DPP v Spencer [1999] VSC 301

Supreme Court of Victoria|1999-08-27|Before: Eames J

CRIMINAL LAW - appeal on questions of law from dismissal of charges by Magistrate - "continuity" evidence - writing on labels attached to exhibits - whether writing is inadmissible hearsay - failure to object to tender of labels - effect of a Certificate of Botanist - application to re-open case - whether continuity evidence merely "technical" - whether discretion properly exercised to refuse application to re-open. Magistrates Court Act 1989, s.92 Drugs, Poisons and Controlled Substances Act 1981, s.120(1)

This is an appeal brought pursuant to s. 92 of the Magistrates' Court Act 1989 and arises from the dismissal of two charges brought against the respondent pursuant to ss. 71(1) (traffick a drug of dependence) and 73(1) (possess a drug of dependence) of the Drugs, Poisons and Controlled Substances Act 1981. The hearing of the charges took place at the Benalla Magistrates' Court on 1 December 1998 before Magistrate Ms M. Toohey M.

The police investigation, which led to the charges in this case, was somewhat unusual. The informant, Senior Constable George Edward Robb, whilst on duty on 29 June 1998, observed a person leave the premises of the respondent at 53 Ballintine Street, Benalla. The person who left the premises on that occasion (and who during the hearing was, and for the purposes of this judgment will be, referred to as "the informer") drove away from the premises in his motor vehicle and was apprehended by Robb, who searched his vehicle and located some green vegetable matter wrapped in tin foil. Robb then took the informer to the Benalla Police Station, interviewed him and arranged for him to return to the police station on 2 July 1998. In the company of Sergeant Rodney Maxwell Smith, Robb again spoke to the informer at the police station on 2 July 1998. Robb gave evidence of the conversation he then had with the informer and of his providing the informer with an indemnity certificate signed by Senior Sergeant William Walker, which authorised the informer to be in the possession of a drug of dependence in relation to a police operation which was to be conducted concerning the respondent. That certificate was issued under s. 51 of the Drugs Poisons and Controlled Substances Act 1981.

Robb gave evidence that he handed two $20 notes to the informer, those notes having been photocopied by the police so that a record of their serial numbers might be held prior to the operation commencing. Robb instructed the informer to attend at the respondent's address and to use the notes to purchase a quantity of cannabis. That evidence of the instructions given to the informer was received without objection from defence counsel.

The informer left the police station and returned 20 minutes later. No police officer had kept the informer or the house of the respondent under surveillance during that 20-minute period. When the informer returned to the police station Robb said that the informer handed to him a quantity of green vegetable matter wrapped in tin foil in a cigarette shaped package. Robb said that when the informer returned to the police station he was no longer in possession of one of the $20 notes with which he had been supplied 20 minutes earlier.

Robb obtained a search warrant to search the premises of the respondent and attended there with a number of other police officers on the same day, 2 July 1998, at 6.45 pm. Upon knocking on the door, entry was permitted and a search for drugs then took place. A number of items were located and were photographed in situ, those photographs being later produced in the hearing. As the items were located and photographed Senior Constable Jason Bray recorded in an Exhibit Log the items which were located and the place where they were located. His Exhibit Log was subsequently tendered, without objection from counsel for the respondent. In his evidence Bray identified each of the exhibits which had been tendered and also produced a further item, namely, a coffee grinder.

After the search had concluded the respondent was taken to Benalla Police Station, where he was interviewed. During the course of the interview he was asked to produce his wallet, but he had left it at home and had to return home to obtain it. Upon his return the wallet was examined and one of the two $20 notes, which had previously been photocopied, was found in his wallet.

In the course of the interview the respondent, for the most part, gave "no-comment" answers, but to one clumsy question gave what could be regarded as a concession that he resided at the premises which had been raided, together with his wife and children.

The informer had been subpoenaed to give evidence on the hearing of the charges against the respondent, on 1 December 1998, but failed to attend. Mr Andrew Grant, a solicitor from the Office of the Director of Public Prosecutions acted as counsel for the informant, Robb. When asked by the magistrate if the informant wished to have a warrant issued for the arrest of the informer, Grant declined and said that the informant wished to proceed with the hearing in the absence of the informer.

The evidence of Senior Constable Robb concerned the finding of items at the premises, including electronic scales, packets of self-sealing plastic bags and, the following items, which are of particular relevance for this appeal:

(a) Three plastic bags containing green vegetable matter, which were located in a drawer under the bench on which the scales were found in the kitchen.

(b) One black bowl, containing a quantity of green vegetable matter, located on the coffee table in the lounge area.

(c) One "Three Nuns" tobacco tin, containing a quantity of green vegetable matter, located on an entertainment console in the lounge room.

Robb produced a Certificate of a Botanist, which was tendered pursuant to s. 120 of the Drugs, Poisons and Controlled Substances Act 1981.

Senior Constable Robb told her Worship that as each item was seized details of the item, and where it was located, were entered into an Exhibit Log which was being kept by another police officer. Robb's evidence was generally supported by that of Sergeant Rodney Smith, who likewise gave evidence that the informer was instructed by Robb to use the $20 notes to purchase cannabis from the respondent and to then return to the police station with the cannabis that he obtained. Once again, there was no objection to any of this evidence. Senior Constable Michael Smith, who took the photographs, gave generally confirmatory evidence.

As to the two items of green vegetable matter obtained by police from the informer on 29 June and then on 2 July 1998, Robb produced a single plastic bag containing two pieces of tin foil and two portions of green vegetable matter. He told the magistrate that he was able to identify which piece of material was the vegetable material which had been seized from the informer on 2 July 1998 and which was that seized from him on the earlier occasion. When Sergeant Rodney Smith later gave evidence and was shown the same bag he was unable to distinguish between the two items in the bag, as to which was received on 29 June and which on 2 July 1998.

Robb gave evidence that "he subsequently arranged for the material seized during the search of the informer's vehicle to be sent to the State Forensic Science Laboratory for analysis with other material which was to be the subject of later evidence, and it was found to be cannabis". Later in his evidence, having identified various items seized during the search of the respondent's premises, Senior Constable Robb gave evidence (as set out in the affidavit of the solicitor for the appellant) that:

"He arranged for all of the green vegetable matter seized during the search to be taken to the State Forensic Science Laboratory in Macleod for analysis by a botanist. Each of the items were subsequently analysed and the green vegetable matter was found to be cannabis".

