Court of Appeal (WA)|2014-03-12|Before: Mr J, Lure P, Pullin JA, Mazza JA

GREEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 53 (12 March 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GREEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 53

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Conviction of possession of a prohibited drug with intent to sell or supply - Whether single charge for separate articles of a drug breaches the rule against duplicity - Whether there was a miscarriage of justice by reason of failure to amend the charge - Whether the whole of the trial judge's directions to the jury gave rise to a misdirection and therefore a miscarriage of justice

Criminal Procedure Act 2004 (WA), s 113(2), s 132, s 132(2), s 132(6)(b), s 143(2), s 178, sch 1 cl 2(4), sch 1 cl 8(2), 2 178(2),

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503

Gardner v Caporn [2005] WASCA 153

Jones v The Queen [1980] WAR 203

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

McDonald v Higgins [2013] WASC 61

Michaels v The State of Western Australia [2009] WASCA 174

R v GNN [2000] SASC 477; (2000) 78 SASR 293

R v Moubarak [2002] SASC 110

Reid v Director of Public Prosecutions (WA) [2012] WASCA 190

Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77

Willers v The Queen (1995) 81 A Crim R 219

1 McLURE P: I agree with Pullin JA that the appeal should be dismissed. The factual background is detailed by Pullin JA and not repeated here unless required for an understanding of these reasons.

2 The appellant was convicted of one count of contravening s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) which count was in terms that:

On 11 May 2011 at Alexander Heights David Mark Green had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

3 Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the evidence adduced or to be adduced at trial (latent duplicity) gives rise to more than one offence. The appellant asserts latent duplicity.

4 Police searched the appellant's house, of which he was the sole occupant, on 11 May 2011. Two clipseal bags each containing white crystalline powder which was an admixture containing, inter alia, methylamphetamine, were found on a dresser in the appellant's bedroom. The white crystalline powder in each bag weighed .33 g and 1.51 g respectively (a total of 1.84 g).

5 At the same time and in close proximity on the same dresser but concealed were two further clipseal bags each containing beige crystalline powder which was an admixture containing, inter alia, methylamphetamine. The beige crystalline powder in each bag weighed .63 g and 7.52 g respectively, a total of 8.15 g.

6 The 'prohibited drug' for the purposes of s 6(1)(a) of the MDA (and s 11 referred to below) is the admixture: Reid v Director of Public Prosecutions (WA) [2012] WASCA 190. The prosecution's primary factual case at trial was that the appellant was in possession of 9.99 g of methylamphetamine being all of the white and beige crystalline powder.

7 The submissions of both parties to the appeal focused on the common law principles of duplicity elucidated by the High Court in a number of cases including Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, S v The Queen [1989] HCA 66; (1989) 168 CLR 266 and Walsh v Tattersall (1996) 188 CLR 77.

8 However, the starting point in this jurisdiction must be the statutory framework. Clause 2(4) of sch 1 of the Criminal Procedure Act 2004 (WA) (CPA) provides that a charge must allege one offence only unless cl 8 or another written law permits otherwise.

9 The only relevant statutory provision for present purposes is sch 1 cl 8(2) of the CPA which provides:

If in the case of an offence of being illegally in possession of a thing (whether material or non-material) it is alleged the person was illegally in possession of more than one of the things at one time, the person may be charged with one offence of possessing all of the things.

10 Section 132 of the CPA confers power on a court in relation to the amendment of a 'charge', defined in the CPA to mean a written allegation in a prosecution notice or indictment that a person has committed an offence (s 3(1)). The power to amend may be exercised at any time before or during a trial (s 132(1)). Section 132 also relevantly provides:

(5) If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.

(6) If one charge alleges 2 or more offences and a court is satisfied -

(a) that the charge is permitted by Schedule 1 clause 8; and

(b) that the trial of the accused on the charge would be unfair because it alleges the two or more offences; and

(c) that it is reasonably practicable for any of those offences to be the subject of a separate charge; and

(d) that the separate charge would be in accordance with Schedule 1,

the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.

11 The power to amend an indictment is supplemented in s 178 of the CPA. Relevantly for present purposes, s 178 of the CPA provides:

(2) Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.

(3) If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -

(a) must order that the document be corrected if the defect is not material to the merits of the case;

(b) may order that the document be corrected in any other case.

12 The CPA covers the field in relation to patent duplicity. However, the rationale and policies underpinning the common law principles inform the assessment in s 132(6)(b).

13 The parties to this appeal accepted that the appellant was charged in the indictment with a single offence. That is clearly correct. In addition, they assumed that (1) the prosecution case involved the proof of more than one offence; and (2) the CPA does not apply to latent duplicity.

14 I deal with the first assumption later. The second assumption fails to recognise the overlap between patent and latent duplicity. The CPA makes no express provision in relation to latent duplicity. However, if the prosecution case in support of a charge of a single offence is particularised or conducted on the basis of multiple acts, each of which is capable of establishing the offence the subject of the charge, the first question should be whether sch 1 cl 8 of the CPA or other written law permits a single charge to allege more than one offence. If that is permitted by sch 1 cl 8, the prosecution case as particularised should proceed to trial unless the court is satisfied of the other matters in s 132(6) of the CPA, including that the trial of the accused would be unfair.

15 Thus, the effect of the CPA is that the prima facie common law rules that a charge must allege one offence only and one offence only may be proved under each charge are displaced in relation to the matters the subject of sch 1 cl 8 of the CPA. However, both parties to this appeal ignored the issues of statutory construction involved in determining whether in this case a single charge of more than one offence was permitted under cl 8(2).

