiser of the transaction, and that the appellant's role was to provide part ($55,000) of the funds used to acquire the drugs. The alleged conspiracy related to a specific parcel of methylamphetamine which was purchased in Queensland but which, in the events that occurred, fell into the hands of the authorities before it reached Western Australia. The planned importation turned into something of a fiasco.
At an earlier trial, before Fenbury DCJ and a jury, the appellant had been acquitted of a charge that, between 13 April 2000 and 21 March 2001, he conspired with Gavin Whitsed and William Bowles to sell or supply a prohibited drug, namely methylamphetamine. The alleged conspiracy was said to have extended over…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Washer v Western Australia [2007] HCA 48
Case
[2007] HCA 48
Decision Date
CaseChat Overview and Summary
In *Washer v Western Australia*, the High Court of Australia considered an appeal by Raymond Washer against his conviction for conspiracy to possess a prohibited drug with intent to sell or supply. Washer had previously been acquitted of a separate conspiracy charge involving different times and parties, but some of the evidence, described as "drug dealing evidence," was admitted in his second trial. This evidence tended to show Washer was a drug dealer and had been presented in his first trial.
The central legal issues before the High Court were whether the "drug dealing evidence" was relevant to the offence charged in the second trial, and whether evidence of Washer's prior acquittal was relevant and admissible. The trial judge had admitted the drug dealing evidence, holding it was relevant to proving intent to sell or supply and to rebut claims of innocent association. The judge also directed the jury not to use this evidence to infer that a person who dealt drugs on one occasion was more likely to do so subsequently.
The High Court, in a joint judgment, acknowledged that while evidence of a prior acquittal can be relevant and admissible in certain circumstances, particularly when overlapping evidence is used, it was not so in this case. The Court affirmed the principle that when evidence tending to prove an earlier charge is admitted in a subsequent charge, the jury must be warned not to use that evidence to question or discount the effect of the earlier acquittal. This principle is rooted in legal policy, recognising the conclusiveness of an acquittal between parties and protecting an accused from repeated vexation.
Despite finding that the appellant had made good his complaint regarding the refusal to permit proof of his earlier acquittal and a direction to the jury on its use, the High Court dismissed the appeal. This was on the basis that, in the circumstances of overwhelming evidence of guilt in the second trial, the case was one for the application of the "proviso" under the Criminal Appeals Act 2004 (WA), meaning the conviction would be upheld despite the error.
Orders
Orders of the court
Appeal dismissed. (Joint judgment of Gleeson CJ, Heydon and Crennan JJ with Hayne agreeing, Kirby J agreed with the orders but delivered separate reasons)
Background
Background to the litigation
In my view, the appellant has made good his complaint about the refusal of the judge at the second trial to permit him to prove his earlier acquittal and to direct the jury on the use that they might make of that fact. However, in the circumstances of the overwhelming evidence of the appellant's guilt of the offence charged in the second trial, the case is, as the respondent argued, one for the application of the "proviso"[27]. The appeal should be dismissed. But on that ground.[27]Criminal Appeals Act 2004 (WA), s 30(4).The facts Mr Raymond Washer ("the appellant") was first presented on indictment for trial in the District Court of Western Australia. His first trial took place before Fenbury DCJ and a jury in September 2004. The indictment contained a single count of conspiracy with co-accused, Messrs Whitsed and Bowles, to supply a prohibited drug contrary to the Misuse of Drugs Act 1981 (WA), ss 6(1)(c) and 33(2)(a). The jury found the appellant and his co-accused not guilty of the charge and they were acquitted. Six months later, in March 2005, also in the District Court of Western Australia, the appellant was tried on a charge of a separate drug-related conspiracy with different co-accused, Mr John Di Lena and Ms Andrea Scott. The second trial took place before Wisbey DCJ and a new jury. It was in this trial that the prosecution tendered evidence of drug dealing on the part of the appellant ("the drug dealing evidence") some of which coincided exactly with evidence that had been tendered against him in his first trial[28]. [28]See also the reasons of Gleeson CJ, Heydon and Crennan JJ ("the joint reasons") at [21]-[22]. The appellant challenged the admissibility of this overlapping evidence. However, Wisbey DCJ admitted the evidence. His Honour held that the prosecution could lead it in proof of "the element of intent to sell or supply and to rebut innocent association" between the alleged conspirators[29]. By implication, Wisbey DCJ found that the evidence had probative value and afforded relevant proof of the offence charged in the second indictment.[29](2006) 165 A Crim R 482 at 492 [47]. The drug dealing evidence included recorded conversations between the appellant, on the one hand, and Messrs Bowles, Whitsed and Page, on the other. Most of that evidence had been tendered in the first trial. So was evidence of items discovered in searches made of the appellant's premises in July and September 2000. That evidence was consistent with the appellant's being "involved in drug dealing at a time approximate to the period of the alleged offence"[30]. The police found, among other things, scales and a grinder with traces of methylamphetamine located on top of the refrigerator. A business and expenditure recorder was found in the bus in which the appellant was living at the time of the September search[31]. An entry in this recorder was said to reflect a substantial financial transaction between the appellant and Mr Di Lena.[30](2006) 165 A Crim R 482 at 492 [47].[31](2006) 165 A Crim R 482 at 490 [38].
