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[2006] WASCA 70
Court of Appeal (WA)
2006-05-03
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HIEMSTRA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 70
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Appeal - Conviction on counts of possessing prohibited (prescription) drugs with intent to sell or supply - Accused suffering chronic pain - Addicted to morphine based drugs - In possession of large quantity of morphine based drugs and non opioids - Claimed to be using 600 mg per day - Whether intent to sell or supply - Effect of statutory presumption in s 11(a) Misuse of Drugs Act 1981 (WA) - Whether failure to place defence case adequately before jury - Whether necessity to refer to parts of expert evidence
Criminal law and procedure - Appeal against conviction - Alleged lies told by accused on oath - Whether direction on use to which jury might put lies needed - Whether misdirection
Sentence - Time in custody before trial - Accused in custody pending trial on other offences of which subsequently acquitted and on sentences for other offences - Whether should be taken into account to reduce sentence - Whether given inadequate weight
Sentencing Act 1995 (WA), s 8(4), s 87
Application for leave to appeal against sentence refused
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Aconi v The Queen [2001] WASCA 211
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Chivers v The State of Western Australia [2005] WASCA 97
Collier v The Queen [2001] WASCA 69
De Rosa v The State of Western Australia [2006] WASCA 57
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Fingleton v The Queen [2005] HCA 34; (2005) 79 ALJR 1250
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Lim v The Queen [1999] WASCA 296
Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048
Nelis v The Queen [2000] WASCA 194
Palmer v The Queen [1999] WASCA 253
Quach v The Queen [1999] WASCA 210
R v Chai (2002) 187 ALR 436
R v Hafner [2002] WASCA 211
R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55
R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241
R v Munro [2000] WASCA 285
R v Schmahl [1965] VicRp 95; [1965] VR 745
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
"S" v The Queen [2000] WASCA 34
Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985
Stapleton v The Queen [2004] WASCA 130
Ugle v The State of Western Australia [2004] WASCA 190
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Worthington v The State of Western Australia [2005] WASCA 72
Zoneff v The Queen (2000) 200 CLR 234
Broadhurst v The Queen [1964] AC 441
1 MALCOLM CJ: I have had the opportunity of reading in draft the reasons to be published by Roberts-Smith JA. I agree with these reasons and also agree that leave to appeal against sentence should be refused.
2 ROBERTS-SMITH JA: The appellant appeals against his conviction on seven counts of possession of prohibited drugs with intent to sell or supply them, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was charged on indictment with those seven counts, together with two further counts, one of knowingly receiving a quantity of stolen prescription drugs and one count of knowingly receiving stolen coins to the value of $57.05, both contrary to s 414 of the Criminal Code (WA). He pleaded guilty to the two receiving charges and to simple possession in respect of the other seven counts. The State declined to accept the pleas to counts 3 to 9 inclusive, and following trial before Nisbet DCJ and a jury in the District Court at Perth between 18 to 20 October 2004, the appellant was convicted of counts 3 to 9 inclusive, as charged.
3 On 9 December 2004 the appellant was sentenced to an aggregate term of 4 years' imprisonment backdated to 18 October 2004. An order was made that he be eligible for parole. His earliest eligibility date for release is accordingly 17 October 2006.
4 By notice dated 10 November 2004 the applicant applied for leave to appeal against conviction on five grounds. However, as each raised only a question of law, leave to appeal is not required, the appeal having been instituted prior to the coming into operation of the Criminal Appeals Act 2005 (WA) on 2 May 2005, and so at a time when an appeal lay as of right under s 688(1)(a) of the Criminal Code, on any ground of appeal which involved a question of law alone.
5 On 30 December 2004 the appellant also filed a notice dated 23 December 2004, by which he sought leave to appeal against sentence on the single ground that his Honour erred in not discounting the sentence to take into account the time that the appellant had spent in custody.
6 Prior to the hearing on 2 December 2005, the appellant informed the Court that he would be represented on the appeal against conviction but not on the application for leave to appeal against sentence, and foreshadowed that he would be seeking to have the latter adjourned. As it transpired, the appellant was represented by Mr D P A Moen on his conviction appeal, but he did not pursue his application for an adjournment of the sentence application, to which he spoke himself.
7 In broad compass, the prosecution case was that on the morning of 7 February 2003, police went to conduct inquiries at a house in suburban Perth. When they arrived, they found the appellant sitting outside the house in his car, a red Commodore. The police officers searched the appellant and his vehicle. In the appellant's jeans pocket they found a bag containing two types of prescription drugs, one type being orange/red pills, and the other type being grey pills. There was also a small amount of cannabis (not the subject of a charge). There was a red jacket on the back seat of the car. In the pocket of the jacket the police found a plastic bag sealed with tape. Inside that bag again there were some further prescription drugs found, some of the orange/red pills, and then a different type of pill in a blister pack bearing the name Kapanol. When subsequently analysed, the pills found in the jeans and the red jacket were identified as various forms of morphine. In the boot of the car, police found a blue sports bag filled with packets of prescription drugs, as well as some bottles of prescription drugs in liquid form. The number of individual pills inside the sports bag exceeded 1000. There were six distinct bottles of liquid which also turned out to be prescription drugs. Also in the bag there was a large quantity of coins to the value of approximately $57. The officers found $450 in cash in nine $50 notes in the appellant's wallet. In the sports bag there was also a number of empty clip-seal type bags.
8 The police officers seized the drugs and other items and took the appellant to the police station where a video record of interview was conducted. In the course of that interview, the appellant claimed to have bought the prescription drugs from a person he described as "Bob" a couple of days earlier. He said he bought them for $800 and that he knew, or assumed, that they had been stolen. He also said that he had separately purchased the coins from someone else for half their actual value. He denied that he would have sold or supplied the drugs to other people, but claimed generally that they were for his own use. He said he suffered from chronic pain, had been prescribed morphine and was a heavy user of that drug. He agreed that the value of the prescription drugs would have been much greater than the $800 he said he had purchased them for.
9 Each of the counts 3 to 9 on the indictment related to a different type of prescription drug.
10 For convenience, I set out the details of the drugs and other items found hereunder.
In the blue bag found in the car were four bottles of methadone syrup (906 grams), and blister packs of physeptone methadone (131 tablets total). Total weight of 940.1 grams of methadone (count 3).
Two bottles of Ordine morphine (5 mg/ml); 50 Kapanol morphine (100 mg) capsules; 29 green MS Contin (200 mg) pills in blister packs; 67 white MS Contin (5 mg) tablets in blister packs; 90 green MS Contin (15 mg) tablets in blister packs; 80 orange MS Contin (60 mg) tablets in blister packs; 78 grey MS Contin (100 mg) tablets in blister packs; 135 purple MS Contin (30 mg) tablets in blister packs; 70 Kapanol (20 mg) capsules; 54 Kapanol (50 mg) capsules; 4 Kapanol (10 mg) capsules in blister packs; and 13 Kapanol (100 mg) capsules in blister packs. Total weight 550.19 grams of morphine (count 4).
58 capsules of Oxynorm (10 mg) and 28 capsules of Oxynorm (5 mg); 44 tablets in a blister pack of Proladone (30 mg); and 42 tablets of Endone (5 mg). Total weight 84.85 grams of oxycodone (count 5).
Found in the blue bag, 38 white Palfium (5 mg) tablets (4.76 grams) (count 6).
40 white Attenta (10 mg) tablets (5.39 grams) (count 7).
70 tablets of codeine phosphate (30 mg), in one full blister pack and five blister packs cut in half (5.52 grams) (count 8).
In the blue bag, 35 white Dilaudid (8 mg) tablets in a bottle (5.09 grams) (count 9).
11 The blue bag found in the red Commodore was about three-quarters full, it also contained a Glad snap-lock bag and the five money bags; six snap-lock bags; and $57.05 in coins. In addition, $450 in $50 notes was found on the applicant.
12 Particulars of the appellant's grounds of appeal were provided by notice dated 16 March 2005. As particularised, the grounds of appeal were:
"(i) The verdicts of the jury were unsafe and unsatisfactory on the basis that the evidence did not support the findings of guilt in respect of counts 3-9.
