R v Peter John Parkes [2010] ACTSC 44

4. Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;

(b) the judge must provide a judgment setting out the principles of law she applied and the findings of fact she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250); and

(c) the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case.

5. In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and they are set out in Appendix A to this judgment.

6. Most of the circumstances from which this charge arose are not in dispute. The facts set out at [7] to [15] below emerged from evidence which was unchallenged at trial.

7. Before 9.00 am on 25 June 2008, Tracey McPartlan went to the shops in the Canberra suburb of O'Connor, where she bought a Fitpack (used for injecting) and withdrew $300 from an ATM. By arrangement, Ms McPartlan was waiting at the tennis courts in nearby Condamine Street, Turner shortly after 9.00 am on that day, when Mr Parkes drove past. Instead of stopping at the tennis courts, Mr Parkes continued on and Ms McPartlan followed him in her car.

8. Mr Parkes and Ms McPartlan stopped several blocks away, in Moorhouse Street, O'Connor. Mr Parkes got out of his car and walked over to Ms McPartlan's car. Ms McPartlan gave him $200 in $50 notes, and Mr Parkes gave her a small package consisting of a small piece of grey plastic (said to be shopping bag plastic), twisted and burnt at the end. On subsequent investigation the package was found to contain a small amount of heroin; the total weight of the contents of the package was 0.175 gm, but the certificate provided by the ACT Government Analytical Laboratory (ACTGAL) does not specify the purity of the heroin. Mr Parkes and Ms McPartlan left the meeting place.

9. Shortly afterwards, Ms McPartlan and Mr Parkes, separately, were stopped by police who had been conducting a surveillance operation on Mr Parkes, who was suspected of trafficking in heroin.

10. Ms McPartlan admitted to having heroin in her car, and in the course of a roadside emergency search of her car in Macarthur Place, O'Connor (which was conducted under s 188 of the Drugs of Dependence Act 1989 (ACT) and tape-recorded by police), she told police that she had bought the heroin from a man called Peter, as well as repaying some money she already owed him. She was then taken to the police station, where she made and signed a statement to similar effect, although containing more detail. The written statement was made after police had indicated that if Ms McPartlan co-operated, there was a good chance she would not be charged with possession of the heroin but would only have to see a counsellor; she was in fact referred to the drug diversion program on the day she made the statement, and was not charged.

11. When Mr Parkes was stopped by police and interviewed, also on tape, he denied having supplied the heroin to Ms McPartlan. In that interview, Mr Parkes explained the money he was carrying (over $800) by reference to the fact that he and his partner were behind in their rent and also needed to pay a telephone bill.

12. New and used injecting equipment was found in Mr Parkes' car, as was rubbish showing traces of heroin. The new equipment was kept in the back of Mr Parkes' car. A "sharps" container was kept in the boot of the car and used injecting equipment (apart from the needles which went straight into the sharps container) was also put into the boot, while other rubbish was put into a plastic bag kept on the floor of the back seat of his car. Traces of heroin were found on two round pieces of plastic (also apparently shopping bag plastic) that were located in the back of Mr Parkes' car (shown in a police photograph tendered by the prosecutor and admitted as Exhibit N). They were located immediately beside the opening of an unsealed bag containing other rubbish (shown in other police photographs that were tendered by defence counsel and admitted as Exhibit 4).

13. At the time of the meeting with Ms McPartlan, Mr Parkes was working as a volunteer for a needle exchange service, and this involved him in delivering clean injecting equipment to, and collecting used injecting equipment from, drug users who were not willing to attend official needle exchange venues. In this work he often needed to ensure that his meetings with clients were conducted discreetly.

14. If Ms McPartlan had known that the substance in the package was heroin and had known its quality, she might have paid between $25 and $50 for it. There was no other evidence of the street value of the heroin that Ms McPartlan received from Mr Parkes.

15. Mr Parkes, now aged 45 and despite being an admitted former heroin user, has only a minor criminal record, with no offences recorded for 23 years, no relevant offences, and an adult record consisting of only two traffic offences.

16. The question in this trial comes down to the nature of the transactions between Ms McPartlan and Mr Parkes, specifically, was the heroin that Mr Parkes handed to Ms McPartlan after she had given him $200 being sold to her, or was it, as both Mr Parkes and Ms McPartlan said at the trial, a gift only incidentally associated with a loan of $200 that Ms McPartlan gave to Mr Parkes.

17. At trial, Mr Parkes said that the loan was sought in the course of an attempt to raise the money to pay his rent arrears, and Ms McPartlan gave evidence that she expected the $200 to be repaid:

Did you trust him? Did you trust him?---Well I trusted him enough - between him and Tiia [Mr Parkes' partner], I trusted him enough to lend him some money because Tiia's vicious and she would have made sure it came back.