16 Finally, both parties accepted that s 178 of the CPA does not require the appellant to object to latent duplicity prior to trial. The correctness of that proposition depends on the proper construction of the CPA, a matter not addressed by either party who relied on the common law.

17 Johnson v Miller and S v The Queen are examples of latent duplicity. In situations where one offence is charged, there will be latent duplicity if the way in which the prosecution case is to be conducted subjects the accused to the possibility of being convicted of one of a number of distinct offences.

18 In Johnson v Miller, a South Australian statute provided that a licensee out of whose licensed premises a person was seen coming on a Sunday, except during certain hours, was guilty of an offence unless the licensee proved certain matters of exculpation. The amended charge against the appellant was that on a specified day he was the licensee of certain licensed premises out of which premises 'a certain person' was seen coming on a Sunday. The prosecution proposed to adduce evidence that about 30 persons were seen coming out of the licensed premises on the Sunday in question and the prosecution declined to specify which of those persons was the one referred to in the amended charge. The High Court upheld the magistrate's decision to dismiss the charge. Dixon J rejected the proposition that the presence on the premises, or the departure from the premises, on distinct occasions however close in point of time of several persons acting independently could be treated as constituting or evidencing but one offence (483). They were described as repetitions not continuations of the state of facts which exposed the licensee to penal liability if he failed to prove one of the matters of exculpation. Dixon J continued:

[T]he facts or the alleged facts disclosed a latent ambiguity in the complaint. The latent ambiguity might have been removed by making an amendment or by giving particulars selecting one instance or person to the exclusion of the others (486).

19 In S v The Queen an indictment charged a father with three counts of one act of carnal knowledge on a date unknown within a specified period of 12 months. The complainant gave evidence of two specific acts of intercourse but there was no evidence to link either with any of the specified periods. She also gave evidence of numerous further acts of carnal knowledge over a period of two years. She could not remember the details or frequency of these acts. Thus the prosecution led evidence of multiple offences answering the description of the offence charged. Although each count charged one offence only, the evidence revealed a multiplicity of offences with nothing to identify any of them as the offence with which the appellant was charged in any particular count. The convictions were quashed.

20 The facts in Johnson v Miller and S v The Queen are to be distinguished from situations in which the offence creating provision, on its proper construction, is constituted by repeated or continuous unlawful activities.

21 In R v Giretti (1986) 24 A Crim R 112 the appellants were charged that between certain nominated dates they 'trafficked' in a drug of addiction namely heroin. The prosecution case was conducted on the basis that there had been trafficking by the conduct of a business of dealing in heroin which business was sought to be proved by many acts of sale and disposal of heroin within the nominated periods. The court held that the word 'traffick' in the relevant legislation was not limited to separate identifiable acts of trafficking but included carrying on a trade or business of dealing in drugs. In the latter case there was one offence proven by individual acts of sale or supply. The claim of duplicity was rejected. If there is a single offence that, as a matter of statutory construction, can be proved by repeated conduct which is itself an offence, it seems to me that no issue of latent duplicity can arise.

22 R v Hamzy (1994) 74 A Crim R 341 is consistent with Giretti. In Hamzy, the appellant was charged on indictment with three counts pleaded in the alternative. Each alleged that the appellant supplied heroin between two dates some 20 months apart. The first count alleged that the amount of heroin supplied was not less than 1 kg (the 'large commercial quantity' applicable to heroin); the second alleged that the amount was not less than 250 g (the 'commercial quantity' of heroin); and the third did not identify any quantity. The appellant was convicted of the first count. The Crown sought to establish the first count by evidence of a large number of witnesses who said the appellant had supplied them with various amounts of heroin over a 20-month period which together totalled in excess of the 'large commercial quantity' applicable to heroin. The first question was whether the relevant statute (Drugs Misuse and Trafficking Act 1985 (NSW)) permitted the Crown to accumulate the amounts individually supplied to different people over the nominated period. The New South Wales Court of Criminal Appeal held that by reason of the breadth of the statutory definition of 'supply' it was legitimate to charge in a single count one activity even though that activity may involve multiple acts of supply each amounting by itself to an offence, provided each individual act of supply could fairly and properly be identified as part of one criminal enterprise or one criminal activity. The court held there was no latent duplicity in any of the counts pleaded but expressly acknowledged that the court retained the power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce unfairness to the accused.

23 The final case to which reference should be made is the decision of the High Court in Walsh v Tattersall, a case of patent duplicity. An employee was charged under South Australian workers compensation legislation and convicted of obtaining by dishonest means 'payments or benefits' made under that legislation. A majority of the High Court (Gaudron, Gummow & Kirby JJ) held that the legislation created a separate offence for each individual payment or benefit. Gaudron and Gummow JJ construed the single charge as relating to multiple payments or benefits. They quashed the conviction on the ground that the employee was not charged with any offence created by the legislation because the offence creating provision displayed an intention to create a discrete offence upon the receipt of any one payment or benefit. Kirby J quashed the conviction on the ground that the charge was bad for latent duplicity. The dissentients (Dawson & Toohey JJ) construed the offence creating provision to include multiple payments and benefits arising from a single, continuing dishonest pretence, in which event it was legitimate to bring a single charge.

24 On my review of the cases on patent and latent duplicity, it appears that even if the offence creating provision does not, on its proper construction, positively create (provided it does not positively exclude it) a single offence based on proof of multiple independently unlawful acts, the rule against latent duplicity will not be breached where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity or one criminal enterprise: Gardner v Caporn [2005] WASCA 153. This test can present difficult questions of fact and degree. A number of cases in other States involving drug dealing apply this test: R v Eades (1991) 57 A Crim R 151; R v GNN [2000] SASC 447; (2000) 78 SASR 293; R v Ngo [2002] SASC 373; (2002) 135 A Crim R 550. Hamzy (but not Giretti) may also be within this category.

