Hiemstra v The State of Western Australia [2006] WASCA 70

Hiemstra v The State of Western Australia [2006] WASCA 70 - WASCA 2006 case summary — Zoe

[59]

"(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."

[111]

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."

[156]

"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."

[170]

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (209 paragraphs)

Hiemstra v The State of Western Australia [2006] WASCA 70 (3 May 2006)

Parties

Legislation Cited (4)

Cases Cited (13)