18. Asked whether she arranged to meet Mr Parkes to receive heroin, she said:

I suppose one can live in hope. If I hadn't I wouldn't have been heart broken. I would have gone somewhere else.

19. Mr Parkes gave evidence that he had found the package, which he assumed to contain heroin, in his car on the morning of the incident. He said that he had given it to Ms McPartlan partly in appreciation of the loan she had given him and partly to get rid of what he knew would be a temptation for him as a former heroin user. He described the gift as an afterthought, claiming that he had turned back, after leaving Ms McPartlan, to give her the package which he had just remembered. The police record of the surveillance of the meeting between Ms McPartlan and Mr Parkes did not provide any information about the meeting at that level of detail.

20. The evidence given at trial must be assessed in the light of the prior inconsistent statements made by both Ms McPartlan and Mr Parkes (see [10] and [11] above). Ms McPartlan and Mr Parkes both admitted that they had told different stories to police when first stopped after their meeting.

21. Mr Parkes admitted this in cross-examination by the prosecutor.

22. Ms McPartlan volunteered, under questioning by the prosecutor during her evidence-in-chief, that she had made statements inconsistent with the sworn evidence she was giving. The written statement was tendered by the prosecutor without objection from defence counsel. After the written statement was tendered, the prosecutor sought leave under s 38(1)(c) of the Evidence Act 1995 (Cth) to cross-examine Ms McPartlan about whether she had made a prior inconsistent statement. This leave was refused on the basis that Ms McPartlan had already conceded the making of the prior inconsistent statements.

23. An application to cross-examine Ms McPartlan under s 38(1)(a) of the Evidence Act about evidence that she had given that was "unfavourable" was then granted. In granting that leave and associated leave under s 38(3), I relied on the references to "evidence which, at best, is unhelpful to the party calling it" (Adam v The Queen (2001) 207 CLR 96 at [27], per Gleeson CJ, McHugh, Kirby and Hayne JJ) and evidence which would "detract from the case of the party calling the witness" or which has "an unhelpful quality about it, as opposed to a neutral quality" (Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560 at [9], per Graham J), both quoted in Odgers S, Uniform Evidence Law (Thomson Reuters: 8th ed, 2009) at [1.2.3260].

24. I also noted that the prosecutor appeared to have given notice of his intention to seek leave to cross-examine at the earliest opportunity, namely that morning, when Ms McPartlan finally confirmed to him that she would be giving evidence inconsistent with her police statement. It was possible, as defence counsel submitted, that with greater diligence Ms McPartlan's reluctance to give consistent evidence would have come to the prosecutor's attention earlier, but it was equally possible, perhaps more likely, that she would still not have committed herself finally until the morning of the trial. Apart from referring to the prosecutor's lack of diligence, defence counsel declined to submit for the purposes of s 192 of the Evidence Act that there would be any unfairness in allowing the cross-examination, or to make any other submissions about the matters mentioned in s 192, and I was unable to identify any ground for refusing that leave by reference to that section.

25. In the circumstances described above, Ms McPartlan's prior inconsistent statements were clearly in evidence before me, as was her sworn evidence that both those statements to police were untrue to the extent that they said that she had bought the heroin from Mr Parkes.

26. Mr Parkes agreed at trial that he had originally denied giving any heroin to Ms McPartlan.

27. The prior inconsistent statements by Mr Parkes and Ms McPartlan may be significant in assessing the credibility of the evidence given at trial by Ms McPartlan and Mr Parkes, or as evidence of the facts asserted in those statements. However, their significance in general depends to some extent on my assessment of the explanations provided by Ms McPartlan and Mr Parkes for the statements which they now assert were untrue.

28. The written statement made by Ms McPartlan at the police station might have been affected by her understanding that she would be treated more leniently (specifically by being sent to counselling rather than being charged with possession of heroin) if she co-operated with police by giving them evidence against Mr Parkes. However, there is no evidence, including in the transcript of the taped roadside conversation, that any such inducement was offered before Ms McPartlan was taken to the police station, and evidence from Detective Senior Constable Anna Wronski, and Ms McPartlan herself, that nothing in the nature of an inducement was mentioned during the events at Macarthur Place and in particular before the taped roadside conversation with Ms McPartlan. In that roadside conversation, Ms McPartlan gave information generally to the same effect as the material included in her written statement. The prosecutor argued that since her earlier statement was not affected by the inducement offered at the police station, Ms McPartlan's claim that her written statement was affected by the inducement should be rejected. As a matter of logic this would be a convincing argument if it were clear that the specific inducement offered at the police station was the only thing that could possibly have influenced her.

29. Ms McPartlan's explanation for saying, in her written statement, things she now says are untrue was as follows:

Did you purchase heroin from Peter before?---No. I know I said I did in my statement but - I was so scared when I made my statement that I would have said anything that I thought they wanted to hear. I'm sorry.

