WATHAROW v The State of Western Australia
[2013] WASCA 112
•1 MAY 2013
WATHAROW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 112
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 112 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:65/2012 | 15 NOVEMBER 2012 | |
| Coram: | McLURE P PULLIN JA MAZZA JA | 1/05/13 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN PETER WATHAROW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Drug offences Edwards direction not required |
Legislation: | Evidence Act 1906 (WA), s 11(1) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a) |
Case References: | Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 McKey v The Queen [2012] NSWCCA 1 Neill-Fraser v The State of Tasmania [2012] TASCCA 2 Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WATHAROW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 112 CORAM : McLURE P
- PULLIN JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 459 of 2011
Catchwords:
Criminal law - Appeal against conviction - Drug offences - Edwards direction not required
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Legislation:
Evidence Act 1906 (WA), s 11(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J C Whalley
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
McKey v The Queen [2012] NSWCCA 1
Neill-Fraser v The State of Tasmania [2012] TASCCA 2
Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
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1 McLURE P: I agree with Mazza JA.
2 PULLIN JA: I agree with Mazza JA.
3 MAZZA JA: This is an application for an extension of time and an appeal against conviction.
4 The reasons for the appeal being filed 2 1/2 months out of time are set out in the affidavit of the appellant's solicitor. While not particularly compelling, the respondent has not taken any objection to the application. I would grant the extension of time.
5 The appellant was convicted after a trial before O'Neal DCJ and a jury of the following drug offences:
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6 This appeal only concerns the appellant's convictions on counts 2 and 3.
7 The single ground of appeal concerns a direction that his Honour gave concerning part of the evidence given by a prosecution witness, William Keevers. Mr Keevers testified that the appellant asked him to take the blame for the methylamphetamine and dexamphetamine found by the police in a cardboard box on top of a refrigerator at the appellant's house. The State did not rely upon this apparent attempt to suborn Mr Keevers as evidence of the appellant's guilt. The appellant contends that, despite this, and without the parties joining issue on the point, his Honour instructed the jury that the evidence could be used for this purpose. Further, the appellant contends that his Honour's direction was erroneous because he failed to give any directions as to post-offence conduct in accordance with the High Court's judgment in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
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8 For the reasons that follow, I do not accept these contentions and I would dismiss the appeal.
The uncontested facts
9 On 11 May 2010, police officers executed a search warrant at the appellant's home in Lesmurdie. The officers discovered a cardboard box on top of a refrigerator in the appellant's kitchen. Inside the box was a total of 42.52 g of methylamphetamine divided into 14 clipseal bags of varying quantities, the largest of which weighed 27.7 g. The box also contained a clipseal bag containing 10 dexamphetamine tablets. There were other items in the box, including a quantity of empty clipseal bags and clipseal bags containing a white powder which was not a prohibited drug.
10 A search of the appellant's bedroom revealed a clipseal bag containing 4 1/2 dexamphetamine tablets and, in a wardrobe, a plate with 0.15 g of methylamphetamine on it.
11 In the appellant's shed, the police located a set of electronic scales with traces of methylamphetamine on it and a quantity of clipseal bags. Clipseal bags were also found in the appellant's kitchen.
12 As for the cannabis, 1.58 kg was concealed in two large plastic tubs hidden behind a wheelbarrow propped against an outside wall. Cannabis weighing 45.5 g was found in a length of PVC pipe in a wheelie bin at the front of the house. A few grams of cannabis was found on top of the refrigerator.
13 The relevant parts of the search were video-recorded. Under caution, the appellant admitted possessing the small amount of cannabis that was found on top of the refrigerator and the 0.15 g of methylamphetamine that was found in his bedroom. However, he denied any knowledge of the methylamphetamine found in the box on the refrigerator and any of the dexamphetamine tablets. In relation to the methylamphetamine, the appellant told the police that he believed it belonged to a person named Martin Johnson who had, in the past, stayed at the house. The appellant made no mention of the methylamphetamine belonging to William Keevers.
14 The State led forensic evidence to the effect that a DNA profile matching the appellant was found on some of the items located in the cardboard box.
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15 At the outset of the trial, defence counsel admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that the appellant possessed all of the cannabis found at the house, save the 45.5 g in the PVC pipe.