Counsel for the appellant, Ms S. Pullen, conceded that the second sentence quoted above was plainly hearsay, but no objection was taken when that evidence was given in the hearing before the magistrate. After giving the evidence Robb tendered the Certificate of a Botanist.

When Robb earlier gave evidence as to the finding of green vegetable matter in the informer's car on 29 June 1998, counsel for the respondent objected to that evidence on the grounds that it was irrelevant to the charges laid against the respondent, which related to events on 2 July 1998. Her Worship upheld that objection and ruled the evidence inadmissible. The appellant makes no complaint as to that ruling, which was plainly open to be made by the magistrate. Her Worship indicated that she would disregard the evidence of events, between the police and the informer, which took place on the evening of 29 June 1998.

Throughout the course of the evidence of Robb, and the later prosecution witnesses, no objection was taken by counsel for the defence to the tender of any of the seized items, nor was it suggested at any stage that a challenge would be made as to the deficiency of the continuity evidence relating to the transporting of the seized material to the botanist for examination at the State Forensic Science Laboratory. At the end of the prosecution case, counsel for the informant sought leave to recall Senior Constable Robb, so as to lead further evidence relating to the finding of the wallet of the respondent. No objection was made to that application to re-call Robb.

The prosecutor then closed the prosecution case, whereupon counsel for the respondent advised the magistrate that the respondent would call no evidence. He then made a number of submissions, in effect, that the prosecution had failed to prove its case beyond reasonable doubt. Not all of those submissions are relevant for present purposes.

Counsel for the respondent, Mr Simon, submitted to the magistrate that the Certificate of a Botanist should be disregarded, because the failure of the prosecution to call evidence from the person who couriered the material from Benalla Police Station to the State Forensic Science Laboratory meant that there was no evidence of continuity which would allow the magistrate to be satisfied beyond reasonable doubt that the items referred to on the Certificate of the Botanist were, in fact, the items that were located during the search of the respondent's premises. Counsel further submitted that the contents of the Certificate of a Botanist were not particularised in a way which enabled her Worship to be satisfied that the items listed in the certificate were the items seized by the police during the search of the respondent's premises. Counsel submitted that it would not be appropriate for her Worship to rely on the Certificate in the absence of evidence which interpreted the matters stated on the face of the Certificate. The Certificate, signed by Scott John Azzopardi, as a delegate of the Chief Botanist of Victoria, was headed "Spencer, Steven 3586/989". For relevant purposes it reads as follows:

"That on the 18/11/98 in the presence of Senior Constable Werner I examined plant material presented to me by that person and found it to be: Item No.1 Cannabis L. mixed with plant material which was not identified. The total weight of this mixture was 1.1 grams. Item No. 2 Cannabis L. mixed with plant material which was not identified. The total weight of this mixture was 0.5 grams Item No. 3 Material of Cannabis L. pooled from two silver foil packages. The total weight of this material was 1.7 grams Item No. 4 Cannabis L. mixed with plant material which was not identified. The total weight of this mixture was less than 0.1 gram. Item No. 5 Material of Cannabis L. pooled from three plastic bags. The total weight of this mixture was 18.9 grams. I placed a determinavit (sic) slip with the item(s)."

Senior Constable Werner, who was referred to in the certificate of Azzopardi, was not called to give evidence, nor was Azzopardi. Accordingly, there was no direct evidence that Items number 1 to 5 as listed in the certificate corresponded with items which had been seized in the raid. Before me, counsel for the appellant submitted that her Worship should have concluded that the items were, indeed, the same as items referred to in the evidence of Robb and the other police witnesses. That conclusion was inescapable, so it was submitted, when one had regard to the labels which appeared on the exhibits which were tendered, when one related that information to the number "3586/989", and the name of the respondent, which appeared at the top of the Certificate of a Botanist, and when regard was had to the photographs, the Exhibit Log entries, other documentary material and the oral evidence of the police witnesses.

As I have said, Werner was not called to give evidence. He was, however, at the court, and the decision not to call him was a deliberate one made by the solicitor who then appeared as counsel for the appellant.

Andrew James Grant, the solicitor who appeared to prosecute the case before the magistrate, deposed, before me, in his affidavit, that he had spoken to Mr Michael Simon, counsel who was briefed to appear for the respondent at the hearing at Benalla, on the day of the hearing. In the course of the discussions he advised Mr Simon of the names of witnesses to be called on behalf of the prosecution and he then mentioned Mr Azzopardi, the botanist. He said to Simon "arrangements had been made for the witness to be placed on stand-by, and that he was available to travel from Melbourne to Benalla to give evidence if he was required". In his affidavit he continued that:

"I then enquired whether the respondent was prepared to admit his evidence. Mr Simon indicated that he did not have instructions to object to the tendering of the Certificate of a Botanist pursuant to s. 120 of the Drugs, Poisons and Controlled Substances Act 1981 but that it was a matter for me whether the prosecution wished to call him to give evidence or simply tender and rely on the Certificate of a Botanist".

In response to the submission by defence counsel that the magistrate should dismiss the charges on the basis that there was no evidence of continuity, Mr Grant submitted to the magistrate that each of the prosecution witnesses had given detailed evidence of the nature and location of the items which were seized and that all of those items had been tendered without objection. He added that "the informant gave evidence that he had arranged for the items seized during the search of the premises (and tendered as exhibits) to be taken to the State Forensic Science Laboratory for analysis and that they were subsequently analysed and returned to his office. A Certificate of a Botanist which indicated that all of the green vegetable matter that had been seized was in fact cannabis was subsequently provided". He submitted that that certificate had been tendered without objection and he added:

"At no stage during the course of the prosecution case did counsel for the respondent seek to challenge the evidence that the items tendered during the course of the prosecution case were in fact the items located during the search of the respondent's premises, and subsequently sent to the State Forensic Science Laboratory for analysis. Similarly, there was no challenge to the suggestion that the exhibits had been returned to the informant and were the subject of the Certificate of a Botanist. If any challenge had been made to that evidence, the prosecution would have been placed on notice that further evidence of the continuity of the exhibits and the actual analysis was required. The botanist had been asked to remain on stand-by and was available to give evidence if required. However as counsel for the respondent had indicated that he did not have instructions to object to the tender of the Certificate of a Botanist, and had not challenged the evidence of the informant, or the other witnesses in relation to the identity of the items seized, analysed and tendered during the course of the prosecution case, he was not called as part of the prosecution case."