25 The criteria of 'unfairness' for patent and latent duplicity overlap and are sourced in the rationale for the rule against duplicity. As summarised by Kirby J in Walsh v Tattersall, they are as follows (111). Fairness requires that prosecutors define with accuracy each criminal offence they intend to prosecute and identify the elements of the offence(s) necessary to secure a conviction. Further, that information assists in decisions about how to plead to the charge, clarifies contested questions about the admissibility of evidence relevant to the offence(s) so specified, contributes to accurate sentencing where a conviction is recorded, and avoids later problems with respect to pleas of autrefois acquit or autrefois convict.

26 Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) relevantly provides that 'a person who, with intent to sell or supply it to another, has in his possession a prohibited drug commits a crime'. The expression 'prohibited drug' is defined to include a wide range of drugs of addiction. In this case the charge is confined to methylamphetamine. Accordingly, it is unnecessary to determine whether possession of more than one type of prohibited drug gives rise to more than one offence.

27 The quantity of prohibited drug the subject of the charge is not an element of the offence under s 6(1)(a) of the MDA. However, the quantity of prohibited drug in an offender's possession is relevant to the mode of proof of the offence. Section 11(a) of the MDA relevantly provides:

For the purposes of -

(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.

28 The quantity specified in sch V in relation to methylamphetamine is 2 g. The quantity of the prohibited drug the subject of the charge is, having regard to s 11(a) and the drug trafficker provision in s 32A(1)(b), a necessary particular of a charge under s 6(1)(a) of the MDA but it is not an element of the offence. Thus s 11 has no relevance to the question whether the charge, on its face or on the facts, offends the prohibition against duplicity. However, it may be relevant to the general question of unfairness.

29 The prosecution's primary factual case was that the appellant was in possession of the entire particularised quantity of 9.99 g of prohibited drug with the relevant intent. However, because quantity is not an element of the offence, the single charged offence will have been committed even if only some of the particularised quantity was in the appellant's possession with an intention to sell or supply it to another.

30 The obvious first question is whether, on the prosecution case proved at trial, there is more than one offence under s 6(1)(a). This issue is frequently ducked in the cases, as it was by the parties to this appeal. However, the analysis aids understanding of the scope and application of the duplicity prohibition. 'Possession' under the MDA is a state of affairs that has two elements being (1) control of or dominion over a prohibited drug (2) with knowledge of its existence. Knowledge of the type of prohibited drug is not required. Under s 6(1)(a) of the MDA there is one physical element (custody or dominion) and two mental elements (knowledge that he has a prohibited drug in his custody or dominion and an intention to sell or supply it to another).

31 As quantity is not an element of the offence, I remain to be persuaded that the prosecution case against the appellant involved the proof of more than one offence under s 6(1)(a) of the MDA. This is not a situation in which the prosecution's proof of a single charge depends on establishing multiple individual separate acts or circumstances each of which is itself a discrete offence. The fact that there could have been separate counts does not mean that a single charge particularised as relating to the full amount of the same type of prohibited drug in the defendant's possession at the same time with the same intention gives rise to latent duplicity. If there is no factual duplicity in the prosecution case, it cannot be created by the manner in which an accused chooses to defend the charge.

32 Even if the prosecution's factual case was based on more than one offence, the circumstances relied on by the prosecution were so close in time, place and nature that they can only properly be viewed as one composite activity so as to come within the exception to the rule against duplicity.

33 Further, my preliminary view (the matter not having been argued) is that if the prosecution's factual case involved more than one offence under s 6(1)(a), the case fell within sch 1 cl 8(2) of the CPA. I would identify the 'thing' for the purpose of cl 8(2) as the prohibited drug in issue, in which event the 'thing' hidden in the dresser is relevantly the same as the 'thing' in full view on the dresser.

34 There remains the question whether the prosecution's conduct in proving the charge otherwise produced unfairness to the appellant. I think not. The appellant had prior notice of the case he was required to meet at trial. There was no suggestion that, if there were separate charges, they could and should have been tried separately or that the evidence would not be cross-admissible. There are no practical issues with the appellant losing the benefit of the doctrine of autrefois acquit or autrefois convict. (See Hamzy at 347 - 348.) The appellant by his experienced counsel did not support the prosecution's application for a special verdict under s 113 of the CPA (ts 153), leaving the trial judge to make the relevant findings of fact for sentencing purposes. Finally, the appellant's defences were not, in any real sense, prejudiced by the fact that there was a single charge. The issues were relatively simple and straightforward. Further, defence counsel clearly and comprehensively explained the defence case in opening (ts 24 - 28).

35 The State concedes, correctly on any view, that on one occasion in the course of his summing up the trial judge misdirected the jury as to the applicability of the presumption in s 11 of the MDA in relation to the 1.84 g of methylamphetamine in the two bags in full view on the appellant's dresser. However, the trial judge correctly directed the jury on that subject on multiple occasions before and after the misdirection. The question for this court is whether there was any real risk that a reasonable jury may have been left with an impression that s 11 could apply to the 1.84 g in isolation.

36 The defence case at trial was that the appellant was not in possession of the 8.15 g of beige crystalline powder, it having been hidden in the dresser in the appellant's bedroom by Glen Sutcliffe who gave evidence to that effect. The appellant gave evidence that he was in possession of the 1.84 g of white crystalline powder which he said was for his personal use. He also denied knowledge of the beige crystalline powder.