The issues at trial
16 In respect of counts 2 and 3, while the ultimate issue was whether the State had established beyond reasonable doubt that the appellant possessed the drug the subject of each count, the real issue was whether the appellant knew of their presence in his house. The evidence gave rise to two alternatives. Either the drugs were the appellant's or they were put there, without the appellant's knowledge, by Mr Keevers. The stance that the methylamphetamine belonged to Martin Johnson was not maintained at trial.
17 In order to determine the merit of this appeal, an understanding of the evidence of Mr Keevers and the appellant and the parties' cases is required.
The evidence of William Keevers
18 Mr Keevers gave evidence for the State.
19 Mr Keevers testified that both he and the appellant were dealers in 'speed'. He explained that they would, from time to time, buy the drug from each other (ts 109 - 110).
20 He said that some time prior to 11 May 2010 he was charged with possession of methylamphetamine with intent to sell or supply. As a result, according to Mr Keevers, his property was frozen and he believed it would ultimately be confiscated. It is clear that as at 11 May 2010, he was on bail for this offence. Subsequently, he was convicted of the offences and sentenced to 4 years' imprisonment. At the time of the appellant's trial, he was serving that sentence.
21 Mr Keevers told the jury that on the day before the appellant was 'busted', he went to the appellant's house intending to buy some methylamphetamine from him. He said that he and the appellant went to the rear garden shed and 'had a couple of pipes to try it out' (ts 112). Mr Keevers said that he saw the appellant take the drug from a plastic sandwich bag that he thought contained 'probably a couple of ounces' of methylamphetamine (ts 114). He said that the sample he smoked was 'no good' and he did not end up buying any of it (ts 114).
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22 Mr Keevers testified that some days after the appellant was 'busted', the appellant telephoned him. The appellant told him what had happened. According to Mr Keevers, the appellant told him that the authorities had 'put foreclosures on his house and stuff like they did mine' (ts 117). Presumably, this was a reference to freezing orders placed on his property pursuant to the Criminal Property Confiscation Act 2000 (WA).
23 Mr Keevers recalled part of the conversation as follows:
I said, 'What did they - what did they catch you with? Not a lot, was it?' And he said, 'Yeah. They got the lot' (ts 117). (emphasis added)
24 When Mr Keevers was asked what was meant by 'the lot', he responded: 'Speed and marijuana' (ts 117). As will be seen, the words 'They got the lot' are of significance in this appeal.
25 Mr Keevers testified that the appellant visited his house on the same night as the telephone conversation to which I just referred. His evidence in chief as to what was said during this visit was as follows:
Did you hear from him after that?---Yeah. He [the appellant] come down that night.
And what happened then?---He just showed me all the papers where the police had confiscated or whatever they do.
All right. Did he say anything else to you?---He said he spoke to a lawyer because it had been five or six days since he got busted. And he asked me if I could help him out. I said, 'How am I going to help you? I've lost my house, everything'. And he said, well, his lawyer said there's a -— a section 11A or something like that.
A section 11A?---11A. Something like that.
Did he explain to you what he understood that to mean?---That if I signed a section 11A or something like that with the judge or with somebody, that I couldn't be charged again and - and just say, 'It was my shit. I left it there'.
Okay. And what did you say?---I said, 'Well, if I can't' -— like, I - - I knew I was definitely going to gaol. I'd lost me house, everything. I knew I was going to gaol. So I said, 'Well, look, just let it ride until I get sentenced. And then if I can't get any more sentence on that, well then, yeah, I'll go for it. I'll - I'll help you out'.
Okay. Now, obviously you - well - why did you do that?---Well, there's not much point in both of us losing our houses, is there?
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- Okay?---And [the appellant] owed me 20 grand. So maybe he'd pay that while I was in gaol, you know.
He owed you 20,000?---Yeah.
How did he come to owe you that?---Because I've bought shit off him, he's bought shit off me. And he was using some of my money to pay for the marijuana, whatever. And I was doing all right. So I didn't worry about it. Itjust built up. And then when he got busted, I thought, well, the least I can do is - there's not much point in both of us losing our houses (ts 118 - 119).
26 The reference by Mr Keevers to s 11A was accepted at trial to be a reference to the process where a witness may be given a certificate under s 11(1) of the Evidence Act, although it is evident that Mr Keevers' understanding of this process was, to say the least, imperfect.
