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Supreme Court of Victoria - Court of Appeal |
Last Updated: 15 May 2013
COURT OF APPEAL
S APCR 2012 0089
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VINCENZO MEDICI
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Appellant
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v
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THE QUEEN
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Respondent
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JUDGES
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HARPER, PRIEST and COGHLAN JJA
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WHERE HELD
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MELBOURNE
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DATE OF HEARING
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19 March 2013
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DATE OF JUDGMENT
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14 May 2013
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MEDIUM NEUTRAL CITATION
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JUDGMENT APPEALED FROM
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Unreported, County Court of Victoria, 14 February 2011 (Conviction), Judge
Chettle
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CRIMINAL LAW – Appeal against conviction – Appellant convicted on one count of trafficking a drug of dependence, namely methylamphetamine, contrary to section 71AC of the Drugs Poisons and Controlled Substances Act 1981 – Whether the judge erred by impermissibly dictating the sequence of the jury’s deliberations – Appeal dismissed.
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Appearances:
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Counsel
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Solicitors
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For the Appellant
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Mr O P Holdenson QC
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Lewenberg & Lewenberg
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For the Crown
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Mr B F Kissane
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Mr C Hyland, Solicitor for Public Prosecutions`
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HARPER JA:
1 I have had the advantage of reading, in draft, the judgment of Priest JA. I agree with his Honour that the appellant has suffered no substantial miscarriage of justice, and that the appeal should be dismissed. I differ from his Honour in only one respect; and it is a difference not so much of substance as in emphasis. But if that difference is to be understood, it is necessary to deal briefly with the facts and the issues – both of which have been examined in more detail in his Honour’s judgment, to which I am greatly indebted.
2 The appellant was convicted of trafficking in methylamphetamine, which is well known as a drug of dependence. The prosecution case was based upon evidence obtained as a result of telephone intercepts, together with the discovery of very large quantities of drugs and other substances in the possession either of the appellant himself or of associates of his. One possible use to which these substances, some themselves drugs of dependence, could be put was in the manufacture of methylamphetamine, which the prosecution have identified as the drug of principal concern. His defence was that the chemicals were to be employed for innocent purposes: for industrial cleaning, or in the manufacture of herbicides and pesticides.
3 The presentment contained 11 counts. Positioned above the other ten was count 1. It alleged simply that, between 1 August 2007 and 28 May 2008, the appellant trafficked in methylamphetamine.
4 Of the remaining 10 counts, eight were alternatives to count 1. As examples, counts 2 and 4 alleged that the appellant on a day specified in the count possessed a drug of dependence (respectively, phenylacetic acid and propiophenone) for the purpose of trafficking in that drug. Each of phenylacetic acid and propiophenone, however, is also a precursor for the manufacture of methylamphetamine; and counts 3 and 5 therefore alleged that the appellant possessed the phenylacetic acid or propiophenone, as the case may be, as a prescribed precursor chemical in not less than the prescribed quantity. In these circumstances, the Crown was content, upon the appellant’s conviction for trafficking in methylamphetamine, to allow these counts to fall away.
5 Because methylamphetamine was the drug of principal concern, and because the charge of trafficking in it was the principal charge, the first issue for the jury was whether or not they were satisfied beyond reasonable doubt that the appellant trafficked in methylamphetamine between the specified dates. The Crown was entitled to a verdict on this charge, whether that verdict was guilty or not guilty. The jury had a corresponding duty to return one or other of those verdicts or, if agreement (whether unanimous or, in appropriate circumstances, by majority) proved to be impossible, to inform the judge that agreement could not be reached. But if the latter were the ultimate outcome, there would be no verdicts on any of the alternative charges either. If the jurors could not agree that the accused was guilty, or was not guilty, of the principal charge, any agreement on any of the alternative counts would necessarily involve compromise of an impermissible kind. The law, and therefore the courts, will not accept a verdict thus flawed.
6 The point was made by the majority of the High Court in Stanton v The Queen.[1] In that case, the accused pointed a loaded shotgun at his wife and pulled the trigger. She died as a consequence. He denied any intention to either kill or harm her; his only intention, he maintained, was to ‘make her see some sense and negotiate’ over Family Court proceedings.