Mr Grant submitted to the magistrate that there was, in any event, sufficient evidence of continuity to be drawn from that which had been produced before her, notwithstanding the absence of Mr Werner and of the botanist. Alternatively, he submitted that he should be permitted to re-open the Crown case to call Senior Constable Werner because there was evidence from Robb that the items seized had been analysed, and he had produced the certificate relating to that analysis without objection. He submitted that the evidence of continuity, in those circumstances, was merely a technicality "which could be easily overcome without inconvenience to the court or the respondent, as Senior Constable Werner was in court. If an objection had been taken during the course of the prosecution case, I certainly would have called Senior Constable Werner, and possibly the botanist before closing the prosecution case."

An answering affidavit of Peter Stewart Dunn, solicitor for the respondent, has been filed. He notes that no statement from Werner had been provided, at any time, to the respondent before or during the hearing. Mr Simon of counsel, who appeared for the respondent in the lower court, has not filed an affidavit, but in some hearsay evidence in his own affidavit (which was not objected to before me) Dunn deposes that on attending court on 1 December 1998 he met Simon "who advised me he had spoken with Mr Grant and had informed him that the service only of the certificate was not objected to". Mr Dunn deposed that Mr Simon, in his submissions to the magistrate, had objected to the re-opening of the case so that Werner might give evidence, in part because no statement had been provided. He submitted to the magistrate that "the respondent had only conceded that the service of the certificate was not objected to, and nothing more". He submitted it was too late for the prosecution to re-open the case.

Although her Worship apparently gave brief reasons for decision, they have not been recorded, but Mr Grant deposed that he could recall that her Worship said, in part, that she had had regard to all relevant matters. The court order, on the file, records under the heading "special conditions" the words "no evidence of continuity in relation to drugs". Her Worship having so concluded, also refused to allow the prosecution to re-open its case so as to call Mr Werner.

By order of Master Wheeler, 16 February 1999, two questions of law are raised on this appeal:

"1. Was the learned magistrate wrong in law when she concluded that there was no evidence, or insufficient evidence, that the cannabis analysed by the botanist was the cannabis seized at the respondent's home? 2. Was the learned magistrate wrong in law when she considered all of the circumstances of the case and did not allow the prosecutor to re-open the prosecution case to strictly prove that the cannabis was transported from the informant to Victorian Forensic Centre and then back to the informant."

Although the first question is couched in terms of it being a question of law, it seems to me to be a thinly disguised example of a question of fact. In my view it should not have been made an appeal question under s.92, but, having been referred to me, I will deal with it on the charitable assumption that the issue raised is a question of law.

In her very clear and helpful submissions, Ms Pullen, counsel for the appellant, submitted that there was an abundance of material which should have led the magistrate to conclude that, notwithstanding the absence of Mr Werner, the material seized at the home of the respondent and tendered at the hearing, was that identified in the Certificate of Botanist.

Ms Pullen initially submitted that the learned magistrate fell into error by having concluded that there was "no evidence" of continuity. That would have been a misdescription of the state of the evidence, since even if it did not necessarily amount to proof of the charges beyond reasonable doubt (as counsel asserted it did), there was plainly some evidence which was capable, at least, of having satisfied the Magistrate to the requisite extent.

The magistrate did use the expression "no evidence" in her short extempore reasons for decision, and in so doing overstated the situation, but I did not permit the case to be argued on a narrow ground relating to the use of the expression "no evidence" because, as the terms of Question 1 make clear (by use of the alternative phrase "or insufficient evidence") the parties understood the magistrate to have been saying that such evidence as there was did not prove the prosecution case. In other words, the real complaint raised by the first question is not that the magistrate used the words "no evidence", but, rather, that her Worship ruled the evidence to be insufficient to prove the charges beyond reasonable doubt.

Both counsel agreed that for there to be an error of law demonstrated under Question 1, it must be shown by the appellant that the decision reached by the learned magistrate was one which, having regard to the state of the evidence, no magistrate acting reasonably could have reached: see Anglim and Cooke v Thomas (1974) VR 364 at 368.

Ms Pullen took me though a detailed analysis of the evidence, and an examination of the exhibits tendered before the magistrate, in support of her contention that there could have been no reasonable doubt held as to proof of the charges. In particular, she submitted that there was abundant evidence of continuity connecting the items seized and the Certificate of Botanist.

Whilst there is indeed evidence which might have persuaded the magistrate that the items subject to the Certificate were those identified by the police witnesses, I am not persuaded that she was bound to be so satisfied beyond reasonable doubt. In particular, as, indeed, I was told she expressly noted, the five numbered items in the certificate, as described, did not expressly duplicate, by number or description, five numbered items tendered in evidence. If such a convergence was to be proved then someone had to give that evidence, or else it had to be established, beyond reasonable doubt, by inference drawn from the evidence.

In support of her argument that there was sufficient evidence of continuity, Ms Pullen relied to a considerable extent on the evidence of the labels which appeared on the exhibits, which had been tendered without objection. Those labels, she submitted, must have come from two sources, the police and the forensic science centre. By reference to what is stated on the labels, she submitted, it could be shown that the items logged into the Exhibit Log correspond with items examined at the forensic science centre and, in turn, with items which Robb said in evidence had been seized at the premises of the respondent, and which were then tendered.