27 Mr Keevers went on to explain that ultimately he decided not to assist the appellant.
28 In cross-examination, Mr Keevers agreed that after he was imprisoned he was visited by a lawyer on behalf of the appellant. He agreed that he told the lawyer that he was willing to help the appellant, provided that he did not get any extra jail time and that he received the $20,000 owed him (ts 122).
29 Mr Keevers said that he was also spoken to by police officers, who questioned him about the ownership of drugs found at the appellant's house. Defence counsel suggested to Mr Keevers that he refused to tell the police the drugs were his because he feared receiving more imprisonment. Mr Keevers denied this suggestion. He said that the drugs found at the appellant's house were not his (ts 125 - 126).
30 Defence counsel cross-examined Mr Keevers about what was said at his house a few days after the appellant's arrest. The cross-examination was predicated on the basis that there was a meeting at Mr Keevers' house and that the appellant urged him to say that the drugs were his. It is necessary to quote the exchange in full.
[The appellant] came to see you about these drugs a few days after he was busted, as you say - - -?---Yeah.
- - - because they were your drugs, weren't they?---No. He came down to show me the paperwork where they'd put closures or whatever you call it.
They'd frozen his house?---Yeah.
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- Yes. And he said to you, 'Mate' - - -?---The same as they did mine.
- - - 'you know all I'm into is cannabis. These are your drugs. You'd better say they're your drugs or I'm going to lose my house'. That's what [the appellant] said to you, isn't it?---No. He didn't say, 'You'd better say they're your drugs'. He said - told me about the 11A with the lawyer whoever it is. I don't know.
Because you were concerned that if you told the truth and said they were your drugs, you'd get more gaol time?---No. Because they weren't my drugs. They were his. I didn't leave anything there for storage.
But you agree that you went to [the appellant's] house not long before he got busted. Is that right?---Well, I think he - he said he got busted four days before he come to see me. Five, six days. I'm not sure.
Yes. And you'd been to his house around about that time?---Yeah, maybe. Yeah, could have been. Yeah.
And that's the amphetamine that you're saying it is that the police found?---Yeah.
So you saw that, you say, and the police then found it. Do you happen to know where they found it?---No. [The appellant] told me that he - he went to bed and put it all on top of the fridge or something.
He put it on top of the fridge. Did he have other hiding places to put his drugs?---Well, he told me he had a few. But I didn't know about them.
So he told you he had a few good hiding places?---Yeah.
But he also told you that this amphetamine - this large amount of amphetamine, he just bunged that on top of the fridge?---With the boxes of cannabis.
Sorry?---With the boxes of marijuana.
So which - what boxes are we talking about?---The plastic boxes.
The big plastic boxes?---Mm.
They were on top of the fridge too?---That's what he told me (ts 128 - 129). (emphasis added)
- The italicised portion of this exchange, if accepted by the jury, was an obvious admission by the appellant to possession of the drugs the subject of counts 2 and 3.
31 Mr Keevers denied defence counsel's suggestions that on 10 May 2010 he went to the appellant's house with a cardboard box containing his
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- drugs and asked the appellant to keep the box for him because he anticipated (wrongly, as it turned out) being imprisoned on 12 May 2010. He further denied propositions that while he was at the appellant's house, the drugs in the cardboard box fell onto the floor and the appellant helped pick them up (ts 131 - 132). Mr Keevers also denied hiding the box on top of the appellant's fridge without the appellant's knowledge (ts 132).
32 Mr Keevers was cross-examined at some length about his prior drug convictions. He admitted several convictions for trafficking in cannabis. He accepted that on 10 June 2009, his house was searched by police. He admitted that, amongst other things, the police found $13,000 in cash that was the proceeds from dealing in drugs (ts 151). Mr Keevers agreed that the police returned to his house on 7 August 2009. On this occasion, the police found 216 g of methylamphetamine in a jacket belonging to Mr Keevers, as well as another 30.4 g of methylamphetamine and 85 g of cannabis located around the house. The police also found $7,950 in cash (ts 155 - 156).
