R v Punevski [2001] WASCA 121

R v Punevski [2001] WASCA 121 - WASCA 2001 case summary — Zoe

[19]

"Mr Foreman, Ladies and Gentlemen, it's my function now to sum up to you and I will say straightaway there is not sufficient evidence on counts 2 and 3 for you to convict the accused. The learned prosecutor, in fairness to him, hasn't attempted very hard at all to try and justify the Crown case against the accused on those two counts.

The evidence from the police officers was most unsatisfactory in connecting up the samples which they took from the house with whatever the analyst did. There was a mistake in one of the police officer's evidence. He said he just copied out another statement and made a mistake. The analyst, as you will remember, said he wrote down 'powder'. It should have been 'rock'. There's the problems with the lilac powder and the capsules. It's just all overwhelming and I am sitting here as a Judge with more information than you have got and I can't work it out and I'm sure no reasonable jury could.

So I'm directing you that there is not sufficient evidence to convict the accused on counts 2 and 3 on the indictment. There is the other aspect of it also and that is that the Crown did not produce evidence that the accused was the only one with access to his garage. The rule with respect to evidence is that no person in this community is to be found guilty beyond a reasonable doubt if there's another reasonable explanation open.

A reasonable explanation, amongst other things, leaving aside the failure of the police to do their job properly and connect up all these samples and present it to you in a coherent manner, was that the accused's son is apparently in gaol for drugs and a pistol that was found there is wrapped up in, so far as we know, his board shorts.

None of these matters were explained to you. I don't know whether the son has got half a dozen of his mates who stash drugs in this garage and neither do you. So no jury could safely convict the accused on those two - that's the second and third counts in the indictment. It could be his son's drugs, it could be anybody else's drugs.

So therefore although it's your job, I'm not going to direct you any more on that. I would ask you in due course to bring back verdicts of not guilty on counts 2 and 3. The evidence is completely unsatisfactory. They are very serious charges, of course. No person in this community should be convicted on a half-baked case.

That's a different matter with respect to count 1, different altogether. So I'll only direct you on count 1. Having said all that, I will leave counts 2 and 3. You can bring in a verdict of guilty if you want to. That's your problem but I would suggest you might bring in a verdict of not guilty on counts 2 and 3."

[20]

"He [the respondent] is charged with selling or supplying heroin in count 1, not anything to do with MDA and nothing to do with amphetamines and had I directed you in detail on counts 2 and 3, I would have told you in any event, as both counsel have done, that you have got to treat each count as a separate trial. We are really having three trials in one here but so far as count 1 is concerned, the only evidence you could consider on count 1 is evidence to do with that heroin and that is the alleged selling or supplying of the heroin. That's terribly important. You can't use what we call evidence of propensity to be a drug dealer on these other two.

Whatever he might have or somebody else might have stacked in that yellow bucket by way of amphetamines or MDA or anything else, it's the heroin we are concerned about in count 1 and the evidence relative to that and I will tell you what it is in a couple of minutes but it is important that I say please put aside the evidence concerning the other two drugs in counts 2 and 3 when you are considering count 1 and, of course, put aside - it's your verdict. You can still bring in verdicts of guilty on counts 2 and 3 if you like but I am suggesting you don't, but that's up to you.

But in any event while you are considering counts 2 and 3, each is a completely separate matter. There are three trials going on here and you can only consider the evidence relative to each count on that count. Propensity or probability that he might be dabbling in drugs or even using them or anything else has really got nothing to do with it when you are coming to consider separate, very, very serious counts and of course dealing primarily with count 1.

Selling or supplying a quantity of heroin is an extremely serious offence in this community. So that's the degree of seriousness which a jury always approaches a thing like that on. So that's why it's important you only consider the evidence on the particular count in the indictment - one of the three you are then considering - when you are considering that count. You don't, sort of, flow on from the evidence from the others.

Having said that, I would like to say this to you: It is your responsibility to consider all the evidence that has been given in the case, not mine. Both counsel have said that to you. I can tell you what the law is and in doing so I will refer to some of the evidence but because I refer to it doesn't mean I think you should take note of it or I'm trying to indicate somehow or other that it is good or bad or indifferent. If you get that impression it would be wrong because I would be then treading on your territory. I'm only talking about count 1 now. I have already told you what I thought about the evidence on counts 2 and 3 but I'm really treading on your territory doing that too, to a degree, it's just that if I don't tell you that an appeal court certainly would, but with respect to count 1, as I say, it's a different matter altogether."

[31]

"The question whether, in the words used in Galbraith [R v Galbraith [1981] 1 WLR 1039, at 1042], evidence has a 'tenuous character' or an 'inherent weakness or vagueness' may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury's consideration.

Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on a jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 and Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial."

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