When the seized objects were tendered they were tendered in plastic exhibit bags, into which the objects had been placed by someone. On the outside of each plastic exhibit bag was a label bearing the words "Exhibit No." and with a number corresponding with the numbers used in the Exhibit Log. Inside the external plastic exhibit bag, were various items, and attached to those items (or, at least, to one of the items, if there was more than one) was a second label, titled "VFSC No" and bearing a number "3586/989". (One of the exhibits - a bowl - did not have such an internal label.) No direct evidence was led as to who placed the labels on the bags; it was a matter for inference, counsel submitted, that one label must have been attached by a police officer, and that someone at the forensic science centre must have attached the other. The inference, however, that the labels were written by police officers or by someone connected with the forensic examination can be drawn only by having regard to the words or terms used on the labels.

Counsel relied upon the labels in order to support her contention that continuity was proved beyond reasonable doubt. To illustrate the nature of her argument I will refer to one, only, of the three items which required proof of continuity. It is unnecessary, for present purposes, that I detail the similar arguments presented with respect to the two other items.

Item 5 in the Certificate of Botanist certified, as cannabis, material "pooled from three plastic bags, the total weight of which was 18.9 grams". The certificate concludes with the words: "I placed a determinavit (sic) slip with the item(s)". What is meant by a "determinative slip" is not explained, nor what the botanist means by "placed . . . with the items".

Counsel for the appellant submitted that Item No 5 refers to the three plastic bags of vegetable matter shown in photographs numbered 2 and 3, and also corresponds to item number 2 listed in the exhibit log as "3 x `Glad' brand bags containing green vegetable matter". The actual exhibit which was tendered comprised an outer plastic exhibit bag containing within it three plastic bags, in only one of which was vegetable matter. On the outer, plastic exhibit bag was one label titled "Exhibit No 2", with the handwritten numbers "D23/98", and the date of the search, and name and address of the respondent written on it.

The search warrant which authorised the search at the respondent's premises was tendered by the defence during the hearing. Attached to it was a property receipt, for the seized items. The property receipt is identified by number "D23 of 1998", and the second seized item listed (and shown as item No.2) is "3 x bags GVM".

I agree that it was a reasonable inference open to be drawn that the label on the outside of the plastic exhibit bag, which was headed "Exhibit No 2", was probably written by a police officer involved in the execution of the search warrant. There was, however, no direct evidence of that, and it remains an inference to be drawn by reference to the words and numbers on the label. Ms Pullen submitted that it was the only inference that could reasonably be drawn.

The second label appears on one of three plastic bags which are found inside the outer, plastic exhibit bag. This label reads:

"VFSC No 3586/989 Time & Date 12:57 18 Nov 1998 Result: Item 5 Material of cannabis L pooled from three plastic bags. The total weight of this material was 18.9 grams. (1 of 1) Signed by SXA: "

A signature which was unreadable appeared on the label, but counsel suggested, by reference to the signature on the Certificate of Botanist, it may be concluded that the signature was that of Azzopardi. Counsel submitted that the initials "VFSC" were sufficient to identify the label as having been placed there by someone from the Victorian Forensic Science Centre, being initials also used in the Certificate, which was also headed with the same number, "3586/989", shown on the label. Ms Pullen also referred to the use of the name of the accused, which appeared on the top of the certificate, as also adding to the correlation between the seized items and the items identified in the Certificate.

The irresistible inference, so it was submitted, was that the label on the inside bag, contained within the outer exhibit bag, was placed there by a forensic science centre person, and that it coincided with the Certificate of the Botanist, as Item No 5.

Similar detailed submissions, as to the convergence of information on the labels with the evidence of the search and seizure which took place, was made concerning the two other items (the "Three Nuns" tobacco tin and the black bowl) seized with vegetable matter. Robb said he had arranged for all seized vegetable matter to be sent for analysis.

The fact that no objection was made to the tender of the exhibits in the form in which they were tendered, and with the labels attached, was a matter given emphasis by Ms Pullen.

The status of hearsay evidence admitted without objection in a criminal trial is the subject of some uncertainty. In civil proceedings it has been held that hearsay evidence once so admitted is able to be treated as evidence of the truth of the matters which have been asserted in hearsay form: Re Lilley [1953] VicLawRp 18; [1953] VLR 98; Walker v Walker [1937] HCA 44; (1937) 57 CLR 630; Stunzi Sons Ltd v House of Youth Pty Ltd [1960] SR (NSW) 220; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Re Miller [1979] VicRp 40; [1979] VR 381; Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158.

As to criminal proceedings, in R v Radford (1993) 66 A Crim R 210, at 232-234, Phillips CJ and Eames J, without finally deciding the question, considered that where it was the accused who sought to rely on hearsay evidence to which there had been no objection by the Crown when it was led, it would be appropriate that the hearsay evidence could be relied on as proof of the truth of that which was asserted. Where, however, it is the Crown which seeks to rely on hearsay evidence against the accused, the position is much less clear, save for some exceptional and limited situations, such as those discussed by the High Court in R v Walton [1989] HCA 9; (1989) 166 CLR 283 and R v Pollitt [1992] HCA 35; (1992) 174 CLR 558. Mason CJ in Walton, at 293, and Deane J, at 308, observed that a too-rigid application of the hearsay rule should not be adopted by the trial judge, so as to exclude evidence, where other material rendered the hearsay material reliable, credible and probative, but that considerations of justice must be applied, not just arguable notions of common sense.

In my opinion, the fact that the inner and/or outer labels were not objected to would not mean that they thereby could prove the truth of that which was asserted on them. It may have been that no objection was taken to their tender because the labels were, in fact, admissible for a limited purpose - not to prove the truth of what they stated but for the purpose of identifying, through the direct evidence of witnesses, that the vegetable matter which had been seized was the same vegetable matter which was transported to and analysed by the botanist. The labels would have been admissible if a witness had sought to refer to them for the purpose of identifying and proving that the same container or containers into which the vegetable matter had been placed by police had been delivered to the botanist, and from which he extracted the vegetable matter for analysis. In other words, the labels would be admissible if the labels were being relied on merely to establish the identity of the bags transported to the botanists so as to establish that what was in the bags was therefore, beyond reasonable doubt, the material which was analysed by the botanist.