The evidence of the appellant
33 The appellant elected to testify in his own defence. He consistently denied any knowledge that the cardboard box had been placed on top of the refrigerator. The appellant testified that at about 11.30 pm on 10 May 2010, Mr Keevers unexpectedly visited his house. The appellant said that Mr Keevers was drunk and 'a bit stumbly' (ts 233). The appellant said that Mr Keevers was carrying a box. According to the appellant, while Mr Keevers was in his bedroom, he tripped on some dirty clothes and dropped 'everything', including the cardboard box he was carrying. As a result, the contents of the box 'went all over the floor' (ts 234).
34 The appellant testified that he saw lots of little bags. He said that he helped pick up the little plastic bags. He said he had some idea what was in the bags.
35 The appellant said that Mr Keevers told him that he was going to court on 12 May 2010 and anticipated being imprisoned. According to the appellant, Mr Keevers asked him to look after the drugs in the box during his absence. The appellant said that he refused to do so.
36 The appellant testified that he told Mr Keevers to take the box and its contents back to his car. He said that Mr Keevers went to his car with the box. The appellant said that he went to the back shed where Mr Keevers joined him. Mr Keevers brought some bottles of Jim Beam to drink. According to the appellant, he and Mr Keevers remained in the shed for
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- about an hour, drinking and smoking cannabis. At one point, Mr Keevers went unaccompanied into the house to get another drink (ts 288). When Mr Keevers left the shed he must have, on the appellant's evidence, retrieved the cardboard box from the car and placed it on top of the refrigerator without the appellant's knowledge.
37 In cross-examination, the appellant said that after the search of his house, he contacted a lawyer and, after that, he contacted Mr Keevers. The appellant testified that he found out that Mr Keevers had not gone to jail as anticipated (ts 291, 293). The appellant was not asked by either counsel about his alleged attempt to suborn Mr Keevers.
38 The appellant denied that he was a user or dealer of methylamphetamine. He also denied that the scales found by police were his. He said that the clipseal bags were for normal domestic use.
The State's case
39 The prosecutor's opening address made only the briefest reference to Mr Keevers' evidence and no reference at all to anything said by the appellant to Mr Keevers after the appellant's arrest (ts 103).
40 In his closing address, the State prosecutor submitted that Mr Keevers' evidence, if accepted, constituted direct evidence of the appellant's guilt on counts 2 and 3. The prosecutor submitted that if the jury accepted Mr Keevers' evidence as true, 'then it basically follows that the charge is proved' (closing address, 13). The prosecutor did not explain to the jury how Mr Keevers' evidence constituted direct evidence of the appellant's guilt. However, as the prosecutor was at pains to point out, the State's case did not depend upon acceptance of Mr Keevers' testimony. The State's case was that the jury could reject Mr Keevers' evidence and still convict the appellant on the circumstantial evidence. The primary facts relied upon by the State to prove its circumstantial case were:
1. The drugs were found in the appellant's house on top of the refrigerator.
2. The appellant's DNA was found on some of the items in the cardboard box.
3. The finding of drug paraphernalia on the premises, including scales with methylamphetamine on them, glass smoking pipes and clipseal bags.
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- 4. The other drugs that were found in the house, including the methylamphetamine and dexamphetamine in the bedroom and the cannabis found outside the house.
41 In his closing address, the prosecutor referred to lies told by the appellant to police and submitted that they were evidence of guilt. However, his Honour directed the jury that any lies told by the appellant could not be used in this way (ts 340).
42 The State did not submit that the appellant's alleged attempt to suborn Mr Keevers was post-offence conduct that constituted evidence of the appellant's guilt.
The defence case
43 Defence counsel made a very brief opening statement, during which he did not mention Mr Keevers.
44 In his closing address, defence counsel put the appellant's defence on counts 2 and 3 in this way:
[The appellant's] case is that Mr Keevers brought the box over the night before, asked to leave it there because he thought he was going to prison. [The appellant] said, 'Well, I don't want anything to do with that,' and Mr Keevers, as far as he's aware, must have left the box on the fridge. It's nothing like 'the dog ate my homework'. He didn't say a dog did it. He didn't say a wolf did it. He said Mr Keevers did it. Put simply, Mr Keevers said that the drugs were [the appellant's]. [The appellant] says the drugs were Mr Keevers' (closing address, 22).
45 Defence counsel, like the prosecutor, described Mr Keevers' testimony as 'the only direct evidence that the box of drugs was [the appellant's]' (closing address, 22). Based on what defence counsel said in the absence of the jury, he said this because, as he understood the State's case, the methylamphetamine in the cardboard box was the same methylamphetamine the appellant had sampled the day before.
