Benter v Corkill [1999] WASCA 48

Court of Appeal (WA)|1999-05-25|Before: Mr J, Miller J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BENTER -v- CORKILL [1999] WASCA 48

The decision on the Complaint numbered 44152/98 made on 24 February 1999 before His Worship

Mr R Gething in the Court of Petty Sessions at Perth

Criminal law - Drug offence - Proper approach to question of onus of proof - Misconception of role of court in assessing evidence of witnesses for defence - Turns on own facts

Lai v The Queen (1989) 42 A Crim R 460

Peacock v The King [1911] HCA 66; (1911) 13 CLR 619

R v Bridges v [1986] 2 Qd R 391

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

1 MILLER J : The appellant was charged in Petty Sessions that on 5 June 1998 at North Perth he had in his possession a prohibited drug commonly known as MDMA contrary to the provisions of s 6(2) of the Misuse of Drugs Act 1981. The appellant pleaded not guilty to the charge and the matter was heard in Petty Sessions on 24 February 1999 before Mr Ronald Gething Stipendiary Magistrate.

2 The prosecution called two witnesses. They were both police officers. Their evidence was in almost identical terms. It established that on 5 June 1998 a Federal police officer and a Western Australian police officer attended at 16 Clieveden Street, North Perth where they conducted a search. In the front bedroom of the premises in a walk-in wardrobe they located a large red boxing bag of the type commonly referred to as a punching bag. Various items in this bag were removed and in the bottom of the bag were discovered two tablets in a plastic, resealable bag. The appellant who was present at the time of the search was questioned in relation to the tablets and denied all knowledge of them.

3 It emerged in cross-examination of the detectives that the punching bag was not fastened at the top and could be easily pulled open to reveal the contents therein. It also emerged that no attempts were made by the police officers to check the plastic bag containing the tablets for fingerprints. The tablets were, however, duly analysed and found to contain a prohibited drug, a short description of which is MDMA.

4 The appellant gave evidence in his defence. He stated that he lived at 16 Clieveden Street, North Perth, and had done so for a period of about one and a half years. He had until the week before shared the house with a friend who was a co-owner. He stated that he recalled the police locating the white tablets in the boxing bag but denied that he had ever seen those tablets before. He explained to the Court that the punching bag had been in his possession for a period of about 12 months and had been bought in conjunction with a number of other items of boxing gear. This particular bag was an empty one and into it were thrown things like gloves and mitts and it stayed that way for a period of about 12 months, during which time it was in the dining room of the house, having been taken into a walk-in robe in the bedroom only a couple of days before the police searched the house.

5 The appellant explained that he held regular parties at his home, the most recent of which was probably only the weekend before the police had called. People circulated freely through the house and thus would have had access to the bag in the dining room. When the appellant was cross-examined he was asked to account for the reason why the tablets were in the bottom of the bag. His answer was that he had not put them there and that either the police had planted them that day or anybody else in the house could have put them in there. When pressed he said the only way he could account for the tablets being in the bag was that perhaps somebody who had been using his spa at a party had not wanted the tablets to get wet and had put them in there for that purpose. During the course of his cross-examination the appellant stated that people had in the past gone to the boxing bag and taken out of it boxing mitts to put them on and that this had occurred a couple of times.

6 The appellant called in his defence Terence Robert Hyndes who testified that he had been to the appellant's residence in Clieveden Street, North Perth, and in particular to a Sunday morning party in May 1998. He confirmed that there had been another resident of the house shortly prior to that time. He recalled seeing a red punching bag in the dining room area, this being an area through which people were walking during the course of the party. Hyndes had in fact been to other parties at the house and had noticed the punching bag in the dining room on these occasions as well. He knew that there were bits and pieces of boxing gear in the punching bag because he had a look in it. When cross-examined he stated he could recall that the top of the bag was splayed open with the hanging straps visible.

7 The learned Magistrate accepted the issue before him was whether the appellant knew that the two MDMA tablets were in the bottom of the boxing bag. This was correct - see Lai v the Queen (1990) WAR 151 at 155. The proper approach for the learned Magistrate to have taken was to consider the testimony led by the prosecution and the testimony put forward by way of defence and to decide on all of the evidence whether the case alleged was proven beyond reasonable doubt.

8 Unfortunately, the learned Magistrate does not appear to have adopted this approach. His Worship reviewed the evidence of the two police officers, then the evidence of the appellant and the witness Hyndes, but then made an observation about Hyndes' evidence which was not only wholly unjustified but revealed a dangerous misconception of the judicial role in assessing evidence. What his Worship said was:

"When it comes to evidence I have been sitting in courts for long enough to know that when you have more than one person giving evidence it is really only one account of the evidence against another account, because so often people are not telling the truth. One can't say people make mistakes all the time and it is obvious beyond any doubt that they tell the truth and from time to time bring their mates along to tell the same untruths and I have caught them out in fact without any doubt dozens and dozens and times and so I have long since learned that if two people give evidence and say the same thing it is still only one account of the evidence against the other."

