Reported Decision : 112 A Crim R 543 New South Wales Court of Criminal Appeal CITATION : REGINA v. SCOTT [2000] NSWCCA 187 FILE NUMBER(S) : CCA No. 60441 of 1998 HEARING DATE(S) : Friday 4 February 2000 JUDGMENT DATE : 23 May 2000 PARTIES : REGINA v. SCOTT, John Herbert JUDGMENT OF : Wood CJ at CL at 1; Hulme J at 2; Greg James J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0249 LOWER COURT JUDICIAL Grogan, DCJ. OFFICER : COUNSEL : Crown: M. Grogan App: P.R. Boulten SOLICITORS : Crown: S.E. O'Connor App: Brenda Duchen CATCHWORDS : Criminal law - appeal - asserted failure by accused to call witnesses - directions to jury - application of Jones v. Dunkel principle to case of accused occasioning miscarriage. LEGISLATION CITED : Criminal Appeal Act 1912 Jones v. Dunkel (1959) 101 CLR 298 Buckland (1977) 2 NSWLR 452 Newland (1997-98) 98 A. Crim.R. 455 CASES CITED: OGD (1997) 45 NSWLR 744 Tafua [1999] NSWCCA 205 Weissensteiner (1993) 178 CLR 217 RPS [2000] HCA 3 Wilde (1988) 164 CLR 365 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL No: 60441/98 WOOD CJ AT CL HULME J GREG JAMES J TUESDAY 23 MAY 2000 REGINA -v- John HERBERT SCOTT JUDGMENT 1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Greg James, J. I agree with his reasons and the orders he proposes. ********** IN THE COURT OF CRIMINAL APPEAL No: 60441/98 WOOD CJ AT CL HULME J GREG JAMES J TUESDAY 23 MAY 2000 REGINA -v- John HERBERT SCOTT JUDGMENT 2 HULME J: I agree with Greg James J. IN THE COURT OF CRIMINAL APPEAL No. 60441 of 1998 CORAM: WOOD CJ. at CL. HULME, J. GREG JAMES, J. TUESDAY 23 MAY 2000 REGINA v. JOHN HERBERT SCOTT JUDGMENT 3 GREG JAMES, J: The appellant was convicted after a trial in the District Court of New South Wales, commencing on 13 February 1998, of supplying a prohibited drug, namely heroin, in an amount not less than the applicable commercial quantity between 1 January 1991 and 31 August 1991 at Sydney and elsewhere in the State. 4 He had also been charged on a count of supplying that drug between those dates in an amount which was not less than the large commercial quantity but the jury had returned a verdict of not guilty to that charge and guilty to the alternative charge to which I have referred. 5 His Honour had defined the offence charged for the jury as potentially including the receiving of the heroin for supply, the possession of the heroin for supply and the sale or distribution of the heroin. 6 The quantities of heroin alleged resulted from the accumulation of the various smaller quantities said to have been acquired by TW and the appellant, processed by them and distributed in numerous transactions. The difference between the counts lay only in the different quantities alleged. The alternative count provided for the exigency that the jury might be, as apparently occurred, not satisfied of all the dealings alleged. 7 The appellant now seeks to appeal against that conviction on the following grounds:- "1. His Honour erred by giving the jury a Jones v. Dunkel direction concerning the appellant's failure to call Khoury, Daisy Davis and Phillip Arpel. 2. His Honour's directions concerning the non-appearance of Khoury, Daisy Davis and Phillip Arpel were inadequate." 8 The directions to which these grounds relate were not the subject of objection at the trial but were given on the application of the Crown. The Crown refers to Rule 4 of the Criminal Appeal Rules. For the reasons I will later give, I consider that leave to rely on these grounds should be granted. 9 In its essence, the Crown case was that the accused had entered into an arrangement with one TW (who was called as a witness by the Crown) whereby the two would carry on a business of obtaining heroin from Khoury processing it and distributing it. The form of supply alleged by the Crown was thus the acquisition by the partnership of the heroin from Khoury, the having of it in possession for the purposes of supply and the distribution. 10 The appellant admitted an association with TW and Khoury but denied any knowing involvement in TW's heroin supplying activities. 11 The directions to which the grounds apply are those I now set out:- "Where it appears that a witness who could be expected to be able to give relevant evidence, but has not been called, you are not entitled to speculate about what he or she might have said if he or she had been called, but where that person who would be a witness is a person who in the ordinary course you would expect the Crown or the defence call and the Crown or defence offers no satisfactory explanation for its failure to call that witness you are entitled to draw the inference that his or her evidence would not have assisted the case of the Crown or the defence." 12 His Honour related those directions to certain of the police officers who had not given evidence in the case and in particular to evidence of the explanations for their absence. His Honour continued:- "Now the Crown says that the defence has failed to call Khoury, Daisy Davis and Phillip Arkel. It is a matter for you entirely as to whether you think they are persons who would assist you, but certainly you may think that in the light of this case, bearing in mind the fact that one issue is whether Khoury was dealing in heroin and was a party to the conversations in the transcripts, and also whether Khoury, so far as the veterinary products are concerned, according to Mr. Walker, had dealings and discussions with Walker and the veterinary products. Then of course there are other ways that you might think that Mr. Khoury would be able, or could give relevant evidence. Daisy Davis is also a party referred to in the transcripts of conversations." 