46 Defence counsel described Mr Keevers as being 'the only person that says the box belonged to [the appellant]' (closing address, 24).
47 Defence counsel submitted that Mr Keevers' evidence could not be accepted, having regard to Mr Keevers being 'a big time dealer of amphetamine' and an accomplice who was willing to lie to avoid more imprisonment (closing address, 25). As to the State's circumstantial case, it was submitted that there were innocent explanations for the circumstantial facts relied upon by the State. For example, the appellant's
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- DNA on items found in the box was explained by him picking up the items when Mr Keevers dropped the box and its contents.
His Honour's discussion with counsel after closing addresses
48 After counsel completed their closing addresses and in the absence of the jury, his Honour queried how Mr Keevers' evidence was direct evidence that the appellant possessed the drugs in the cardboard box (ts 317). His Honour observed that Mr Keevers did not testify that he saw the cardboard box with the drugs in it on top of the refrigerator; his testimony was that the box was not his (ts 318 - 319). His Honour suggested that counsel think about the matter overnight (ts 321).
49 The following day, before commencing his summing up, his Honour returned to the subject of whether Mr Keevers had given any direct evidence of the appellant's guilt. His Honour said that, in respect of counts 2 and 3, Mr Keevers' evidence that the appellant had told him some days after the police search, 'They got the lot', was capable of being construed as a direct admission by the appellant (ts 323). His Honour said that he regarded this part of Mr Keevers' testimony as the only direct evidence of guilt by Mr Keevers. The learned trial judge said he would direct the jury accordingly. Both counsel agreed with his Honour's analysis of Mr Keevers' evidence and voiced no objection to the intended direction (ts 330).
50 No reference was made either by his Honour or counsel (particularly the prosecutor) to Mr Keevers' testimony in cross-examination that the appellant had told him that he 'went to bed and put it all on top of the fridge' (ts 129).
His Honour's summing up
51 His Honour instructed the jury as to the difference between direct evidence and circumstantial evidence (ts 351 - 353).
52 His Honour instructed the jury to carefully scrutinise the evidence of Mr Keevers, giving, in substance, an accomplice direction. He reminded the jury of defence counsel's submissions as to why Mr Keevers' evidence ought not be accepted.
53 As his Honour foreshadowed in the discussion with counsel after closing addresses, he directed the jury as to what constituted direct evidence relevant to counts 2 and 3. His Honour said:
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- I wanted to say something to you about the evidence in respect to counts 2 and 3, because I've talked about this issue of circumstantial evidence and direct evidence. And as I said to you, the State says to you that whether you accept Mr Keevers' evidence or not, there is a circumstantial case here from which you are entitled to conclude that the only reasonable inference was that [the appellant] was in possession of the drugs.
And in fact, it can be rightly said that with one exception - or a couple of exceptions perhaps about what Mr Keevers had to say, there is no direct evidence that [the appellant] was the owner of the drugs found on the fridge. There's no formal admission as there is with respect to count 1, and there's no witness who comes to court and says, 'I saw [the appellant] holding this box, and I could see bubble wrap and bags of - containing what seemed to be a white powder inside them'. There's nothing like that.
The only direct evidence, if you were to accept it, is Mr Keevers' evidence that following the search of [the appellant's] house and his arrest, he spoke to Mr Keevers. Mr Keevers said that [the appellant] said that he'd been busted. And in answer to a question, [the appellant] said the police had got the lot; speed and cannabis. If you accepted it, that would in effect be an admission.
But putting that piece of direct evidence aside, you have to look at the circumstances and decide whether, as the State alleges here, the only reasonable inference is that the drugs belonged to [the appellant] (ts 360).
54 In the course of his concluding remarks, his Honour made the direction now impugned by the appellant. His Honour said:
[The prosecutor] has told you the State's case doesn't stand or fall on your acceptance of Mr Keevers' evidence at least in this sense. If you were doubtful about Mr Keevers' evidence, you'd put his evidence aside and look at the other evidence of the State that I've referred to.
If you were to accept Mr Keevers' evidence that he was approached to false [sic: falsely] claim that the drugs were his under the protection of s 11 of the Evidence Act, you'd no doubt take that into account as evidence of the guilt of the accused.