All right. So, you accept that you made a statement in this matter?---Yes, I do. I accept that I made a statement and I accept that in my statement I said things which weren't true and I did that because I was scared.

All right. In your statement - - -?---And I was protecting my own arse.

...

I was scared and I thought that if I cooperated and told them what they wanted me to say then the effects were less on me. And that's true, they were. The police were extremely nice and organised for me to do - to not be - I think I was charged but I wasn't sent to court, which they made quite clear they could do, and I was given - I had to go and see a counsellor. I was given some sort of community order to go and see a counsellor. Which was pretty much the result that they said would happen, if I cooperated with them and that - yes, if I didn't they would charge me differently and the consequences would be quite different. And I was scared. My partner didn't know that I was using at the time. My work didn't know. I was terrified of it coming out in - I was terrified of it coming out so I did what I thought they wanted me to do.

30. Later in cross-examination by the prosecutor she gave the following evidence:

Did you not realise that what you told the police would put him into trouble?---Yes, but it got me out of trouble - - -

Why did you not then - why did you not then tell the authorities, tell the police, "Look, I'm sorry but what I said is not true"?---When? When I made the statement?

Yes, afterwards. When you realised that that was going to put Peter into trouble?---Because once - the second I'd signed the statement I was putting myself in trouble to say that it wasn't true. I made the statement because I was scared. Once I'd done that - the minute - if nothing was going to happen from it and I went up to the police and went, "Hey, guess what? I told you lies." Then, they're going to charge me with something - they're probably going to charge me with something anyway now.

31. To defence counsel she explained her comments during the roadside conversation:

How did you feel when you were stopped by the police on Macarthur Avenue?---Look, I was terrified. I've never been in trouble before in my life for that sort of thing.

And at that stage I think you said this morning, neither your partner nor your work colleagues knew - - -?---No, nobody had any idea. I was on methadone so it doesn't make a lot of difference to how you look when you use. So, I was pulling it off really well and this was going to be what pulled everything down around my ears. My partner was threatening to leave if I had another incident with it.

What, with heroin?---Yes. Well, yes. That's why I was on the methadone. Was that he was already at his wits end. He was going to take my children.

32. That is, Ms McPartlan's evidence suggests that the specific inducement offered at the police station was only a concrete example of what she had assumed from the point when she was first pulled over by police, namely that in her own interests she should co-operate with police. This is hardly a remarkable insight on her part, and I do not accept that is an insight that could only have occurred to her after the police had specifically mentioned drug counselling rather than prosecution as the likely outcome of her co-operation.

33. It is convenient at this point to note also Ms McPartlan's explanation for changing her story at trial:

What are you telling her Honour; are you telling her Honour the

truth?---Yes, I am. And the reason that I'm telling her Honour the truth is that I can't - look, I'm pretty much a coward. I told the police what I thought they wanted to hear, but realising that this is actually a really serious thing I don't believe that I can protect my arse anymore. I should never have said it in the first place.

Has anyone - - - ?---I just thought - yes, sorry.

Has anyone said anything to you about changing what you told the police in those two statements?---Only my sister and only because I've talked to her about the fact that it's not true and it's all escalating into this massive thing where someone's going to get hurt that's not - doesn't deserve it, you know?

Excuse me a moment?---And she's just helped me to realise that I actually really have to tell the truth, not what protects my arse. If you - I'm sorry for using that expression.

34. In summary, Ms McPartlan says that the statements to police that she now says are false were made and maintained because of:

(a) her concern about having been caught out in possession of heroin when her partner believed her to be stable on methadone and not using heroin and had threatened to take her children if she went back to heroin, and her public service employer was unaware she was a drug-user at all (or possibly only unaware that she was using heroin at that time);

(b) a generalised belief that things might go better for her if they went worse for someone else; and

(c) a realisation that having made her initial statement, any attempt to change the story she had told could expose her to an even greater legal risk than she had originally faced.

35. In relation to her evidence at trial, Ms McPartlan says that, having hoped until she was subpoenaed to give evidence that "the whole thing would fall into a hole and not happen", she now realises how serious the matter is and that she has to tell the truth, even at some cost to herself, to be fair to a person who "doesn't deserve" to get hurt.

36. Mr Parkes' initial denial of having supplied heroin to Ms McPartlan at all was explained by him in cross-examination as follows:

Sir, what you told her Honour this morning, about you giving her the heroin, did you tell that to the police?---No.

May I ask, why not?---Well, they were trying to allege that I was not just selling, it seemed, but somehow involved in something more than that, even. There was no way I was going to tell them I'd given her some drugs.

Did you tell police that, "I just gave it to her"? Please answer the question?---No.

...

And I think I've already asked you this question previously. I'll give you another opportunity, Sir. Is there any reason why you did not tell police that you gave it to her but you didn't sell it to her?---No, I - it just struck me they would never believe it. They were so intent on what they seemed to be thinking, which was just so far from reality, and they were so blind to anything but what they believed.