37 The State case in relation to the 1.84 g of white crystalline powder in isolation was that the evidence as a whole without reliance on the presumption established beyond reasonable doubt that the appellant had an intention to sell or supply the 1.84 g. The evidence included drug dealing paraphernalia in the appellant's house at the same time as the drugs in question such as electronic scales with traces of methylamphetamine, other prohibited drugs, weapons including a machete and knuckle dusters, a tick book, supplies of clipseal bags, bullets and a functioning CCTV house surveillance system.

38 The misdirection (which is in bold) in its relevant context (the central parts of which are in italics) is as follows:

On the third element of intention to sell or supply methylamphetamine, the law is that a person - unless the contrary is proved on the balance of probabilities - is deemed to have in his possession methylamphetamine with intent to sell or supply if he has in his possession not less than 2 grams of methylamphetamine.

...

If the State has proved beyond reasonable doubt that the accused had in his possession not less than 2 grams of methylamphetamine, the law effectively places on the accused the onus of proving on the balance of probabilities that he did not intend to sell or supply the drug to another (ts 141).

39 The trial judge then referred to the 8.15 g and to the appellant's defence that he was not in possession of that amount. The trial judge then continued:

There's a further certificate also in relation to a lesser amount totalling some white powder which adds up to a total of 1.84 grams. There's still a question for you in relation to that lesser amount. Whilst it is not above 2 grams, it is a matter and so the State don't [sic] have the benefit of the presumption of law that he's deemed to have intention to sell or supply.

That is still a matter for you to consider whether or not on the evidence it is in his possession with intention to sell or supply also (ts 141).

40 Immediately following is the misdirection. It was in these terms:

The accused has said in relation to that material [the 1.84 g] that that was for his own personal consumption and the standard of proof in relation to rebutting the presumption is that of balance of probabilities which is a much lower standard.

What the accused would have to prove is that it was more probable that he didn't intend to sell or supply the methylamphetamine in his possession to another (ts 141).

41 The misdirection is inconsistent with the immediately preceding paragraph to the effect that the presumption did not apply to the 1.84 g and the repeated reminders that the deeming provision does not apply unless the appellant had in his possession not less than 2 g of methylamphetamine.

42 The misdirection is also contradicted in the subsequent directions. In dealing with the beige crystalline powder the trial judge said:

In relation to that it is in excess of 2 grams and as a consequence, the law is that if you're satisfied that that is in his possession then he is deemed to have it in his possession with intent to sell or supply (ts 142).

43 The trial judge then turned his attention to the possible verdicts. After referring to the verdict of the offence as charged, the trial judge continued:

The other possible verdict is one of guilty of possession of methylamphetamine. That would be in relation to that item which comprises the white crystalline powder that totals 1.84 grams. As I've said, whilst it's open for you to find that it was open - or that on the evidence he might have had that with the intent to sell or supply, it's been the evidence of the accused that that was his stash or material that he used and that he had it without the intention to sell or supply.

In relation to that amount, there is no presumption operating if you were to treat those items separate to the other material. So in relation to that material, you're verdict would be one of guilty of possession (ts 142).

44 Having regard to the misdirection in its context, I am satisfied that there is no real risk that a reasonable jury may have understood that they could apply the s 11 presumption in relation to the 1.84 g in isolation. The misdirection is a slip that is negatived and nullified by the closely surrounding context in which it is sandwiched. I am fortified in that conclusion by the failure of the prosecutor and defence counsel to seek a redirection. Thus there was no error of law or miscarriage of justice.

45 PULLIN JA: The appellant was charged with one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 4 September 2012, after a trial before a judge and jury, the appellant was convicted of that offence. The appellant appeals against that conviction.

46 On 11 May 2011, the police executed a search warrant at a house occupied by the appellant. In the appellant's bedroom was an item of furniture described as a dresser. Four clip seal bags were found in or on the dresser. Two of the clip seal bags were found on the top of the dresser. They contained white crystalline material consisting of 1.84 g of methylamphetamine in total. In close proximity, also on the dresser but concealed by a mirror that was described as a hutch, were the other two clip seal bags. They contained a beige material consisting of 8.15 g of methylamphetamine in total. The police discovered, in the bedroom or elsewhere in the house, paraphernalia often associated with drug dealing. The police found electronic scales which had traces of methylamphetamine on the surface; weapons including a machete and knuckledusters; a notebook with a list of names written in code; empty clip seal bags; some bullets; and a surveillance system.

47 Counsel for the appellant made an opening statement as permitted under s 143(2) of the Criminal Procedure Act 2004 (WA). During that statement, counsel said that the appellant admitted possession of the white

methylamphetamine, which was for his personal consumption. Counsel for the appellant said that the appellant would give evidence denying that he possessed the beige material. He said that the appellant would say that it was 'not mine' and that he did not know it was 'there'.

48 It is appropriate to mention at this point that s 11(a) of the Misuse of Drugs Act reverses the onus of proof in relation to the offence of possession with intent to sell or supply to another if the quantity of the prohibited drug involved exceeds 2 g. In those circumstances, it is for the accused to prove on the balance of probabilities that he did not have the prohibited drug with intent to sell or supply to another: Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4] (Steytler P), [62] (Roberts-Smith JA), [133] (Pullin JA).

49 The appellant elected to give evidence. He admitted possession of the two clip seal bags containing the 1.84 g of white methylamphetamine, which he said was for his personal use. He denied any knowledge of the 8.15 g of beige methylamphetamine in the other two clip seal bags. He testified that he was not a drug dealer. He said that he only purchased enough methylamphetamine for personal use and that he would weigh it when he wanted to use some. He said that the machete had been given to him as a gift and that he had found the bullets three to four years earlier in a property that he used to rent out.

