Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Possession of methylamphetamine with intent to sell or supply - Whether prosecution invited jury to speculate - Whether prosecutor infringed s 8(1)(c) of the Evidence Act 1906 (WA)

Evidence Act 1906 (WA), s 8(1)(c)

Legal Profession Conduct Rules 2010 (WA), r 44

AJE v The State of Western Australia [2012] WASCA 185

KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

Wood v The Queen [2012] NSWCCA 21

1 McLURE P: I agree that the appeal should be dismissed, generally for the reasons given by Mazza JA. For myself, I would not construe the prosecutor's closing address as inviting the jury to speculate about why the appellant's home had been burgled. The statement of which the appellant complains is, in context, confined to addressing the State's reliance on the circumstance that she had a shock device (taser) in the lounge room of her home where the prohibited drugs were located. The appellant in her defence sought to undermine the evidentiary significance of the presence of the taser, saying she had it for her own protection as her home had been the subject of an actual and attempted burglary. The point being made by the prosecutor is that the appellant's explanation for her possession of the taser did not undermine its evidentiary significance from the prosecution's perspective because a drug dealer might reasonably expect their premises to be at greater than usual risk of burglary. That objective point was made without asking the jury to speculate about the motives of the particular offenders.

3 MAZZA JA: This is an appeal against conviction. The sole ground of appeal alleges that a miscarriage of justice occurred as a result of statements made by the prosecutor during his closing address. The ground of appeal, to which leave has been granted, reads:

The prosecution's closing address occasioned a miscarriage of justice.

Particulars

(a) The prosecutor impermissibly invited the jury to speculate about why the appellant's house had been the subject of a burglary.

(b) The prosecutor commented on the failure of the appellant to give evidence, contrary to s8(l)(c) of the Evidence Act 1906 (WA).

4 In my opinion, the ground has not been made out and the appeal should be dismissed.

5 The appellant was charged on indictment with two counts of possession of methylamphetamine with intent to sell or supply it to another. Although separate charges were laid, the offences concern one package which contained two separate clipseal bags of methylamphetamine. One bag contained 26.5 g of methylamphetamine

with a purity of 61% and the other contained 20.9 g of the drug with a purity of 21% (exhibit 12).

6 On 8 December 2011 after a trial before Curthoys DCJ and a jury, the appellant was convicted as charged. She was later sentenced to a total effective sentence of 4 years' imprisonment with eligibility for parole.

7 On the morning of 11 February 2011, police officers executed a search warrant at the appellant's home in Yokine. At the time, the appellant was the sole occupier of the premises. During the search police discovered a package, which contained the methylamphetamine the subject of the charges, secreted in the rear of a kitchen cupboard above a refrigerator recess. The package was wrapped in paper towelling and secured by an elastic band. A DNA profile was obtained from the elastic band. That profile matched the appellant's.

8 The police also discovered an electric shock device, clipseal bags similar to the ones that contained the drugs, a total of $710 in cash and four mobile telephones (of which two had SIM cards): ts 112 - 113, 120.

9 The appellant was present during the search, which was recorded on video. She was cautioned and informed of her rights under the Criminal Investigation Act 2006 (WA). The video was played to the jury as part of the State's case (exhibits 11A - 11 B). The appellant chose to speak to the police about the seized items. She said that the shock device was for her own protection 'if someone breaks into my house' (search video ts 13). She told the police that on one occasion someone had broken into her house when she was not at home and smashed a window and, prior to that, two or three men had tried to get in to her home (search video ts 14). The investigating officer in charge of the investigation, Detective Senior Constable Davey, testified that there had been a police report in respect of one burglary: ts 120.

10 The appellant said that the cash the police discovered was for groceries and her rent, and that the clipseal bags were used for innocent purposes (search video ts 21, 23, 27).

11 With respect to the drugs, the appellant denied knowledge of the package or its contents (search video ts 17 - 19). When asked about it she said 'dunno how it got there' (search video ts 15). The appellant denied using or selling drugs.

12 In addition to the drugs and other items found in the search, the State adduced propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA). The evidence was that in 2005 the appellant admitted offences of possession with intent to sell or supply to another of cannabis, amphetamine, methylamphetamine and ecstasy.

