R v CARABOTT No. SCCRM-02-82 [2002] SASC 283

Court of Criminal Appeal: Nyland, Williams & Gray JJ

NYLAND J: I agree that the appeal be allowed for the reasons expressed by Gray J. I also agree that the matter should be remitted for a re-trial to the District Court.

WILLIAMS J For the reasons given by Gray J, I agree that this appeal should be allowed and the matter remitted for retrial to the District Court.

GRAY J Anthony Peter Carabott the appellant was charged with possessing methylamphetamine for sale, possessing lysergide for sale and possessing pethidine for sale.[1] The count relating to lysergide was severed to be dealt with separately. The appellant was convicted by a jury on the methylamphetamine count and acquitted of possessing pethidine for sale.

It was not disputed that at about 5.20 pm on 2 August 2000 police stopped a motor vehicle driven by the appellant at Kilburn. During an ensuing roadworthiness check an officer asked the appellant who owned the vehicle. He said that he was unsure. He then used his mobile telephone. Following the call, the appellant told the officer that Andrew Kruss was the owner. On examination a bayonet and replica pistol were found in the front cabin of the vehicle. A knife was also located in the vehicle's air conditioning ducts. All three objects were within reach of the driver.

Additional police then effected a thorough search of the vehicle. Two quantities of drugs were discovered in the boot. 12.58 grams of methylamphetamine were located in a toolbox. Pethidine was located in a first aid kit. Other equipment associated with drug use and the drug trade including a number of used and unused syringes, scales, spoons and plastic bags were also located along with two mobile telephones. One was leased by Mr Kruss's de facto wife.

The Crown presented evidence of the vehicle examination, a statement made by the appellant to the police and the evidence of Mr Kruss. On appeal the Crown accepted that Mr Kruss was a vital witness and that if the jury rejected his evidence acquittal would follow.

It was not alleged that the appellant and Mr Kruss were jointly involved. The appellant did not give evidence.

Mr Kruss said that he did not own the vehicle. He gave evidence that the appellant owned the vehicle. He said that the appellant had asked him to register it in Mr Kruss's name which he had done. He said that he had never driven the vehicle and that he knew nothing about the drugs. Mr Kruss had previously informed an officer that he was in the process of selling the vehicle to the appellant. In evidence he denied making this statement.

Mr Kruss admitted that the bayonet was his but explained that it had been removed from his home without his permission. He was unable to explain the presence of his de facto wife's mobile telephone. Mr Kruss also admitted that he was addicted to morphine.

Counsel for the appellant advanced two principal complaints. It was contended that the judge misdirected the jury with respect to Mr Kruss's interest in protecting himself. It was also contended that the verdicts were inconsistent.

The primary issue at trial was who owned the drugs. Counsel for the appellant submitted that it was either Mr Kruss or the appellant. It followed that when giving evidence Mr Kruss had his own interest to protect.

The judge's initial direction recognised this:

"... what do you make of Mr Kruss's evidence? Do you believe all of it, some of it, or none of it? That is entirely up to you. However, you might well think that these fairly important inconsistencies suggest that Mr Kruss may have had some purpose of his own to serve in giving false evidence, and I suggest that you give that some thought."

At the conclusion of the summing up counsel for the appellant complained about the initial direction and said that the direction did not go far enough. The judge agreed to give a further direction:

"It may be that you will come to the conclusion that the car was Mr Kruss' and so were the drugs found in the car, and that he therefore may have had some purpose of his own to serve. If you do, you will need to take into account that the only evidence that the car belonged to the accused was the evidence of Mr Kruss, and you may well think that he is not a reliable witness in this case. So you will have to consider whether there is any other corroborative evidence, that is, evidence that confirms, supports, or strengthens the other evidence in the case and renders the other evidence more probable. If you find that Mr Kruss was an unreliable witness and you cannot find any other corroborative evidence, then it would be dangerous to convict on the uncorroborated evidence alone."

On appeal counsel for the appellant contended that the judge should have given a more specific warning. It was said that the jury should have been warned that it was dangerous to convict in the absence of evidence which supported or corroborated Mr Kruss's evidence. It was further said that in this case there was no such evidence and the jury should have been made aware of this fact.

Counsel for the Crown submitted that the judge's initial direction was appropriate and adequate. It was sufficient for the judge to have warned the jury to consider and scrutinise Mr Kruss's evidence carefully. The further direction was unnecessary. The Crown accepted that this direction was inadequate but it was submitted that in the circumstances no miscarriage of justice arose.