13 His Honour then referred to whether or not the jury might consider the explanation offered by the Crown for the absence of the police officers to be satisfactory and directed them that if it was in such a case no adverse inference could be drawn and continued:- "What is the inference that you could draw if a witness who could be expected to be able to give relevant evidence has not been called by someone. The inference is that, that his or her evidence would not have assisted the case of that party." 14 It is necessary to consider those directions in the light of the cases made by the parties and the evidence at the trial. 15 Prior to the appellant's trial, Khoury had been tried and convicted and TW had been dealt with for his admitted involvement. The principal evidence against the accused at his trial was that of TW although there was substantial evidence adduced of TW's involvement with Khoury in the obtaining of heroin and its re-sale. 16 At the trial, the appellant gave evidence dealing with the specific and detailed instances referred to by TW as showing his involvement with TW in the sale of heroin. In answer to those occasions when he had participated with TW in various meetings with Khoury and other acts including car journeys involved according to TW in the heroin supply activities he asserted that he and TW had, as far as he was concerned, participated in placing and collecting bets on Khoury's behalf with bookmakers, transported illegal veterinary products obtained with the assistance of Arkel and Brian Walker and had an involvement in dealing with car parts and motor vehicles. 17 In support of the account given by TW, various tape recordings of telephone conversations involving conversations between TW and Khoury or TW and Khoury's girlfriend, Daisy Davis, were tendered. In addition, there were recordings of various conversations between TW and the appellant and Khoury also tendered. 18 In these latter conversations, there were references to what the Crown contended was heroin and which TW contended was heroin but which the appellant asserted were references to veterinary products or the bets or car transactions to which I have referred. 19 There was also evidence of the finding of the paraphernalia of a heroin dealer at Khoury's residence and two storage areas to which he had access. 20 Surveillance evidence coupled with the taped conversations disclosed the attendances at Khoury's premises on a number of occasions by the appellant and TW and frequent telephone calls to the appellant and TW in respect of tasks Khoury was concerned that they perform. 21 There was evidence that on one occasion the appellant and TW were driving from Sydney to Newcastle when they were stopped by police for a traffic violation, a quantity of heroin was located within the car. It was the Crown case that this quantity of heroin was referred to in the intercepted conversations and in particular that it was discussed between TW and Khoury in a conversation of 13 June 1991. Also, the appellant admitted knowing of TW's criminal record (or at least some of it) evidencing his involvement with heroin. 22 Although the conversations to which TW and Khoury were party on many occasions clearly refer to heroin and drug deals, the conversations to which the appellant was party or those portions of the conversations between TW and Khoury in which it can be independently proved the appellant participated, at least, at the time he participated, do not unequivocally establish, intrinsically, that the subject matter of the conversation was heroin. 23 The intercepted telephone communications make it clear that Davis, the girlfriend of Sam Khoury, who was herself party to a number of the conversations, had knowledge of what was occurring at least between Khoury and TW. She was said, by TW, to have been present on occasions when Sam Khoury supplied heroin to the appellant and to TW. In addition, she is said to have herself assisted in that supply on occasions in particular physically providing the heroin found in the motor vehicle when the appellant and TW were arrested. TW also gave evidence that Arkel was present on five or six occasions when Khoury provided heroin to TW and indeed was said to be the or one of Khoury's sources for the heroin. The appellant denied any knowledge of any role Arkel may have had in relation to heroin dealing. 24 In his case, the appellant, as well as giving evidence himself, called Brian Walker who confirmed an association between Khoury and the appellant and that the appellant had delivered veterinary products to him. He further confirmed that the appellant and TW would collect the veterinary products from Khoury and pay to Khoury money provided by the witness to TW. He said this had occurred on three or four occasions during the relevant period and that in the main TW was involved in the supply of the veterinary products rather than the appellant although the appellant had attended on some of the occasions. 25 An acceptance of the thrust of TW's evidence was thus critical to proof of the appellant's guilt. As the Crown in its written submissions put the matter:- "The fundamental issue for the jury was whether there was a sufficient basis for accepting TW's evidence. If the jury did accept it, then the case against the appellant was overwhelming." 26 For the Crown to succeed in the present trial it was necessary the jury be satisfied beyond reasonable doubt of the appellant's involvement with TW in dealings in the heroin in sufficient quantities to accumulate to the amount charged. It was logically necessary in those circumstances that the jury reject the appellant's account denying knowing involvement. It was necessary for the jury to accept so much of TW's evidence as inculpated the appellant. TW's credit was thus very much in issue as was the appellant's on the essential question of whether the appellant was knowingly involved in the illegal activities of TW, Khoury, Davis and Arkel. On this issue the evidence does not disclose any association between the appellant and Khoury, Davis and Arkel, otherwise than either by way of involvement in the heroin dealing as asserted by the Crown or alternatively by way of involvement as the appellant asserted. 