PARTICULARS
(a) The jury returned guilty verdicts in respect of counts 3-9;
(b) The evidence lead [sic] at trial did not support such verdicts as there was nothing ti [sic to] which the jury could refer as being an inference reasonably open on the evidence that the Applicant had an intention to sell or supply the said drugs as per counts 3-9.
(c) The learned trial judge directed the jury as to inferences but irrespective of the direction as to inferences there was nothing that could be safety relied upon by the jury giving rise to an inference that the Applicant had an intention to sell or supply the said prescription drugs.
(ii) The learned trial judge erred in allowing count 8 to go to the jury when the evidence in support thereof did not reach the standard of beyond reasonable doubt that the Applicant had the intention to sell or supply the prescription drug Codeine.
(iii) The learned trial judge failed to adequately place before the jury the defence case.
PARTICULARS
(a) The learned trial judge did raise the defence case before the jury;
(b) The learned trial judge failed to draw attention to the expert evidence at trial which provided substantial evidence that was consistent with personal use of the prescription drugs.
(c) The learned trial judge failed to adequately address the jury as to an explanation of innocence pertaining to the possession of the said prescription drugs as the Applicant was heading to Adelaide and needed to take enough prescription medication in order to assist him with his pain relief;
(d) It was undisputed that the Applicant had a serious injury requiring prescription medication at the material time that he was found in possession of the prescription drugs;
(e) There was evidence before the jury that the amounts located in the possession of the Applicant were consistent with long term addiction to prescription drugs as a result of his injury received;
(f) The learned trial judge failed to adequately put before the jury in his address those matters which the defence raised as being consistent with personal use and innocence and rebutted the intention to sell or supply the prescription drugs.
(iv) The learned trial judge failed to adequately explain the direction as required in the case of Krakouer.
PARTICULARS
(a) The learned trial judge directed the jury in terms of the legal requirement in Krakouer but failed to adequately explain what that requirement was which the jury had to consider;
(b) The failure by the learned trial judge to adequately explain the legal requirement thus gave rise to a material miscarriage of justice.
(v) The learned trial judge erred in directing the jury as to lies allegedly told by the Applicant when the purported lie was not material to the charges which were included in the Indictment.
(a) The lie which was relied upon was as to the address of the Applicant for the purposes of his residential requirement whilst on bail;
(b) The lie die not relate to the Commission of the offence either in time nor in nexus;
(c) The lie was not material to a fact in issue;
(d) The learned trial judge should not have directed the jury as to lies in the present case and such the direction would have been used by the jury to reason that because he purportedly told a lie as to his residence whilst on bail he was therefore guilty of the offence;
(e) The use of the lies direction gave rise to a substantial miscarriage of justice."
13 Ground (i) was abandoned in the appellant's outline of submissions. Ground (ii) was abandoned at the hearing. That was appropriate, because in effect it sought to appeal the trial Judge's rejection of a submission of no case to answer on count 8, made at the conclusion of the prosecution case. That is not an appeal against the conviction.
14 Counsel for the appellant really argued grounds 3 and 4 together and I shall accordingly deal with them likewise.
15 At the commencement of his evidence-in-chief at trial, the appellant said that he was living with his father at Kalamunda and had been there for the previous four months. He said his wife of two weeks and their 31/2-year-old son were also living with him there.
16 The appellant said he suffered a back injury in 1988 and damaged a disc as a result of which he had an operation in 2000 and saw a Dr Anderson for pain management. He was prescribed morphine by a Dr Poon in the form of MS Contin, 30 mg twice a day for two weeks. That was then increased to 60 mg twice a day. He said he became very tolerant to it very quickly and realised the dosage was not enough and asked Dr Poon to increase it.
17 He said he purchased a bag of drugs from "Joe", paying $800 for them. The money came from a $500 loan through Centrelink, together with his pension/dole money. The $450 found on him by police was $500 borrowed from his father to fix the motor of a car. His father had given him 10 $50 notes, one of which he had spent that morning.
18 The appellant said he was still taking MS Contin and had received a prescription about two days before he was arrested. He had plans to go to Adelaide with his wife for a short holiday. He said he bought the drugs because it would have taken time to get prescriptions for pain relief drugs in Adelaide and that they were all for personal use, not for sale or supply.
19 Under cross-examination the appellant stated that the purchase of stolen prescription drugs was a very good deal that he could not pass up. He insisted that he bought them from "Joe". He was adamant that he had bought the coins for half price. He insisted that he would have used the prescription drugs in the bag in a month or maybe longer. He claimed he had no intention of selling or supplying morphine or any of the other drugs.
20 In the course of the prosecution case, the State had called Dr Paul Graziotti, a specialist in pain medicine. He gave evidence about the characteristics and effects of the various drugs found in the possession of the appellant. Methadone is a drug people ordinarily associate with heroin addicts, but it is a useful painkiller and is used for patients with chronic pain. Methadone is a long-acting drug.
21 Ordine, Oxynorm and Endone are short-acting drugs. Ordine contains Morphine and the other two drugs contain Oxycodone.
22 Hydromorphone is generally taken every four hours because it is a short-acting drug and would not commonly be used in chronic pain relief. It is used mostly for post-operative pain.
23 Kapanol and MS Contin are both morphine-based drugs and are very similar, but are made by two different pharmaceutical companies.
24 Proladone is a long-acting form of Oxynorm or L-Endone. It contains Oxycodone. Proladone is rarely used these days.
25 Palfium contains Dextramoramide which is a potent, short-acting painkiller and not appropriate for chronic pain relief. It is a highly addictive drug.
26 Codeine is found in Panadeine and Panadeine Forte and in that form is a mild painkiller. It is much more freely available.
27 All of the above drugs require a prescription. According to Dr Graziotti, there is no reason a person would have a conglomeration of both long-acting and short-acting medication.
28 MS Contin is a tablet and should not be taken intravenously because it is dangerous to do so.
29 Under cross-examination Dr Graziotti said that a single prescription of MS Contin would be 20 x 200 mg tablets. He said it would be uncommon for patients to be on a combination of long-acting and short-acting drugs. Palfium would be the worst drug for addictive behaviour because there is rapid development of tolerance and dependence and escalating doses. However, he opined that addictive behaviour is more a personality problem and that normal people do not develop addictive behaviour.
30 He was asked about the pain suffered by the appellant as a result of his injury, but was only aware from what the appellant had said in the video record of interview that he was apparently taking 50 mg twice a day. He did not have the appellant's medical history and was unaware of his medical condition.
31 In his experience, Dr Graziotti said that he has not seen anyone who has a tolerance to a range of prescribed medicines.
32 In his case, the appellant called Dr Richard Langham, Senior Lecturer in Pharmacology at the School of Pharmacology at Curtin University. He too was asked about the characteristics and effects of the various drugs.
33 He said that methadone can be injected in liquid form and would have the same effect as morphine. If taken in high doses, and the person is tolerant to other opiates, an unpredictable but perceived benefit in pain relief could be achieved. He described 600 mg a day of morphine as being "mid-level tolerance". He said there are reports of people using up to 2 grams of heroin a day, without great discomfort. He claimed that a person could be cross-tolerant to a range of drugs, such as those identified in the charges and that it was relatively common for a person in chronic pain to become medically addicted or medically tolerant and dependent.
34 He said that Oxycodone is a relative of morphine; it is a relatively short-acting drug but does last a bit longer. He said some people respond to it adequately but others respond badly.
35 According to Mr Langham, Dextramoramide is a rapidly short-acting drug and has been taken off the Australian market. Codeine is a relative of morphine, included in preparations for paracetamol (such as Panadeine Forte) used for mild to moderate pain but not very good for severe pain. Hydromorphone is a relative of morphine; it is relatively short-acting and not a widely used drug. It is likely to produce dependence if used as a substitute for morphine.