50 Counsel for the appellant then called a witness, Mr Glen Sutcliffe, who gave evidence that he was the appellant's friend, that he was a drug dealer and had been convicted of drug dealing, that the appellant had had property stolen from his residence and that as a result, Mr Sutcliffe decided to place some methylamphetamine mixed with Ratsak in the appellant's dresser behind the hutch as a 'trap' for people coming in and taking things. He said that the beige colour resulted from him burning the material when he mixed it.

51 Mr Sutcliffe was granted a s 11 certificate under the Evidence Act 1906 (WA) so that his evidence admitting that he possessed the beige methylamphetamine could not be used against him in a prosecution.

52 The trial judge directed the jury that it was for the State to prove all of the elements of the offence, that the appellant did not have to prove anything and that the burden of proof was on the state from 'beginning to end' and not on the appellant (ts 132, 133, 138 - 139).

53 The trial judge directed the jury concerning the first two elements of the charged offence, namely that it was the appellant who had possession of the substance and that the substance was a prohibited drug (ts 139 - 140). No objection is taken to those directions.

54 The trial judge then turned to give a direction about the third element of the charged offence, which was that the appellant had the intention to sell or supply the prohibited drug in his possession, or any part of it, to another (ts 140). The trial judge correctly directed the jury that 'the law is that a person, unless the contrary is proved on the balance of probabilities, is deemed to have in his possession methylamphetamine with intention to sell or supply if he has in his possession not less than 2 g of methylamphetamine' (ts 140 - 141). That was a correct statement of the law in relation to s 11(a) of the Misuse of Drugs Act. The trial judge pointed out that if the State proved beyond reasonable doubt that the appellant had in his possession not less than 2 g of methylamphetamine, then 'the law effectively places on the [appellant] the onus of proving on the balance of probabilities that he did not intend to sell or supply the drug to another' (ts 141). That was correct.

55 The trial judge referred to the 8.15 g of the beige methylamphetamine and the fact that the appellant gave evidence that it was not his, that he did not know of it and that it was not in his possession. The trial judge correctly directed the jury that it was an issue for the jury to consider whether the appellant did have possession of the beige methylamphetamine or not.

56 His Honour also referred to the 1.84 g of white methylamphetamine. As to that, his Honour said:

There's still a question for you in relation to that lesser amount. Whilst it is not above 2 g ... the state don't have the benefit of the presumption of law that [the appellant is] deemed to have intention to sell or supply. That is still a matter for you to consider whether or not on the evidence it is in his possession with intention to sell or supply also (ts 141).

57 That direction was correct. Even if the jury accepted the evidence of the appellant and Mr Sutcliffe and concluded that the appellant did not have possession of the 8.15 g of beige methylamphetamine, it was still open to the jury to find that the appellant was guilty as charged if they were satisfied that the appellant possessed the 1.84 g of white methylamphetamine with intention to sell or supply to another. Such a conclusion was open to the jury based on the strong circumstantial evidence indicating that the appellant was a drug dealer. This was provided by the drug dealing paraphernalia found at the appellant's residence.

58 At this point, the trial judge said the following about the 1.84 g of white methylamphetamine:

The [appellant] has said in relation to that material that that was for his own personal consumption and the standard of proof in relation to rebutting the presumption is that of balance of probabilities which is a much lower standard. What the accused would have to prove is that it was more probable that he didn't intend to sell or supply the methylamphetamine in his possession to another. In this case, he would point to the fact that there was a smoking pipe found, I think, in the bathroom in the ensuite of the bedroom which had traces of methylamphetamine in it and I think a smoking pipe also found elsewhere in the house would demonstrate that people within that house, living in that house and with access to the ensuite were consumers of methylamphetamine. The [appellant] has said that amount was his and was his personal supply and that was drugs that he had as a methylamphetamine user and not as a dealer. Those are matters for you (ts 141 - 142). (emphasis added)

59 What was said there by the trial judge is the subject of ground 3 of the appeal.

60 The trial judge then referred to the beige material and said:

In relation to that it is in excess of 2 g and as a consequence, the law is that if you're satisfied that that is in his possession then he is deemed to have it in his possession with intent to sell or supply. The [appellant] has offered no evidence in relation to those items as to having them there for his own use. So his intention to - if you were satisfied that he had the 8.15 g in his possession then the issue of his intent to sell or supply would be satisfied by the deemed presumption of the law and by operation of law, you'd be satisfied that he had the relevant intent (ts 142).

61 His Honour then referred to two possible verdicts which the jury could return. His Honour said:

The first possible verdict ... is one of guilty as charged. That is to say, you are satisfied beyond reasonable doubt that it was in [the appellant's] possession with intention. The other possible verdict is one of guilty of possession of methylamphetamine. That would be in relation to that item which comprises the white crystalline powder which totals 1.84 g. As I've said, whilst it's open for you to find that it was open - or that on the evidence [the appellant] might have had that with the intent to sell or supply, it's been the evidence of the [appellant] that that was his stash or material that he used and that he had it without the intention to sell or supply. In relation to that amount, there is no presumption operating if you were to treat those items separate to the other material. So in relation to that material, your verdict would be one of guilty of possession (ts 142). (emphasis added)

63 After the trial judge completed his directions to the jury and the jury had retired to consider their verdict, the trial judge asked for comment from counsel. Counsel for the prosecution suggested that it would be appropriate for the trial judge to ask the jury for a special verdict under s 113(2) of the Criminal Procedure Act. Counsel for the appellant disagreed. The trial judge declined to require a special verdict.

