p> CATCHWORDS Appeal against conviction after trial on two counts of supplying heroin and one count of being in possession of heroin for purpose of supply. Summing-up - No need for explanation of defence case to be in a single self-contained whole. Unsworn statement - Limitation on trial judge's power to comment. Confession - Standard of proof. Appeal against sentence - Possession of mixture containing 5.37 grams of pure heroin - Prior sales of same mixture —- 3 years imprisonment concurrent for supply and 6 years cumulative for possession for supply with non parole period of 4 years 8 months not manifestly excessive. Cumulative sentences - Power to impose. Poisons and Narcotic Drugs Ordinance 1978, s.4 Crimes Act 1900 (N.S.W.) in its application to the Australian Capital - Territory ss.444, 447 : Evidence Ordinance 1971, s.74 Crimes Act 1914, s.19 Interpretation Ordinance 1967 Interpretation (Amendment) Ordinance 1985 Interpretation (Amendment) Ordinance (No. 2) 1985 RONALD JOSEPH DOMINGUEZ v. THE QUEEN No. ACT G67 1985 CORAM: Evatt, Sheppard & Miles Jd. 6 December 1985 RECEIVED 12DEC 1985 peeimaL COSAT ivi 3 AUSTOALIA vee TEL F x ~~ ayn Mone 4 i ' Canberra. ny ene oy Fy, We ee ary IN THE FEDERAL COURT OF AUSTRALIA )} - AUSTRALIAN CAPITAL TERRITORY No. ACT G67 of 1985 DISTRICT, REGISTRY GENERAL DIVISION } BETWEEN: RONALD JOSEPH DOMINGUEZ Appellant AND: THE QUEEN Respondent MINUTE OF ORDER JUDGES MAKING ORDER: Evatt, Sheppard & Miles JJ. DATE OF ORDERS: 6 December 1985 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The appeal against conviction be dismissed. 2. The appeal against sentence be dismissed. ion oni ear a ~ ors a: Cnr are eet eT ee ry Yee ae, oF ee ee rt v Soe oe see me ere mop IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G67 of 1985 ~ DISTRICT REGISTRY ) ) ) ) } GENERAL DIVISION ) BETWEEN: RONALD JOSEPH DOMINGUEZ Appellant AND: THE QUEEN Respondent CORAM: Evatt, Sheppard & Miles JJ DATE: 6 December 1985 REASONS FOR JUDGMENT : 1 THE COURT Ronald Joseph Dominguez was charged on indictment on two counts of supplying a controlled substance, namely heroin, to a person whose name is unknown and on a third count of having a controlled substance, namely heroin, in his possession for the purpose of supplying that substance to another person or to other persons. These are offences under s.4 of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory. After a lengthy trial in the Supreme Court of the Australian Capital Territory he was convicted on all counts and sentenced. The sentences imposed were three years on } > 4, 4+ |.- { [ i L | | i : ' y } _ 2. imprisonment on the first count, three years imprisonment on the second count concurrently with the sentence imposed on the first count, and six years imprisonment on the third count cumulative on the sentence imposed on the first count. A non parole period of four years and eight months was fixed. The periods already spent in custody were taken into account. He appeals against the convictions and against the severity of the sentences. The grounds of the appeal against conviction as they were eventually argued are that the learned trial Judge in his summing-up failed to adequately put the defence case, misdirected the jury on the appellant's unsworn statement and misdirected the jury on the standard of proof relating to certain confessional evidence. The evidence in the Crown case came mainly from Det. Sgt. Bruce Wayne Lewis, then the Officer-in-charge of the Drug Squad, Australian Federal Police, and Constable Rodney Peter West, also a member of the Drug Squad. Their evidence was as follows. On Sunday, 23 December 1984 at about 5.50 p.m. they went with other members of the police force to 14 Lawley Place, Deakin in execution of a search warrant. They there saw the appellant. When the appellant was asked whether there were any drugs on the premises he replied, "You might as weil have these, you will find them anyway". He then took from a pocket of his shorts five silver foil packages (referred to in evidence as "foils") and handed them to Sgt. Lewis. Sgt. Lewis asked "What is in the packages?" and the appellant replied "Heroin". Sgt. Lewis said, "Who owns it?" and the appellant replied, "I do". The appellant denied that there were any other drugs on the premises and stated that another . amp ocwee Cr a ha aa yoee 3. man, who had nothing to do with drugs, also lived in the house. A search of the premises ensued and in the backyard under some dead leaves the police discovered a plastic bag containing another eighteen foils. Sgt. Lewis broke one of them open and found it to contain a white powder. Sgt. Lewis questioned the appellant as to the eighteen foils and the appellant said, "Yes, its heroin". Sgt. Lewis asked, "Who owns it?". The appellant replied, "Me". A further search of the yard disclosed a sum of $4050 in eight separate rolls of fifty dollar notes in a_ stone retaining wall. The following conversation then occurred between Sgt. Lewis and the appellant: 'I said, "Ron, detectives have just located a quantity of money in the rear yard" and I showed him the plastic bag which I had taken from the rear yard containing the eight bundles of Australian notes. I said "Can you tell me who owns it?". He said "I do". I said "Where did it come from?". He said "Selling heroin". I said "What did you intend to do with the other heroin that was located in the rear yard?". He said "I was going to sell some and use the rest". I said "Where did you sell it from?". He said "From here".' The appellant was found to have $595 in cash on his person. A further sum of $350 was found in cash on a shelf in the kitchen. Also in the kitchen were found a quantity of small plastic bags, a set of scales, a roll of aluminium foil and a quantity of glucose powder. During the search the appellant requested to speak to Sgt. Lewis privately and accompanied him into a bedroom where he asked, "Can we do a deal?". Sgt. Lewis replied that there would be no deals done. There was a similar conversation at the remand centre on 21 January 1985. a+ 4. The appellant was then accompanied to the office of the Criminal Investigation Branch where, according to the Crown evidence, a conversation took place which was recorded on a typewriter. After the conversation concluded, the appellant signed a record of that conversation. The record of interview was admitted into evidence. It was objected to upon the ground that the participation of the appellant in the interview, and his signature to the record, were not obtained voluntarily. Alternatively, it was submitted that the record should be excluded from evidence on discretionary