By s.70 of the Commonwealth Evidence Act 1995 writing contained on a label or tag attached to an object is deemed not to be hearsay if it was reasonable to suppose that the label or tag was placed on the object, in the course of a business, so as to identify the nature, ownership, destination, origin or weight of the object or its contents. The prosecution in the present case did not have the benefit of such a provision. That section was introduced to overcome the effect of the decision in Commissioner for Railways v Young [1962] HCA 2; (1962) 106 CLR 535.

That was a case in which the appellant challenged a ruling by a trial judge in a civil negligence action brought by a dependant widow. A pathologist who conducted an autopsy had given evidence that he had taken a sample of blood and placed it in a jar and had attached a label to the jar and written on the label. Objection was taken, successfully, to his giving evidence of what he had written on the label. The label itself was not produced, but it was sought to lead secondary evidence of its contents. When, subsequently, an analyst was called to give evidence of his analysis of the blood alcohol concentration of the blood of the deceased - which analysis had been conducted on the sample of blood obtained by the pathologist - objection was again taken, successfully, to that witness referring to the label on the jar in order to identify the blood as being that of the deceased. Thus, the evidence of his analysis was ruled inadmissible, since he could not establish that it was the blood of the deceased, which he had examined. The appellant in that case argued that the evidence had been wrongly excluded, because the labels merely served to identify the jar and its contents, and thus constituted some evidence of continuity, so that the jury might be satisfied on the balance of probabilities that the analysed blood came from the deceased. It was accepted that there remained gaps in the evidence of continuity, even if this evidence was admitted, but it was submitted that went only to the weight of the evidence to which the jury might have reference in order to determine that issue.

Although the objection at trial had been based on the best evidence rule, and on the inappropriateness of reliance on secondary evidence, the decision on appeal in Commissioner of Railways v Young did not turn on that narrow distinction. Dixon CJ held, at 546, that the evidence was admissible not as proof of the truth of what was stated on the label (namely, that the jar contained a sample of the blood of the deceased) but because it was tendered, along with the evidence of the witness who wrote it, in order merely to prove that the jar which left the hands of the pathologist was the same as that which was received by the analyst for the purpose of his analysis. Thus, the full description on the label was admissible only as proof "for the purpose of identification". A retrial was ordered because it remained a matter for the jury whether they would accept that evidence as proof, on the balance of probabilities, as to continuity.

In his judgment, Taylor J emphasised that continuity evidence was an important matter for the appellant to establish (an issue to which I will return, since it was argued before me that continuity evidence in a criminal case, such as this, amounts merely to a matter of "technical" proof). His Honour noted that proof of the contents of the label was merely one link in the chain of continuity, which had to be proved to have remained unbroken. Taylor J held, at 548, that the contents of the label were admissible to establish the identity of the container in its movements from the time of the autopsy to the time of the later analysis of the blood sample. A similar distinction between establishing the identity of an object by reference to a particular label on it at a particular time, on the one hand, and attempting to prove the truth of the facts asserted on a label, on the other hand, was drawn both by Menzies J, at 553, and by Windeyer J, at 557. Windeyer J held that the label was being referred to so as to identify "the appearance of a thing" at a later time, with that seen on the earlier occasion.

The question of the use of labels on objects is discussed in Cross on Evidence, 5th Aust Ed, pp 31,103-5, where the learned authors observe that it is difficult to reconcile some authorities concerning the admissibility of labels attached to objects, but the authors favour the view that such writings constitute hearsay insofar as they are relied on to prove the truth of what is asserted as fact on the label, rather than being relied on for purposes of identification of the object. That conclusion by the authors is consistent with the decisions of the Privy Council in Patel v Comptroller of Customs [1966] AC 356 and Comptroller of Customs (UK) v Western Lectric Co Ltd [1966] AC 367 (see, too, "Laws of Australia" Ch. 16.5, Div 11, par [86]; Ch. 6, Div 2, par [166]).

The distinctions drawn in Commissioner of Railways v Young are important in this case because without direct oral evidence of the writing being placed on each label, and the placement of the label on the object, then the label would serve no purpose with respect to identification, but would be merely sought to be used, instead, to achieve the very thing which the High Court said could not be achieved, namely, using the label as proof of the truth of its assertions, rather than for the purpose of identification of the object spoken of in the evidence of witnesses who were seeking to establish that in their respective dealings with an object, at different times, the object was the same on each occasion.

In the present case, however, the persons who placed the labels on the bags in which the exhibits were contained, did not give evidence of having done so. When giving their evidence that the exhibits were items of apparent drug paraphernalia, and vegetable matter, seized at the house, at various locations, the police witnesses were handed the sealed bags upon which (on the outside bag, and/or on a bag or object within the outer bag) were the two labels (in one case, only one label was attached) but the affidavits do not disclose that any police witness gave evidence as to the labels or as to reliance on the labels for the purpose of making that identification. Even if it were to be concluded (contrary to my assessment of the evidence) that there was such evidence as to the "police" labels, no evidence was given, at all, concerning the placement of the "forensic science" labels.

The certificate of the botanist may be relied on as proof of the "identity" and/or "quantity" of the material which was examined (and the word "identity" used in section 120(1)(b) means the chemical composition of the material). The difficulty for the prosecution was that some witness (or witnesses) needed to give evidence to establish that what was examined by the botanist was the material which had been seized by the police. Unless the writing on the labels was to be regarded as proof of the truth of what they asserted then the use of the labels for the purpose of making the necessary connection required that there be some evidence from a witness of the labels being applied and written upon by their authors, so as to provide some evidence, by inference, that the same vegetable matter as was seized was that which was examined. In the absence of such evidence from a witness the writing on the labels could not itself be relied upon to prove that had occurred.

It was for the learned magistrate to decide whether she was satisfied beyond reasonable doubt as to continuity of the exhibited plant material from the time of seizure to the time of analysis. I do not consider that she must only have reached the conclusion that that matter was proved beyond reasonable doubt, certainly not if the labels could not be relied on to establish the truth of what was written on them. In my opinion, a reasonable magistrate, acting reasonably, in the circumstances of this case, could properly have concluded that she was not satisfied to the requisite extent. These were criminal proceedings carrying serious consequences for the accused, if convicted, and the full weight of the presumption of innocence was his entitlement.