37. The explanations provided by Ms McPartlan and Mr Parkes do them no particular credit, but those explanations make as much sense by reference to the current versions of events given by Ms McPartlan and Mr Parkes as they do by reference to the prosecution's version of events.

38. This is particularly relevant for Ms McPartlan (Mr Parkes' original statement to police was exculpatory, and his denial of having anything to do with the heroin, although mentioned by his counsel at the start of the trial, was not maintained when he gave evidence). Ms McPartlan says she was potentially in trouble as a result of receiving the heroin, whether or not she had paid for it, and she says she had a reason (being a perceived benefit for her) for telling the story she told to police even if it was not true; thus it is not necessarily the case that her original story is more likely to be true than the version she gave at the trial.

39. It is appropriate also to note that Ms McPartlan was in some ways quite an impressive and apparently genuine witness. I was not entirely convinced by her explanation for why she was not now willing to give evidence in accordance with the statement she had made to police. However, her belief that she might be liable for prosecution for making what she now says was an untrue statement to police suggests, at least, that she must have a substantial reason for taking that risk by giving the evidence that she gave at trial. In cross-examination, no possible reason emerged other than her realisation that her earlier statement would get Mr Parkes into trouble unfairly. Whoever's interests were being served by Ms McPartlan's decision not to repeat her original story when she came to court, they did not seem to be her own.

40. The question then is what use can be made of those prior inconsistent statements in determining whether the offence charged can be established beyond reasonable doubt.

41. First, those statements give rise to questions about the credibility of the evidence given by Ms McPartlan and Mr Parkes at trial. Even if the explanations for the earlier statements are accepted, this does not negate the fact that Ms McPartlan and Mr Parkes have both admitted, in effect, that they are prepared to tell lies in certain circumstances. To this extent their credibility is in question and I am entitled to have regard to that in deciding what weight, if any, to give to their in-court evidence. On the other hand, the fact that a person is prepared to tell lies in certain circumstances does not establish that he or she is lying (let alone that he or she is telling the truth) in any particular circumstances and, where a person has made inconsistent statements, does not provide a basis for choosing to accept one statement in preference to another.

Other possible use of prior inconsistent statements

42. Given the circumstances in which Ms McPartlan's earlier statements to police were put in evidence, there could be a question about their admissibility against Mr Parkes because of their apparent status as hearsay evidence (s 59 of the Evidence Act). Ms McPartlan's prior inconsistent statements are relevant to establishing the existence and nature of the transaction or transactions in which Ms McPartlan received heroin from Mr Parkes and Mr Parkes received money from Ms McPartlan. Because Ms McPartlan's statements are relevant to her credibility, and are also relevant for another purpose for which they would not be admissible under a provision of Part 3.2 of the Evidence Act, they fit the description of credibility evidence in s 101A(b) of the Evidence Act. If those statements had been admitted in cross-examination of Ms McPartlan, then under s 103 of that Act their use for that other purpose would not be excluded by the credibility rule (s 102), and that in turn seems to mean that under s 60 of the Evidence Act, the contents of the prior inconsistent statements would have been admissible despite the hearsay rule, that is, they would also have been admissible to prove the truth of Ms McPartlan's statements. I cannot see that the admissibility of the statements as proof of the facts asserted in the statements should be prevented by the fact that Ms McPartlan volunteered the making of the statements in anticipation of being cross-examined about them.

43. The weight that can be given to Ms McPartlan's prior statements is a separate question. I have already commented at [29] to [39] above on the explanations she provided for making statements that she now says were untrue.

44. Ms McPartlan said she had never seen the transcript of her interview with police during the conduct of the emergency search of her car and had only a "vague memory" of it taking place. The prosecutor specifically declined to play the tape of the interview during the trial, although he said that I could listen to it in chambers if I wished. I have chosen not to listen to the tape in the absence of counsel or the accused. This means that I have not come to any conclusions about whether Ms McPartlan was as scared during the roadside search as she now claims to have been.

45. In deciding whether to accept either of Ms McPartlan's initial statements to police in whole or in part, or her evidence in court, I have taken account of the written versions of her prior statements and her oral evidence. Noting her explanation for the statements to police, her demeanour in court, and the fact that her in-court evidence seems to have been given against her own interests, I have what I consider to be a reasonable doubt about the version of events asserted by the prosecutor, for which Ms McPartlan's prior statements provide the only direct evidence.

46. Apart from his reliance on Ms McPartlan's prior statements, the prosecutor drew attention in support of his case to four other aspects of the undisputed evidence and, in some cases, to inferences he invited me to draw from that evidence. It is necessary to consider whether these other matters provide enough circumstantial support to dispel the doubt about the prosecution case that I have identified at [45] above. For the purposes of doing so, I have reminded myself of the direction that I would be required to give the jury about drawing inferences, to the effect that where proof is required beyond reasonable doubt, an inference should not be drawn from direct evidence unless it is the only rational inference available in the circumstances.