grounds. The decision of the learned trial Judge to admit the record of interview into evidence is not the subject of any ground of appeal. According to the record of interview, the appellant confirmed what he had told the police earlier on the day in question. On being shown the scales, the aluminium foil, the Plastic bags and the packet of glucose, he stated that they were all used in connection with the preparation of heroin. The appellant stated that he had bought one ounce of heroin in Canberra the previous Thursday or Friday from a person whom he knew only as Paul, and that it was obtained on credit and that it was worth $1600. The record of interview continued with the following questions and answers: "9.38 "What did you intend to do with the heroin?" A. "It was for sale to support my own habit." Q.39 "How was the heroin packaged when you first got it?" A. "It was in one plastic bag." SMa See gee wee eye gee ees Praia' Sed pormpcrie ape wa epee ne 5. Q.40 "Who made it up into the smali foil deals?" A. "I did." Q.41 "How many small silver foils did you make up?" 'A. "I made 38 up out of the ounce." Q.42 "How much of that did you intend to use?" A. "About a third to a half." Q.43 "What did you intend to do with the rest of the heroin?" A. "Sell it." Q.44 "How much were you seliing the heroin for?" A. "$350 a deal." The appellant then stated that he was a heroin addict using two and a half to three grams a day. He said that he had last used heroin that afternoon at about 3 o'clock, that he was not feeling any effect of that heroin at the time of questioning, that he clearly understood the questions being asked and had no difficulty in answering them. He declined the services of a doctor. He was then shown the cash found in the backyard and acknowledged that it was his. The record of interview continued: "9.54 "Where did you get this money from?" A. "From selling heroin." Q.55 "Over what period of time did it take you to collect this amount of money?" A. "Three or four days." Q.56 "How many different people did you sell heroin to in that three or four days?" A. "About half a dozen." 6. Q.57 "Is the three or four day period you referred to starting from last Friday?" A. "Yes."' The accused was then shown the $950 found in the wallet in the kitchen and after acknowledging that it was his, stated that $350 was from selling heroin and the rest was "from work". Finally, in the record of interview the appellant acknowledged that a number of syringes and spoons with a white substance adhering to them located by the police on the premises were his. The recorded interview commenced at 8.03 p.m. and concluded at 10.01 p.m. During that time the appellant was said not to have displayed symptoms of withdrawal' from heroin. The signature of the appellant was witnessed by Sgt. Lewis and Constable West. No senior officer was invited to participate in it or check it with the appellant. Evidence was also given in the Crown case by three more police officers. Constable Thrift gave evidence of locating the glucose powder, plastic bags and the aluminium foil. Constable Moses gave evidence of the conversations at the house between Det. Sgt. Lewis and the appellant and said that he could not see any outward sign that the appellant was affected by a narcotic drug. He had some years experience as an agent with the Federal Bureau of Narcotics. Constable van - Akker gave evidence of finding the bank notes in the retaining wall in the rear yard. Scientific evidence was given by Mr. Peter Gary Smith, an analyst who received the five foils and the eighteen foils" ya- st ot "wT Fad we op ee ower fy -t. vr onep ~e > Sat age ren 7. and subjected their contents to analysis. The contents of the - five foils were 3.46 grams in mass, containing .99 of a gram of pure heroin. The contents of the eighteen foils were 14.81 grams in mass, containing 4.38 grams of pure heroin. The total mass of pure heroin was 5.37 grams. Apart from the heroin content the powder was made up of glucose. Mr. Smith formed the view that the chemical composition of the two lots of powder was such that it was likely that they came from the same stock. Dr David Neal McGrath gave evidence in the Crown case that he examined the appellant at the city watch-house at the request of the police in order to see whether the appellant needed any treatment. The examination took place at about 4.10 a.m. on 24 December 1984. Dr McGrath formed the view that the appellant was suffering mild narcotic withdrawal. His experience of such matters was limited; he had not had previous direct experience of a patient with narcotic withdrawal and he consulted a textbook after his visit to make his assessment. The appellant made a statement and called some evidence. His statement was lengthy and it is more convenient to summarise it than to set it out in full. In his statement he admitted that he was in possession of the five foils of, heroin at the time of the police visit and said that he had purchased that heroin that morning because he intended to fly to Wingham the following day to spend Christmas with his parents. He said that he was a heroin addict and had had his 8. Dot: last dose of heroin at about 3 o'clock that afternoon. He said that the police stripped him of his clothing and handcuffed him to a chair in his house. He began to feel the onset of withdrawal symptoms. He admitted that he said to Sgt. Lewis in the bedroom, "Can we make a deal?" and that when the sergeant declined he was taken back to the loungeroom and there was then produced a bag with a number of silver foils in 1t. He was questioned as to the ownership and replied "I don't know". Stg. Lewis responded, "Well, you're going to wear them anyway". He went on to say that he was taken to the police station and was told that a record of interview would take place to which he replied, "No, I don't want any part in it". There was then a series of conversations between Sgt. Lewis and Constable West in which the appellant said that they concocted the record of interview. He said that he was asked certain questions and gave answers but could not remember the details except to the extent that the answers that he gave were not the answers recorded in the record of interview. He said that the withdrawal symptoms grew worse complained to the police officers and was told that they would get a doctor as soon as they were finished. He was asked whether he would sign the record of interview and refused. He claimed that he was then told by Sgt. Lewis that if he did sign it then he would be given something to make him better (which he took to be heroin); the police would