Ground 1 - Direction on onus and standard of proof
8 His Honour gave quite a short Summing-Up to the jury. In some trials this may be a virtue. However, its brevity in this trial may have contributed to error. Early in the Summing-Up, his Honour gave the jury perfectly usual and conventional directions on the onus of proof and standard of proof. No complaint is made about them, nor could it.
9 In dealing with the element in the offence of 'possession' his Honour touched on the need for knowledge by the accused. His Honour said:
The question is, therefore, was the accused carrying the bag at that relevant time and at the time did he know that the bag contained, or was likely to contain the prohibited drugs. Once you are satisfied that the accused did carry the bag from the room, did he do so knowing that the bag contained a significant amount of prohibited drugs, or was aware that there was a significant or real chance that it did. And the Crown has the onus of satisfying you that he knew or was aware.
10 A little later his Honour turned to the case for the accused. He directed the jury as follows:
The accused has presented an explanation. Now you must consider whether his innocent explanation that he was asked by someone to meet some strangers and take them somewhere around Sydney is a reasonable explanation. Of course you would have noted that the arrangement for him to get them had to have only happened after the injury (sic). How he was set up that morning. It is noted that in an earlier statement to police he said he had been asked the day before to meet them at the Furama Hotel, but this was before the Furama Hotel became the venue, and before they had arrived in the country. But in his later statement and in his sworn evidence he has presented the explanation that he was merely helping two strangers to meet some other people. With respect to the accused's explanation, you only have to consider whether it is a reasonable explanation in the circumstances. The accused does now admit that at time of his arrest in the first interview he did lie about some things, mainly how and why he had gone to the hotel. You must weigh all these things up. You have seen him in the witness box and you have the two records of interview of the police.
11 His Honour then immediately turned to the issue of the appellant's character and said to the jury:
This does raise a matter of character. It is character first of accused has been raised in the case. He has stated that he is a person of good character. The Crown in some of its questions has suggested otherwise. This is a difficult matter to consider but you as members of the community who see persons acting in different ways around you in ordinary life can assess this. There is no evidence to show that the accused has been a person of bad character. Yes he agrees he told lies to the police at first. This must all be balanced as to credibility you must assess that from what he said in the witness box. But even if you find he is not a person of the best of character from some things he has admitted that still does not make him guilty of this offence.
12 It is this direction which is the subject of ground 2 of the appeal.
13 The trial judge then gave the following direction to the jury, which counsel for the appellant, Mr Boulten, describes as containing a fundamental and dramatic error. His Honour said:
We must be very wary of the risk of the entrapment of an innocent man. So is there a chance that the police accidentally got the wrong person. So could it be that he did come innocently to assist to (sic) two apparent strangers who appeared to come into the country the previous night with a large quantity of prohibited drugs. At the end of all your analysis of the evidence, is the only reasonable or credible explanation the guilt of the accused, namely he had the drugs when he walked out of the room and he knew he had them. Or could there be another explanation. Is there a reasonable chance on the balance of probabilities that what the accused said in his record of interview that he was merely coming to the Furama Hotel to take the people there out to see the town or to meet other people. Because if so then you must have a reasonable doubt and the accused must be acquitted.
14 The Summing-Up concluded shortly thereafter. It appears that no complaint was made by either counsel to his Honour about any aspect of the Summing-Up. The appeal books do not contain a transcript of what transpired immediately after the jury retired. However, appellant's counsel accepts that no objection was taken to any portion of the Summing-Up, nor were any additional directions sought.
15 The Crown concedes that if the appellant is successful on this ground, it cannot raise a Rule 4 argument against him.
16 It should be recorded that both the Crown and the accused were represented by different counsel at the trial than on the appeal.
17 It seems to me that what his Honour said, quoted above in para 13, ran a real risk of reversing the onus of proof. His Honour told the jury that they might form a reasonable doubt if 'there is a reasonable chance on the balance of probabilities that what the accused said in his record of interview' (my emphasis), was true. This would mean that the jury might understand that they could find the appellant guilty on the basis that they were not satisfied on the balance of probabilities that his version of events was true.
18 But this is not the law. A reasonable doubt can be left even where the accused gives no explanation for his conduct. A jury may reject, in whole or part, evidence led by the defence and still be left with a reasonable doubt. A jury may be left with a reasonable doubt even where an accused does not give an explanation for his conduct.
19 It is the submission of counsel for the appellant that the direction was fundamentally flawed and constituted a departure from the essential requirements of a fair trial. It is contended that the error went to the root of the trial so that it can be said that the appellant did not have a proper trial, R v Wilde (1998) 164 CLR 365 and Mraz v The Queen (1955) 93 CLR 493 at 514.
20 The Crown's response to this powerful submission is that the phrase 'balance of probabilities' was not used by his Honour in any technical sense but rather in the context of directing the jury to consider the explanation proffered by the appellant, and in the context of reminding the jury that the onus was on the Crown to prove the offence beyond reasonable doubt.
21 I do not accept this submission. The defence of the accused depended on whether the jury believed him or not. But what his Honour said ran a real risk that the jury would reverse the onus of proof. His Honour did not speak in terms of 'reasonable possibility' with regard to the version of the appellant.
22 Not only was the direction liable to confuse and mislead the jury as to the proper onus and standard of proof, it had the effect of restricting the jury in considering reasonable doubt in relation to the prosecution evidence. It may also be observed that his Honour's direction, the subject of the criticism, was virtually the last advice he gave to the jury before they retired.
23 In my view, his Honour committed a fundamental error when he so directed the jury. The direction which he gave went to the very root of the trial. It follows that there was a miscarriage of justice which entitles the appellant to have the conviction quashed and a new trial ordered.