36 Under cross-examination, Mr Langham agreed that he had not seen the appellant. He agreed that the drug Methylphenidate is not an opiate and no issue of cross-tolerance would arise - it is a stimulant, mostly prescribed for people with ADHD. He said that it is possible to inject liquid methadone syrup, but not desirable, as it contains things that need to be filtered; nonetheless, people still do inject it.
37 The appellant's father gave evidence. He confirmed that he gave $500 to the appellant to buy new "carbies" for a VH Commodore. The money was in $50 bills. He confirmed that the appellant had a back operation and took morphine tablets which had no effect. Under cross-examination he agreed that he had spoken to the appellant about the case. He said that his son was currently living in Maylands, but had been living with him a few weeks previously.
38 It is important to note at this point that it was common ground at trial that, with the exception of codeine, the quantity of each drug charged exceeded the amount giving rise to the presumption under s 11(a) of the Misuse of Drugs Act of intent to sell or supply. That being so, in respect to the counts to which it applied, the evidentiary and legal burden of proof was upon the appellant to satisfy the jury on the balance of probabilities that he did not have an intent to sell or supply. Failure to so satisfy the jury would mean the presumption of that intent would stand and would be sufficient to establish that element beyond reasonable doubt (Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186).
39 The argument advanced in support of ground 3 is that although the Judge defined the case for the defence, he did so in the context of his direction as to inferences and stated that he would not recanvass the evidence. It is submitted that although his Honour told the jury the prosecution and defence experts seemed to be in agreement, he was nonetheless obliged to traverse the defence expert evidence as it supported the quantity of prescription drugs being used by someone who, like the appellant, suffered chronic back pain and as a result became an addict of prescription drugs. The submission is that it was incumbent upon his Honour to not just refer to the arguments advanced by defence counsel but also to go through the appellant's evidence and the defence case, and that he did not do.
40 Ground 3 was tied to ground 4 in that it was submitted, in respect of the latter, that there was a requirement for his Honour to give a direction about possession and the intent to sell or supply, as it may have been found that the appellant had a different intent in respect of the drug codeine. Further, it is submitted that the directions given by his Honour failed to place before the jury those matters of fact which might have gone to rebutting the s 11 presumption and that, in light of the direction in Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, his Honour was obliged to canvass the factual issues raised by the defence going to that issue.
41 Counsel for the appellant referred to the remarks made by the trial Judge (AB 177) to counsel in the absence of the jury prior to his summing-up, where his Honour foreshadowed that he would explain how the (s 11(a)) presumption works, and, with respect to Krakouer, he would give them the direction the law requires, which he said was "succinctly" set out at [20,050.15] of "Criminal Law Western Australia".
42 The passage so referred to by his Honour was apparently the following:
"[20,050.15] Rebuttal of presumption Section 11 is a deeming provision which appears to reverse the onus of proof in relation to an element of the offence (as the High Court noted in Krakouer v R [1998] HCA 43; (1988) 194 CLR 202; 155 ALR 586; BC9803590; [1998] HCA 43). Care must be taken however when directing juries on this question. For example, simply because an accused elects not to give evidence does not mean that, if the Crown has established possession of more than the prescribed amount, then there is nothing to rebut the presumption and the accused must be convicted of the more serious offence of possession with intent to sell or supply. The proper direction is to tell the jury that: (1) it is for the Crown to prove beyond reasonable doubt every element of an offence, and this includes the intention to sell or supply; (2) possession of not less than the prescribed amount will itself amount to proof to the required standard of that intention; unless (3) on the whole of the evidence it is more probable than not that the accused did not have the intention to sell or supply."
43 The page and paragraph references to Krakouer given by counsel for the appellant in his outline of submission and in oral argument do not afford any assistance. They state no principle and have nothing to say about the propositions being advanced by counsel. His argument is that the trial Judge was required, as a matter of law, to canvass in detail for the jury that evidence which may have gone to rebutting the presumption of intent to sell or supply.
44 In his summing-up, the trial Judge adverted to the presumption at various points. First, when explaining the distinction between directions on law, binding on the jury, and his comments on the evidence, which were not binding, he gave the following as an example of the former (at AB 182):
" ... count 3 on the indictment in relation to methadone - the total weight that is proven and accepted here is 940.1 grams and I'm telling you as a matter of law that the presumption in excess of which a person found to be in possession of methadone applies at .2 of a gram. You must accept that the presumption applies at .2 of a gram. That is an instruction of law."
45 Later (at AB 187) he explained in relation to the drug methadone in count 2 that:
"Now, he has admitted by his plea of guilty to being in possession of a prohibited drug that he had possession, so the second element of these three elements will not concern you. That is established by his admission, so the third element of the offence is 'with intent to sell or supply it to another', and as both counsel have addressed you, that is the issue in this case."
46 His Honour said that quite often, cases do come down to one issue; at other times, everything is in dispute. In this case, the issue which was in contention was whether or not the appellant had an intent to sell or supply the drugs. He said the appellant's position was that the State had not established he had an intent to sell or supply all or any of the drugs to anyone.
47 The Judge gave directions then about the presumption of innocence and the burden of standard of proof in any criminal case, together with other general directions about which no complaint is made.
48 Some time later, his Honour talked about the drawing of inferences and in particular, about how one might prove intention. As to that, he said (AB 192):
"... how do you then prove what somebody intended?
The way you do it is by their words and by their deeds, ladies and gentlemen, and what the state [sic] says to you, this man's words and deeds, when you put it all together, allow for only one inference to be drawn, namely of his guilt. The accused says to the contrary, 'No, if you put my words and my deeds together and you take into account my admitted addiction and my high drug use, the period over which I have been using these drugs, then at the very least you must have a reasonable doubt that the state [sic] has proven that I had possession of these drugs with intent to sell or supply at the very least,' the accused says, but in any event he says to you, 'I didn't,' and he has gone into the witness box to give you sworn testimony that he did not intend to sell or supply these to another."
49 Later again, his Honour went on to remind the jury that possession was admitted. He pointed out the State did not have to prove the whole amount of each drug was being held by the appellant with intent to sell or supply and illustrated that by reference to the methadone count. He said (AB 193):
"There are 940.1 grams of methadone and ... the presumption applies at .2 of a gram so he has well in excess of .2 of a gram so the law presumes that he has this amount of this drug in his possession with intent to sell or supply."
50 He reiterated that in relation to that and the other counts, the State had to prove beyond reasonable doubt not that all of the particular drug, but only some of it, was held with intent to sell or supply. Thus, even if the jury were persuaded that some at least of the particular drug was for the appellant's own use because of his admitted addiction, they then would have to ask themselves about the balance. The State did not have to prove that all of the balance of the particular drug was held by the appellant with intent to sell or supply, but only some of it.
51 His Honour then reminded the jury that each count had to be given separate attention because the appellant's evidence was that he was only interested in the morphine-based drugs and (AB 195):
"... so let's say when you come to codeine, for example, codeine - the presumption doesn't apply here and I can tell you the reason for that. The minimum quantity in respect of codeine is 10 grams, and the 10 grams hasn't been reached. So in relation to codeine is a good example, for example, of this point I'm trying to make. Here the presumption doesn't apply and again the State has to persuade you that that drug - some of that drug was being held by the accused with the intention to sell or supply to another."
52 At that point, the trial Judge turned to the statutory presumption. He read s 11(a) to the jury and observed again that the presumption applied to all of the drugs listed on the indictment except for the codeine, because the quantities exceeded the prescribed amount.
53 His Honour read s 11(a) to the jury again and then continued (AB 196 - 198):
"So how does this phrase, 'unless the contrary is proved,' fit in here? Some lawyers like to speak of the presumption as being capable of being rebutted, but that carries with it a suggestion that the accused carries some burden or onus to do the rebutting. I'm merely mentioning this simply so that if you think that that is the way in which it works during the course of your deliberations, you must pull yourselves up and then remind yourself, 'No, that's not how it works.' He doesn't have to prove anything.
All right. By waiving his right to silence and going into the witness box what he is doing is adding to the body of evidence in effect that is there for you to consider this question as to whether the state [sic] has established his guilt beyond reasonable doubt that he had these drugs or any of them in his possession with intent to sell or supply.