not oppose bail and would give him back some of the money. He added that the police told him that if he signed the record they "would make___ qo ee ree one ee swoops rr Tre . yore ont a MS ne tay ete 9. it known in the court that I was not dealing to make profit, that I was dealing to support my addiction". He said that he signed the record of interview because of these factors together with the craving for heroin that he had developed. He said that he realised by the stage of the trial that signing the statement was irrational but would have signed anything to get heroin at that stage. He denied the alleged conversation at the remand centre. He concluded by telling the jury that he had made no admissions about supplying heroin, that he did not have a supplier in Sydney, that the eighteen foils were not his, that the money was not his and that he believed that they belonged to the man with whom he had been sharing the house and whom he had expected to give evidence on his behalf. Dr W.P. Fitt gave evidence on behalf of the defence. He examined the appellant at the Belconnen Remand Centre on 24 December in the evening. His view was that the appellant was suffering symptoms of withdrawal from heroin. The brother of the appellant testified that he had spoken to the appellant and to Sgt. Lewis on the telephone at about 10 p.m. on the night of the arrest, and that Sgt. Lewis had said that the appellant was "coming down from a dose of heroin" and needed to be kept under observation. The brother saw the appellant the next morning at Court and in the cells where he was withdrawn and shivering. Evidence was given by nurses Lesley-Ann Fraser and Marion Watson to the effect that a person with heroin addiction such as that claimed by the appellant would be likely to suffer severe withdrawal symptoms ony . fa on tress eee oe meee te co roe 10. about six hours subsequent to the last ingestion of the drug. It would be common for such a person to strongly crave the drug to the extent of going to irrational lengths for short-term gratification regardless of consequences. The case for the prosecution and the case for the defence may then be seen in contrast. The appellant had been found in possession of five foils of heroin. This was undisputed. There was also found on his person a reasonably large sum of cash. There was found in and about the house which he shared with another man a further quantity of heroin, further large sums of cash and a collection of items which could be taken by the 'jury to constitute the means of preparing heroin for distribution to other persons. What was located in and about the premises was of itself equivocal insofar as all or any part of it could have belonged to the other man, and might have had nothing to do with the distribution of heroin. However the Crown relied on verbal admissions that ail the heroin and the cash found belonged to the appellant, that he had sold some of the heroin previously purchased and intended to sell some of what remained. Further, the Crown relied upon the evidence contained in the record of interview: in particular the answers to questions 38 and 43 as to the intention of the appellant to sell the heroin that was in his possession at the time of his arrest, and the answers to questions 56 and 60 to support the actual sale alleged in the first and second counts in the indictment. Lastly, the Crown was entitled to rely upon the presumption: under s.4(4) of the Ordinance that if the jury found that the ratty peeve 11. appellant was in possession of the eighteen foils, then he was _ in possession of more than the traffickable quantity of the drug and presumed, unless he proved to the contrary on the balance of probabilities, to be in possession of the drug for the purpose of supply. The case for the defence starts with the appellant's concession at the trial that he was a heroin addict and had the five foils in his possession at the time of arrest. Beyond that he denied possession of the further quantity of heroin and of the money found in the yard and claimed that the five foils were solely for his own use. He denied making the other verbal admissions mentioned above. He denied that the conversation recorded in the record of interview had taken place. He admitted signing the record of interview but asserted that he had done so only after promises made by the police and because his mind was overborne by the craving for heroin which he had developed as part of withdrawal from previous ingestion of the drug. As we understand the nature of the submissions put on behalf of the appellant he did not raise the issue that at any relevant time he was intoxicated by the direct influence of the drug. The first ground of appeal with which we shall deal is that the learned trial Judge failed to put the defence case properly. Failure adequately to put the defence is a well recognized ground of appeal. The duty to secure for the accused a fair trial according to law involves an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in apes ae ces ~~ OAM OT Loqcwe 3. eee cv m-oIo y- oe ae ~ we ontt le nara i 12. the circumstances of the case upon the material before them find or base a verdict in whole or in part for the accused: Pemble v. The Queen (1971) 124 C.L.R. 107 at p.117. The appellant relied upon the decision of the New South Wales Court of Criminal Appeal in R_v. Veverka (1978) 1 NSWLR 478. That was a case in which the accused was convicted of murder arising out of a shooting inside a car. He maintained in his statement to the jury that the shooting was accidental and that the rifle discharged without any intention in that regard on his part. The trial Judge in his summing-up had dealt with the Crown case as a clear and comprehensive narrative and in the course of so doing had mentioned particular answers made on behalf of the appellant to specific aspects of the Crown case. He did not adopt a similar method of presenting the evidentiary material when dealing with the appellant's case. In the judgment of Street C.J., with whom the other members of the Court agreed, the references made to the appellant's case during the canvassing of the Crown case would have been sufficient to raise the relevant considerations for determination by a trained intellect accustomed to adjudicating upon issues of fact, but the risk in following that course in a jury trial was that it gave rise to a challenge as to whether the jury was presented within the terms of the summing-up with a clearly defined account of the defence case. The unsworn statement in Veverka, some two pages in length in transcript and no "rambling irrelevancy", was