7 Two verdicts were realistically open under the Criminal Code of Western Australia. Although murder (homicide with the intention not to kill but to cause grievous bodily harm: Code s 279) was left to the jury, the evidence pointed either to wilful murder (homicide with the intention to kill: Code ss 277 and 278) or to one of its alternatives, namely manslaughter (Code s 280). After the jury had been deliberating for some time, they asked a question:
If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to manslaughter?
8 Counsel and the trial judge agreed that the jury was required to agree upon the primary charge, the charge of wilful murder, before they could consider alternative verdicts. Accordingly, the judge answered the question as follows:
Yes, the law is quite clear. You can’t come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous.
9 Gleeson CJ, McHugh and Hayne JJ held that the answer was correct. They said:
... when the jury were considering the charge of wilful murder, it was proper for individual jurors to attach weight to the opinions of others, and if persuaded by those opinions, to modify or alter their own views in response. But if, after full deliberation, and interchange of views, some were of the opinion that the prosecution had established its case beyond reasonable doubt (which, in this case, meant that the prosecution had proved beyond reasonable doubt the appellant's intent to kill his wife), and others were of the opinion that the prosecution had not established its case beyond reasonable doubt (that is to say, if they had a doubt about intent to kill), then there was a state of disagreement. They might seek to resolve that disagreement by further discussion, which could lead some to change their opinions. But so long as they adhered to those opinions, they would be unable to agree on a verdict on the charge in the indictment. On that hypothesis, some jurors would consider that the appellant was guilty of wilful murder and other jurors would consider that the appellant was guilty of manslaughter. If those were their final opinions, then the outcome would be discharge and, potentially, a new trial; not a verdict of manslaughter, much less a ‘verdict’ of ‘at least manslaughter’.[2]
10 But if one course is required, another is forbidden. Just as a judge must direct a jury that they cannot come to a verdict on an alternative count unless they have first reached the (unanimous) conclusion that the accused is not guilty of the principal charge – and that, if he or she is (unanimously) found guilty of that charge, there will be no call for any verdict on the alternative or alternatives[3] – so a judge must not dictate to the jury a sequence of deliberation. In other words, the jury may consider the charges, even when they are alternatives, in whatever order they please. It is only when they come to decisions about verdicts that they must, before they reach a conclusion on any alternative charge, decide whether the accused is guilty or not guilty of the principal charge. That is the first of the verdicts about which they will be asked after they inform the court that they have reached a verdict or verdicts; and if the answer is guilty, no further verdict on any alternative charge will be sought. Only if the verdict is not guilty of the principal charge will the jury be asked to give a verdict on an alternative charge.
11 The freedom which jurors enjoy to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient, was emphasised by both the majority[4] and the minority (Gummow and Callinan JJ)[5] in Stanton. That freedom is a concomitant of the pivotal position which the jury occupies in any trial by jury. The members of the jury are the sole judges of the facts. As such, their autonomy must be respected. Were this not so, the jury might reason to a verdict to which, without the intervention of the judge, they might not have otherwise come. And it is not an answer to say that, uninstructed, the jury may have reasoned in exactly the same way to exactly the same conclusion if they might, uninstructed, have reasoned in a different way to a different conclusion.
12 But there is another side to this coin. The respect to which juries are entitled extends to the level of assistance they must be given. Jurors are sworn, or take an affirmation, to return a true verdict according to the evidence. The responsibility thus thrust upon them is very significant. Those (the vast majority) who have little or no knowledge of criminal law or procedure deserve all the help which the judge can properly give. It is for this reason that juries are given detailed directions about many of the issues with which they may be required to deal – to take one obvious example, tendency and coincidence evidence – including, of course, the identification of the issues themselves.
13 In part, and depending upon the circumstances, this assistance will include accurate directions about how to adjudicate upon a case in which alternative counts have been laid. This may involve the identification of the stark difference between, on the one hand, the importance of jurors’ freedom to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient, and, on the other, the requirement that a jury decide upon the fate of the principal charge before moving, if necessary, to a verdict on an alternative charge.