So the way in which the law says that you are to apply this provision is as follows:
It is for the state [sic] to prove beyond reasonable doubt every element of an offence and that includes the intention to sell or supply. Possession of not less than the prescribed amount will itself amount to proof to the required standard of that intention unless, on the whole of the evidence, it is more probable than not that the accused did not have the intention to sell or supply.
I will read that out again because these concepts, trust me, are difficult for lawyers:
(1) It is for the crown [sic] to prove beyond reasonable doubt every element of an offence and that includes the intention to sell or supply; (2) possession of not less than the prescribed amount will itself amount to proof to the required standard of that intention, unless (3) on the whole of the evidence it is more probable than not that the accused did not have the intention to sell or supply.
Now, here, ladies and gentlemen, the evidence - I won't recanvass the evidence. You heard two good speeches from counsel this morning that highlighted exactly this conundrum. The state's [sic] position is, if you like, look at the amounts and it points specifically, for example, and says, with the exception of hydromorphone where it's two and half times the limit before which the presumption applies - but if you go to methadone, morphine, oxycodone, you are looking at amounts of a drug that are far, far, far in excess of the minimum specified amount after which the presumption applies; that is, the presumption that they are possessed with intention to sell or supply.
The state [sic] says to you, 'Look, the very quantities suggest to you in themselves that these amounts are there with intent to sell or supply', not just because of the presumption applying, for example, in the case of methadone at only .2 of a gram, but because to have 940 grams of it, 'What else is he going to do with it?' They say the same in respect of morphine and the same in respect of the other drugs but to a lesser extent. What the state [sic] does is point to the very quantity of the drugs as indicative of this man's intention.
The state [sic] also seeks to rely upon the fact that when the accused goes into the witness box he says to you, 'Look, I became addicted very quickly to the morphine in MS Contin and very quickly I was using my whole prescription in half the time that I should've and so I had to top up and I had to go and get this. I had a friend that would give me some. I was able to buy some and I had to get it from somewhere and then this person comes along and offers me this job lot, "Take it or leave it," all or nothing. I grabbed at it because at this stage I was using 600 milligrams per day.'
Now, obviously you will know that a milligram is a thousandth of a gram and 600 milligrams is therefore .6 of a gram he says he was using a day. What he says to you is, 'Look, that's what I was offered. That's what I was brought. So what if it's more than I needed for the' - in effect - 'immediately foreseeable future? I knew that I was using more than I was being prescribed,' by a factor, I think, of three or more, 'and therefore I needed to have a supply and here it is. It's offered to me and I take it because my addiction had just got out of control.' So you have the two sides of this, ladies and gentlemen. It's really a perfect case for a jury to decide."
54 The first thing that can be said about the foregoing directions is that they did not accurately reflect the law, but the error was unduly favourable to the appellant. In the context of inferences, and putting the appellant's position with respect to proof of intention as being that taking all the evidence into account, the jury must be left with a reasonable doubt about that, his Honour was ignoring the effect of s 11(a) of the Misuse of Drugs Act. That was explained by Steytler P in Abbott v The State of Western Australia (supra) at [4]. His Honour there pointed out that the purpose of s 11(a) is to put the onus on an accused to prove on the balance of probabilities that he or she did not have the intent to sell or supply.
55 Although the direction given by the trial Judge here was apposite to count 8 which related to codeine, it had no application at all to the other six counts, to which the presumption did apply.
56 Secondly, his Honour erred in law in telling the jury that it would be wrong to think the accused carried any onus or burden to rebut the presumption. As explained in Abbott, where the presumption applies, an accused has both an evidentiary and legal onus to disprove it on the balance of probabilities, failing which the jury may rely on the presumption to find that element proved beyond reasonable doubt.
57 It may be that the reason counsel had difficulty in identifying in Krakouer any statement of principle relevant to his argument, is that the direction suggested at [20,050.15] of "Criminal Law Western Australia", does not in fact come from that case. The trial Judge seems to have been under the same misapprehension that it did. The proposition for which the case is cited in the text as authority, is that s 11 is a deeming provision which reverses the onus of proof in relation to the element of an offence. That was what the majority (Gaudron, Gummow, Kirby and Hayne JJ) said at [18] and was in the context of their Honours rejecting an argument by the Crown that s 11 had application, not only to the substantive offence of possessing a prohibited drug with intent to sell or supply, but to the inchoate offence of conspiracy to do so. No member of the Court said anything about the form in which a direction on s 11 should be given. The authorities cited in the text for that are Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985, subsequently explained by reference to Abbott.
58 Thirdly, that part of his Honour's direction quoted from the text was correct, but what his Honour then said in explication of it by reference to the evidence reverted to his earlier error of directing the jury that it would be sufficient for acquittal if the evidence left them with a reasonable doubt about the appellant's intent. That, of course, was not so, because the element would have to have been found to be proved unless the appellant satisfied them on the balance of probabilities that he had no such intent. His Honour expressly related this direction to counts other than the codeine count. It was a correct direction in relation to that count, but not to the others.
59 With respect to ground 4 therefore, legal error has been demonstrated, but it resulted in no miscarriage of justice because the effect of it could only have been to unduly advantage the appellant. There is no prospect these misdirections could have brought about, nor contributed to, the appellant's convictions.
60 In his oral submissions, counsel for the appellant again put in support of ground 3, that what the High Court said in Krakouer obliged the trial Judge to identify the specific evidence capable of going to rebut the s 11 presumption. He was, however, unable to point to anything said by the High Court in Krakouer about that; nor did he cite any other authority to support the proposition.
61 At the time of his trial, s 638 of the Criminal Code applied. That provision stated that on the conclusion of the evidence and after prosecuting counsel and the accused had addressed the jury, it was duty of the Judge to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the Court thought fit to make (see now s 112 Criminal Procedure Act 2004 (WA)).
62 The authorities establish that a trial Judge is required to explain the relevant law to the jury, and how it applies to the case. That in turn requires the trial Judge to identify the issues, legal and factual, and relate them to the evidence (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437; Doggett v The Queen (2001) 208 CLR 343; R v Chai (2002) 187 ALR 436, [18]).
63 Failure to adequately put the defence case is a well recognised ground of appeal (R v Schmahl [1965] VicRp 95; [1965] VR 745, 748). However, a trial Judge is not bound to discuss all the evidence nor to analyse all the conflicts in the evidence, although the requirement of fairness means that the respective cases for the prosecution and the defence must be accurately and fairly put to the jury, so that they have the necessary understanding of the evidence to determine the case according to the evidence (Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 561).
64 The task of a trial Judge in summing-up was explained in the joint judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620:
"[41] ...The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.
[42] But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel." (Citations omitted)
65 In Fingleton v The Queen [2005] HCA 34; (2005) 79 ALJR 1250, McHugh J said the following about the requirements of a summing-up (at [77] - [80]):
"[77] Section 620 of the Criminal Code declares that, after the evidence has concluded and counsel have addressed the jury, 'it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make'. The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case. The key term is 'instruct'. That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts (cf Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466). As McMurdo P said in R v Mogg [2000] QCA 244; (2000) 112 A Crim R 417 at 427 [54]; [2003] QCA 244, ordinarily the duty imposed on a trial judge in respect of a summing-up requires the judge to identify the relevant issues and relate those issues to the relevant law and facts of the case. In the same case, after referring to s 620 Thomas JA said (Mogg [2000] QCA 244; (2000) 112 A Crim R 417 at 430 [70]; [2003] QCA 244):
'The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken.' [Footnote omitted]
[78] The statements of the learned President and Thomas JA show that the law concerning a summing-up in trials under the Criminal Code is no different from the law in trials at common law. Their Honours' statements are consistent with the statements of Gaudron ACJ, Gummow, Kirby and Hayne JJ in RPS v R [2000] HCA 3; (2000) 199 CLR 620 at 637 [41]; [2000] HCA 3; 168 ALR 729 at 741; [2000] HCA 3 concerning the duty of a trial judge in jurisdictions that have no counterpart to s 620:
66 His Honour then set out most of [41] from the judgment in RPS, and continued:
"[79] As Diplock LJ pointed out in R v Mowatt [1967] EWCA Crim 1; [1968] 1 QB 421 at 426; [1967] EWCA Crim 1; [1967] 3 All ER 47 at 50 the 'function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence' . (Emphasis added.)