not read to the jury nor paraphrased as an entirety. His Honour concluded at p.481: sam -y ee = Meo ae 13. "There is, of course, no absolute requirement that an unsworn statement must be read to the jury in the course of the summing-up although this is a practice frequently adopted. What is relied upon here is that there was neither a reading to the jury of the unsworn statement nor a giving to the jury of a comprehensive paraphrase of it, nor a collection by his Honour into one identifiable portion of the summing-up of the various lines of evidence upon which the appellant relied as constituting the entirety of his defence to the charge brought against him. It is not easy to resolve a submission of this nature remote from the atmosphere of the trial, and from the terms of addresses of counsel. It is, however, clear from the authorities to which reference has been made that a summing-up must contain an adequate presentation of the defence case to enable the jury, from the terms of the summing-up itself to comprehend and understand what the defence case is." It is important to read this passage as a whole. It does not, in our view, give rise to the proposition stated in the headnote to Veverka that an accused person is entitled to have his case presented to the jury in the summing-up as an identifiable entirety to an extent equal to that employed in the presentation of the case for the Crown. It is obvious that in many cases the prosecution case may well be complex and require lengthy explanation whereas the defence case may be simple so that a concise explanation of it is neither inadequate nor unfair. Nor is it necessary in our view that the defence case should be put in a single and self-contained portion of the summing-up, although no doubt that course will often suggest itself to the trial judge as convenient and appropriate. The question in every case is whether the terms of the summing-up itself taken as a whole contain sufficient presentation of the defence case to enable the jury to understand what it is. a 14. ~ We turn now to examine the summing-up in question. The learned trial Judge did not read the unsworn statement of the accused to the jury in his summing-up. The course adopted by his Honour was similar to that adopted by the trial Judge in Veverka in that his Honour explained the nature of the Crown case in narrative fashion and in the course of so doing drew attention to the case for the accused as it arose in relation to each of the particular aspects of the Crown case. In our view no criticism can be made of this course. The statement occupies some seven pages or more of the transcript. It contains a number of irrelevant matters. It is not directed precisely to the various issues that are raised by each of the three charges on the indictment; we do not suggest that it should have been so precisely formulated, but clearly a simple reading of the statement was likely to be of less assistance to the jury than a paraphrase and explanation of what was contained in it. It is not necessary to refer to each passage in the summing-up which raises aspects of the defence case. His Honour outlined in a joint fashion the nature of the Crown case and the evidence to support it in relation to the first two counts in the indictment and went on to deal with the third count at a later stage. He explained to the jury that the accused did not deny being in possession of five foils found on his person, admitted that he had tried to persuade the police to come to some arrangement about that but had done so simply on the basis that he realised that he was in trouble because he had been found in possession of some heroin. Bis 15. - Honour informed the 'jury that the accused denied the alleged verbal admissions at the house and asserted that the record of interview was a concoction. He went on to discuss in considerable detail the evidence relating to the record of interview, including the cross-examination of the police officers and including the evidence from the doctors and the two phychiatric nurses. In addition his Honour read to the jury certain passages from that part of the accused's statement which raises the question of his condition at the time of the interview and the reasons for his signing the record. The evidence of Mrs. Fraser and Miss Watson was not referred to in any detail but the jury was reminded by his Honour of the evidence that they had given "about the terrible feelings and cravings that drug addicts get". His Honour then proceeded to direct the jury in relation to the third count in the indictment, the charge of having the heroin in possession for the purpose of supplying other persons. His Honour instructed the jury on the law and then outlined the Crown case on that count. He told the jury that it was undisputed that the five foils and the eighteen foils together contained 5.37 grams of heroin and that if the jury was satisfied as a matter of fact that the appellant was in possession of the eighteen foils as well as the five foils, then as a matter of law the appellant was deemed to have the heroin in his possession for the purpose of supply to other persons. His Honour pointed out to the jury that the accused ape ay ' 16. had not raised the question of justifying his possession by way of claim of lawful authority. His Honour continued as follows: "Indeed the accused said "I didn't possess the eighteen foils". He denies possession. He does not say "Well if they were in my possession I was going to use them all mysel£—" such as you do get in cases like this." His Honour concluded by instructing the jury as to the way in which they could approach the accused's unsworn statement, a subject to which we shall return shortly. The jury retired to consider their verdict, there was further discussion between counsel and the jury was called back and given a further instruction in terms that counsel for the accused had indicated were satisfactory. The further direction was in these terms: "The accused's case is not that he did not sign the record of interview, that his case is not that he did not know that he was signing the record of interview rather, it is his case that at the time his state was so irrational, as a result of heroin withdrawal, that he signed it for the reasons that he explained." It was also submitted on behalf of the appellant that the summing-up was deficient in that it made no reference to some inconsistencies in the evidence given by the police officers. However, the trial Judge was not obliged to put to the jury all the arguments that were or could be raised by counsel for the defence as to deficiencies