Ground 1: The trial miscarried because his Honour erred when directing the jury as to circumstantial evidence, which resulted in his misdirecting the jury as to the onus and also as to the standard of proof
8 The focal point of the prosecution case was the proof of the appellant's possession of the drug found in the car. The appellant denied being aware of the content of the bag before the car was searched and the Crown relied upon circumstantial evidence to prove the requisite knowledge in the appellant.
9 It is in this context that it is submitted that the trial judge misdirected the jury when instructing them about the inferences it might draw.
10 The particular instruction complained of appears on p 15 of the summing up:
"I remind you that you may not draw any inference from direct evidence unless it is the only rational inference in the circumstances."
11 The appellant complains that that direction was given immediately after reference to submissions put on behalf of the appellant and after the jury was reminded of a submission advanced on the appellant's behalf that the facts invited an inference that the co-offender was in sole possession of the drug.
12 Plainly, the direction complained of should not be considered in isolation, but in the context of all relevant instruction that the jury was given.
13 The jury was instructed early in the summing up (SU 4) that the burden of proof was upon the Crown:
"So here the onus falls upon the Crown to prove that the accused committed the offence. The accused does not have to prove anything. He certainly does not have to prove he is innocent at all times for the Crown to prove that the accused is guilty."
14 Then, his Honour went on to instruct the jury about the significance of the fact that the appellant had given evidence and returned to the question of the onus of proof in this context (SU 4-5):
"I pointed out to you when the accused presented evidence…and when he went into evidence that because the accused provided evidence and provided material to you, that did not mean that the onus of proof shifted to the accused. The accused does not have to prove anything…"
15 Then, at SU 5, the judge instructed the jury on the concept of reasonable doubt, telling the jury "that the Crown has to prove the guilt of the accused beyond reasonable doubt". His Honour then proceeded to identify the essential elements of the Crown case in terms which are not the subject of criticism in this Court, identifying such elements as elements which the Crown had to prove beyond reasonable doubt (SU 7-10).
16 One of the essential elements was correctly identified by the judge as being the matter of possession. As to this, the jury was given the following instructions (SU 9-10):
"I want to now dwell on the question of possession because the question of possession is probably the most important question that you have to ask yourself in this case. Are you satisfied beyond a reasonable doubt that the accused possessed the drug? Insofar as possession is concerned, the Crown must prove beyond a reasonable doubt that the accused intentionally had the substance in his physical custody, or in his control, to the exclusion of others except anyone who was acting in concert with him in the commission of the alleged offence. I will say it again. The Crown must prove beyond a reasonable doubt that the accused intentionally had the substance in his physical custody or control to the exclusion of others except anyone who was acting in concert with him in the commission of the offence. The Crown must also prove beyond reasonable doubt that in intentionally having such custody or control the accused did so with the knowledge or belief that the substance over which he had custody or control was a prohibited substance. That means the accused had to know that the substance was methylamphetamine. So, that is the first matter. The Crown has to prove beyond a reasonable doubt that the accused had the drugs in his possession."
17 Then, his Honour (SU 10-11) identified as an issue whether the appellant jointly possessed the drug with the alleged co-offender. At SU 11:
"Did the accused jointly possess the methylamphetamine with the man Workman? So, how does the Crown seek to prove that? The Crown relies on inferences which it asks you to draw from the evidence in the case."
18 His Honour proceeded to give instruction as to the meaning of inferences and as to the process of drawing inferences in daily life. Having done so, his Honour proceeded to give this instruction (SU 11):
"Now in a criminal trial you must be satisfied of the guilt of the accused beyond a reasonable doubt. Amongst other things, that means you should be extremely careful about drawing any inference."
19 In the content of the instruction that followed, his Honour directed the jury (SU 13):
"In the context of a criminal trial where proof is required beyond a reasonable doubt, you may not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. In the present case, the Crown asks you to draw the inference that the accused acted in a joint criminal enterprise with Workman to supply drugs and that he had joint possession of the drugs found in the car. Mr Bellanto, for the accused, submits that on the evidence there are inferences you may draw different to the Crown; that the accused and Workman were involved in a legitimate commercial transaction involving a building product and did not involve drugs. Further, Mr Bellanto says you may draw the inference from the evidence that Workman was in sole possession of the drugs found in the car."
20 His Honour then proceeded to give the jury instruction on the concept of joint criminal enterprise, and in the course of that instruction told the jury that the Crown asked it to draw an inference from evidence which he proceeded to review that the appellant was acting in a joint criminal enterprise with Workman.