27 His Honour had directed the jury in his summing up that the evidence of TW, taken not in isolation but in context, was crucial to the Crown's contentions that if the whole of the evidence was looked at, the conversations between TW and Khoury, the appellant and Khoury, between Davis and the appellant and between Khoury and the appellant's girlfriend or fiancee, in the context of the appellant's and TW's actions, only make sense if TW and the appellant were acting in concert for the asserted criminal purpose in their dealings with Khoury. That is, that what was spoken about in the relevant conversations was in fact heroin and not, as the appellant had described it, bets, betting, veterinary products, car parts or motor vehicles. 28 The appellant was vigorously cross-examined at the trial about his asserted lack of knowledge and his asserted purpose in dealing with Khoury and TW. He was cross-examined about the statement he had provided to the police on the occasion of the vehicle having been stopped and the heroin found, his knowledge of TW's prior criminal record and use of heroin, his involvement with Khoury, racing, bets and the transmission of the veterinary products and the contents of the telephone conversations to which he was party. In particular, he was cross-examined as to portions of those conversations to which the Crown had attributed particular significance. As to certain of those portions, there was controversy over the accuracy of the interpretation of what had been said. The appellant asserted an innocent content or that the reference was to the illegal veterinary products. He was cross-examined concerning a video tape taken of Khoury and Davis digging up an object and whether that occasion was the same occasion on which Khoury supplied TW with some material identified by TW as heroin. He asserted that on one occasion dug up veterinary products had been provided by Khoury. The cross-examination included putting to him a video tape which the Crown contended showed Khoury placing or dropping a quantity of heroin into the Alfa motor vehicle, that is, providing it to TW at a time when he was present. 29 The cross-examination itself on a full reading does not resolve the issue posed at the trial even when taken in conjunction with a reading of the transcripts of the intercepted telephone conversations provided on the hearing of the appeal by the Crown. Although those transcripts were challenged by counsel for the appellant in some respects as including material more adverse to the appellant than the true contents of the tape recordings would warrant, for this purpose I have considered them as representing the Crown case taken at its highest. I have therefore not needed to determine as a fact (even if it would have been open to me to do so) those contents from the audio tapes which were in evidence at the trial. 30 In order to ascertain the effect of the challenged directions, I have considered the evidence of TW in the light of those transcripts and in the context of the whole of the evidence in the case. 31 Prior to or during the summing up, the Crown Prosecutor made the application to the trial judge that the jury should be directed according to the principles in Jones v. Dunkel (1959) 101 CLR 298 concerning the absence of the evidence of Khoury, Davis, his fiancee, and a person Arkel in the defence case. It may have been that this application was made in the context of a defence application concerning the absence of evidence from certain police officers. His Honour gave the directions I have set out. 32 His Honour had given the customary directions concerning onus and standard of proof and had adequately directed the jury otherwise that they had to be satisfied beyond reasonable doubt of the elements of the offence and that, in this case, on the evidence of TW and the movements and activities of the appellant and the contents of the intercepted telephone conversations. He had directed the jury as to inferences and given the general directions as to consideration of the credibility of witnesses. His Honour had given a strong direction to the jury concerning the evidence of TW in circumstances in which he was an accomplice in the offence charged. His Honour's summing up made it perfectly clear to the jury that on the Crown case Khoury, Davis and Arkel were complicit in the crimes of supply and in particular whether complicit in the crime charged or not, complicit with TW in the heroin distribution enterprise. No assistance was given to the jury on the question of determining who they might think should have called the witnesses, if anyone. 33 Notwithstanding the conclusion of his Honour's directions on the way in which the jury might reason as to absent witnesses where he advised the jury that they might think it more appropriate to approach the determination of the case without speculating upon what might have been the content of the evidence of the missing witnesses, in my view, the directions the Crown sought and his Honour gave in this regard in the context of the competing accounts at this trial was seriously in error and such as to undermine the onus of proof. 