And as I've said, if you accept [the appellant's] evidence about the late night visit by Mr Keevers, or it at least leaves you with a reasonable doubt, then you would acquit with respect to counts 2 and 3 (ts 363). (emphasis added)
55 No exception was taken by either counsel to this part of his Honour's summing up.
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56 Defence counsel did not seek a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 with respect to the evidence of Mr Keevers that the appellant attempted to suborn him.
The parties' submissions
57 Mr Vandongen SC, for the appellant, submitted that at no time did the State rely upon Mr Keevers' testimony that the appellant attempted to suborn him as evidence of guilt. Accordingly, it was argued, for his Honour to instruct the jury as he did in the impugned direction, that the conduct was evidence of guilt, was unfair because the parties were not joined on the issue. Further, and in any event, the direction was erroneous because it did not accord with the principles laid down by the High Court in Edwards v The Queen.
58 Mr Whalley, on behalf of the respondent, submitted that the evidence of the appellant's attempt to suborn Mr Keevers was not separate and distinct evidence from which the jury was asked to draw an inference of guilt. Rather, it was inextricably linked or combined with the direct admission of the appellant allegedly made to Mr Keevers that the drugs were his. Thus, the conduct was part and parcel of a direct admission of guilt and did not require a direction in accordance with Edwards.
The relevant legal principles
59 The circumstances in which a direction in accordance with Edwards is required are well known. Edwards was a case involving lies told by an accused that were said to constitute evidence of guilt. Where the prosecution alleges that the telling of a lie amounts to an admission of guilt, a trial judge must give directions in accordance with the principles laid down in Edwards.
60 The same principles apply to what is often called post-offence conduct. By this expression, I mean conduct, often of a discreditable or suspicious kind, engaged in by an accused after the commission of an alleged offence that is relied upon by the prosecution as evidence of an implied admission of guilt. Examples of such conduct include flight, the disposal of a weapon or a body, the giving of a false alibi and, relevantly to this case, the suborning of a witness by an accused: see McKey v The Queen [2012] NSWCCA 1 [26] and Neill-Fraser v The State of Tasmania [2012] TASCCA 2 [129]. A convenient statement of the directions which will ordinarily be given when post-offence conduct is relied upon as evidence of guilt was given by Buss JA in Smith v The
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- Queen [2008] WASCA 128; (2008) 37 WAR 297 [228]. It is unnecessary to repeat here what was said by his Honour.
61 The rationale behind the giving of directions in respect of lies or post-offence conduct is to guard against the hidden danger that a jury might simply reason that because an accused has lied or engaged in the alleged post-offence behaviour, he or she must be guilty. Put another way, a jury might too readily treat such conduct as an implied admission of guilt. The directions mandated by Edwards are designed to ensure that the jury embarks upon a proper logical path of reasoning before drawing the conclusion that a lie or post-offence conduct amounts to an implied admission of guilt.
62 It is unnecessary and inappropriate to give an Edwards direction where the prosecution does not rely upon lies or evidence of post-offence conduct as evidence of guilt: Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
63 A trial judge may not invite a jury to decide an accused's guilt upon a basis not sought by the State on which the parties were not joined. To do so would be procedurally and substantively unfair to an accused and would, ordinarily, give rise to a miscarriage of justice.
Merits of the appeal
64 It is not in dispute that his Honour did not give a direction in accordance with the principles laid down in Edwards.
65 Whether an Edwards direction was required in this case depends upon the appellant making good the contention that the evidence called for such a direction. If the appellant's attempt to suborn Mr Keevers was separate evidence of the appellant's guilt, an Edwards direction should have been given. This is because it would have been relied upon as an implied admission of guilt. However, when the evidence adduced at trial is viewed as a whole, the appellant's attempt to suborn Mr Keevers involved a direct admission of guilt. The jury's fundamental task was to decide whether such an admission had been made. An Edwards direction was not required.