64 The appellant's grounds of appeal may be summarised as follows:

(a) ground 1 asserts that the single count on the indictment was bad for latent duplicity;

(b) ground 2, which is in the alternative to ground 1, asserts that there was a miscarriage of justice by reason of the learned trial judge failing to exercise the power given to the court under s 132(2) of the Criminal Procedure Act to amend the indictment to include two separate charges; and

(c) ground 3 asserts that the trial judge erred in directing the jury that, in relation to the smaller amount of white methylamphetamine, it had to consider whether the appellant had to discharge the onus of proving lack of intent to sell or supply.

65 There was a ground 4 but it was abandoned by counsel for the appellant at the hearing of the appeal.

66 Although the methylamphetamine was in four bags, counsel for the appellant conceded that there was no patent duplicity in relation to the charge. Counsel was correct to do so. This is because of cl 8(2) of sch 1 of the Criminal Procedure Act which reads:

If in the case of an offence of being illegally in possession of a thing (whether material or non-material) it is alleged that a person was illegally in possession of more than one of the things at one time, the person may be charged with one offence of possessing all of the things.

67 However, the appellant contends that as early as the opening statement by counsel for the appellant (not counsel who appeared on the appeal), where it became apparent that the appellant admitted possession of the white methylamphetamine but denied possession of the beige methylamphetamine, there emerged latent duplicity or the risk of uncertainty of verdict. For a discussion about the meaning of the expressions patent duplicity, latent duplicity and uncertainty, see McDonald v Higgins [2013] WASC 61 [24] - [29].

68 The appellant contends that at that stage it would have become apparent that a verdict of guilty as charged might mean that some members of the jury thought that the appellant was guilty of possession of all of the methylamphetamine with intent to sell or supply, while other members may have thought that the appellant was only guilty of possession of part of the methylamphetamine with intent to sell or supply. It was submitted that that revealed latent duplicity or the risk of a miscarriage of justice because of uncertainty as to the meaning of the verdict.

69 The rule against duplicity is a rule that requires that only one offence be alleged in any one count in an indictment: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 84 (Dawson & Toohey JJ), 92 - 93 (Kirby J). In non-statutory jurisdictions, a rule against duplicity is said to arise from the court's inherent power to administer justice according to law: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 497 - 498 (Evatt J).

70 In this jurisdiction, it is not necessary to resort to the common law or the inherent jurisdiction of courts to support the proposition that a charge must allege one offence only. Clause 2(4) of sch 1 of the Criminal Procedure Act requires this.

71 Counsel for the respondent referred to South Australian cases which suggest that 'latent duplicity or uncertainty' may emerge from the fact that a single count relates to 'two packages' of a prohibited drug: R v GNN [2000] SASC 477; (2000) 78 SASR 293 [33] (Doyle CJ). See also R v Ngo [2002] SASC 373; (2002) 135 A Crim R 550 [43] - [44] (Besanko J); R v Moubarak [2002] SASC 110 [32] (Doyle CJ). No reference was made in R v GNN or the other South Australian cases to a provision like cl 8(2) of sch 1 of the Criminal Procedure Act so the reasoning in those cases have no persuasive value in this State.

72 Counsel for the appellant referred to Willers v The Queen (1995) 81 A Crim R 219 in support of the submission that because the verdict of guilty could mean guilty of possession with intent in relation to the beige material, or guilty of possession of the beige and white materials with intent, or guilty of possession of the white material with intent, this gave rise to latent duplicity, or at least gave rise to uncertainty as to the meaning of the verdict, and therefore to a miscarriage of justice. The concept of uncertainty in verdict is best illustrated by the example given in Willers. The example was provided by the facts in Jones v The Queen [1980] WAR 203, where the appellant was charged with one count of rape. The case opened on the basis that the appellant had entered the victim's flat and had intercourse with her on one occasion and, subsequently, had intercourse with her on another occasion. The Crown case was that on neither occasion did the victim consent to have intercourse with the accused. At no time did the Crown identify the act of rape pleaded in the indictment. The trial proceeded and the appellant was found guilty and was convicted. The court in Jones said:

The question which arises from that is, guilty of what? The general answer to that, of course, is guilty of rape, but which act of intercourse?

It may be that the jury found the appellant to be guilty of two acts of rape. It may be that some of them found the first act of intercourse to be rape and that others of them found the second act of intercourse to be rape. But there is no way of knowing (203 - 204).

73 The court said that it was a case in which the Crown should have been required to identify the 'transaction' upon which it relied. The court in Jones added that because the Crown had not done so, the conviction entered against the appellant was uncertain and therefore should be quashed, and a new trial ordered.

74 That reasoning does not apply here because of cl 8(2) of sch 1 of the Criminal Procedure Act. The verdict of guilty in this case meant that the appellant was guilty of possession of methylamphetamine with intent to sell or supply to another. That was what the appellant was charged with. The appellant was not charged with possession of a specific quantity. The quantities were relevant only to sentencing. It did not matter that some jurors may have thought that the appellant possessed some of the methylamphetamine with intent to supply and others thought he possessed the entire quantity with intent to sell or supply. The jury still convicted the appellant with the offence with which he had been charged. This is quite different from the circumstances in Jones where the appellant in that case may have been guilty of one or other of two different offences which the evidence suggested had occurred. Here the appellant was charged with possession of 9.99 g of methylamphetamine with intent to sell or supply to another. Being found guilty of possession of part of the 9.99 g of methylamphetamine with intent did not mean the appellant was convicted of an offence different from that charged. It was the same offence.