Evidence
Evidence Before The Court
At the trial, the prosecution called Ms Lennon as a witness. She gave an account of the events in Queensland. The appellant did not give evidence.The "drug dealing evidence" As has been noted, the prosecution tendered evidence of conversations, or parts of conversations, between the appellant and others, including Whitsed and Bowles, which were alleged to relate to drug dealing other than the specific transaction involving the importation from Queensland. The prosecution also tendered physical evidence such as the scales and grinder which was not specifically linked to that importation. These forms of evidence were described in argument as "the drug dealing evidence". It is because some of that evidence had been tendered as part of the evidence at the earlier trial concerning an alleged conspiracy with Whitsed and Bowles that the present issue arises. There is no ground of appeal in this Court relating to the admissibility of that evidence, but it is material to note how it was used at the (second) trial. To the extent to which the evidence of the conversations and the physical evidence did not relate specifically to the importation from Queensland but, as alleged by the prosecution, showed that the appellant was a dealer in drugs, the Court of Appeal said its admissibility was governed by s 31A of the Evidence Act 1906 (WA), concerning propensity evidence, which is admissible if it has significant probative value and that probative value (to put it briefly) outweighs any risk of an unfair trial. The Court of Appeal held that part of the probative value of the evidence was that it went to prove the element of intent to sell or supply in the offence with which the appellant was charged. It is necessary to bear in mind that, at the time the evidence was led, it was not known whether the appellant would give evidence, or what answer he might seek to make to the prosecution case. In the Court of Appeal, it was argued for the appellant that the quantity of drugs the subject of the proposed importation was so great that it would have been fanciful to deny intent to sell or supply. As Roberts-Smith JA pointed out, no admission of the element of intent was made at trial, and, in the circumstances, the prosecution was obliged to lead, in its case, evidence to prove that element. Roberts-Smith JA, dealing with arguments as to the admissibility of the evidence, and referring to both appellants in the Court of Appeal, said: "The drug dealing evidence here had substantial probative force to [support] a proposition that the appellants' association with each other and with others concerned in giving effect to the conspiratorial agreement [eg Fisher], was not an innocent association, but an aspect of the appellant[s'] drug dealing business. It similarly tended to negate the suggestion advanced on behalf of the appellants, that they were talking about things other than methylamphetamine, and that the book entry was to do with share or commodity trading. The evidence also tended to prove the element of intent to sell or supply. Indeed, it was not put otherwise either to us or at trial: the argument was not that the evidence did not have probative value in that way, but rather that it ought not to have been led because it was unnecessary as that element was not in issue."
Decision
Reasons for decision
GLEESON CJ, HEYDON AND CRENNAN JJ
KIRBY J
HAYNE J
No doubt there are cases in which the reception at a later trial of evidence of conduct that has been the subject of an earlier trial will make evidence of the fact of acquittal at the earlier trial relevant and admissible. However, as Gibbs J recognised in Storey, it will not be so in every case. It was not so in this case.Conclusion The appeal should be dismissed. This Court has hitherto affirmed a principle that: "Where evidence which would tend to prove [an] earlier charge or some element of it is admitted in [a] subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to … question or discount the effect of the acquittal."[19][19]R v Storey (1978) 140 CLR 364 at 372 per Barwick CJ; see also at 391 per Stephen J, 397 per Mason J, 425 per Aickin J. This principle is founded on considerations of legal policy upheld by the common law. It was conventionally observed in the Crown's prosecution practice[20]. The reasons for the principle include a recognition of the conclusiveness of an acquittal, as between the parties to an earlier criminal adjudication, so that the acquittal is treated as binding in all subsequent proceedings in respect of matters necessarily inherent in that adjudication[21]. However, the principle also gives effect to a wider protection of an accused from repeated vexation arising out of similar or overlapping evidence[22]. A further foundation for the rule is the principle of public policy whereby courts respect the institution of jury trial; treat the jury of citizens as the "constitutional tribunal" of fact[23] in matters committed to their verdicts; and regard a jury's verdict of acquittal in a criminal trial as legally equivalent to a determination in law that the accused is innocent of that accusation[24].[20]See Pearce v The Queen (1998) 194 CLR 610 at 638-640 [95]-[98].[21]Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 at 479 (PC) per Lord MacDermott.[22]cf Davern v Messel (1984) 155 CLR 21 at 67 per Deane J.[23]Hocking v Bell (1945) 71 CLR 430 at 440 per Latham CJ citing Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 373 per Lord Wright.[24]Director of Public Prosecutions v Shannon [1975] AC 717 at 772 per Lord Salmon; Williams, "A Judgment of Innocence: The Effect of an Acquittal in Australian Law", (1987) 61 Australian Law Journal 134. In Australia, it will rarely, if ever, happen that, following acquittal of one charge, an accused person will thereafter be prosecuted for exactly the same charge or for another charge on the basis of exactly the same evidence. Statutory warrant aside, the prosecution would rarely, if ever, be so brazen. Such conduct could invite the application of the principle of res judicata, given effect by a plea of autrefois acquit, or possibly a plea in bar or an application for a stay of the proceedings[25].[25]Rogers v The Queen (1994) 181 CLR 251 at 276-277; Pearce (1998) 194 CLR 610 at 614 [9], 620 [28]-[29], 637-638 [92], 645-647 [108]-[112]; Island Maritime Ltd v Filipowski (2006) 226 CLR 328 at 339-341 [30]-[32], 343-344 [43], 345-346 [49], 359 [91], 360 [95].
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, HEYDON AND CRENNAN JJ,
KIRBY J,
HAYNE J