13 The appellant elected not to give evidence. However, she called Nicole Leanne Williams to testify in her defence. Ms Williams, who was ultimately granted a certificate under s 11 of the Evidence Act, said that on a day about two weeks before Australia Day in 2011 she stole a quantity of methylamphetamine from a drug dealer (ts 171). She secreted the drugs in her bra and went to the appellant's house to discuss some personal problems she was having (ts 177). Eventually, the appellant fell asleep (ts 178). While she slept, Ms Williams said that she took two clipseal bags from a kitchen drawer and tipped the stolen drugs into the bags (ts 178 - 179). She then hid the drugs in a kitchen cupboard (ts 181 - 182). Her evidence was that she did this because she realised she had stolen a lot of methylamphetamine and she wanted time to figure out what to do (ts 197). Ms Williams claimed that she did not tell the appellant about the drugs she had hidden and made no later attempt to retrieve them. She said that when she found out that the appellant had been raided by the police, she admitted to the appellant that the drugs were hers (ts 183). Ms Williams said that the appellant advised her to get legal advice, which she did from a Mr Dobson (ts 183).

14 Ms Williams' credibility came under serious challenge by the State prosecutor in a lengthy cross-examination. It was put to her, amongst other things, that her evidence was untruthful and that she was lying to help the appellant escape conviction (ts 197).

15 The critical issue to be determined by the jury was whether the State had proved beyond reasonable doubt that the appellant possessed the drugs found in the kitchen cupboard. In order to prove that the appellant possessed the drugs, the State had to prove that she knew of their existence. The State's case against the appellant was circumstantial.

16 In his closing address, the prosecutor told the jury that it could only convict the appellant if it was satisfied that the only reasonable inference that could be drawn on the evidence was that the appellant possessed the drugs found in the kitchen cupboard (closing address ts 5).

17 The prosecutor gave an outline of the facts which, when considered as a whole, were said to establish the appellant's guilt. The facts were:

1. The premises in which the drugs were found were occupied by the appellant and no one else (closing address ts 6).
2. The package containing the drugs was found in the cupboard above the refrigerator recess in a place that was difficult to see (closing address ts 7).
3. The two plastic bags containing the drugs were similar in brand and size to those found by the police in the appellant's home (closing address ts 7).
4. DNA that matched the appellant's DNA profile was found on the elastic band that secured the package containing the drugs (closing address ts 7).
5. The propensity evidence admitted pursuant to s 31A of the Evidence Act (closing address ts 7).
6. The value of the drugs which the prosecutor said was 'probably getting up near $20,000 or so' (closing address ts 8).
7. The $710 in cash (closing address ts 8).
8. The shock device found in the appellant's home, that she said she had for her protection.

18 Having referred to the shock device the prosecutor said:

Well, you know, you might ask yourselves as to why somebody needs that sort of device for protection, but she says that she's been burgled before in circumstances. And you might ask yourselves too, to some extent why that might be happening. Of course if you have something and it's known to people that you've got something that they want, well that might be why it happens. But his Honour will tell you to and I'm not inviting you to so don't speculate, but you know, they're things that you put into the mix and make of them what you will in that regard (closing address ts 8)

It is this part of the prosecutor's address that is complained of in particular (a) of the ground of appeal.

19 From this point in the closing address, the prosecutor dealt with the defence case. In doing so he focussed his attention on the evidence of Ms Williams, submitting to the jury that she was 'a witness of some particular importance because she is the one who suggests the alternative inference' (closing address ts 9). The prosecutor's reference to 'the alternative inference' is to an inference based on Ms Williams' evidence that the drugs were hers and that the appellant had no knowledge of them.

20 It is unnecessary to canvass all of the submissions made by the prosecutor about Ms Williams' evidence. It is sufficient to say that he analysed her evidence in some detail and pointed to a number of what he termed 'implausibilities' in her evidence (closing address ts 15). On the basis of this analysis, the prosecutor submitted that the jury conclude that Ms Williams' evidence was 'full of holes', and hence the only reasonable inference was that the appellant possessed the methylamphetamine found by the police (closing address ts 18).

21 Towards the conclusion of the prosecutor's closing address, he submitted to the jury that it should not speculate as to why Ms Williams gave false testimony. He then made the statement the subject of particular (b) of the ground of appeal which is in these terms:

Now, as I said, you'll be told not to speculate and I'm certainly not inviting you to and why Williams is doing what she is doing may remain completely unknown to us. It doesn't matter, as I say, you look at what you've got, it's what you've got that's important and what matters is that these drugs were found hidden in [the appellant's] house, in a place that was not readily obvious.