The full force of the presumption of innocence is emphasised by reference to the approach of the High Court adopted in the civil case of Commissioner of Railways v Young. As Menzies J observed, at 552, had the jury received evidence that what the pathologist wrote on the label corresponded with what was on the label of the container, from which the blood was taken by the analyst to make his test, then it was open to the jury to conclude, on the balance of probabilities, that the blood tested was that of the deceased man, but, as his Honour made clear, it was a matter for the jury to decide whether they were so satisfied. It was a question of fact for them to consider. Menzies J observed that, in his view, even if the evidence had been admitted it would not conclusively prove continuity, but at most would establish that the blood analysed was probably that taken at the autopsy. Furthermore, he opined, the evidence was incapable of establishing the matter on the balance of probabilities unless, for the purpose of identification, there had been direct evidence of what the pathologist had written on the label.

In the present case, however, the prosecution had to prove the matter beyond reasonable doubt. The situation was even less conducive to proof, to any standard, than was the case in Commissioner of Railways v Young. The botanist did not give oral evidence, and so did not refer to the labels on the bags from which he took the vegetable matter which he analysed, or into which he placed the material after his analysis. His evidence was solely that set out in writing in his certificate, and in that (subject to what I later discuss as to the reference to "determinative slips") he did not refer to any labels at all, but referred to five "items" by numbers I to 5. Nor was there direct evidence from any police witness of any label being completed by a police officer, or of the botanist completing or attaching any label in the presence of the witness.

In his certificate, the Botanist referred to "plant material presented to me", by a person he identified as "Senior Constable Werner". The concluding sentence in his certificate states: "I placed a determinavit (sic) slip with the item(s)." The certificate does not otherwise make any statement about either the attachment of any label, or the writing of any information on any label; nor does the certificate purport to identify the items he had examined by reference to any labels on any plastic bags. Ms Pullen submitted that by comparing the description of the items listed in the Exhibit Log with the description of the items in the Certificate it is possible to say which numbered item in the Exhibit Log corresponds with which numbered item in the list of items shown by the Botanist in his Certificate. But it is clear that there is not a direct correlation, by virtue of the number assigned to an item, between the items numbered 1 to 5 in the Certificate and any items with those numbers in the Exhibit Log, nor by reference to the exhibit numbers used on what are said to be the "police" labels attached to the plastic bags in which the exhibits were tendered. Furthermore, the Certificate refers to material pooled from three plastic bags, which was not the state in which the material was found when the house was searched.

Thus, whilst it would be possible to conclude that what is listed as the five items in the Certificate bear a correlation to certain items listed in the Exhibit Log it does not follow, in my view, that such a conclusion must necessarily have been drawn - beyond reasonable doubt - notwithstanding the fact that, in rather general terms, Robb had said that all seized vegetable matter had been sent for analysis and that the Certificate asserted that all vegetable matter which had been analysed was cannabis. There was still a necessity that what was seized be linked, beyond reasonable doubt, to what was transported to the botanist and analysed by him. Accordingly, it was open to a reasonable magistrate to not be satisfied that the continuity had been proved beyond reasonable doubt.

The statements on the labels were hearsay, and were inadmissible, unless those statements were made admissible by some legislative provision, or were admissible by virtue of the fact that no objection was taken at the time when they were tendered. As I have indicated, however, the failure to object is not capable of making the statements on the labels admissible as proof of the truth of what they stated. The question remains whether the statements in either label were admissible by virtue of the provisions of Section 120(1)(b). In my view they were not rendered immune from the hearsay rules by that section.

"(1) In any legal proceedings for an offence against this Act the production of a certificate purporting to be signed by an analyst or by a botanist with respect to any analysis or examination made by him shall, without proof of the signature of the person appearing to have signed the certificate or that he is an analyst or botanist (as the case requires) be sufficient evidence - (a) in the case of a certificate purporting to be signed by an analyst, of the identity or quantity or both the identity and quantity of the thing analysed, of the result of the analysis and of the matters relevant to such proceedings stated in the certificate; and (b) in the case of the certificate purporting to be signed by a botanist, of the identity or quantity or both the identity and quantity of the thing examined."

In my opinion, Section 120(1)(b) does not operate so as to prove all of the contents of the botanist's Certificate. That would have been the case had it been an analyst's certificate, made pursuant to s.120(1)(a). The omission from sub-section (b) of the words "and of the matters relevant to such proceedings stated in the certificate", which appear in sub-section (a) is significant, and serves to distinguish the present case from the situation considered by Murphy J in Henry v Hasty (unreported, 30 November 1977), to which I was referred. In that case there was a similar gap in the chain of continuity evidence as occurs here, and although Murphy J held that there was sufficient evidence to sustain a conviction he held that it would have been far better that the omitted evidence had been called. Murphy J, (who was concerned with an appeal by the accused person, who was arguing that it was not open to the magistrate to convict him), merely held that it was "open" to the magistrate to be satisfied about continuity, not that it must inevitably have followed.

In Henry v Hasty, however, unlike the present case, the certificate was that of an analyst, given under a section equivalent to sub-section (a) of the s.120(1). His Honour held, as have I, that the word "identity" refers to the make-up of the substance. As to the effect of the words "the matters relevant to such proceedings", Murphy J held that they meant that the prosecution could rely on statements in the certificate to the effect that the suspect items were received from a named Sergeant of police - the person so named, in that case, being the person who was not, but should have been, called as a witness at the hearing. Although he had not been called, the missing witness in Henry v Hasty was identified (in further contrast to the present case) at the hearing, by another witness, as in fact being the person who had been assigned the task of delivering the items to the analyst. No such evidence was given in the present case as to the role of Werner.

The issue of continuity was a question of fact for the magistrate. A similar conclusion was reached in Anglim and Cooke v Thomas [1974] VicRp 45; (1974) VR 363, per Harris J. That was another case in which the appeal was brought by the convicted person, claiming, on appeal, that the evidence was incapable of supporting a conviction, and it also was another instance involving a certificate of analyst under equivalent terms to those of sub-section (a).