14 That distinction was not drawn by the trial judge in this case. Priest JA is nevertheless of the opinion that, although some of the 12 directions given by the trial judge to the jury about the way they were to consider the several alternative charges came perilously close to infringing the prohibition articulated in Stanton, the judge did not instruct the jury that they had to organise their deliberations in any particular fashion. By contrast, I think (and this is the only point at which my opinion differs from that of Priest JA) that the trial judge did cross the line. For example, he instructed the jury that if they were not satisfied beyond reasonable doubt that the appellant was guilty of the principal count (that of trafficking in methylamphetamine), ‘then and only then you go on to consider the alternatives’.[6] Again, the jury were told that if they ‘were not satisfied beyond reasonable doubt that [the appellant] was guilty of trafficking in methylamphetamine, count 1, then and only then would you go on to consider count 2 and count 3’. As another example, his Honour told the jury that they would only consider count 7 if they were not satisfied beyond reasonable doubt that the appellant was guilty on count 1. And although the judge spoke of the need to consider some charges only if count 1 had been resolved in the appellant’s favour, thereby distinguishing need from necessity, nevertheless the overall impression given by the 12 relevant directions was in my opinion to leave the jury in no doubt that they were to discuss the various charges in the order clearly favoured by the judge.
15 On the other hand, jurors intelligent enough to think these directions through would have realised that they were impossible to implement except at the point of decisions about verdicts. For, as Priest JA points out, if any of the conduct supporting any of the alternative charges were established to the criminal standard, the jury would of necessity still need to consider the single central issue – whether the appellant was engaged in the business of drug trafficking. And the consideration of this issue demanded the examination of evidence which crossed the boundaries between one charge and another. It was only when the jury were ready to decide their verdict on the principal count that they could as a matter of practicality exclude consideration of their verdicts on any of the other counts.
16 In a relevantly valid sense, this situation corresponds to that which obtained in Stanton. As Gleeson CJ, McHugh and Hayne JJ pointed out in their majority judgment, that case was, ultimately, a single issue case: the critical issue was whether the jury were satisfied beyond reasonable doubt that the appellant intended to kill his wife. And because the resolution of that issue would determine the verdict (which would be either of wilful murder or of manslaughter):
... it is difficult to understand how any possibility of sequential reasoning on that issue could have arisen. In whatever order they examined the evidence and considered the primary facts, when they came to decide whether the case was one of wilful murder or manslaughter, the jury would necessarily do that by reference to the single issue, of intent, on which the outcome depended.[7]
17 For this reason, it was not incorrect of the trial judge in Stanton to direct the jury that:
You first consider wilful murder and if you’re unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he’s not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.If you are unanimously of the view that he’s not guilty of murder, then you will consider manslaughter.
If you are unanimously of the view that he is guilty of manslaughter, then that will be your verdict. If you are unanimously of the view that he is not guilty of manslaughter, then the verdict will be not guilty.
18 By parity of reasoning, it is at least arguable that the trial judge in this case committed no error when he instructed the jury as he did. And, this being so, it is in my opinion beyond argument that no substantial miscarriage of justice occurred by reason of the directions about which complaint is made. It would have been preferable had his Honour told the jury that they were free to organise their deliberations concerning the several charges in whatever way, and in whatever order, they chose. He would then have been in a position to instruct them that they must come to a verdict on the principal charge before they reached any other verdict; and thus to explain the process of dealing with alternative verdicts should the need to deal with them arise. But his Honour’s failure to take this course resulted in no miscarriage of justice, still less a substantial miscarriage.
19 I would, for these reasons and for those given by Priest JA, dismiss this appeal.
Introduction
20 I have concluded that this appeal against conviction should be dismissed. My reasons follow.
21 On 14 February 2011, a jury in the County Court at Melbourne found the appellant guilty of one count trafficking a drug of dependence, count 1.[8] In addition to the first count, the presentment upon which the appellant was tried contained eight counts laid in the alternative: four each of possession of substances, materials, documents or equipment for trafficking a drug of dependence,[9] counts 2, 4, 7 and 9;
and possession of a precursor chemicals,[10] counts 3, 5, 8 and 10. The appellant had pleaded not guilty to each count. (Counts 6 and 11 related to offences committed by the appellant’s brother, and for present purposes are immaterial.)
22 Following a plea in mitigation, on 11 March 2011 the trial judge sentenced the appellant to be imprisoned for four (4) years and six (6) months, with a non-parole period of three (3) years.