47. First, from the fact that the eventual meeting between Ms McPartlan and Mr Parkes took place several blocks away from the initially agreed meeting place, the prosecutor invited me to draw the inference that both Ms McPartlan and Mr Parkes were keen for their meeting to be discreet and in turn that there was therefore something sinister about their meeting.

48. Secondly, the prosecutor noted the coincidence of Ms McPartlan's purchase of the Fitpack, and her admitted hope that she might obtain some heroin, on the same day that Mr Parkes claims to have found a package of heroin in his car.

49. Thirdly, the prosecutor pointed to Ms McPartlan's evidence that the package she had received from Mr Parkes might have been worth $25 to $50, and invited me to infer from this evidence, taken with her statements to police about her pre-existing debt of $150 to Mr Parkes, that when the $200 and the small package of heroin were "exchanged" during that meeting, some of the $200 was intended as payment for the small package of heroin.

50. Finally, the prosecutor noted the finding of traces of heroin on pieces of plastic in the car which Mr Parkes agreed was in his control on the day of the incident.

51. The evidence relied on by the prosecutor, and the inferences he has identified, taken at their highest, could found an inference that Mr Parkes had engaged in trafficking when he handed over the heroin to Ms McPartlan during a meeting at which he had already been given $200. However, quite apart from the possibly suspect evidence from Ms McPartlan and Mr Parkes that there was no sale but a loan and a separate gift, there are other weaknesses in the evidence and the inferences that the prosecution needs to rely on to make out the offence charged.

52. Ms McPartlan and Mr Parkes gave fairly vague and unconvincing evidence, relating to the alleged roughness of the parking area around the Turner tennis courts, about why they had not met at the tennis courts as originally arranged. Mr Parkes also mentioned the habits he had developed to ensure that his meetings with his needle exchange clients were discreet:

And you also agree that where you stopped - sorry. Did you not find any other spot right up to Moorhouse Street where you would stop? Or stay on the road and ask her to come and meet you on the road at the, near the tennis court?---Yes. I'm not sure. It's not uncommon for me to I guess behave like that. In doing needle exchange work, I'm dealing with clients who are quite nervous about what they're doing. They're very discreet. And I've had situations where I pulled up a few times in one week at the same location and I've had residents who live there come over and say, "I know what you're up to." (Witness makes noise) I tend to not pull up in the same place like that. It's just a habit from work.

So there was nothing - according to your evidence, there was nothing unlawful or illegal about this meeting, was there?---No, nothing at all. There's nothing unlawful or illegal about doing needle exchange, but I still - -

53. I cannot rule out the possibility that there was in fact something suspicious in Mr Parkes' decision to drive on past the tennis courts rather than pulling in where Ms McPartlan was already waiting. However, in the absence of evidence addressing the claim that the parking area was rough, and more importantly in the absence of evidence or even argument to the effect that Ms McPartlan and Mr Parkes, by driving in convoy to, and stopping in, Moorhouse Street, were somehow more likely to escape observation than if the meeting had gone ahead at the tennis courts, I cannot see that the undisputed evidence about the meeting location (even ignoring the explanations provided by Ms McPartlan and Mr Parkes) permits me to draw an inference that adds anything to the prosecution case.

54. The combination of Ms McPartlan's purchase of the Fitpack, her admitted hope that she would obtain some heroin, and Mr Parkes' finding of a package of heroin in his car on the same day may, as the prosecutor implied, be more than pure coincidence. However Ms McPartlan's evidence as quoted at [18] above suggests that hoping to obtain heroin was not in fact a one-off event but a common condition for her; if this is the case, then there is nothing particularly suspicious in the fact that Mr Parkes had heroin in his possession on one of the days on which Ms McPartlan was hoping to obtain heroin. Ms McPartlan was not asked whether buying the Fitpack was a one-off event or was also a common activity for her, so I can draw no conclusions about whether Ms McPartlan buying a Fitpack on a day that Mr Parkes happened to have heroin in his possession was a suspicious combination of events.

55. The prosecution submitted, on the basis of Ms McPartlan's two statements to police, that Ms McPartlan had a pre-existing debt to Mr Parkes. In court this was denied by both Ms McPartlan and Mr Parkes, and no other evidence was called to support the suggestion of a pre-existing debt. That is, the evidence of a pre-existing debt is no more reliable than the rest of Ms McPartlan's prior statements, and I cannot see that it can be used to dispel a doubt about the truth of other material contained in those statements.

