R v Mateiasevici [1999] VSCA 120

R v Mateiasevici [1999] VSCA 120 - VSCA 1999 case summary — Zoe

[33]

Adopting that formulation of the test for the purposes of this case, the question is whether the 1998 evidence has probative force which clearly transcends its prejudicial effect. Mr. Shirrefs contended that there was no logical link between the 1998 evidence and the discovery of the heroin press in the applicant's garage in 1997. He claimed it was a quantum leap backwards from the 1998 finding to the 1997 discovery; the fact that he had possession of the items in 1998 did not establish that he had them in 1997 or that he lied about the matter on 30 July 1997. He said that this case was not very different from a situation where a balaclava and tools which could be used for burglary were found at the premises of an accused and similar equipment and a (different) balaclava were found at his premises a year or so later. The second finding, so the argument was put, had no logical connection with the first for the purpose of establishing whether the accused had committed a burglary at the time the tools were first found. Whilst there may be merit in that particular argument given the circumstances postulated, the argument would have less merit if the tools had a significant aspect to them which connected them to the crime (as the heroin press has in this case). In Thompson and Wran v. R. [1968] HCA 21; (1968) 117 C.L.R. 313, for example, the accused were charged with breaking, entry and stealing arising out of safe blowing by means of explosives. It was held that evidence that the accused were in possession of tools that could be used to pick the locks of safes was not admissible because they had no connection with the crime charged (and merely showed a criminal propensity to rob safes). But the Court said, at 316, that evidence was admissible that the accused were in possession of a "supply of gelignite, detonators, wires and batteries suitable for the blowing up of safes" (for the purpose of identifying the persons who committed the crime). Mr. Shirrefs' example might also have less force if on each occasion the accused denied that he knew anything about the tools or head gear and the evidence of the second finding was led to the accused's credit in relation to his first denial. In the present case there is, in my opinion, a strong logical link between the two findings bearing in mind the unusual nature of the equipment and its specific use in connection with heroin trafficking, and the applicant's denial of any knowledge of it on each occasion.

[48]

"HER HONOUR: Is there any issue either of you wish to raise in relation to the charge, any matters? What about that matter that was left a bit up in the air, .... about the second incident if I could say that, the Noble Park - remember when I asked you just to consider overnight whether you wanted to go so far. COUNSEL FOR THE ACCUSED: No, I don't, Your Honour. Others may criticise me later for it but I say I don't. I thought Mr Tinney did that very, very fairly in the way that he used it. I've now been able to tell them to reduce it and I, myself, don't feel a need for Your Honour to - I think the jury appeared to understand what I was saying. I don't feel a need for it to be repeated. HER HONOUR: No, it was just after your address you said you weren't sure whether you were going to mention it. It was just as I outlined yesterday, to say, for that limited purpose. COUNSEL FOR THE ACCUSED: I think Your Honour would have to tell them, it's for that limited purpose but not go into what they can't do with it if you know what I mean? HER HONOUR: Yes, exactly. COUNSEL FOR THE ACCUSED: I think that could get a bit dangerous but I think you do have to tell them, it's for that limited purpose but I think we've both --- HER HONOUR: It's whether I go further and I thought it was not appropriate unless it was the way you put it to the jury and you didn't so is there any other matter, Mr Tinney, you wish to raise? MR TINNEY: No, Your Honour. COUNSEL FOR THE ACCUSED: It's just a question of inferences. I stayed away from it and my friend stayed away from it but I think it is a circumstantial case and I think inferences would have to be done. HER HONOUR: I always think of the matter of course because when one is looking at intention such as in trafficking although it doesn't seem to be an issue, when you're looking at intention, it's always inferential but do you say I should give the circumstantial direction? COUNSEL FOR THE ACCUSED: No, not take it that far, I think it's clearly obvious to a jury, just simply what inferences are."

[50]

A similar conclusion was reached by Callaway, J.A. (with whom Charles, J.A. agreed) in R. v. Arundell [1998] VSCA 102. That case was concerned with the consequences of the trial judge not having given a Longman warning to the jury because he acceded to a submission to that effect made to him by counsel for the accused. The accused was charged with a number of sexual offences said to have been committed by him in relation to the complainant when she was between about 7 and 12 years of age, some 15 to 18 years before the trial. Their Honours held that the trial judge did not err in accepting the submission of counsel for the accused that a Longman warning not be given to the jury because that would be to the advantage of the accused, whereas a warning would be prejudicial to him. As Callaway, J.A. pointed out at 29, the absence of a Longman warning would mean there would be "no elaborate identification by the judge of damaging material that supported the complainant's account". His Honour further said, at 33-35, that cases such as R. v. Storey [1998] 1 V.R. 359, 372 and Re Ratten [1974] VicRp 26; [1974] V.R. 201, 214, emphasise that "the exercise of forensic judgment goes to the heart of our system of criminal law. .. Experienced counsel should be allowed to make such choices which .. are often made with a view to corresponding advantage." In my view, this is what occurred in the present case. The applicant's counsel, in the exercise of his forensic judgment, persuaded her Honour not to mention the propensity character of the 1998 evidence because that would be to his client's advantage and her Honour did not do so. I should add for completeness, that in Arundell, Callaway, J.A. pointed out that merely because the trial judge accedes to a submission of counsel for the accused as to what should be included or omitted from the charge, does not mean that an appellate court will not interfere with the verdict if a miscarriage of justice had occurred by reason of such a charge where counsel had, in making the submission, laboured under a relevant misconception or where he had made a serious error of judgment. For reasons I have given earlier, this has not occurred in this case.

[64]

Mr. Shirrefs' main attack was on her Honour's charge which dealt with the second alternative way in which the applicant could establish that he did not have possession of the heroin, namely by showing that he did not have "capacity to control the heroin alone or jointly". This alternative assumed that the jury were not satisfied that the applicant was ignorant of the presence of the heroin on his premises. In my view, what her Honour said did not require the applicant to negative a knowing capacity to control the heroin as was contended for by Mr. Shirrefs. There is much to be said for the argument put by Mr. McArdle that the word "capacity" was superfluous and added nothing to the concept of control. In my opinion, what her Honour told the jury in that part of the charge was that if the applicant satisfied them on the balance of probabilities that he did not have effective or actual control of the heroin (even if he knew of its existence on his premises), then he could not be regarded as being in possession of it at common law. In those circumstances, the s.5 presumption would be rebutted. One could be forgiven for thinking that the applicant's counsel understood her Honour as saying just that when she used the term "capacity to control" because he took no exception to that aspect of the charge. As I have already mentioned, he was an advocate of considerable experience. He would have sought a re-direction on this issue if he thought her Honour said something that was different. This is particularly so bearing in mind that he did seek a re-direction in relation to an aspect of her Honour's initial charge on the issue of possession in which she told the jury that the applicant had to satisfy them that he lacked knowledge and that he did not have control of the heroin. Counsel correctly, in my view, submitted to her Honour that she erred in that aspect of her charge and that it would be sufficient for the purposes of rebutting the s.5 presumption if the applicant satisfied the jury on the balance of probabilities that he lacked knowledge of the presence of the heroin or that he did not have control of it. Her Honour then re-directed the jury in accordance with those submissions. As I have said, by way of contrast, no re-direction was sought as to her Honour's use of "capacity".

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Judgment (76 paragraphs)

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Cases Cited (1)