75 To avoid a dispute during sentencing, a sensible course to have followed might have been that which the prosecutor suggested: to call for a special verdict which would reveal whether the jury found the appellant possessed with intention to sell or supply to another all of the methylamphetamine or only part of the methylamphetamine. However, that has nothing to do with the correctness of the verdict of guilty. This appeal is against conviction and not about uncertainty which might have arisen in relation to sentencing.

76 There was not, at any time, any latent duplicity in the indictment and there was no uncertainty as to the meaning of the verdict. As a result, grounds 1 and 2 should be dismissed.

77 Counsel for the appellant referred to the case of Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [74], where McHugh J said that misdirections of law in a criminal trial may take many forms and that only few of them can be said, at all times and in all circumstances, to constitute a miscarriage of justice. McHugh J continued that on 'such matters as the standard or onus of proof or the functions of the jury ... [t]hese matters go to the root of a criminal trial according to law'. His Honour said that in circumstances where a direction on the standard or onus of proof or the function of the jury is substantially wrong, the proviso could not apply because the weight of evidence could not have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice [75]. It can be accepted that if a trial judge misdirects a jury on the question of the burden or onus of proof, there will have been a miscarriage of justice.

78 However, the question here is whether, when the whole of the judge's directions to the jury is considered, there was such a misdirection. It is not correct to select a few words from a trial judge's summing up without regard to the rest of the directions. The overall effect of the directions must be considered: Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 [1] (McLure P), [62] (Pullin JA), [67] (Mazza J). It is true that the trial judge slipped in his language in the

passage set out in [58] above. However, the overwhelming effect of the directions, when they are read as a whole, is that the jury was told that the reversal of the onus of proof only applied in relation to quantities of drugs above 2 g.

79 Further, in determining what effect the trial judge's slip in language had on the jury, it is important to examine the reaction of counsel. If counsel did not detect that the judge had slipped in his language at one point, it is a fair indication that the jury did not do so either. In Krakouer, the plurality pointed out that the misdirection in that case 'was not seen as irrelevant or unimportant by counsel engaged at the trial. Both counsel for the accused and the prosecution took exception to the judge's direction ... It is clear, therefore, that both counsel at trial saw the misdirection as being significant' [36].

80 In this case, the appellant was represented by an experienced criminal trial lawyer. He did not detect, and counsel for the prosecution did not detect, any error in the trial judge's directions to the jury, despite the trial judge enquiring whether there was any matter of law arising from the trial judge's directions which required correction.

81 That supports an inference that the repeated correct statements by the trial judge about the burden of proof and the onus of proof, both before and after the trial judge's slip in language, left counsel with the impression that there had been no misdirection on onus of proof. That in turn supports an inference that the jury would likewise have understood that the reversal of onus of proof did not apply in relation to the 1.84 g of white methylamphetamine. This is particularly so given that the trial judge concluded his directions about the third element of the offence and then said, when referring to the possible verdicts, that there might be returned a verdict of guilty of possession if the jury was only considering the 1.84 g of white methylamphetamine because there would be 'no presumption operating'. Ground 3 should be dismissed.

83 MAZZA JA: I agree with McLure P and Pullin JA that this appeal against conviction must be dismissed.

84 The facts of the case have been accurately described by Pullin JA in his reasons. Accordingly, there is no need to repeat them, save to the extent that it is necessary for me to explain my reasons.

85 Grounds 1 and 2 allege, in effect, that the appellant's trial miscarried because the indictment was bad for latent duplicity and that it should have been amended to include two separate charges. In my opinion, the indictment was not bad for latent duplicity. Accordingly, there was no need to amend the indictment.

86 Duplicity refers to a defect in the indictment where a charge contains more than one offence. McLure JA (as her Honour then was) explained the distinction between patent duplicity and latent duplicity in Michaels v The State of Western Australia [2009] WASCA 174 [8] in this way:

Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the facts adduced at trial (latent duplicity) gives rise to more than one offence.

87 An example of latent duplicity is where there is one charge but the State lead evidence of two separate and distinct acts to prove it, each of which is capable of constituting the charge, with the consequence that any verdict is uncertain as to which of the two acts was proved: see, for example, Willers v The Queen (1995) 81 A Crim R 219 [1].

88 Any analysis of the indictment in this case must have regard to the relevant provisions of the Criminal Procedure Act 2004 (WA) (CPA).

89 Division 2 of sch 1 of the CPA sets out what must be contained in an indictment. Clause 2 of sch 1 lays down the general rules applicable to indictments. One of those rules, set out in cl 2(4) of sch 1, states:

A charge must allege one offence only, unless clause 8 or another written law permits otherwise.

90 Relevantly to this case, cl 8(2) of sch 1 provides:

Multiple offences may be charged as one in some cases

...

(2) If in the case of an offence of being illegally in possession of a thing (whether material or non-material) it is alleged that a person was illegally in possession of more than one of the things at one time, the person may be charged with one offence of possessing all of the things.

91 Section 132 of the CPA empowers a court to amend a charge. Relevantly, s 132(5) and (6) are in these terms:

...

(5) If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.

(6) If one charge alleges 2 or more offences and a court is satisfied -

(a) that the one charge is permitted by Schedule 1 clause 8; and

(b) that the trial of the accused on the charge would be unfair because it alleges the 2 or more offences; and

(c) that it is reasonably practicable for any of those offences to be the subject of a separate charge; and

(d) that the separate charge would be in accordance with Schedule 1,

the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.

92 The power to amend may be exercised by a court, inter alia, on the application of a prosecutor or an accused at any time before or during a trial: CPA s 132(1) and (2).