23 An application for leave to appeal against conviction having been filed, on 19 September 2012 a judge of this Court granted leave to appeal[11] on the following grounds:
24 Each of the four grounds essentially raise the same issue: by his directions did the judge impermissibly dictate the sequence of the jury’s deliberations?
25 In order to understand the appellant’s contentions, it is necessary, albeit briefly, to set out the principal facts relating to the offending.
26 The prosecution’s case was that the appellant, who lived in Mildura, conducted a business of trafficking in methylamphetamine. He did this by sourcing, purchasing and distributing chemicals, including prescribed precursor chemicals used in the illegal manufacture of methylamphetamine. In his charge to the jury, the judge summarised the case on count 1 as being that ‘the accused conducted this business between 1 August 2007 and 28 May 2008, and the business is alleged to have involved him manufacturing, supplying and selling methylamphetamine and its precursor chemicals to his associates’.[12]
27 Laid as alternatives to count 1, there were four counts of possession of specified substances, equipment and documents for the purposes of trafficking in a drug of dependence (counts 2, 4, 7 and 9);[13] and four counts of possession of precursor chemicals (counts 3, 5, 8 and 10),[14] were alternatives to counts 2, 4, 7 and 9. No verdict was taken on any of these eight alternative counts, since the jury returned a verdict of guilty on the principal count.
28 The Crown case on the first count relied on the whole of the evidence, which also supported the alternative counts. A short description of the alternative counts is called for.
29 Counts 2 and 3: Count 2 alleged that on 19 November 2007, the appellant obtained 91 kilograms of phenylacetic acid which, on the evidence, could produce between 35 and 75 kilograms of methylamphetamine. In the alternative, count 3 relating to possession of the same phenylacetic acid, but as a precursor chemical rather than possession for the purpose of trafficking.
30 Counts 4 and 5: On 17 December 2007 the appellant possessed seven one litre bottles of propiophenone for the purposes of trafficking in a drug of dependence. The relevant background was that the appellant had previously ordered 20 one litre bottles of propiophenone from a chemical supplier. The order was delivered to him in two instalments, namely seven bottles on 17 December 2007, followed by 13 bottles on 9 January 2008. This conduct was the basis of count 4. Count 5, in the alternative, related to possession of the same propiophenone, but as a precursor chemical rather than possession for the purpose of trafficking. Counts 7 and 8: Count 7 was that on 9 January 2008 the appellant and his brother jointly possessed 13 one litre bottles of propiophenone for the purposes of trafficking in a drug of dependence. (This is the second delivery referred to under count 4.) As an alternative to count 7, count 8 related to joint possession of the same propiophenone, but as a precursor chemical rather than possession for the purpose of trafficking.
31 Counts 9 and 10: On the day of his arrest, 28 May 2008, the appellant possessed a number of chemicals, such as phenylacetic acid, propiophenone, ketone and methylethylketone; implements such as a PH meter and a ladle; and documents dealing with chemicals. By way of background, the appellant had taken delivery of 25 kilograms of phenylacetic acid at his house on this occasion. This conduct formed the basis of count 9. Count 10, the alternative to count 9, related to possession of the phenylacetic acid referred to in count 9 above, but as a precursor chemical rather than possession for the purpose of trafficking.
32 Additionally, the prosecution relied on telephone intercepts which demonstrated the appellant’s requirement for chemicals that could be used in methylamphetamine manufacture. Three of the propiophenone bottles earlier possessed by the appellant were located by the police in the possession of three of the appellant’s associates. The evidence indicated that those bottles were probably sold for somewhere between $20,000 and $30,000 each. Surveillance evidence showed that the appellant met these three associates in Melbourne February 2008. Police later raided clandestine methylamphetamine laboratories that were operated by the three associates.
33 The gravamen of the defence case was that the appellant obtained the relevant chemicals for legitimate purposes including the manufacture of pesticides, herbicides, and industrial cleaning.
The impugned directions and the submissions of the parties
34 Twelve directions from the trial judge’s charge to the jury were argued by the appellant to disclose error. For the sake of ease, I have numbered them (and added emphasis to some passages):
(1) Against [the appellant] there is really one major charge, that is count 1. I will deal with alternatives later on, but if you were not satisfied beyond reasonable doubt that he was guilty of count 1, then and only then you go on to consider the alternatives ...(2) If you need to consider each charge against [the appellant], if you need to go beyond count 1 you obviously determine each count in accordance with the evidence that is applicable to it ...