[80] A summing-up is radically defective unless it adequately explains 'to the jury the nature and essentials of' the offence with which a person is charged (McBride v R [1966] HCA 22; (1966) 115 CLR 44 at 47). Where the offence involves statutory terms, it is usually 'imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining' whether particular conduct is within the terms of the section (McBride v R [1966] HCA 22; (1966) 115 CLR 44 at 50)."
67 This was not a long trial. The evidence and counsels' addresses covered two days, on 18 and 19 October 2004. The trial Judge gave his summing-up on the morning of 20 October. The jury retired at 12.53 pm that day. The factual issues were not complex. As counsel had apparently said, and as his Honour repeatedly pointed out, there really was only one factual issue to be decided, and that was whether or not the appellant had an intent to sell or supply the drugs.
68 In addition to the directions I have already set out, his Honour explained that one of the reasons it was necessary for the jury to consider each charge separately, was because the evidence in respect of each drug was different, as to quantities, effects and characteristics.
69 After making the comment quoted above, that the case was really "a perfect case for a jury to decide", his Honour said this (AB 198) about the expert evidence:
"... I couldn't detect any real difference in the evidence of the experts myself. They seemed to be basically in agreement about what the drugs were, what they were used for, what their effect was, whether they were short acting or long acting, whether there could be cross-tolerances developed, at what stage tolerances were developed, what the side effects were, in effect how quickly the side effects would develop, you know, the nasty side effects like constipation and sterility, these sorts of things. They basically seem to be in agreement with all of that."
70 His Honour went on to say that if the jury thought there was a difference between the experts, they should resolve that in the same way as a conflict between the evidence of any witnesses. He said there were other aspects of the case which they needed to consider. The Crown relied also upon the fact that $450 was found on the appellant, together with some coins that had been taken and which he had pleaded guilty to receiving. In relation to the money, he said the prosecution had put to the jury that it is notorious that people who are involved in the sale and distribution of drugs, often were found with large amounts of money and it was the State's submission that in the context of this case and these drugs, $450 cash was a large amount of money. He said the appellant had gone into the witness box and given an explanation about that, which his Honour then related, referring also to the evidence given by the appellant's father.
71 The Judge referred to what was said to have been a lie told by the appellant in evidence about his address. That is the subject of ground 5. His Honour next talked about the alternative verdicts open and the procedure for taking the verdicts. Finally, his Honour said:
"You may decide that whatever the situation may be about the state's [sic] attack upon his credibility, when it comes to the essential matter in this case; that is, did he have an intent to sell or supply these drugs to another, you accept his sworn testimony. In that case clearly your verdict in respect of any one or more of the drugs that that applied to - your verdict would be not guilty.
Then you may come to the point in your deliberation where you just don't know what to believe, you don't know where the truth lies, you just can't work it out, you are undecided. In that instance, ladies and gentlemen, you will obviously have a reasonable doubt and your verdict must be not guilty. Only if you come to the unanimous conclusion that the state [sic] has established his guilt beyond reasonable doubt in respect of any one or more of these matters will your verdict be guilty as charged."
72 Following the conclusion of his summing-up, the Judge asked counsel if there was anything they wished to raise. Both said there was not. There was no suggestion from counsel for the appellant that the appellant's case had not been fully or adequately put to the jury.
73 What the submissions in support of this ground came down to, was that his Honour was obliged to remind the jury of the appellant's evidence that he might use 600 mil (the appellant used the word "mil" to mean mg) of morphine-based drugs a day, and that Mr Langham's description of that as "mid-level tolerance", so his Honour should have told the jury that was corroborative of the appellant's evidence about that.
74 The appellant's evidence on this in evidence-in-chief was that he saw Dr Poon in 2001. Dr Poon put him on morphine, in the form of MS Contin. For the first two weeks he was prescribed one x 30 mg tablets twice a day. After that it was increased to 60 mg tablets twice a day. He became tolerant to that and after another six weeks realised it was not enough. Dr Poon refused to increase the dose. He referred the appellant to Dr Anderson at the Pain Clinic. Dr Anderson refused to increase the dose. He wanted to deal with the pain by cortisone injections and other methods. The appellant was still taking the prescribed 60 mg tablets. By late 2001 he was taking 2 x 60 mg tablets at morning and two at night. The problem was, he would run out of medication before he could return to the doctor for another prescription. He had started taking the tablets orally, but later learned to do so intravenously. That was probably in early 2000. Because he was running out of the tablets he began to source them from a friend whose nickname was "Boldie". It was Boldie who referred him to the person called "Joe", from whom he bought the bag of drugs for $800.
75 The appellant denied intending to sell or supply any of the drugs. He said they were for his own use. His level of medication had "got out of hand". It had escalated to a lot more than he was prescribed, to "600 or 700 mils [sic] a day". It did not matter whether it was Kepanol or Ms Contin: "They're all basically a morphine tablet". He reiterated that in early 2003 he was using roughly 600 mg a day, or 4200 mgs a week. He said that when he bought the bag he knew the codeine was in there but did not know what it was nor what it could be used for. Asked why he had in his possession the non-morphine-based drugs, he said (at AB 135):
"What happened is when I first bought the whole lot I tried saying to Joe, 'Look, I don't want those other things,' and he's, 'Well, it's either take the whole lot or one parcel or don't take any of it,' and because I needed the morphine I took the whole lot and I didn't know what I was going to do with it. I really didn't know what I was going to do with the codeine and the other things like that, but it all had to go as a big - as the one parcel."
76 In cross-examination, the appellant agreed he had first seen Dr Poon in October 2002, not 2001 as he had said earlier. He said he just got the year wrong. He agreed October 2002 was only about four months or so before he was found by the police in possession of the drugs. In cross-examination he agreed that in addition to the 120 mg per day of morphine he had been prescribed, to sustain the 600 mg a day which he had described in his evidence-in-chief, he would have to have acquired another 500 mg per day. It was put to him that meant (on his earlier evidence that each 100 mg tablet would cost $50) it would cost him $250 a day. He denied that, saying that:
"You've got to understand the 600 mils a day was to be pain free. To have two pills a day, 200 mils a day would be normal."
77 Pressed, he agreed that prior to the deal with "Joe", $800 would have bought him 16 x 50 pills. After some equivocation, he accepted there were in the bag nearly 200 tablets that were either 100 or 200 mg morphine and he got them for what he would otherwise have had to pay for 16 tablets. He said it was a good buy, that was why he bought it.
78 In his submissions, counsel for the appellant said that the only evidence of Mr Langham which directly went to the point of ground 3, was the answer to a question in which he was asked what he could say in terms of degree of use and tolerance, about the appellant's claim that he used 600 mg per day. His answer was (at AB 154):
"Its mid-level tolerance, you could say. There are many reports of people using up to two grams of heroin a day, injected, without causing themselves any great discomfort in terms of dying or stopping breathing or anything like that."
79 In cross-examination he was asked whether one would expect the degree of tolerance to be greater in relation to someone who has used prescription drugs for a number of years as opposed to three or four months. His answer was that it is a combination of frequency of dose and severity of pain, so it is hard to be precise about when, or how long, the tolerance may take to develop.
80 The proposition urged upon us by counsel is that the trial Judge was obliged to direct the jury that the evidence of Mr Langham in which he described 600 mg a day as "mid-level tolerance" was support for the applicant's claim that he in fact was taking 600 mg a day. That proposition is unsustainable. It is logically unsound. At its highest, that evidence, if accepted, could have countered a prosecution argument that the appellant could not have taken 600 mg per day because that amount would have killed him. But that was not how the prosecution case was put. It was rather, that whatever the appellant's usage was, it was not as great as he claimed and in any event, he intended to sell or supply the balance of the opioids and the non-opioid drugs to others. That was how his Honour left the case to the jury.