in the Crown case. We take into account the fact that the trial Judge was not asked by counsel for the defence to put anything further to the jury on the defence case apart from the further direction we ee t i ! i t 17, ; a which his Honour did in fact give and to which we have referred. Taking the summing-up as a whole, we are not convinced that his Honour failed to make clear to the jury the nature of the attack made on the Crown case on behalf of the appellant nor the positive defence raised by him in answer to the Crown case. In our view there was no danger that the jury would have been left in any doubt that the accused alleged that the heroin found in his backyard together with the money there was not his and that the foils found in his possession were for his own use, that he denied the verbal admissions alleged, that he denied that the record of interview took place and that he explained his signing the record of interview by reference to his craving for heroin. This ground of appeal fails. The next ground of appeal is that the learned trial Judge misdirected the jury on how they should assess the appellant's unsworn statement. What his Honour said is as follows. "The law requires you to take that statement into account together with all the other evidence. But it is obvious to you that there are certain infirmities in him taking that course. He suffers certain defects in the way he presents to you by having taken that course. What he said to you is not, itself, evidence in the same sense as evidence given from the witness box on oath, and it is not subject in any way as was the evidence of the Crown witnesses to the test of cross-examination."" With the possible exception of one feature with which we shall shortly deal, this direction was in accordance with 18. the long-standing practice in the Territory. The nature of the unsworn statement of an accused person in a criminal trial in the Australian Capital Territory was the subject of a very comprehensive judgment of Smithers J. (with whom Bowen C.d. and Fisher J. agreed on the point) in the appeal of Peter David Sorgenfrie (1981) 3 A.C.R. 404. In the light of that judgment it may be thought that there is little that we could add on the subject. However in deference to the research and industry of counsel for the appellant we think it desirable to deal expressly with the submissions that were made. We start with the proposition that the prohibition of comment on the part of the trial Judge on the accused's failure to give evidence now contained in s.407 of the New South Wales Crimes Act does not apply in the Australian Capital Territory. In the Territory the legislative provision is contained in s.74 of the Evidence Ordinance 1971 which provides as follows: 74.(1) On the trial of an indictable offence, the failure of the person charged or his spouse to give evidence shall not be made the subject of comment by counsel for the Crown. (2) Where - (a) two or more persons are being tried together for an indictable offence; and (b) comment is made by or on behalf of any of those persons on the failure of any of those persons or of the spouse of any of those persons to give evidence, the judge may make such observations to the jury in regard to the comment or the failure to give evidence as he thinks fit." When s.74 of the Evidence Ordinance 1971 was enacted, s.407 of the Crimes Act of New South Wales in its application 19, to the Australian Capital Territory which had hitherto--been in force in the Territory was repealed. It was submitted on behalf of the appellant that subs.(2) of s.74 of the Evidence Ordinance 1971 acknowledges that there are limits on what comment -a judge may make upon the failure of an accused person to give evidence and that in order to ascertain what those limits are it is necessary to look at the state of the law in New South Wales as it stood before the enactment of the provision that became s.407 of the Crimes Act in that State. In this regard the appellant relied upon the decision of the Privy Council in Kops v. The Queen (1894) A.C. 650. That case was decided on appeal from the Supreme Court of New South Wales where it had been held that it was within the province of the trial Judge to comment upon the accused's failure to give evidence. In dismissing the petition for- leave to appeal their Lordships said at p. 653: "The learned Judges did not lay down - it was not within the scope of the case necessary to lay down any general rule as to such comments. There may no doubt be cases in which it would not be expedient, or calculated to further the ends of justice, which undoubtedly regards the interests of the prisoner as much as the interests of the Crown, to call attention to the fact that the prisoner has not tendered himself as a witness, it being open to him either to tender himself, or not, as he pleases. But on the other hand there are cases in which it appears to the Lordships that such comment may be both legitimate and necessary." In the light of that passage it was submitted on behalf of the appellant that in telling the jury that the accused suffered "certain defects" by having made an unsworn statement, the learned trial Judge was going beyond the bounds of legitimate comment. ~ ° he Spi epee re mee te oe vue Be we en eer een 20. In Sorgenfrie the nature of the direction required on the unsworn statement was described by Smithers J. at pp.20-21 as follows: "Having regard to the foregoing it is my opinion that in the trial in the Australian Capital Territory of the offences for which the appellant was tried it was necessary that the jury should be directed that statements of fact in the o appellant's unsworn statement, were to be 4 considered as evidence of the facts stated and ~ given such weight, alongside the other evidence, as the jury might, in all the circumstances and w having regard to its inherent "infirmities", consider it to be entitled. Whether any such statement would be believed would of course depend : on whether it was in itself regarded as credible rt by the jury, and whether although otherwise ~ credible it might be contradicted by other 7 evidence more credible. But the evaluation of the credibility of what was said in the unsworn statement, inherently in itself, or in competition with other evidence supporting a contrary inference or fact, would be for the jury. But *- nevertheless in some circumstances a jury acting properly and sensibly might believe the unsworn : statement of the prisoner rather than the sworn > evidence of some other witness. It is always : possible that the truth may be spoken from the . dock and falsehoods from