In The Queen v Rigney[2] Bray CJ said:

"The danger is that the witness may give false evidence regarding the events with which the crime against the accused is connected in order to save himself from being convicted of a crime arising out of those events or to secure a lighter punishment or possibly no punishment at all. That is the rationale of the rule and the danger is equally great whether the crime which endangers the witness is the same crime as that which endangers the accused or not."

"Nevertheless Brannan was a person of dubious character. Moreover he had secured a favour from the police designed to secure leniency in his own case in exchange for his evidence and therefore had a motive to invent a full story. Such evidence clearly calls for a cautionary direction in the charge to the jury."

DPP v Faure[4] concerned a dispute as to the identity of the offender. The principal Crown witness was said to have a motive as did the accused. The witness was not characterised as an accomplice. However a warning similar to an accomplice warning was held to be necessary because of the exculpatory interests of the witness. Hampel J with whom Smith and Phillips JJ agreed observed:

"While no particular formula is appropriate, a warning in a case such as the present should be one which is given by way of a direction to the jury from the trial judge and with the force of his authority. It should be more than a general comment about the need to scrutinise evidence of important witnesses carefully. It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge. Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of commonsense.

The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury's attention should be drawn to the dangers inherent in such evidence and at least to the desirability of, if not the need for, the search for supporting material.

What warning is appropriate and adequate depends on the circumstances of the particular case. The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of a miscarriage of justice is reduced. That, after all, is a most important consideration and one which has moved the courts to extend the requirement of judicial warnings beyond the cases involving accomplices to cases involving prison informers, identification evidence, disputed confessions by people in custody to police officers, mentally disabled witnesses and other cases in which the witness is significantly tainted or for some other reason the evidence is inherently unreliable."

In R v Macaskill[5] Nyland J with whom Doyle CJ and Besanko J agreed addressed the need for a special warning when a witness had an exculpatory motive. Nyland J noted the observations in Faure:

"Although on the hearing of the appeal [Counsel] submitted that it was open to the jury to conclude that Hayes was solely responsible for the injuries to the child, or had contributed to them together with the appellant, on my understanding of the matter, that was not how the case was presented to the jury. The case presented at trial was that one or other of these people had been responsible for the crime. As [Counsel] said in his closing address, when referring to the earlier joint charge, 'there was never going to be evidence that would establish that both these parents ... took hold of this baby and shook and impacted it to death'. That is why the judge told the jury that it must have been one or the other who was responsible. As the case was presented on the basis that either Hayes or the appellant was the offender, I do not think that Hayes could properly be characterised as a 'participant' in the crime, which would have required the judge to give the mandatory accomplice warning.

Nevertheless, the facts of this matter, as was the case in Faure, required the judge to give the jury a warning as to the need carefully to consider Hayes' evidence. Hayes was an essential witness in the prosecution case. It was not open to the jury to convict the appellant unless they were satisfied beyond reasonable doubt that Hayes had told the truth when he said he did not injure the child that morning. Although in evidence Hayes did not seek to implicate the appellant in the commission of the offence, there were a number of matters which made him a potentially unreliable witness."

There are a number of problems with the judge's further direction. The judge told the jury that they may come to the conclusion:

"... that the car was Mr Kruss' and so were the drugs found in the car ..."

This conclusion or even the reasonable possibility of such a conclusion would have entitled the appellant to a verdict of acquittal. The judge did not direct the jury in these terms. Instead he said that the conclusion may lead them to consider that Mr Kruss had some purpose of his own to serve.

The relevant matter to bring to the jury's attention was the significance of Mr Kruss having his own interest to serve. That consideration called for Mr Kruss's evidence to be carefully scrutinised. In the circumstances of this matter the jury should also have been warned about the dangers of acting on his evidence in the absence of independant support. No such direction or warning was given.

Having raised the issue of corroboration it was necessary for the judge to direct the jury that there was no evidence capable of amounting to corroboration of Mr Kruss's evidence. The Crown conceded that there was no corroborative evidence. The jury were left without assistance to speculate on this issue.

On the Crown case either Mr Kruss or the appellant owned the drugs. As earlier observed, it was not suggested that both were involved. The Crown accepted on appeal that Mr Kruss's evidence was critical to the Crown case. It was accepted that if the jury rejected his evidence the balance of the Crown case was insufficient to obtain a conviction. Mr Kruss had his own interests to serve. The jury should have been warned about the dangers inherent in his evidence. A special warning was required in this case.