81 The only live issue in the case was squarely placed before the jury by his Honour. He briefly but clearly reminded the jury of the prosecution evidence and what the appellant's evidence on that was. There was no requirement for him to canvass Mr Langham's evidence. The respective cases of the prosecution and defence were accurately and fairly put to the jury. His Honour's directions would have given them the necessary understanding of the evidence to enable them to determine the case according to the evidence. Ground 3 fails.
82 The "lie" referred to in ground 5 came at the very beginning of the appellant's testimony. He was asked if he lived in Western Australia and said he did. Then followed (AB 121):
"Which suburb do you reside in?---Kalamunda.
Where are you living in Kalamunda?---I'm staying with my father at the moment.
All right. What's his address there?---21 Hinkler Road, Kalamunda.
How long have you resided at that [sic] premises for?---Only the last four months.
Are you presently married, Mr Hiemstra?---I got married about two weeks ago.
What's your wife's name?---Jessica.
Have you got a child at all?---Yeah, a three and a half year old son.
Do they reside with you at that same premises?---Yes, they do."
83 As I have already mentioned, when the appellant's father was called to give evidence, asked by counsel for the appellant whether the appellant was living with him and his wife at Kalamunda, he said he was not, but had been living there previously. This was pursued in cross-examination (AB 167):
"Mr Hiemstra, presently your son is living with you. Is that the case?---Sorry?
Your son is presently living with you. Is that right?---No, not at the moment; no.
He's not living with you?---No.
Has he lived with you recently?---Yeah, only a few weeks ago.
As of a few - so up until a few weeks ago he was living with you?---Yeah.
All right. Where did he go a few weeks ago?---He got married.
Yes, and where did he go? Where did he then start living?---Wherever he's living now.
Do you know where he's living now?---Somewhere in Maylands, I think.
Not sure?---No. I don't know the address.
So for a few weeks he hasn't lived with you?---Yeah, two or three weeks, I think.
How long ago did he get married?---Two weeks ago, like I said.
So not a few weeks; two weeks ago?---I don't know exactly."
84 It is submitted in support of this ground that the purported lies were neither relevant nor connected to the material issues at trial and so were inconsequential and irrelevant. It is further submitted that the direction had the effect of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind so as to prejudice the appellant. It is also put that the jury should have been told specifically that they could not use the purported lie as evincing a consciousness of guilt on the part of the appellant and there may have been an innocent explanation for the purported lie were the jury to deem it relevant. It is submitted that the primary complaint is that the purported lie should not have been left to the jury and required no direction at all because the Judge should have ruled it was neither relevant nor probative of the issue as to whether the State had proved the case against the appellant.
85 What the trial Judge said about this was (AB 100 - 201):
"You have heard the state [sic] prosecutor say to you that you really cannot treat the accused or any of the explanations he gives, either in relation to money or his possession of the drugs or anything else, with any more than a grain of salt, in effect, because he is not a witness of the truth and he has been established to be a witness not of the truth out of the mouth of his own father in relation to his address.
He came into court; he gave you an address and saying he was living with his father in Kalamunda and his father was asked, 'Does he live with you?' 'No, he doesn't,' so you have this conflict. Whether that causes you to consider further his reliability as a witness having regard to that, which would appear to have been established as a lie, having regard to the evidence of the father, is a matter for you.
You firstly have to decide if it is a material lie or a lie; if it's material, what use you make of it, but having regard to the fact that it has been submitted to you by the state [sic], by the prosecution, that the accused has demonstrated to be a witness who is unreliable because he has told a deliberate untruth under oath, then the state [sic] has asked you to draw further inferences from that against his reliability in respect of the issue as to whether he had the intention to hold these drugs for sale or supply or not. That is how the state [sic] seeks to use this.
Well, where the prosecution relies upon the credibility of the accused there is a very particular direction that the law requires me to give and so listen, as I know you have been carefully, but listen please to this. You have heard a lot of questions and statements which attribute lies to the accused. You will make up your own mind about whether he is telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
86 Again, no exception was taken to this direction at the time. Indeed, prior to commencing his summing-up, the Judge had outlined to counsel what he proposed to cover. At the end of that exercise, counsel for the State suggested that depending upon what his Honour thought of what the State put to the jury, his Honour might consider it appropriate to give a "_Zoneff-_type" direction in relation to lies told by the appellant. His Honour's response was "Certainly not an Edwards direction". The prosecutor said he was not suggesting that. He confirmed he was going to put to the jury the appellant had been lying. The Judge said that in those circumstances a Zoneff direction would be required. Counsel for the appellant had no comment to make.
87 The references to "Zoneff" and "Edwards" directions are to what was said by the High Court in Zoneff v The Queen (2000) 200 CLR 234 and Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. The latter deals with the direction required about lies upon which the prosecution relies directly as evidence of guilt in the sense that the accused knew the truth would implicate him in the commission of the offence charged (per Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff at [16]). The former concerns the direction to be given where the lies are relevant only to the credibility of the accused (ibid, at [23]).
88 The majority in Zoneff said (at [17]) that if there is a doubt about the way in which the prosecution is seeking to rely upon an accused's lies, the trial Judge should ascertain whether it is to show guilt in the way described, or only as going to credibility. The answer to that inquiry will determine whether any direction need be given on the subject at all, and if so, in what form. In that case, the prosecution never suggested the alleged lies went other than to the accused's credibility. That being so, the High Court thought (at [20]) it was unnecessary, "and indeed undesirable", that an Edwards direction be given, and the direction which had in fact been given by the trial Judge, ought not to have been. However, their Honours went on to say (ibid, [23] - [24]):
"[23] A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'
[24] A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence."
89 In the present case, his Honour's direction made it clear the prosecution relied upon the alleged lie only as going to the credibility of the appellant. What he said about the materiality of the lie appears to have been drawn from Edwards. That part of the direction however, worked in favour of the appellant. The balance of the Judge's direction was, in terms, the direction articulated by the High Court in Zoneff at [23].
90 The submission that the direction had the effect of highlighting issues of credibility so as to given them an undeserved prominence in the jury's mind so as to prejudice the appellant, is based on what was said by the majority at [20] in Zoneff. But those comments were concerned with the giving of an Edwards direction in the circumstances of that case. The Crown had not put, either in cross-examination or in any submission at trial, that there was any material capable of being a lie stemming from a consciousness of guilt. Thus, in order to give an Edwards direction, the trial Judge would have had to decide which of the accused's answers were or were not capable of being lies evincing a consciousness of guilt. Such a direction in the circumstances of that case, could have had the effect of raising an issue upon which the parties were not joined and highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the accused.
91 Here the alleged lies were clearly identified. They had been expressly relied upon by the State as going to the issue of the appellant's credibility. His Honour recognised it would be inappropriate to give an Edwards direction. He did not give one. However, the lies issue having been raised by the State in that way, it was appropriate for his Honour to direct the jury they could not rely upon those lies as evidence of guilt, but only as going to the appellant's credibility. That is what he did. The direction given was in accordance with authority. There was no miscarriage of justice. This ground is not made out.
92 For the foregoing reasons, I would dismiss the appeal against conviction.
93 The appellant provided short written submissions to which he spoke at the hearing.
94 Following his arrest on 7 February 2003 on the charges the subject of the indictment, the appellant was refused bail and was thereafter remanded in custody. He says that at that time he was on parole for previous offences. According to the materials before us, the appellant appeared in the Court of Petty Sessions on 8 February 2003 when he was sentenced to a total of 6 months' imprisonment in respect of various motor vehicle offences and breach of bail. However, on 2 May 2003 he was charged with one count of aggravated robbery and one of stealing a motor vehicle. Ultimately, in March 2004, he was acquitted of those charges. He was released on bail in respect of the charges on the indictment on 14 July 2004. According to what the State prosecutor told the sentencing Judge, the period of imprisonment between his acquittals on 2 March 2004 and 14 July that year, was in respect of a combination of parole days and imprisonment in lieu of fines. The State told his Honour that none of the period between 8 February 2003 and 17 April 2004 could be allowed for backdating of the sentence, nor as a reduction for time in custody, because it was in respect of other offences or charges. The appellant was not returned to custody until trial on 18 October 2004. None of this was disputed by counsel for the appellant.