I was referred to the judgment of Dunn J in Beach v Pittard (unreported, decision of the Full Court, 22 July 1975), as to the relevance of presumptions of continuity and regularity. But, as his Honour noted, special care would need to be taken before any presumptions of continuity, or of regularity, were applied in a criminal case such as this. In Collins v Mithen, unreported judgment of Gowans J, 21 May 1975, to which I was also referred, the presumption of regularity was relied on in a blood alcohol case under the Motor Car Act, but in that case there was express evidence that the same container on which certain markings had been made on its label had been the container taken to the forensic science laboratory and placed in a refrigerator for the purpose of the very test which was conducted. Such evidence is missing in the present case, and neither the presumption of regularity, nor that of continuance, would necessarily have applied, nor, even if they had been applied must those presumptions necessarily have led the magistrate to satisfaction beyond reasonable doubt.

The fact that it was open to the magistrate to have been satisfied beyond reasonable doubt as to continuity is not in doubt here. Thus, cases to which I was referred such as Dimitrou v Samuels (1975) 10 SASR 331; Cosgriff v Bateman, and Beach v Pittard, which merely confirm that it was a matter for the trier of fact to determine, do not assist the appellant. In any event, in Cosgriff, where there was no suggestion that there could have been any mix up in the items taken for analysis, Southwell J nonetheless held that even if the certificate were permitted to be relied on to prove that the absent police witness had presented the drug to the botanist (as the certificate asserted), there remained no direct evidence as to how that absent police witness had obtained the items, or their source, nor any evidence of a set practice or procedure which might form the basis for any inference of continuity. His Honour held that: "in the absence of satisfactory evidence linking the substance seized with the substance examined by the botanist, the court below should not have achieved satisfaction beyond reasonable doubt that the substances were the same". His Honour returned the case to the magistrate to consider whether the Crown should be permitted to re-open the case, and, without directing that she was bound to do so, expressed the view that it was likely that the magistrate would grant the application, since there was no unfair prejudice to the accused were that to occur. I will consider a similar proposition when I turn to consider Question 2.

Ms Pullen sought to draw comfort from the words "of the thing examined", in s.120(1)(b), contending that those words permitted the Certificate to itself identify the object examined, in a way which removed the need for proof of continuity. Thus, the statement in the Certificate that it was material "presented" to the botanist (which the botanist had then examined, and certified), was submitted have been rendered admissible by the sub-section, as were the statements on the labels, because they constitute part of the certification of what was "the thing examined". I reject that contention. Had the additional words of sub-section (a) been included in sub-section (b) then the contention might have validity, but as sub-section (b) stands, the only matters that may be certified are the "identity' (which, in context, is the chemical identity) and the "quantity" of the thing examined. In Cosgriff v Bateman, unreported decision, 22 October 1990, Southwell J also held that a certificate under sub-section (b) "is admissible to prove only one thing, and that is the identity and/or quantity of the thing examined". Proof of what was the thing examined, and whether what was examined was the same thing as had been seized in the search of the premises of the respondent, was the very matter on which continuity evidence was required to be led, unless the issue was admitted by the defence.

It follows, therefore, that the answer to the first question is "no". The learned magistrate has not been shown to be wrong in law in concluding that there was insufficient evidence of continuity to prove the case beyond reasonable doubt. I turn then to the second question, whether the learned Magistrate was wrong in law in refusing the request of the prosecutor to re-open the Crown case to address the gap in the evidence.

QUESTION 2: THE APPLICATION TO RE-OPEN THE PROSECUTION CASE

At the conclusion of the prosecution case, and after announcing that the defence would call no evidence, counsel for the defence submitted that the charges should be dismissed. Counsel identified a number of areas where there were gaps in the proof of the case which would prevent a finding of guilt beyond reasonable doubt. Among the areas so identified (the others not being relevant for present purposes) was the question of continuity of the evidence, so as to establish that the seized material was that which was examined by the botanist.

Counsel for the informant responded to those submissions, in the course of which he said that there had been no challenge made on the question of continuity during the hearing. As earlier noted (see paragraph 22 of these Reasons), he complained that the prosecution had been given no warning that the adequacy of continuity evidence would be challenged. He added that:

"...as counsel for the respondent had indicated that he did not have instructions to object to the tender of the Certificate of a Botanist, and had not challenged the evidence of the informant, or the other witnesses in relation to the identity of the items seized, analysed and tendered during the course of the prosecution case, he had decided not to call additional evidence as to continuity"

Should the magistrate conclude that she was not satisfied beyond reasonable doubt, because of the gap in continuity evidence, then the solicitor for the informant applied, in the alternative, to re-open his case, to call Senior Constable Werner, who, he said, had delivered the items to the State Forensic Science Laboratory. He said that Werner was present in court, and, whilst conceding that it was unusual to permit such a course, submitted it was appropriate, because Robb's evidence had shown that he had arranged to have the items analysed, and had tendered the certificate, both without any objection by the defence. He submitted that the continuity evidence was a mere "technicality", which could easily be overcome without inconvenience to the defence, or the court. He added that had objection been taken to the evidence of continuity during the course of the police case he would have called Werner, and possibly also the botanist, before closing the case.

In response to the application to re-open, counsel for the defence noted that the defence had not objected when the prosecution called evidence of a witness of whom no proper notice had been given to the defence, nor any copy of a statement supplied, concerning that additional evidence. Counsel submitted that, once again, although the case had initially been listed as a committal, no statement had been provided to the defence, from Werner, as required by the Magistrate's Court Rules. He noted that it was not being proposed by the prosecution that the case might be adjourned so that a statement could be provided. He advised that, in this instance, the defence was not prepared to agree to the evidence being called.

I was referred to many authorities as to the principles which should govern an application to re-open the Crown case. Counsel for the appellant conceded that permission to re-open the Crown case could only be granted if the circumstances were "very special or exceptional, and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen": per Gibbs CJ and Wilson J in The Queen v Chin [1985] HCA 35; (1985) 157 CLR 671, at 676. It was submitted, however, that this situation fell within the ambit of what their Honours, at 677, called "some purely formal matter the proof of which was overlooked in chief", and which thereby might (not must) allow a re-opening in the exercise of the discretion of the trial judge.