56. If the evidence of the pre-existing debt is set aside, Ms McPartlan's evidence about the likely value of the quantity of heroin she presumed was in the package permits other inferences, one being that Ms McPartlan paid up to $200 for heroin that might have been worth as little as $25 (the commercial transaction inference), and another being that the provision of the $200 and the provision of the heroin, while associated even on Mr Parkes' evidence, were not elements of a single commercial transaction but involved a loan and a separate gift (the gift inference). There is no basis that I can see for drawing the commercial transaction inference in preference to the gift inference, and some basis (the unlikelihood of Ms McPartlan paying up to eight times too much for the heroin) for preferring the gift inference.

57. Thus, from the prosecution's point of view, at best the evidence in Ms McPartlan's prior statements of a pre-existing debt provides no added weight to the rest of the evidence from those statements. At worst, the other evidence about the amount of money given to Mr Parkes by Ms McPartlan, and the value of the heroin given to Ms McPartlan, supports the inference contended for by the defence, namely that the heroin was a gift only incidentally associated with the loan of $200. In any case it is clear that there is not only one possible inference arising from the evidence about the value of the heroin and the amount of money that changed hands.

58. The detection of traces of heroin on the two round pieces of plastic found in Mr Parkes' car might suggest that Mr Parkes had transported useable quantities of heroin in his car. However, his involvement with the needle-exchange program as described at [13] above provides another explanation for the presence in his car of the two pieces of plastic with traces of heroin in them (as well as the presence of both clean and used injecting equipment), other than the explanation that he was personally involved in either using or supplying heroin.

59. The location of those pieces of plastic raises the possibility that the two pieces of plastic were collected by Mr Parkes from a needle exchange client together with other associated injecting rubbish, and that they had never been in Mr Parkes' possession while containing useable quantities of heroin. The prosecution disclaimed any intention to suggest that Mr Parkes supplied heroin to buyers by pouring it out of the small pieces of plastic into some other receptacle such as the buyer's hand, and then retaining the pieces of plastic. In those circumstances, the presence of the two pieces of plastic near the bag of injecting rubbish, and the absence of evidence of any other heroin in Mr Parkes' car, is at least as consistent with his work as a needle exchange volunteer than with any inference that he was dealing in heroin.

60. It is clear that none of the inferences contended for by the prosecutor are the only rational inferences from the facts he has identified.

61. Defence counsel established that forensic analysis did not discover Mr Parkes' fingerprints or DNA on the package given to Ms McPartlan. The other pieces of plastic were not tested for fingerprints, and the money found in Mr Parkes' possession was not tested for heroin. Nor had there been any testing to see if the three amounts of heroin (the heroin given to Ms McPartlan and the traces found on the two pieces of plastic in Mr Parkes' car) had come from the same batch.

62. However, it is not clear that any such forensic examination or testing would have produced useful information. The absence or presence of fingerprint or DNA evidence on the pieces of plastic seems irrelevant; no such evidence was found on the package given to Ms McPartlan, which Mr Parkes admitted had been in his possession, so no particular conclusions could have been drawn from the absence of such evidence on the other pieces of plastic. Nor is it clear that traces of heroin on the money, if found, would have proved anything useful to the prosecution, or that the absence of such traces would have been exculpatory of Mr Parkes.

63. Whether the heroin came from the same or different batches does not seem to be significant either. Proof of different batches might have reduced the relevance of the heroin traces on the pieces of plastic, but proof that a single batch was involved would not necessarily have linked the three amounts of heroin to Mr Parkes rather than to another person, such as a needle exchange client, who might have given Mr Parkes the two pieces of plastic with some injecting rubbish and also dropped the package of heroin in Mr Parkes' car.

64. Investigating police did not attempt to check any aspect of Mr Parkes' claim that the money he had was for his rent arrears, although evidence that there were no such arrears, if available, could have been significant.

65. Finally, I take account of Mr Parkes' insignificant criminal record, in particular the absence of offences in the last 23 years and the absence of any offences relevant to illicit drugs (despite his admission to being a former user of heroin), as evidence of relative good character in relation to the likelihood that he has committed the offence of trafficking in heroin. I note that it may also be relevant to the credibility of the evidence Mr Parkes gave at trial, although his credibility, which was also affected by his prior inconsistent statement to police, was not nearly as significant in the trial as Ms McPartlan's credibility.

66. In summary, the prosecution asks me to find that the offence charged has been established beyond reasonable doubt on the basis of two statements of Ms McPartlan that are inconsistent with her sworn evidence at trial, the demonstrated willingness of both Ms McPartlan and Mr Parkes to lie in certain circumstances, and several inferences from undisputed facts that, as indicated at [53], [54], [57] and [59] above, are either not available at all or are not the only rational inferences available.

67. There are simply too many gaps and uncertainties in the prosecution case for me to be satisfied beyond reasonable doubt that when Mr Parkes gave Ms McPartlan the package containing 0.175 gm of substance containing an unspecified (but necessarily smaller) quantity of heroin, he was selling it to her for some or all of the $200 that she had previously handed to him. As already indicated, I have a doubt which I consider reasonable about the credibility of the evidence contained in Ms McPartlan's prior statements. The other matters pointed to by the prosecutor are not even nearly sufficient to dispel that doubt.