95 In his sentencing remarks, his Honour noted the appellant had pleaded guilty to the first two counts and convicted of the remainder after trial. He pointed out that the statutory maximum penalties were 14 years' imprisonment in respect of each of the receiving offences and a term of imprisonment for 25 years, or a fine of $100,000, or both, in respect of each of the drug offences. His Honour recited the facts of the offences. He referred to the statutory presumption and observed that the amounts of methadone and morphine in the appellant's possession, were "thousands and hundreds of times respectively" more than the threshold amounts. He said that "without doubt the offence [sic] was premeditated" and that the appellant took possession of the drugs knowing the likely quantities involved and the risk he was taking. He said the only fact he could find that mitigated the seriousness of the offending behaviour was that the appellant became addicted to drugs by way of painkillers for his back injury. He referred to the evidence that the appellant has continuing difficulties with chronic pain.
96 His Honour then turned to the appellant's personal circumstances and in particular to the pre-sentence report he had ordered. He observed that for a number of reasons it was neither necessary nor desirable for him to recite the health and drug requirements of the appellant set out in that report. He did say however, that the report confirmed the appellant's health difficulties and the prescription of morphine. His Honour also referred to submissions made by the appellant's counsel and to further medical reports, all of which pointed to "a compelling picture of a chronic pain syndrome" in respect of which the appellant had experienced difficulty controlling his medication, leading him to become addicted to those substances. The appellant had an extensive record of previous convictions, much of which was drug-related. His Honour noted that. He also noted there is a prevalence of dealing in prescription drugs in the community "which is truly astounding". On that matter, his Honour went on to say, dealing in non-prescription or illicit drugs was also truly invasive and prevalent in the community, but the sort of offending behaviour involved in dealing in prescription drugs includes the writing of false prescriptions, substituting prescriptions, substituting patient details, impersonating patients, doctor shopping and the like. His Honour described that as "an industry of crime associated with the dealing in prescription medication". So, too, he said, there appeared to be a market in stolen prescription drugs, of which the appellant obviously was aware and of which he and others had given evidence. Notwithstanding all of this however, his Honour said it must be that the appellant's offences were not as serious as those involving possession of illicit drugs with intent to sell or supply, indicating that he had in mind drugs such as cocaine, methylamphetamine and amphetamine. Nonetheless, he said, this type of offending behaviour called for a strong general deterrent in sentencing and there was a need for a specific deterrent for the appellant having regard to his conduct and previous records.
97 Turning to other matters his Honour said (AB 244):
"... whilst you spent some time in custody after arrest this was not solely on account of these offences but other more serious offences of which you were ultimately acquitted and sentences in respect of which you were sentenced to terms of imprisonment. Accordingly your sentence cannot be backdated to the date of your arrest but the time you spent in custody can be taken into account by reason of the totality principle as I understand relatively recent decisions of the Court of Criminal Appeal and notwithstanding that they are completely unconnected with the commission of these offences and notwithstanding that the term of imprisonment had been served by the time your trial started and you came to be convicted."
98 The Judge said he was required to look at "the overall picture" and that in all the circumstances, the "starting points" for the sentences in his opinion were:
99 His Honour then said that by reason of the "soi-disant" truth in sentencing amendments to the Sentencing Act (a reference to the Sentencing Legislation (Amendment and Repeal) Act 2003 (WA), Sch 1) he was required to reduce all those sentences by one-third, so that the resultant sentences were 3 years on count 1; 2 months on count 2; 4 years on each of counts 3 and 4; 6 months on each of counts 5, 6 and 7; 2 months on count 8 and 4 months' imprisonment on count 9.
100 He said that because all the offences could be considered part of the one transaction, he would order that they all be served concurrently. The aggregate term was therefore 4 years' imprisonment. His Honour made an order that the appellant be eligible for parole.
101 The appellant's oral submission initially was that what all this meant was that, including the 18 months spent in custody before trial, together with the 4 year sentence, with parole, he would end up serving 31/2 years in custody. He subsequently said he understood the Judge could not simply have reduced his sentence by 18 months. His argument crystallised into two propositions. The first is that his Honour should have given more weight than he apparently did to the time the appellant had spent in custody. The second is that his Honour should have expressly identified the reduction being made on that account.
102 I shall deal with the second proposition first.
103 Section 8(4) of the Sentencing Act provides that:
"(4) If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."
104 There is nothing in that section which requires a court to state the specific or percentage reduction of sentence made for that factor. It is the fact that a reduction has been made (if it has) which is to be stated (see De Rosa v The State of Western Australia [2006] WASCA 57 at [77]. Indeed, the High Court has emphasised the undesirability of a sentencing court expressing the process of arriving at an appropriate sentence as a "mathematical" exercise (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, [74] - [76]; Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048, [39], [65]).
105 His Honour correctly appreciated that the appellant's time in custody could not be allowed for by backdating the sentence nor by the reduction of any of the individual sentences. So much is clear from s 87 of the Sentencing Act, which provides that:
"If when an offender is being sentenced to imprisonment for an offence -
(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b) the sentencing court decides that that time should be taken into account,
(c) if it imposes a fixed term, by reducing that term by an appropriate period; or
(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."
106 The present case was to an extent similar to Palmer v The Queen [1999] WASCA 253, in which the applicant had spent 7 months in custody as a sentenced prisoner in respect of a conviction which was subsequently quashed on appeal. However, the majority in that case (Malcolm CJ and Wallwork J, Murray J dissenting) considered the time in custody relevant as part of the applicant's antecedents and especially so as his imprisonment (as a sentenced prisoner) had afforded him a chance of a degree of rehabilitation, which he had seemingly taken. There was nothing of that nature advanced here.
107 His Honour expressly took a similar approach. The Court of Criminal Appeal authority to which he obliquely referred was probably Ugle v The State of Western Australia [2004] WASCA 190, in which Wheeler J said (at [15]):
"Whatever the position in relation to s 87 it is, I think, clear enough, as a matter of general sentencing principle, that time in custody overall, whether for the offence in question and no other reason or not, may well be relevant to the exercise of a sentencing discretion. It is not, for example, ever suggested, as I understand it, that s 87 does not permit taking into account the totality of other sentences being served or having been served when one comes to look at adjusting sentences for what is called the totality principle."
108 Although not expressed as clearly as it could have been, there can be no doubt from his Honour's remarks that (in fixing the aggregate sentence) he did take into account the fact that the appellant had spent 18 months in custody following his arrest, albeit it on unrelated matters which could not be allowed for by way of either backdating the sentence or making a specific reduction in the individual sentences. Although the offences were all really one transaction, their overall criminality judged by their collective objective seriousness, could properly have justified a higher aggregate sentence than was in fact imposed. This is evident from the range of sentences generally imposed for offences of possessing heroin and drugs of equivalent seriousness, with intent to sell or supply.
109 In Lim v The Queen [1999] WASCA 296 it was held that methylamphetamine is now regarded as being as high on the scale of seriousness as heroin. Some comparison with cases involving that drug is therefore apposite.
110 The longest sentences here were the 4 years imposed in respect of the methadone and morphine offences. The appellant had 906 grams of methadone syrup and 34.1 grams of methadone tablets, a total weight of 940.1 grams. The total weight of morphine was 550.19 grams. These were very significant amounts. The purity was unspecified, but was clearly prescription strength, that is to say, the actual drug, unadulterated as it could be expected to be if produced illicitly. Nonetheless, as a matter of commonsense, it must be assumed that neither the syrup nor the tablets were the drug in pure form, but were in pharmacological doses. Calculations based upon the certificates of analysis tendered at trial reveal that the 940.1 grams of methadone product contained 5.31 grams of pure methadone. The 553.01 grams of morphine contained 36.53 grams of pure morphine. Whilst the amount and purity of a prohibited drug are not determinative factors when sentencing, they are nonetheless relevantly to be taken into account with all the other circumstances relevant in the particular case (Wong v The Queen (supra)).