That her DNA was found on the elastic bands securing them. That hiding place is likely to be known really only to the people who live in the place, live in the house, to her in this case, the householder. And this is a householder who's known previously to have been involved in the drug business as I've indicted [sic] by those convictions. The only explanation offered is from someone who we would say is an unreliable witness, a witness who's not telling you the truth, but that is a matter for you to decide (closing address ts 17). (emphasis added)

22 Defence counsel took no exception to the prosecutor's address.

23 There is no need to describe in any detail defence counsel's closing address. It is sufficient in relation to particular (a) of the ground of appeal to note that defence counsel, at the beginning of his address said:

Ladies and gentlemen, one of the first things my friend did was tell you not to speculate, but then asked you to speculate about why burglaries may have happened at [the appellant's] house. You can't do that. You can't speculate on anything outside of the evidence you have before you to decide this case (closing address ts 18).

24 No challenge is made to his Honour's summing up. His Honour instructed the jury that nothing said in counsels' closing addresses was evidence (ts 245).

25 He gave orthodox and unchallenged directions with respect to the drawing of inferences, including a direction that the jury should not 'indulge in intuition or guessing or speculation' (ts 246).

26 The learned trial judge accurately summarised the parties' cases. He informed the jury of the defence response to some of the items found at the appellant's home in these terms:

And really the things that the Crown [sic] relied upon were first of all the sum of money, $710; the defence said that that was rent money. You had the receipt for that and it's for you to decide whether or not $710 is a large amount of money, in any event.

And also the State referred, or gave evidence, that the presence of the clipseal bags. You might consider whether or not, you know, you have clipseal bags at home in your drawers and what that says about you. The shock device and what the shock device was for. And there was evidence that [the appellant] had been burgled (ts 243).

27 The learned trial judge directed the jury that it was to reach its verdicts 'on the basis of the evidence and only the evidence' (ts 245).

28 His Honour, when summarising the State's case, did not suggest to the jury that part of its case was that the burglaries at the appellant's home occurred because she was dealing in drugs.

29 The only reference he made to the burglaries was in the context I have already described when summarising the defence case.

The appellant's submissions Particular (a)

30 Mr Vandongen SC, on behalf of the appellant, submitted that the effect of the first impugned comment was that the jury was being invited to conclude that the burglaries committed on the appellant's home were for the purpose of stealing drugs belonging to her. It was said that there was no evidential basis upon which the jury could properly arrive at this conclusion. The alleged purpose of the first impugned comment was to persuade the jury that the appellant was a drug dealer and that she had the propensity to possess illicit drugs at about the time the offences were alleged to have been committed. Mr Vandongen SC submitted that, in substance, the prosecutor turned a piece of speculation into a plank of the State's circumstantial case.

31 Mr Vandongen SC submitted that the second impugned comment was an implied comment on the failure of the appellant to give evidence and contravened the prohibition in s 8(1)(c) of the Evidence Act against the making of such comments.

32 The submission as developed by Mr Vandongen SC was that, at the time the second impugned comment was made, the prosecutor was speaking about the appellant. He argued that the use of the word 'only' in the statement 'the only explanation offered is from someone who we would say is an unreliable witness' clearly suggested that other than Ms Williams' evidence there is no other explanation as to why the drugs were in the appellant's house. Further, the only other person who could have offered such an explanation was the appellant. Mr Vandongen SC conceded in oral argument that, but for the use of the word 'only' in the comment just referred to, it would not have infringed s 8(1)(c) of the Evidence Act.

Merits of the ground of appeal Particular (a) - Miscarriage of justice arising from a prosecutor's closing address

33 The fundamental duty of a prosecutor representing the State is to 'act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one': Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663 - 664 (Deane J). See also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [71] (Hayne J).

34 This duty is reflected in r 44 of the Legal Profession Conduct Rules 2010 (WA) and guidelines 11 - 14 of the Statement of Prosecution Policy and Guidelines 2005 issued by the Director of Public Prosecutions for Western Australia.

35 When a prosecutor fails to carry out his or her duty, a miscarriage of justice may occur because an accused may have been denied the right to a fair trial. I say 'may occur' because not every failure leads to a miscarriage of justice. A judgment is required by an appellate court as to its importance having regard to the context of the overall trial: Whitehorn (664) (Deane J).

36 Consistently with a prosecutor's duty, in a closing address a prosecutor should not (inter alia) tell a jury something that is not evidence (R v Callaghan [1993] QCA 419; [1994] 2 Qd R 300, 306; offer a personal opinion (KNP v The Queen [2006] NSWCCA 213; (2006) 67 NSWLR 227 [32]), introduce false lines of reasoning or invite a jury to speculate about the evidence. As to these last two points see Wood v The Queen [2012] NSWCCA 21.