the witness-—box." On p.426 his Honour continued: "The statement that the contents of an unsworn statement 1s not evidence in the sense that ; evidence on oath from the witness-box is evidence Pe is one that has been made to juries for many years. But the sense in which the unsworn Statement, as evidence, differs from the sworn statement made in the witness—box, as evidence, is ! not that the former lacks probative value if : believed but that because of its infirmities . referred to above, its capacity to evoke belief mo is, ex facie, less potent than if a statement is made on oath in the witness-~box." The term "infirmities" seems to have been used for the -. first occasion on this subject by O'Connor J. in Peacock v. The King (1911) 13 C.L.R. 619 at p.674 where his Honour said: 21. "Any statement of a prisoner not on oath carries on the face of it certain infirmities. It has not the sanction of an oath and the prisoner who makes it is deeply interested in asserting his innocence." The use of the term "infirmities" in relation to the unsworn statement has subsequently been approved on many occasions, see e.g. Rv. Simpson (1956) V.L.R 490. Rv. Simic (1979) V.R. 497 and in Sorgenfrie. It is true that in telling the jury that the appellant "suffers certain defects in the way he presents to you by having taken that course" his Honour stepped outside what might be regarded as the traditional direction. Whether there is any real distinction between the term "infirmities" and the term "defects" is, we think, unnecessary for us to determine. We would think that what his Honour meant in the sentence under consideration is that the accused suffered certain disadvantages by adopting the course of making an unsworn statement. If the jury so understood what was put to them, then it could hardly be to the prejudice of the accused. On the other hand if the sentence under consideration is taken on its own it is arguable that the jury might have understood it to mean that the case for the accused was somehow deficient or lacking in strength. However, once the sentence is put in its context, and having regard to the summing-up as a whole, including the directions which his Honour properly gave on the onus and standard of proof, we do not think that his Honour's direction on the unsworn statement could have been understood by the jury in any way which went beyond a legitimate comment on the part of the learned trial Judge. In our view there was pita, € ies ad tar iehaantemenariaee 22. no miscarriage of justice occasioned by the direction, and the' appeal on that ground must aiso fail. The remaining ground of appeal against conviction is concerned with his Honour's directions as to the standard of proof in relation to the evidence of verbal admissions and record of interview. It was submitted, as we understand it, that the jury should have been instructed that if they were not satisfied beyond reasonable doubt that the accused had . made the admissions alleged then they should acquit the accused. The appellant relied upon certain passages in the judgments in Chamberlain v. The Queen (1984) 51 A.L.R. 225. In particular reliance was placed on the following passage appearing in the judgment of Gibbs C.J. and Mason J. at p.237: "It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt." In similar vein Brennan J. said at page 21 that "the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt". Murphy J. said at page 66 that "the jury should not accept any fact for the purpose of inferring guilt unless in the light of all the evidence the existence of that fact is established beyond reasonable doubt", and further "that every crucial element be proved beyond reasonable doubt". st 23. It is trite law that the prosecution is not required to prove every fact about which evidence is given beyond a reasonable doubt. It is in the end a jury question as to which of the facts alleged are "primary", "crucial" or "basic" for the purposes of inferring guilt. In Chamberlain Gibbs C.J. and Mason J. at p.239 accepted as correct in principle a submission put in Moss v. Baines (1974) W.A.R. 7 at p.i1 that "every fact necessary to be proved to sustain proof beyond reasonable doubt of every element of the offence charged must itself be proved beyond reasonable doubt". Ultimately it is for the jury to decide which are the facts which are necessary to be proved to sustain proof to the requisite degree of every element of the offence charged. In certain situations no doubt the trial Judge can give the jury assistance in this respect. If for instance the only evidence against an accused person is his confession then it would follow that unless the confession was proved beyond a reasonable doubt guilt may not be inferred. It is however not correct to say that the jury must be instructed that every item of evidence that goes to prove the confession must itself be proved beyond reasonable doubt. Further, if there is evidence apart from the confession which inculpates such an accused, it is for the jury to decide whether in the light of all the evidence they consider the confession, or indeed any fact which the evidence tends to prove, as so crucial or basic that guilt cannot be inferred without proof of that crucial or basic fact to the degree of proof beyond reasonable doubt. . ye eens sete ee eee re A rc a es | woe 24. aes In the present case the 'jury had before it in addition to the evidence of the verbal admissions and the record of interview the undisputed evidence of the appellant's possession of the five foils together with the evidence of the finding .of money and items which could have been used for the purposes of distribution in and about the premises. Being no doubt aware of the weak nature of the Crown case apart from the confessional material, the learned trial Judge mentioned the matter of the admissions on a number of occasions during the course of the summing-up. Dealing generally with the evidence of the admissions his Honour said: "The accused has made all sorts of admissions to the police which are obviously inculpatory or against his interests, if you are satisfied those admissions were made you can act upon those admissions against the accused, because as I say people do not ordinarily say inculpatory things unless they are true ... so you are entitled to use the admissions ... which the Crown says the accused made as evidence against him provided only that you are satisfied that he did in fact make them. Once you get to the stage where you think he did make them then they are evidence against him. His Honour later said when outlining the Crown case: "He made admissions