(3) Take count 3, ... If you were not satisfied beyond reasonable doubt that [the appellant] was guilty of trafficking in methylamphetamine, count 1, then and only then you would go on to consider count 2 and count 3 ... but if you were not satisfied by that you would have to come to count 3 as a second alternative.
(4) If you were not satisfied he was in the business as I will tell you about of trafficking in methylamphetamine [that is, count 1], then and only then would you have to consider whether or not he is guilty of any of the other charges ...
(5) If you were not satisfied beyond reasonable doubt that he was guilty of trafficking, count 1, you would then consider in relation to count 2 whether on 19 November 2007 he possessed phenylacetic acid for the purposes of trafficking in a drug of dependence ...
(6) Count 7 alleges that each of them, both of them, together, [the appellant] and Matteo Medici, on 9 January possessed a substance for the purposes of trafficking. You would only consider that charge as far as [the appellant] is concerned if you were not satisfied beyond reasonable doubt of his guilt on count 1.
Having got to that, you would ask yourself ... If you were not satisfied of that you would then go to count 8, which is an alternative to count 7.
(7) ... [C]ount 9, which again you would only be considering if you were not satisfied in relation to count 1 so far as [the appellant] is concerned ...
(8) If you were not satisfied beyond reasonable doubt [of count 9], you would look at count 10 and ask yourself ... That is an alternative to count 9. All of those, of course, are alternatives to count 1.
(9) Count 3, this is an alternative to Count 2. So you only get to consider Count 3 if you find the accused man not guilty of Count 1, not guilty of Count 2, and then you would consider Count 3. If you find him guilty of Count 1 of course you are not considering any other charge against [the appellant]. If you find him guilty of Count 2 you would not of course consider Count 3 ...
(10) Count 5 is an alternative to Count 4. Again you would only be considering Count 4 if you found [the appellant] not guilty on Count 1. If you found him not guilty on Count 1 and not guilty on Count 4, which I have defined for you, then and only then do you come to consider Count 5.
(11) Count 8 is an alternative to [Count 7]. So far as [the appellant] is concerned, you would not be considering Counts 7 or 8 unless you found him not guilty on Count 1. It is only if you found him not guilty on Count 1 that you need to consider Count 7. It is only if you found him not guilty on Count 7 that you would need to consider Count 8. I know I keep repeating this but I hope everyone has got the structure of the way this works.
(12) Finally, Count 10, as against [the appellant], is an alternative to Count 9. This relates to the items that were found at his home. Again, it follows logically that you would not be considering Count 9 unless you had found [the appellant] not guilty of Count 1. If you found him guilty of Count 1, that is the end of it. If you are considering Count 9 ... [and] if you were not so satisfied of those or any of the elements of that charge, you would find him not guilty of Count 9, and only then would you then consider Count 10 as to whether he possessed a prescribed quantity ...
35 The appellant submitted that, as a matter of law, a jury must not be directed to refrain from considering an alternative count until they have first completed their consideration of the principal count. A trial judge, it was argued, is under a positive duty not to direct a jury that they must not consider an alternative count unless and until they have reached a concluded view that a verdict of not guilty should be reached on a more serious count.[15] It was submitted that, in the directions extracted, the trial judge was ‘in breach of this duty’, in that he had clearly and repeatedly directed the jury that they could only consider the alternative counts if they had first determined to acquit on the primary count or counts. As a result, there has been a substantial miscarriage of justice.[16] In making this submission, counsel for the appellant, Mr Holdenson of Her Majesty’s Counsel, pointed out that there was a ‘sound foundation’ for the alternative counts. The repeated mantra ‘then and only then’ in the judge’s directions, it was submitted, foreclosed consideration of the alternative counts beyond the first count.