68. As mentioned above, some elements of the offence charged were not in issue in this trial. This was not identified at the beginning of the trial, either by the making of admissions, the tendering of a statement of agreed facts, or otherwise, and was not alluded to in the prosecutor's opening remarks. In the absence of any preliminary identification of what was or was not in dispute, the prosecutor appeared during the trial to tender his exhibits more or less randomly.

69. The peculiarities of the prosecutor's approach to the evidence emerged most starkly in the context of his attempt to tender in evidence the two small pieces of plastic found in the back of Mr Parkes' car. Apparently on the basis that the relevant fact (the presence of traces of heroin on the items) was not disputed, the prosecutor saw no need to establish a proper chain of continuity between the seizure of the items from Mr Parkes' car and the ACTGAL analysis showing traces of heroin on the items. Accordingly, he did not initially bother to tender the property seizure record that would have established the relationship between the items seized and the ACTGAL certificate. Instead, he sought to have the items directly identified in court, by sight, by the police officer who had initially seized them, rather than identifying them by reference to the numbered bags into which they had been put. This attempt ran into two obstacles.

70. First, several items (small round pieces of shopping bag plastic and a rubber band) were removed from their marked bags by the prosecutor's instructing solicitor at the bar table and given to the Sheriff's Officer to carry over to the police witness, Senior Constable Bott, who purported to identify them as the items he had seized. Even if I had been prepared to accept that the witness could identify round pieces of plastic, and a rubber band, none of which had any distinguishing features, as the ones he had removed from Mr Parkes' car more than 18 months previously, I could not also have been satisfied, without hearing evidence from the solicitor concerned (and possibly even from the Sheriff's Officer) that they were also the items that had been in the bag marked to identify it as containing the items to which the ACTGAL certificate related.

71. In fact, those items had not been in the bag linked to the ACTGAL certificate at all. It emerged that the items produced may well have been seized by Senior Constable Bott, but they were not the items to which the ACTGAL certificate related (Senior Constable Bott's items had not been examined by forensic experts at all). The prosecutor had intended to tender similar items that had been seized by another police officer and that had been the subject of forensic analysis. Among other things, this tended to confirm my view that the nondescript items in question were not of a kind that could be safely identified by a person who had seized them except in reliance on some system of bagging, marking and tracking items or groups of items.

72. The prosecutor's second attempt to get into evidence the fact that heroin had been detected on items found in Mr Parkes' car was more successful, but a second attempt, and the resulting waste of court time, should not have been necessary, and would not have been necessary if a proper approach had been taken to the evidence from the start.

73. On the basis of my conclusions set out at [66] and [67] above, I would be obliged to find the accused not guilty of the charge of trafficking in a controlled drug other than cannabis, namely heroin. However, after final submissions in the trial had been made, the prosecutor asked me not to enter such a verdict without hearing from him further.

74. The prosecutor's rather odd request was based on s 296 of the Crimes Act 1900 (ACT), which is as follows:

If, on the trial of a person for an offence, it appears that the facts in evidence amount in law to another offence, he or she may notwithstanding be found guilty of and sentenced for the firstmentioned offence, and in that case shall not be liable to be prosecuted for the secondmentioned offence on the same facts but the court may discharge the jury from giving any verdict on the trial, and direct the person to be indicted for the secondmentioned offence.

75. The prosecutor submitted that if I was not satisfied that the trafficking charge had been made out, I should find that the facts in evidence amount in law to a possession offence under s 171 of the Drugs of Dependence Act 1989 (ACT), and instead of entering a verdict of not guilty in respect of the original charge, I should direct that Mr Parkes be indicted on the possession charge.

76. Defence counsel was taken by surprise by the prosecutor's submission. I was also troubled by it, but assumed that it had been made in good faith on the basis of a genuine belief in its legitimacy. Accordingly, I agreed that before entering any verdict of acquittal in this trial, I would list the matter for a mention and, if necessary, for proper submissions about s 296 of the Crimes Act. In considering the prosecutor's request in the course of preparing my judgment, I concluded that there were several difficulties with the prosecutor's proposal.

77. First, I could not see that s 296 is intended to operate in these circumstances at all. For a start, the section expressly refers to the scope for the accused being convicted on the first charge or indicted on the other charge instead - it does not expressly refer to the accused being acquitted on the first charge and dealt with on the other charge.

78. An investigation of the origins of s 296 seemed to confirm that the provision does not operate in the manner proposed by the prosecutor. Section 296 is an "updated" version of what was s 425 of the Crimes Act 1900 (ACT and also NSW), which until it was amended in 1983 in the ACT was in the following form:

Conviction for misdemeanour where facts amount to felony

425. Where, on the trial of a person for a misdemeanour, it appears that the facts in evidence amount in law to felony, he may notwithstanding be found guilty of and sentenced for such misdemeanour, and in that case shall not be liable to be prosecuted for felony on the same facts:

Provided always, that the Court may discharge the jury from giving any verdict upon such trial, and direct the person to be indicted for felony.