not only at the house but also in the record of interview and you know how hotly that is contested in this case. It is possible, of course, for you to find that he made admissions at the house but did not make the admissions in the record of interview. I mean, it is not necessarily one in all in. Later on his Honour continued: "So the way you look at it is this; if you are satisfied that he made the admissions in the record of interview, then you must be satisfied beyond reasonable doubt of the element of supply in the first two counts, but you do not have to be oo mrt tment concerned with the first two counts, 25. satisfied beyond doubt that he made the record of interview. That is not the standard. It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence, and reject it if you are not so satisfied. At the end of the day you must consider all the evidence, and in doing so you may find that one piece of evidence resolves any doubts that you have about another. For example, considering the evidence of one witness by itself you may doubt whether it is completely truthful, but other evidence may provide corroboration, and when you consider the evidence as a whole you may decide that the witness should be believed. You should not look at the evidence of any one witness in isolation, you should look at the whole case, consider the accumulation of the evidence and decide whether you are satisfied beyond reasonable doubt of each of the elements which the Crown has to prove. Now, as I say, you do not have to be satisfied beyond reasonable doubt that the record of interview was made as the police say, and that the confessions, the admissions, were made in it. But you would have to be satisfied beyond reasonable doubt of the elements of the offence, namely, supply of a controlled substance, to wit, heroin, to another person and it would seem to me that if you do not think - if you are not satisfied that the record of interview was compiled in the way the police say, then there does not seem to be sufficient evidence of the element of supply in the first two charges for you to be satisfied beyond reasonable doubt." In concluding that part of his summing-up which was jury as follows: "T£ you do not think that the answers were given, then, as I say, it seems to me that you could not be satisfied beyond reasonable doubt about the first two charges in the indictment because you could not be satisfied beyond reasonable doubt that the Crown had proved that he did in fact supply in the previous few days to another person." his Honour directed the wwe wee le . oe 4! pore pee na ep rng ue. rt eee Ls a" nad ate we ne Sear, MF memey 26. Taking the summing-up as a whole, we think that these passages indicate that his Honour drew to the attention of the jury the importance of the confessional evidence particularly as it related to the two charges of supplying heroin. True it is that his Honour might have appropriately warned the jury of the dangers of taking into consideration in relation to the first two counts of supply the evidence which went more directly to the third count, the charge of having heroin in possession for the purpose of supply. The question for determination is whether, again reading the summing-up as a whole, the jury may have been left in a situation where they thought that they might properly convict the accused even though one or more of the necessary elements to prove each Particular charge was established to a degree which fell short of being beyond reasonable doubt. We do not think that the jury was left in any such danger. None of the grounds of appeal having been made out and it not otherwise appearing to us that a miscarriage of justice has occurred, the appeal against conviction must fail. We turn now to the appeal against sentence. By the jury's verdict the appellant was found to have been in possession of 18.6 grams of a mixture containing 5.37 grams of pure heroin. What was in his possession at the time of his arrest was what remained of what he had purchased some days previously. He intended to put about one third to one half of the amount purchased to his own use and to sell the rest. He had in fact sold some of the heroin in the packages that he had made up, and had in possession at the .-. mt ee ees ee eee 27. time of arrest a sum in excess of $4,000. He was himself a heroin addict, but that is an explanatory fact rather than a mitigating one. The prisoner's antecedents are not such as to entitle him to any leniency. He is now 35 years old and has what his Honour described very correctly as a very bad criminal record. Between 1966 and 1970 he was convicted of numerous offences, mainly crimes of dishonesty. In 1972 he was convicted in the Supreme Court in Brisbane of armed robbery and was sentenced to six years hard labour. Unfortunately, it seems that whilst imprisoned in Queensland he was introduced to the use of heroin. After his release in 1978 he remained free of trouble for some three years, but in 1981 was again convicted of offences of dishonesty and in 1982 he was convicted for the first time of a drug related offence. 'There were a number of offences relating to cannabis over the ensuing two years and on 1 November 1983 he was sentenced in the District Court, Queanbeyan to three and a half years imprisonment for an offence of supplying Indian hemp, and a non-parole period of twelve months was fixed. He was released early in June 1984 and was on parole at the time of committing the offences under consideration. We have been told that parole has not yet been revoked by the authorities in New South Wales who are awaiting the outcome of the present appeal. There was evidence before his Honour that the appellant had, whilst on bail awaiting the present charges, undergone treatment at a drug referral centre and had substantially aero wMres us se eee ee Gen ae een re ~ ~—_— det 28. embarked upon a changed lifestyle. His Honour, who heard evidence on this aspect, was not entirely convinced by it, and we are in no position to differ from his findings in that regard. The appellant himself gave evidence before his Honour as did Dr. Knox, a consultant psychiatrist. His Honour's conclusions were that there were some prospects of the appellant establishing a securer and stable life. Again we would not disturb those findings. A threshold submission on the question of sentence was that his Honour had no power to impose a ée cumulative sentence. This submission was, it seems, based on the misapprehension that the power to impose cumulative sentences for offences charged on the one indictment derives from s.444 of the Crimes Act of New