36 In resisting these submissions, counsel for the respondent submitted that the judge was required to direct the jury as to the taking of alternative verdicts, and that the jury would have understood the impugned directions to relate to the taking of verdicts rather than as directions to them to organise their deliberations in a particular way. When the directions are read in their full context, and in the context of the charge as a whole, the judge was doing no more than explaining to the jury the process involved in the alternatives. Authority permitted the directions that were given.[17] Moreover, counsel for the appellant took no exception. Finally, it was submitted that even if the judge had gone beyond what was necessary to explain alternative verdicts, no substantial miscarriage of justice had occurred. The jury knew that they had to look at all of the evidence when considering the first count, and having found the appellant guilty of the principal count, any breach should be seen as ‘technical’. Application of the ‘proviso’ would be appropriate[18] (which I take to be a submission that if there were a miscarriage of justice, it was not a ‘substantial miscarriage of justice’[19]).
Resolution of the appeal
37 Oral argument on the appeal was heard at the same time as that in Smith,[20] grounds 1 to 4 in each case being expressed in much the same terms and raising essentially the same issue. I am thus relieved from repeating in detail the considerations arising from Stanton[21] and the cases following it. It suffices to say that the appellant accepted as correct the three propositions set out by Jenkins J in Simms:[22]
38 Mr Holdenson QC submitted that in the present case there had been a breach of the first and second ‘principles’, which was not ‘saved’ by the third.
39 Counsel for the respondent, Mr Kissane, drew the Court’s attention to the decision of the Full Court (Winneke CJ, Adam and Starke JJ) in McCready.[23] In that case the applicant was acquitted of rape, but found guilty of the alternative charge of assault with intent to rape. During their deliberations, the jury asked a question, namely: ‘Some of the gentlemen of the jury are not prepared to go on to the next charge after not agreeing on the more serious charge. What is the ruling of this Court?’. In response, the judge gave a direction which included, ‘You do not have to start at the top and work down necessarily. You can start at the bottom of the list and work up if you want to’; and ‘So long as it is a reasonable approach to it, a minimum on which you can agree, as it were, then you can go down and look at the next one. If you are not unanimous there at this stage of your deliberations, go and see if you can agree on the next one down. If you find you cannot agree on any of them, see if you can agree on not guilty’. The Court was of the opinion that the direction ‘was not in accordance with law and was calculated to distract the minds of the jury from proper consideration of the issue with which it was confronted’, and said:[24]
An alternative verdict of assault with intent to commit rape is authorized by s 425(1) of the Crimes Act 1958 which provides: ‘Where on the trial of a person charged with rape ... the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of an assault with intent to commit the same, they may return as their verdict that he is not guilty of the offence so charged and may find him guilty of an assault with intent to commit the same.’ The terms of that section, in our view, make a verdict of assault with intent to commit rape dependent upon the jury being not satisfied that the accused is guilty of the crime of rape. The question of his guilt of the alternative charge does not arise unless and until the jury is not satisfied of his guilt of rape, and whilst the jury is in a state of disagreement upon the latter, the accused’s guilt of the alternative crime remains irrelevant. In such circumstances, we are of opinion that a direction of the kind given by the learned judge in answer to the jury’s question, so far from resolving their differences in accordance with law, would, we think, be calculated to deflect the minds of the jury from the relevant issue and capable of inducing, as [counsel for the applicant] contended, a compromise verdict not justified under s 425 of the Act.
40 Properly understood, there is no tension between what was said in McCready and the general rule expressed in Stanton[25] that, ‘Jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient’. The Full Court’s reasons make it clear that it was necessary for the jury to resolve a verdict on the principal charge before turning to consider the verdict on the alternative charge. Nothing in what the Full Court said, however, purported to fetter the manner in which the jury may approach their deliberations or suggested that the jury must carry out their deliberations in a particular sequence.
41 In this case, as it was in Smith, it is necessary to ask: was the effect of the trial judge’s directions to dictate the sequence in which the jury had to consider the alternative charges (rather than the sequence of delivery of the verdicts)? That question should be answered ‘no’, in my opinion, since on balance the jury would have understood that the instructions as directed to the return of their verdicts rather than as a fetter on their manner of deliberation. The judge repeatedly instructed the jury that they only need consider a particular verdict on an alternative count if failing of satisfaction beyond reasonable doubt on a principal charge. Although I acknowledge that some of the criticised directions come perilously close to infringing the prohibition in Stanton, the judge did not, however, instruct the jury that they had to organise their deliberations in any particular fashion.