93 Section 132 of the CPA is not the only provision in that statute which provides a power to amend an indictment. Section 178(2) of the CPA states that any objection by an accused to an indictment on the ground that it is defective must be made before the prosecutor's opening address. If it is defective in substance or in form, the court must order either that the indictment be corrected if the defect is not material to the merits of the case, or may order that the document be corrected in any other case: CPA s 178(3)

94 The indictment presented to the District Court at the appellant's trial read:

On 11 May 2011 at Alexander Heights [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

95 The offence allegedly committed by the appellant is set out in s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) which states:

Offences concerned with prohibited drugs generally

(a) with intent to sell or supply it to another, has in his possession; or

...

a prohibited drug commits a crime, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority.

96 The quantity of the alleged prohibited drug is not an element of the offence. However, this is not to say that the quantity is irrelevant in the trial of an accused charged with this offence. The quantity of the prohibited drug is relevant to the proof of the element of intention. This is because of s 11(a) of the MDA, which provides:

(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; or

97 The quantity of methylamphetamine specified in sch V is 2 g.

98 The undisputed facts were that on 11 May 2011 the police located four packets, each containing methylamphetamine, in very close proximity to each other in or on the dresser in the appellant's bedroom. At the time, the appellant was the sole occupant of the house. The total amount of methylamphetamine found in the four packets was 9.99 g. The State's case was that the appellant was in possession of all the methylamphetamine. The defence case was that he was in possession of only 1.84 g of the drug, being the white methylamphetamine contained in two of the bags. His case was that this was only for his own use.

99 The jury would have been entitled to convict the appellant as charged if satisfied that he possessed all of the methylamphetamine or any part of it with the requisite intention. In these circumstances, I am unable to see how the charge as laid against the appellant involved the proof of more than one charge. In my opinion, the indictment complied with cl 2(4) of sch 1 of the CPA.

100 However, if I am wrong in this conclusion, cl 8(2) of the CPA applied, a point accepted by the appellant's counsel at the hearing of the appeal (appeal ts 45). The appellant was charged with illegally being in possession of a thing, namely a quantity of the prohibited drug methylamphetamine. It was alleged that the thing was in four packages (each a thing in itself) and that the appellant was in possession of those four packages at the one time. Accordingly, cl 8(2) permitted the charging of the one offence of possessing 'all of the things'.

101 The issue then becomes whether, despite the case coming within the ambit of cl 8(2), amendment of the indictment should have been ordered because of unfairness: CPA s 132(6)(b). Any unfairness must be by reason of the charge alleging two or more offences.

102 The appellant, in effect, alleged that because of the way he defended the trial, the indictment was bad for latent duplicity, in the sense that the verdict was uncertain. The appellant relied upon Willers v The Queen to support this submission. The uncertainty is said to be that it is unknown whether the jury convicted the appellant of possessing, with intent to sell or supply, the 1.84 g of methylamphetamine or the whole 9.99 g of the drug.

104 Dealing first with Willers. Willers is clearly distinguishable. In that case, the State alleged one charge of official corruption, but led evidence of two completely different and separate acts to prove it. Here the State's case involved the one quantity of drugs and the one act of possession.

105 As I said earlier, the quantity of the prohibited drug possessed by the appellant is not an element of the offence. The jury need only to have been satisfied that the appellant possessed a quantity of methylamphetamine with the requisite intention. Having arrived at that verdict, it was for the learned trial judge to make findings of fact consistent with that verdict for the purpose of sentencing. Although his Honour might well have been assisted by a special verdict on this point (CPA s 113(2)(a)), the appellant's experienced trial counsel expressly eschewed this step. He was content for his Honour to make the relevant findings of fact in the event that the appellant was convicted as charged. This was an understandable tactical decision.

106 There was nothing unfair about the charge in the indictment. The offence was properly and accurately described. The elements necessary to secure a conviction were clear. The appellant was able to plead to the charge and then proceed to defend himself against it. No issues could arise in the future with respect to pleas of autrefois acquit or autrefois convict.

107 The appellant plainly knew what case he was required to meet. In his counsel's opening address, he set out his defence. The factual issues that the jury had to decide were crystal clear from the outset. The only difficulty that arose was with respect to the facts to be found by the learned trial judge for sentencing once the appellant was convicted as charged. This is not an uncommon task and did not give rise to any material unfairness. Certainly none has been demonstrated here. No amendment of the indictment was required.

108 I agree with McLure P's reasons on ground 3. I wish to add the following.

109 It is clear that at one point in his Honour's summing up he misdirected the jury as to the applicability of the presumption in s 11(a) of the MDA in relation to the smaller quantity of methylamphetamine found on the appellant's dresser. But it is also true that the trial judge correctly directed the jury about the applicability of the presumption, both before and after the misdirection.

110 A summing up must be read as a whole. Occasionally slips will be made. Sometimes such slips will give rise to a real risk of a miscarriage of justice. On other occasions, when the summing up is viewed as a whole, it is possible to conclude that no such risk exists. I am satisfied, having carefully considered the summing up in its totality, that there is no real risk that the jury would have been misled by his Honour's misdirection. It is relevant to note that no exception was taken to his Honour's summing up by defence counsel.

[1] See also Edelman J's informative discussion of the use of the expressions of duplicity, ambiguity and uncertainty in McDonald v Higgins [2013] WASC 61.

Misuse and Trafficking Act 1985

GREEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 53 (12 March 2014)

At a glance

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Judgment (171 paragraphs)

GREEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 53 (12 March 2014)

Legislation Cited (3)

Cases Cited (5)