37 Although not decisive to the determination of whether speculation by the prosecutor has given rise to a miscarriage of justice, it is relevant to consider whether the matter was raised with the trial judge by defence counsel. If no objection was taken to the comment, an appellate court may well infer that in the context of the trial it was not prejudicial to the appellant's right to a fair trial. It would usually be expected that when a comment is thought to give rise to the risk of a miscarriage of justice, defence counsel would say so and seek a direction from the trial judge to the prosecutor to correct the comment, a direction to the jury to ignore the comment or the discharge of the jury.

38 The prosecutor's submission involved an element of speculation to the extent that there was no evidence as to the motives of those who were involved in the burglaries upon the appellant's house. However, the context of the prosecutor's submission was to suggest that the appellant had 'something' others might want. The 'something' can only be a reference to illicit drugs.

39 Insofar as the submission suggested that the appellant had a connection with illicit drugs and a propensity to possess them, there was ample evidence before the jury to that effect.

40 Any element of speculation did not, in any material way, add to the State's case and did not give rise to a miscarriage of justice.

41 The following matters strengthen this conclusion:

1. Immediately after the statement was made, the prosecutor reminded the jury not to speculate (closing address ts 8).
2. Defence counsel did not raise the matter with the trial judge. He chose to deal with it in the course of his closing address (closing address ts 18). He plainly thought that there was an element of speculation in the submission and sought to expose it to the appellant's forensic advantage. It cannot be said that defence counsel did not think the comment was speculative and therefore did not turn his mind to whether the matter should be raised with the learned trial judge. Defence counsel appreciated its speculative nature and chose to deal with it as he did.
3. The learned trial judge directed the jury that nothing counsel said in their opening and closing addresses was evidence and that it was not permitted to speculate (ts 245).
4. Nowhere in the summing up did the learned trial judge indicate that the burglaries were part of the State's case.

42 The prosecutor's comment, insofar as it invited speculation, was not of importance in the overall context of the trial and did not give rise to any risk of a miscarriage of justice.

Particular (b) - Alleged infringement of s 8(1)(c) of the Evidence Act

43 Section 8(1)(c) of the Evidence Act 1906 (WA) reads:

(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows -

(c) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;

44 The law with respect to s 8(1)(c) of the Evidence Act was recently explained in AJE v The State of Western Australia [2012] WASCA 185. In that case, Beech J and I, with whom Pullin JA agreed, said:

The starting point is the statutory language of s 8(1)(c). It is in its terms a clear and absolute prohibition on the making of any comment by the prosecutor about the accused's failure to give evidence. The words extend to implied as well as express comment: Bataillard v The King [1907] HCA 17; (1907) 4 CLR 1282, 1291 (Isaacs J) and Siebel v The Queen (1992) 57 SASR 558, 560 (King CJ, with whom Bollen J agreed). What is prohibited is any comment on the failure to give evidence. As King CJ explained in Siebel, this means that a comment 'whether ... fair or unfair, balanced or unbalanced, favourable or unfavourable' (562) cannot be made by the prosecutor.

The subsection speaks of a 'comment' by a prosecutor. The state's submissions invoke a distinction between a comment and a statement. It has been held that words which refer to the fact that an accused person has not contradicted the prosecution evidence, or has failed to provide an alternative version of events, or has not given evidence is comment upon the failure of the accused person to give evidence and is thus prohibited: Siebel (562), followed in R v S, G [2011] SASFC 48; (2011) 109 SASR 491 [102] (Peek J, with whom Doyle CJ and White JA agreed). Express or implied reference to the fact that the accused had the opportunity to give evidence, and did not do so is comment prohibited by the statute: Bataillard (1288, 1291). In this light 'comment' in s 8(1)(c) is used in a wide sense, and encompasses many things that might be seen as a statement of fact or law [30] - [31].

45 The appellant conceded that the prosecutor's submission was unobjectionable save for the use of the single word 'only'. Nothing else he said infringed s 8(1)(c) of the Evidence Act. At the time of making the impugned comment, the prosecutor was analysing the evidence of Ms Williams. The focus of his submission was that she was an unreliable witness. The word 'only' was used in the context that Ms Williams' testimony was the sole evidential source for the appellant's contention that the drugs belonged to Ms Williams, and that she had put them in the cupboard. The prosecutor's statement was not in any sense a comment on the appellant's failure to give evidence and could not reasonably be construed in this way.

46 The prosecutor did not contravene the prohibition in s 8(1)(c) of the Evidence Act.

47 For these reasons, the appellant has failed to demonstrate that the prosecutor's closing address gave rise to a miscarriage of justice. The appeal must be dismissed.