The overriding question is one of fairness: per Dawson J at 686. Fairness applies to the prosecution as well as to the defence (per Street CJ in R v Wasow (1985) 18 A Crim R 348, at 350), but in the present case I do not consider that the failure to call the evidence of the witness was truly a case of oversight. The solicitor prosecuting the case positively adverted to the issue, made a conscious decision that a statement of the witness would not be served on the defence and only sought to call the evidence when it was obvious that he had miscalculated the strength of his proofs. I do not consider that he was misled by anything said or done by the defence. He may have misunderstood what he was told but, in fact, the terms in which defence counsel stated his instructions concerning the certificate should have alerted the prosecutor to the problem he could face in proving his case. A criminal prosecution is not one which imposes on defence counsel an obligation to warn the prosecutor as to deficiencies in the prosecution case.

Whilst it has been suggested that the overlooking of proof of a merely technical matter would ordinarily lead to the favourable exercise of a discretion to re-open the Crown case (see Hannaford v McMillan [1976] VicRp 80; [1976] VR 743, per Anderson J), I do not consider that the question of continuity of evidence should be so regarded, nor was I referred to any authority which so described such evidence.

In considering whether the Magistrate correctly exercised her discretion as to this application, it seems to me that this court should not overlook the context in which the application was being made. As appears from the affidavit material provided on the appeal, this case had been the subject of previous applications and delays. On 15 September 1998 based on what the police had stated in a Summary, provided to the defence, as to the quantity of drugs involved, the respondent, through his counsel, had announced that he was willing to plead guilty to a count of possession, and the magistrate had indicated that the quantity of drugs was small and that a suspended sentence of imprisonment was likely. Later that day the police advised her Worship that the quantity of drugs was greater than that stated in the Summary, and the police would proceed with the count of trafficking rather than accept a plea of guilty to simple possession. The matter was again mentioned, and this time the magistrate indicated that a sentence of immediate imprisonment was a distinct prospect. It was then announced that the charges would be contested by the defence. After several further mentions, the case was finally heard on 1 December 1998. Thus, for some considerable time the respondent had had the prospect of imprisonment hanging over his head, should he be convicted on these counts. In those circumstances, the prosecution should have assumed that the defence would take all defences which were open to be taken in order to achieve an acquittal on the charges.

Although the respondent did not give evidence, there had been challenges made to some of the police evidence, and suggestions that evidence may have been tampered with. I make no comment as to any of those challenges, and no finding was made by the magistrate as to those matters, nor was it necessary that she do so. It is to be recognised, however, that when assessing the application to re-open the case the magistrate was entitled to exercise her discretion having regard to all of the circumstances of the case, as, indeed, she said she had done. There might well be factors, not expressly articulated, which bear upon the reasonableness of the application, having regard to delays and to the atmosphere in which a case has been conducted, and the tensions which have been generated, which are not immediately apparent to an appeal court. The exercise of a discretion, whilst bound to be conducted according to well known principles, is not one to be applied by the application of rigid and abstract rules. The very fact that judicial officers, acting reasonably, might come to different conclusions in the exercise of a discretion demonstrates the caution that a review court should apply before concluding that the exercise of a discretion was wrong in law. What may seem to be a clear and simple proposition when articulated in an appeal court, many months later, may have been much less clear and simple in the content in which it was formulated at an earlier time.

The decision not to permit the case to be re-opened was one which was open to the learned magistrate. The question of continuity was not merely academic in this case. Although the failure to provide statements of witnesses appears to have been a long-standing matter of complaint by the defence throughout the history of the prosecution no statement from Werner had been supplied to the defence, leading to the inference that a deliberate decision had been taken not to call him, at a time well before the hearing date, and, thus, well before the conversation with defence counsel on the hearing date, which was said to have misled the solicitor for the informant to believe that there was no dispute as to continuity. It was not suggested to the magistrate that the decision not to call Werner was taken in order to not prolong the hearing. That would have been a worthwhile objective, but even if that was the motive for the decision then counsel for the defence should have been asked, expressly, to make the concession that continuity was not in issue. If that concession was not made then the issue of continuity was not rendered less important, and the decision not to call the evidence was not one caused by inadvertence. The solicitor prosecuting the case in fact adverted to the need to call the evidence, and chose not to do so.

The inference open to be drawn by the magistrate was that the decision not to call Werner was taken in the mistaken belief that there was sufficient evidence of continuity to prove the case without him being called. Whatever may have been the motive for that assessment it proved wrong, and was not one, I am satisfied, which was caused by any misleading statement of counsel for the defence. Indeed, what counsel for the defence said should have alerted the solicitor to the fact that continuity had not been admitted, and could not be, as he did not have instructions to do so.

What happened here was a tactical decision, which was sought to be corrected. It was not the only tactical decision, which had been taken. When the informer failed to appear at court the magistrate offered to issue a warrant for his arrest, but that was expressly declined. So, the informant decided to proceed notwithstanding the fact that the absence of that witness was bound to cause difficulties in proof of the case, and would certainly render some evidence inadmissible, if it was sought to be led in hearsay form.

The decision to refuse leave to re-open the case was a matter to be decided in the exercise of the discretion of the magistrate. The exercise of a discretion may be overturned on appeal only if the appellant demonstrates that the decision-maker proceeded upon some erroneous principle, was mistaken as to the facts, took into account irrelevant considerations, ignored considerations to which she was bound to have regard, or arrived at a decision which was manifestly unreasonable. The question is not how I would have exercised the discretion had it fallen to me to decide the question, but whether appealable error has been demonstrated: see House v the King [1936] HCA 40; (1936) 55 CLR 499; Burling v Leemac Nominees Pty Ltd [1999] VSCA 45.

Notwithstanding the able arguments of counsel for the appellant, I am not persuaded, in the circumstances of this case, that appealable error has been shown in the exercise of the learned magistrate's discretion, to decline the request to re-open the Crown case. No error of principle has been demonstrated. I conclude that the second question should also be answered "no".

The appeal will be dismissed. I will hear the parties as to costs, and as to the discharge of stay orders earlier made in this case concerning the cost order made by the magistrate.

Poisons and Controlled Substances Act 1981

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Judgment (97 paragraphs)

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