South Wales as amended in its application to the Australian Capital Territory. The power to direct that sentences passed in respect of conviction on the same indictment of two or more offences should be served cumulatively is, however, to be found in s.447 of the Crimes Act which provides as follows: "Where a person is, in any case, convicted on the same indictment of two or more offences similarly punishable, the Judge may, if he thinks fit, pass sentence on the second and third counts respectively for a term to commence at a future day named by him, within, or at the expiration of, the term of sentence passed on the last preceeding count." It is unnecessary to consider at length the provisions as to cumulative terms of imprisonment contained in s.19 of the Crimes Act 1914 to which reference was made in argument. That section is concerned with offences against the law of the we +7 in is Me Toe rn rg ee poe ose 7 te & 29. Commonwealth. Whilst there has been doubt as to whether, for the purposes of the Commonwealth Crimes Act, an Ordinance of the Australian Capital Territory is a law of the Commonwealth (see Hayes v. The Queen (1967) 116 C.L.R. 459, Spratt v. Hermes (1969) 114 C.L.R. 227, Webster v. McIntosh (1980) 32 A.L.R. 603, Rv. Clark & Cleaver 5 A.C.T.R. 119) those doubts for the purposes of the present case have been removed by the provisions of the Interpretation (Amendment) Ordinance 1985 and the Interpretation (Amendment) Ordinance (No. 2) 1985. The effect of the 1985 Ordinances, which amend the Interpretation Ordinance 1967, is that s.19 of the Crimes Act 1914 is no longer to apply to an Ordinance as if an Ordinance were a law of the Commonwealth. The present case is concerned with offences under the Poisons and Narcotic Drugs Ordinance 1978 and accordingly the matter of accumulation of sentence 1S governed by the Crimes Act of New South Wales as amended in its application to the Australian Capital Territory, and in particular s.447. It was submitted on behalf of the appellant that his Honour fell into error by failing to take into account that the offences were committed primarily for the purpose of the offender financing his own drug addiction rather than for a motive of commercial gain. Tt is however abundantly clear that his Honour gave full consideration to this aspect of the case. It was further submitted that as a matter of law his Honour fell into error by failing to recognise that the three offences formed in effect one transaction which required the imposition of concurrent and not cumulative sentences. Again see eee eee man pa e ereorrcor are era ie ~ le T Aye cre. ®. 30. however on the facts his Honour was perfectly justified in treating the two offences of previous supply as being separate from the offence of being in possession for the purposes of supply at the time of the subsequent raid and arrest. Ultimately, the only real question for determination by this Court on the question of sentence is whether the sentences imposed by his Honour were manifestly excessive. The question is, of course, not whether this Court or any member of it would have imposed a sentence or sentences different from that or those imposed by his Honour, but whether the sentences fall outside the range that might reasonably be imposed by a sentencing tribunal in all the facts and circumstances of the case. We were referred to the decision of this Court in the appeal of Bozo Jurkovic (1981) 6 A.C.R. 215. The facts of that case were different from those of the present. ' The offender there was convicted on one count of possessing heroin for the purpose of supply for which he was sentenced to five years imprisonment and on a second count of administering heroin to himself for which he was sentenced to imprisonment for one year to be served concurrently. A non parole period of two and a half years was fixed. The amount of heroin in possession in that case was .872 of a gram, contained in a mixture of sugar and heroin weighing .9 grams. There were other features of the case which went to mitigation and which are distinct from the facts of the present case. A Full Court reduced the sentence on the conviction for possessing heroin for the purpose of supply to four years and reduced the sentence for administering heroin to three months, oes Boa none ne od 31. substituting a non parole period of twenty-one months. Little however is to be gained from comparing the actual sentence in that case. We take note of the principles enunciated in the judgment of Fox J. at p.220 to the effect that two factors are of importance; one is the amount of the drug in terms of pure heroin, the other is whether the supply was for straightout commercial profit or for financing the prisoner's own addiction. In the last mentioned type of case his Honour stated and we would agree that five years imprisonment is in general at or towards the top of the range if the amount involved is small. However, in the present case we do not think that the amount involved can be described as small. The amount found in the appellant's possession was more than twice as much as the prescribed traffickable quantity and the amount already sold by him yielded more than $4,000 in the proceeds of sale. We are of the view that these factors are sufficient to establish that there was a real element of sale for profit on the part of the appellant, and that whilst his part in the transactions could not be described as being "for straightout commercial profit" neither was it restricted to financing his own addiction. We do not repeat what has been said many times in the past about the evils of the heroin trade nor about the need for sentences to reflect an element of general deterrence as well as the disfavour with which the general community regards the heroin trade and those who engage in it. In our view the head sentences were not manifestly excessive when viewed independently, nor was the total period of nine years 32. imprisonment when viewed as a mark of the total criminality of the appellant's conduct. Paying due regard to his Honour's findings that the appellant is beginning to show some real insight into his behaviour and the need for reform, we do not think that the non parole period was manifestly excessive having regard to the need to fix a minimum term of incarceration which will properly reflect the seriousness with which the Court regards the offences. The appeal against sentence is dismissed. I certify that this and the thirty-one preceding pages are a true copy of the Reasons for Judgment herein of their Honours Evatt, Sheppard and Miles JJ. VIR bere, Associate Dated: 6 December 1985 ee . 7