42 Importantly, the principal issue in the case was whether the jury were satisfied beyond reasonable doubt that the appellant was in the business of trafficking[26] methylamphetamine. All of the evidence in the case which would have supported the alternative counts went to support the prosecution’s main contention that the appellant was conducting a business. It is difficult to see how any direction as to the sequence of consideration of the charges might have affected the jury’s consideration of this issue. No matter the starting point of their deliberations, the jury’s consideration would always need to return to the central issue of whether or not the appellant was conducting a business. No matter that the jury started their deliberations with the conduct relied upon to establish counts 2, 4, 7 and 9; or that they commenced by considering the conduct related to counts 3, 5, 8 and 10; or that they considered the charges in groups comprising counts 2 and 3, 4 and 5, 7 and 8, or 9 and 10; or that they adopted some other method entirely; if any of the conduct supporting any of the alternative charges were established on the criminal standard, the jury would still need to consider the single central issue – was the appellant engaged in the business of trafficking? Once this issue was resolved against the
appellant beyond reasonable doubt, conviction on count 1 was inevitable (assuming, of course, that the conduct being the foundation of the alternative charges – or some of it – was established). Put another way, assuming for the sake of argument that error exists, I cannot see that the error may have made any difference to the jury’s verdict.[27] For this reason, even were I wrong in my view that the judge’s directions did not dictate the sequence of the jury’s consideration of the charges, and that there had thus been ‘an error or an irregularity in, or in relation to, the trial’,[28] I would nonetheless conclude that no substantial miscarriage of justice had been occasioned.[29]
Conclusion
43 For these reasons the appeal should be dismissed.
44 I agree with the reasons as expressed by Priest JA.
- - -
[1] [2003] HCA 29; (2003) 198 ALR 41.
[2] Ibid [27].
[3] I have, for ease of explication, assumed that any question of majority verdicts can for present purposes be put aside.
[4] At [35].
[5] At [70].
[6] My emphasis.
[7] Stanton, [37].
[8] Drugs Poisons and Controlled Substances Act 1981, s 71AC.
[9] Drugs Poisons and Controlled Substances Act 1981, s 71A.
[10] Drugs Poisons and Controlled Substances Act 1981, s 71D.
[11] Criminal Procedure Act 2009, s 315.
[12] Charge 445.
[13] Drugs, Poisons and Controlled Substances Act 1981, s 71A. Phenylacetic acid, count 2; propiophenone, counts 4 and 7; and propiophenone methyl isobutyl ketone and methyl ethyl ketone, count 9).
[14] Drugs, Poisons and Controlled Substances Act 1981, s 71D.
[15] Reliance was placed on Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41, 77 ALJR 1151; LLW v R [2012] VSCA 54; Simms v R [2004] WASCA 237; (2004) 148 A Crim R 433; Stanton v R [2001] WASCA 189; (2001) 24 WAR 233; Gilbert v The Queen (2000) 201 CLR 414.
[16] Criminal Procedure Act 2009, ss 276(1)(b) and (c).
[17] R v McCready [1967] VR 235 was cited for this proposition.
[18] In his Written Case the appellant also referred to the ‘proviso’, as did the judge who granted leave to appeal in the reasons for so doing. This is curious given that the appeal is governed by s 276 of the Criminal Procedure Act 2009, which does not replicate the proviso to be found in the common form criminal appeal statutes.
[19] Criminal Procedure Act 2009, ss 276(1)(b) and (c); Baini v The Queen (2012) 293 ALR 472; Andelman v R [2013] VSCA 25.
[20] Smith v R [2013] VSCA 112.
[21] Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41, 77 ALJR 1151.
[22] Simms v R [2004] WASCA 237; (2004) 148 A Crim R 433, 442 [50].
[23] R v McCready [1967] VicRp 36; [1967] VR 325.
[24] Ibid 329.
[25] Ibid 49 [35].
[26] R v Giretti (1986) 24 A Crim R 112.
[27] Baini v The Queen (2012) 293 ALR 472, 479 [32].
[28] Criminal Procedure Act 2009, s 276(1)(b).
[29] Baini v The Queen (2012) 293 ALR 472, 478–9 [28]–[32]; Andelman v R [2013] VSCA 25, [85].
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