79. The commentary on the original provision set out in Watson and Purnell, Criminal Law in New South Wales (The Law Book Company Limited: 1971) Vol 1 at 432 is as follows:

It is not competent for the jury to find guilty of a misdemeanour a person charged with a felony, nor to find guilty of felony a person charged with a misdemeanour, unless in either of such cases a statutory provision enables such a finding to be made [R v Taylor (1952) 69 WN (NSW) 81].

80. That is, the purpose of the original provision seems to have been to ensure, first, that an offender cannot escape conviction for a more serious offence (a felony) purely by reason of having been prosecuted initially for a less serious offence (a misdemeanour) available on the same facts, but secondly, that if the offender is nevertheless convicted of the misdemeanour, he or she cannot later be charged with the relevant felony.

81. The revised provision has abandoned the distinction between felonies and misdemeanours, but still has the clear effect that where the evidence in a trial could establish both of two different offences, the court may choose which charge should be the subject of a verdict, but if a guilty verdict is entered on the original charge, the accused cannot then be prosecuted for the other offence. The provision is not a provision permitting an alternative charge that could have been included in the original indictment to be added at the end of the trial when there appears to be a real risk that there will be an acquittal on the original charge, with the dual consequences (conceivably seen as a benefit by some prosecutors) of, first, reducing the risk in the first trial that a jury will choose to convict on the less serious offence if that option is drawn to their attention initially, and, secondly, subjecting the accused person to the burden of another trial.

82. In this case, I can see no legal reason why the possession offence should not have been included as an alternative charge in the original indictment; all the elements of the possession offence were covered in the prosecution's original case statement, and as far as I can see the only thing that happened during the trial that made the possession charge more attractive to the prosecution was the emerging weakness of the evidence for the trafficking charge.

83. Finally, it is not clear to me that even if s 296 were otherwise applicable in a case of this sort, the accused could now be indicted on a possession charge. Since 30 May 2009, indictable offences are those punishable by imprisonment for more than two years, but the possession offence under s 171 of the Drugs of Dependence Act carries a maximum penalty of 50 penalty units, imprisonment for two years or both.

84. The possession offence was an indictable offence in June 2008 when the current offence was allegedly committed, and was still an indictable offence when the original indictment in this matter was signed on 27 May 2009 and also when it was lodged with the Supreme Court the following day. However, the legislation that amended the definition of indictable offence with effect from 30 May 2009 (Crimes Legislation Amendment Act 2008 (the Amendment Act)) appears to have intended that the new definition would apply to prosecutions commenced or in some cases hearings commenced after the date of effect of the amending legislation, rather than to offences committed after that date. I have not found a specific application provision to this effect, but relevant transitional provisions imply that any prosecution commenced after the amendments took effect would have to be dealt with under the provisions as amended, including the new definition of indictable offence. For instance, the transitional provision inserted as s 450 of the Magistrates Court Act 1930 (ACT) (amdt [1.91] of the Amendment Act) provides that a proceeding in the Supreme Court that was unfinished immediately before 30 May 2009, relating to an offence that was but is no longer an indictable offence, may be dealt with by the Supreme Court as if the offence were still an indictable offence (implying that a proceeding that had not been started would have to be dealt with under the new provisions). The transitional provision inserted as s 600 of the Crimes Act (amdt [1.43] of the Amendment Act) excludes the application of the indictable offence amendments if the hearing in a proceeding for an offence has started before the relevant amendments commence.

85. In accordance with my earlier indication, the matter was re-listed, and on 13 April 2010 I indicated my intention to enter a not guilty verdict on the charge in the indictment, and invited submissions from the prosecutor about the relevance of s 296 of the Crimes Act. At that time I pointed out to him the issues that I considered he needed to address, being in general terms those set out at [77] to [84] above.

86. On 7 May 2010 the prosecutor advised the Supreme Court List Clerk that he would not proceed with his application for a direction under s 296 of the Crimes Act. Both the delay in finalising this matter, and the waste of resources, both in this Court and in the Legal Aid Office (which represented the accused), that resulted from the making of an inappropriate application by the prosecutor are extremely unfortunate.

87. As foreshadowed at [73] above, I find the accused Peter John Parkes not guilty of the charge that on 25 June 2008 he trafficked in a controlled drug other than cannabis, namely heroin.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Legal Aid Office (ACT)

1. The general directions I have given myself for Mr Parkes' trial are set out below.

2. The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.

3. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.

4. If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

5. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness's evidence. I may, if I think fit, accept part and reject part of the same witness's evidence.