9 The transcript says "They tell the truth," but I think it should read, "They tell untruths" - but nevertheless. The passage goes on:

"They are of value because so often defendants get convicted by the things their mates say because they get one thing right. They all say the same thing. But they are questioned wider than the central issue and they all come up and say different things. Some even are dumb enough to say the very thing that they are not supposed to say and five or six witnesses we have had not telling the truth, so I don't place a great deal of weight on two witnesses here giving evidence. If they say the contrary things, that is something we can take into account but it is essentially his and his mate's account against the prosecution account."

10 The passage I have quoted makes it quite clear that the learned Magistrate's view was that where an accused person has testified in his defence and called a witness who has testified in the same terms about a particular aspect of the matter, no particular weight should be given to that fact. This conclusion reveals a bias against accused persons and witnesses who testify on their behalf and the comments made can only be categorised as a dangerous approach likely to create a miscarriage of justice.

11 The learned Magistrate approached the case then on the basis that it was the prosecution account against the account of the appellant and his mate. This was not strictly speaking correct as there was no dispute with the prosecution case in the sense that the tablets were located in a bag which was found within a walk-in robe of the appellant's bedroom. The question recognised by the learned Magistrate was whether the appellant knew that the tablets were in fact there. Of this he had to be satisfied beyond reasonable doubt.

12 In answering the question the learned Magistrate appreciated that one way in which knowledge could be proven could be by an admission of the appellant. He accepted (as was the case) that not only was there no admission but a total denial in this case. The second way in which he considered knowledge might be proven was by way of circumstantial evidence, or perhaps more accurately by way of inference. His Worship did rightfully acknowledge that in this regard the inference of guilt had to be the only inference which could reasonably be drawn and if there was another inference which could reasonably be drawn from the circumstances, consistent with innocence, the case against the appellant could not be prove beyond reasonable doubt.

13 Having stated this the learned Magistrate then proceeded to dismiss the possibility that there was any reasonable inference consistent with innocence which could be drawn. In so doing his Worship appears, however, to have adopted the view that it was for the appellant to prove that he did not know how the tablets were present in the bag and that he was therefore innocent. He referred to the appellant's testimony as being contrived and too convenient for the Court to accept it and concluded by saying:

"The likelihood of someone planting it there is most remote and the explanation the defendant gives as a possibility must be a reasonable possibility, but he has not shown to the Court that it was a reasonable possibility; first of all that it was 2 days before he put the bag in his wardrobe from what he said. I mean, it raises the question. He has had a party every month at least and he must clean up after every party, but after this party, 3 days earlier, he decided while he was cleaning up after the party he would clean up that bag also and put it in his wardrobe. It's too pat. It's too contrived. It's too convenient for the court to give it any weight at all and I don't accept it. It doesn't raise a reasonable possibility and I find the charge proved. It was evasive."

14 This passage indicates the learned Magistrate was calling upon the appellant to prove to the Court that the explanation he put forward was reasonable and therefore raised a hypothesis consistent with innocence. This in my view was an incorrect approach. The question was whether on all of the evidence there was any reasonable hypothesis open which was consistent with innocence. It was not for the appellant to prove that hypothesis. The matter was put succinctly in Koby v Harling (1997) 94 A Crim R 437 by Anderson J at page 443:

"A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say that he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case. Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree."

15 It seems to me that the learned Magistrate in this case did exactly what Anderson J said he should not do; that is, he did not approach the case on the basis that the defendant, having given exculpatory evidence, the question remained whether in the light of that evidence the prosecution had proved its case. Nor did he appreciate that even if not positively believing the appellant's evidence the question which remained was whether on the whole of the evidence the guilt of the accused had been proven beyond reasonable doubt. To the contrary, the learned Magistrate appears to have found the case proven because he did not believe the testimony of the appellant and in addition gave no credence to the testimony of the witness whom the appellant had called.

16 In all the circumstances I am of the view that the appellant's conviction was a miscarriage of justice and should be quashed. It is appropriate in my view that there should be a retrial. The matter should be remitted for rehearing before a different Magistrate in the Court of Petty Sessions, Perth. I would therefore be prepared to make the following orders: (1) the appeal be allowed; (2) the conviction of the appellant in the Court of Petty Sessions, Perth on complaint 441452 of 1998 on 24 February 1999 be set aside; and (3) the matter be remitted to the Court of Petty Sessions, Perth for retrial before a different Magistrate.

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