111 Without purporting to be at all comprehensive, some cases which seem to me to be relevant include the following:
• Quach v The Queen [1999] WASCA 210 in which Ipp, Wallwork and White JJ concluded (at [26]) that the appropriate range of sentences for cases involving possession of heroin with intent to sell or supply involving quantities of between 600 - 700 grams and a purity of 55 - 65 per cent, where the offender is a courier, and where the offence is committed for commercial gain, will ordinarily be between 11 to 15 years' imprisonment.
• R v Hafner [2002] WASCA 211. The offender pleaded guilty on the fast-track system to one count of possessing 244 grams of heroin at 13 per cent purity with intent to sell or supply and 21.2 grams of methylamphetamine with a purity of 36 per cent, with intent to sell or supply. He was a drug user and had a number of drug-related prior convictions, including one for trafficking. He was not a courier but played a significant role. On count 1 he was sentenced to 7 years' imprisonment and on count 2, 6 years' imprisonment to be served concurrently. On a State appeal the Court acknowledged the sentence was lenient but held it not to be manifestly inadequate.
• "S" v The Queen [2000] WASCA 34. Here there were three counts. The first two involved 58 grams of heroin of 78 per cent purity and 22 grams of heroin of up to 79 per cent purity. The third count involved 18.29 grams of cocaine of 74 per cent purity. On count 1 he was sentenced to 5 years' imprisonment, on count 2 to 3 years' imprisonment and on count 3, 21/2 years' imprisonment, all to be served concurrently. There was an early plea of guilty and assistance given by the offender to police, leading to the conviction of another offender for an unrelated crime.
• R v Munro [2000] WASCA 285. The offender was convicted of one count of possessing 27.8 grams of heroin at 52 per cent purity with intent to sell or supply. The primary court sentenced him to 2 years' intensive supervision order, which also took into account 19 counts of fraud and one count of unlicensed driving. A Crown appeal against sentence was upheld and the sentence for the heroin offence increased to 3 years' imprisonment. The offender had pleaded guilty under the fast-track system. He had become addicted to heroin after a series of family tragedies, had no relevant prior convictions and there was good evidence of rehabilitation from drug addiction prior to sentence.
• R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55. The offender made a late plea of guilty to one count involving 53.9 grams of methylamphetamine of a purity of 41 per cent. He had been dealing in drugs for personal gain. The offence was thought to warrant 8 years' imprisonment, but that was reduced to 6 years and 8 months on account of his plea of guilty.
• Nelis v The Queen [2000] WASCA 194. The offender made an early guilty plea to three counts of dealing in amphetamines with a total quantity of 109.79 grams of up to 21 per cent purity. On count 1 he was sentenced to 3 years' imprisonment, on count 2 to 7 years' imprisonment and on count 3 to 3 years' imprisonment. The sentences were ordered to be served concurrently, so his aggregate was 7 years' imprisonment. He had a prior criminal history including motor vehicle theft. His was an active role in contacting a police officer to sell drugs, it was a professional approach and a commercial dealing. The offence was premeditated. He was a mainstream dealer, not just a distributor. However, in addition to his early guilty plea, he was a hard worker, supporting a wife and four children and had not been involved in such a scheme before. He did so at he suggestion of a third party. He had an unfortunate childhood. There was psychiatric evidence of attention deficit disorder and probably underlying bipolar disorder. As a result of his psychiatric condition, he was easily misled, gullible and lacked sound social judgment.
• Aconi v The Queen [2001] WASCA 211. The offender pleaded guilty to offences involving a total of 592 grams of heroin with a purity ranging from 43 to 57 per cent. He had no prior convictions for drug offences, but played an important role in the chain of distribution and had access to large quantities of high grade heroin. His sentence was reduced to 13 years' imprisonment after a successful appeal.
• Collier v The Queen [2001] WASCA 69. The offender pleaded guilty to possessing 171 grams of methylamphetamine paste at 28 per cent purity with intent to sell or supply. He had prior convictions but there was no suggestion he would benefit financially from the sale. He had a good employment record since leaving school and a supportive family. His appeal against a sentence of 6 years' imprisonment was dismissed.
• R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241. Following trial he was convicted of possessing 478.8 grams of methylamphetamine of 84 per cent purity with intent to sell or supply. He had no criminal record, was of good character and had good prospects of rehabilitation. His involvement was in running errands and providing assistance to drug dealers. He sold methylamphetamine to feed his addiction. A Crown appeal against an initial 4 years' imprisonment was allowed and a sentence of 8 years (5 years 6 months' non-parole period) substituted.
• Stapleton v The Queen [2004] WASCA 130. The offender pleaded guilty to supplying 437 grams of methylamphetamine of 58 per cent purity. He had no relevant prior convictions and it was an unsophisticated enterprise for which he was to receive a small reward. A "starting point" of 10 years was reduced to 9 years' imprisonment. The Court of Appeal held that not to be manifestly excessive.
112 Adjusting for the one-third reduction necessary since 31 August 2003, the sentence of 4 years' imprisonment here, equates to one of 6 years' imprisonment prior to that date. Having regard to the objective circumstances of the offences, including the nature and quantity of the drugs involved and bearing in mind the appellant was not entitled to any reduction for pleas of guilty or any expression of remorse, the sentence cannot be said to be outside the range of a sound exercise of the sentencing discretion.
113 This conclusion also addresses the appellant's complaint that the trial Judge did not allow sufficient weight to his time in custody before trial. That his Honour did not do so is not apparent either from what he said or from the overall sentence. It would be impossible to form a proper view that this factor had been undervalued in the sentencing exercise. It was not a circumstance which demonstrated positive progress towards rehabilitation; nor, in combination with the aggregate sentence imposed, would it result in a "crushing" period of imprisonment.
114 I would refuse leave to appeal against sentence.
115 MCLURE JA: I have had the advantage of reading the reasons to be published by Roberts-Smith JA. I agree that the appeal against conviction should be dismissed generally for the reasons he gives. I would also refuse leave to appeal against sentence for the following reasons.
116 The sole ground of the application for leave to appeal against sentence is that the learned sentencing Judge "erred in not discounting the sentence to take into account the time the applicant had spent in custody". The applicant, who appeared in person, relied on the failure of the sentencing Judge to indicate in his reasons the extent of the reduction.
117 It is apparent from the trial Judge's reasons that he had regard to the time the applicant had spent in custody in fixing the sentences he imposed for the criminal conduct in question and that resulted in a reduction in the sentence that would otherwise have been imposed on the applicant. Section 8(4) of the Sentencing Act 1995 (WA) provides that if because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the Court must state that fact in open court. However, it has been held that this provision does not require a sentencing judge to state the extent of the reduction: Worthington v The State of Western Australia [2005] WASCA 72 at [41]; Chivers v The State of Western Australia [2005] WASCA 97; De Rosa v The State of Western Australia [2006] WASCA 57 at [77]. I am satisfied that the ground is without merit.
118 Further, having regard to all relevant factors, including the seriousness of some of the offences, the applicant's significant prior record of offending, the fact that the offences in question were committed whilst the applicant was on parole as well as the time spent in custody, I am satisfied that the sentence is within, albeit at the high end, of the range of sentencing discretion.
Hiemstra
The State of Western Australia [2006] WASCA 70
(1952) 85 CLR 437
(2001) 208 CLR 343
(1992) 173 CLR 555
(2005) 79 ALJR 1250
(1998) 194 CLR 202
(2005) 79 ALJR 1048
(2002) 187 ALR 436
(2000) 199 CLR 620
(2001) 207 CLR 584
(2000) 200 CLR 234
(1988) 194 CLR 202
(1966) 115 CLR 44
(1993) 178 CLR 193