66 The context in which the appellant attempted to suborn Mr Keevers is as follows.
67 As set out earlier in these reasons, according to Mr Keevers, a few days after the appellant was charged he telephoned Mr Keevers and told
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- him what had occurred, including that his assets had been frozen and he had consulted his lawyer. Mr Keevers' evidence was that it was in this conversation that the appellant told him that the police had caught him with 'the lot', meaning the amphetamines and the cannabis. The plain implication of this conversation, if the jury accepted that it occurred, was that the appellant was making a direct admission to Mr Keevers that the police had, in fact, caught him in possession of the illicit drugs. This is how his Honour characterised the statements made by the appellant in that conversation (ts 360). This characterisation was not disputed by defence counsel at trial or the appellant's counsel in this appeal.
68 On the same day as the telephone conversation, the appellant went to Mr Keevers' house. What was said at Mr Keevers' house was a continuation of the conversation that had occurred earlier. One followed the other. The whole purpose of the appellant's visit was to enlist Mr Keevers' help to avoid the consequences of being caught in possession of the illicit drugs found by the police. The appellant proposed that Mr Keevers help him by seeking the protection of 'section 11A [sic]' and admitting, falsely, that the drugs were his.
69 In my opinion, the telephone conversation and the face-to-face meeting during which the appellant attempted to suborn Mr Keevers are intertwined. Contrary to Mr Vandongen's oral submissions, it would be unrealistic and artificial to separate them out so that the attempt to suborn Mr Keevers is seen as a separate piece of evidence shorn of the admission.
70 The appellant is fortunate that nothing was said about Mr Keevers' evidence in cross-examination that during the conversation at the house the appellant told him that he put the drugs on top of the fridge. This admission, which was stark, was said by Mr Keevers to have occurred in the same conversation as the attempt to suborn. Although nothing was said about it by counsel or his Honour, it was evidence open to the jury to accept. If the jury accepted the evidence, the proposition that the attempt by the appellant to suborn Mr Keevers involved a direct admission of guilt was unassailable.
71 It was accepted by Mr Vandongen that if it was right to consider any direct admission as being combined with the attempt to suborn Mr Keevers, an Edwards direction was unnecessary. This concession is properly made. An Edwards direction is only required when the post-offence conduct is said to constitute an implied admission of guilt. Such a direction is not required where a direct admission of guilt is made. To state the obvious, the hidden dangers associated with a jury too readily
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- jumping to a conclusion of guilt from an implied admission do not arise when a direct admission is made.
72 Returning to the impugned direction, in the context of the trial and the summing up as a whole, the direction did not convey, and would not have reasonably been understood to convey, that any attempt by the appellant to suborn Mr Keevers was itself evidence of guilt. The emphasis in the direction is on the consequence of the jury accepting that the appellant approached Mr Keevers to falsely claim the drugs were his. The falsity involved in the appellant's approach to Mr Keevers was demonstrated by his direct admission, constituted by the words, 'They got the lot', that the drugs in the cardboard box were his. If the jury found that the appellant had made that direct admission, that was a matter the jury could and most likely would have taken into account as evidence of the appellant's guilt.
73 Understood in this way, the impugned direction did not raise an issue on which the parties were not joined. When they delivered their closing addresses, neither counsel apparently appreciated that Mr Keevers had given evidence of a direct admission of guilt made by the appellant. His Honour raised the matter with counsel before the summing up. Both counsel accepted that the evidence Mr Keevers gave of the appellant admitting that the police had 'got the lot' was a direct admission by the appellant. Each counsel, having mistakenly referred to other evidence given by Mr Keevers' as direct evidence, accepted that his Honour should correct counsel's errors and instruct the jury that the only direct evidence was the evidence of the admission to which I have just referred. Defence counsel expressly acquiesced to this course. He did not suggest that the appellant was in any way prejudiced by it. Plainly he was not, in fact, prejudiced. It is clear that the credibility of Mr Keevers was very much an issue in the case. Defence counsel cross-examined Mr Keevers at some length, suggesting that his testimony was false and that he was an unreliable witness.
74 His Honour, on several occasions in the summing up, instructed the jury to scrutinise Mr Keevers' evidence and gave, as I have indicated, an accomplice direction. His Honour's direction on this issue was fair and balanced. When viewed as a whole, it would have been clear to the jury that it could not act on any admission made by the appellant to Mr Keevers, unless it accepted the truth of Mr Keevers' testimony.
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Conclusion and orders
75 For the reasons I have given, an Edwards direction was not required. His Honour's summing up was not unfair as alleged. The appellant's ground of appeal has not been made out. Accordingly, the appeal must be dismissed.
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