The judge's further direction was inadequate, misleading and confusing.

Counsel for the appellant submitted that the verdict of not guilty to the charge of possessing pethidine demonstrated unequivocally that the jury had either rejected Mr Kruss's evidence or had a doubt about that evidence. It was said that there was no logical distinction capable of explaining the verdict in relation to the possession of methylamphetamine charge given the not guilty verdict for the charge of possessing pethidine. Accordingly it was said that the verdict on the methylamphetamine charge was unsafe and unsatisfactory.

Counsel for the appellant contended that Mr Kruss was in possession of the drugs. It was the defence case that Mr Kruss owned the vehicle and that it contained property which belonged to him and his de facto wife. It was said that given Mr Kruss's admitted drug addiction and his contradictory statements about the ownership of the vehicle the jury should have had at the very least a reasonable doubt as to whether the appellant possessed the drug.

Counsel for the appellant relied on the decision of the High Court in M v The Queen[6]:

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

In MacKenzie v The Queen[7] Gaudron, Gummow and Kirby JJ identified the approach to be taken by an appellate court:

"Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries."

"... juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information."

As earlier observed the methylamphetamine and the pethidine were found in different containers in the boot of the vehicle. The pethidine was located in a first aid kit and the methylamphetamine found in a toolbox. At that time Mr Kruss was addicted to morphine. Evidence disclosed that pethidine was an alternative drug used by people with an addiction when heroin was unavailable. The jury may well have concluded that Mr Kruss had an association with the vehicle and that the pethidine was there for his use. These factors may have led the jury to have a reasonable doubt as to whether the appellant was guilty of the offence of possessing pethidine for sale. The reasons identified in Kirkman may have had application. The appellant's submission must be rejected.

The Crown submitted that no miscarriage of justice had occurred and that the proviso should be applied to uphold the appellant's conviction.[9]

It is necessary to evaluate the prejudice occasioned by the inadequate direction. Given the absence of corroboration and the critical nature of Mr Kruss's evidence to the Crown case the jury needed the assistance of a specific direction. I consider that there was a risk of a miscarriage of justice in this case.[10]

This appeal must be allowed. The matter is to be remitted for a retrial in the District Court.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

Possessing Methylamphetamine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

Anthony Peter Carabott on the 2nd August, 2000 at Kilburn, knowingly had a substance containing methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.

It is further alleged that the quantity of methylamphetamine is 12.58 grams.

Possessing Petidine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

Anthony Peter Carabott on the 2nd August, 2000 at Kilburn, knowingly had a pethidine, a drug of dependence, in his possession for the purpose of selling it to another person.

2 (1975) 12 SASR 30 at 37

3 [1991] SASC 2996; (1991) 56 SASR 302 at 312

4 [1993] VicRp 87; [1993] 2 VR 497

8 (1986-87) 44 SASR 591 at 593

9 The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:

"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

10 Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25

[1] The Information was in the following terms:

Possessing Methylamphetamine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

Anthony Peter Carabott on the 2nd August, 2000 at Kilburn, knowingly had a substance containing methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.

It is further alleged that the quantity of methylamphetamine is 12.58 grams.

Possessing Pethidine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

Anthony Peter Carabott on the 2nd August, 2000 at Kilburn, knowingly had pethidine, a drug of dependence, in his possession for the purpose of selling it to another person."

[2] (1975) 12 SASR 30 at 37

[3] [1991] SASC 2996; (1991) 56 SASR 302 at 312

[4] [1993] VicRp 87; [1993] 2 VR 497

[5] (2001-02) 217 LSJS 121

[6] [1994] HCA 63; (1994) 181 CLR 487 at 494

[7] (1997) 190 CLR 348 at 367. See also 365-368

[8] (1986-87) 44 SASR 591 at 593

[9] The proviso appears in section 353(1) of the Criminal Law Consolidation Act 1935 (SA) which provides:

"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

[10] Driscoll v The Queen [1977] HCA 43; (1976-1977) 137 CLR 517 at 524-5; Mraz v The Queen [1955] HCA 59; (1954-56) 93 CLR 493 at 514; Domican v The Queen (1991-1992) 173 CLR 555 at 565-567; Festa v The Queen (2001) 76 ALJR 291 at 326; Ugle v The Queen [2002] HCA 25