21 It was in this context that the instruction complained of in this first ground of appeal was given (SU 14-15):
"I am now going to move on and say that the Crown asks you to draw an inference from the following evidence that the accused acted in a joint criminal enterprise with Workman to supply methylamphetamine and the accused had joint possession of methylamphetamine with Workman.
1. The Crown relies on the telephone calls between the accused and Workman being the calls of: 15 November 2002, 29 November 2002, 5 December 2002, 12 December 2002, the two calls on 15 December 2002, the call of 16 December 2002 and the three calls of 18 December 2002.
2. The Crown relies upon the calls between Workman and Adam: in the call of 7 December 2002, two calls of 12 December 2002, the call of 14 December 2002, the three calls of 15 December 2002 and the four calls of 18 December 2002.
3. The Crown relies upon the telephone call between Victor and Workman of 18 December.
4. The Crown relies on the evidence that on 18 December 2002 Workman left the accused's premises with the accused at 3.31 pm in the car registered number UKJ 883.
5. The Crown relies upon the evidence that the car was stopped by police some twelve minutes later and the drugs the subject of the charge were found on the floor of the front passenger side of the car, the accused being the front passenger of the car.
Mr Bellanto on the other hand asks you to draw other inferences from the evidence. In particular he submits that you can also draw the inference from the evidence that the accused and Workman on 18 December 2002 and before that time were involved in a legitimate commercial enterprise to sell building mouldings to a purchaser who was to meet with the accused and Workman at a hotel at Chiswick at 3.30 pm on 18 December 2002. Further, Mr Bellanto submits, that you can draw an inference that Workman was in sole possession of that drug. I remind you that you may not draw any inference from direct evidence unless it is the only rational inference in the circumstances."
22 On behalf of the appellant, it is submitted that the concluding sentence in the above instruction could have been treated by the jury as a misdirection on the onus of proof. It is submitted that what the judge said effectively amounted to a direction that the jury ought not to acquit unless the inference of innocence contended for by the appellant was the only rational inference in the circumstances.
23 As the earlier instruction to the jury made clear, it was the Crown that relied in part upon inference to prove its case and his Honour correctly reminded the jury in the context of the instruction on inferences of the need for the jury to be satisfied of the guilt of the appellant beyond reasonable doubt. The jury was instructed in the context of considering the Crown case on inferences that it must not draw an inference from the direct evidence unless that was the only rational inference in the circumstances. The jury was reminded of inferences suggested by Mr Bellanto to be possible inferences and the instruction alerted the jury not to draw any inference relied upon by the Crown unless it was the only rational inference. Hence, the jury would have understood from this instruction that unless the inferences raised by Mr Bellanto for their consideration were rejected as not being available rational inferences, then the Crown case would fail.
24 The Crown here contends that the reminder about inferences contained in the last sentence of the instruction complained of was a reminder directed at the Crown case.
25 Senior Counsel appearing for the appellant at the trial sought no redirection or further direction at the conclusion of the summing up and presumably viewed the instruction in context as being an instruction directed at the prosecution case.
26 Whilst the instruction set out in the concluding sentence recorded in para 21 above could have been more happily expressed, viewed in the context of all the instructions that the jury was given, it seems to me that the jury was sufficiently instructed as to the ambit of the burden of proof which the Crown carried that the words complained of occasioned no risk of the trial miscarrying. The jury had been told in plain language (para 14 above) that the appellant did not have to prove anything.
27 It was further submitted that the summing up was deficient because the judge failed to instruct the jury that it ought not to convict if there was any rational hypothesis or reasonable possibility consistent with innocence. Reliance was placed upon Shepherd v The Queen (1990) 170 CLR 573 and in particular upon the judgment of Dawson J at 578. Contrary to the thrust of the submission here advanced, his Honour did not, in the passage referred to, state that the direction, the absence of which is here complained of, must be given in every case involving circumstantial evidence. Dawson J was referring to the giving of a direction, where circumstantial evidence is relied upon, that guilt should not only be a rational inference, but that it should be the only rational inference that could be drawn from the circumstances. It was as to that direction that his Honour said:
"Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence."
28 Shepherd is not authority for the submission advanced. The "rational hypothesis" direction was not sought at the trial and r 4 applies.
29 I do not consider it was encumbent upon the trial judge in this case to give an instruction in the terms here sought, as the directions given in the summing up made it sufficiently clear where the onus lay at all times.
30 In my opinion, there is no substance in Ground 1 and, indeed, absent any relevant complaint at the trial, I would refuse leave to pursue it.