34 To suggest it was open to conclude that the evidence of those persons would not have assisted the case of the appellant was such as to divert the jury. To suggest that they might consider that the appellant should have called those witnesses was entirely wrong. On the Crown case, the witnesses were criminally complicit with the appellant. On the defence case, they, if they were heroin suppliers, had manipulated and deceived the appellant. The Crown's reluctance or inability to call them was not elucidated but the explanation for their absence in the Crown case may have been reasonable. It was not reasonable to suggest that in any way those witnesses should have been called in the appellant's case. The prospect that the jury might, from their absence, think that their evidence might not have assisted the accused's case was, at the least, seriously confusing if not inevitable. 35 The so-called "Jones v. Dunkel" direction, on an analysis is often of little assistance in criminal trials and in any event, when such a direction is applied to an accused in a case in which the Crown bears the onus, is likely to undermine that onus. In a succession of cases, including The Queen v. Buckland (1977) 2 NSWLR 452; Regina v. Newland (1997-98) 98 A. Crim. R. 455); OGD (1997) 45 NSWLR 744 at 753 and Regina v. Taufua [1999] NSWCCA 205, although the Court of Criminal Appeal had recognised that in an appropriate case such a direction might be given, emphasis had been placed on the caution with which the giving of such a direction should be approached and of the necessity for precision and care in the direction itself when it is given. In Newland (supra), the court had identified the problem in the context of an asserted failure to call an accomplice and the obligation which would thereby have arisen had the accomplice been called to warn the jury of possible unreliability in the application of s.165 of the Evidence Act. 36 In Newland (supra), where only four people were in a position to give direct evidence of the guilt or innocence of the accused, one was called - an accomplice - and the others were not, although they were accomplices. Their Honours reached a view that what was called for was not a Jones v. Dunkel direction but an instruction to the jury to refrain from speculating. 37 In Taufua (supra), where a Jones v. Dunkel direction was given in favour of the Crown in respect of the failure by the appellant to call an alleged accomplice and a person who it was alleged had agreed to cover for the appellant and falsely confess to the armed robbery in question, Carruthers, J. reviewed views taken in this court on the direction, particularly in the context of what had recently been said by the majority of the High Court in Weissensteiner v. The Queen (1993) 178 CLR 217. His Honour concluded that it was quite inappropriate for the judge to have left to the jury the question of whether the asserted accomplice should have been called by the appellant. He considered although there may have been no obligation upon the Crown to call the witness to prove the admission by conduct in the accused seeking to have him falsely confess to the crime, there were simply too many complicating factors to allow a just conclusion by the jury that the appellant should have called him. It was the Crown that introduced into the trial that man's involvement. The Crown could hardly, in those circumstances, expect the defence to assume the burden of calling him. His Honour concluded that such expectation would "involve an inversion of the onus of proof". 38 His Honour drew attention to the adversarial nature of criminal proceedings but the overriding importance of the presumption of innocence and the right to silence. He said:- "In these circumstances, the giving of the Jones v. Dunkel directions against an accused person can be fraught with danger." 39 Both James, J. and Barr, J. agreed. 40 Subsequently, the High Court of Australia in RPS v. The Queen [2000] HCA 3 considered the special circumstances of when it is appropriate for a trial judge, following the passing of the Evidence Act, to comment on the accused having failed to give evidence and also considered the more general circumstance of the giving of a Jones v. Dunkel direction. 41 In the judgment of the majority comprising Gaudron, ACJ., Gummow, Kirby and Hayne, JJ. appears the following:- "In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v. Dunkel must not be applied in criminal cases without taking account of those considerations. If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused. With these propositions in mind, it is necessary to say something of the decision of the Court of Criminal Appeal of New South Wales in Regina v. OGD which, as we understand it, has been taken to be authority for charging juries in the way in which the trial judge did in this case. It may be doubted that, properly understood, OGD stands for a general proposition that, in cases like the present, directions can or should be given to the effect of those that were given here. In his reasons for judgment in OGD , Gleeson, CJ. emphasised the need for caution before giving such directions. But if, contrary to the view we have expressed about OGD , that case is to be taken as establishing, as a general proposition, that it is proper in cases similar to the present to give directions of the kind given here, it should be overruled." 42 RPS (supra) was heard and decided subsequent to this trial and the judgment delivered only shortly prior to the appeal being argued. 43 In my view, the absence of an objection was explicable in the light of views prevailing at the time, but the giving of these direction was a serious error, occasioning in the circumstances of this case, a miscarriage of justice. 44 It was urged upon us by the Crown that we should refuse leave pursuant to Rule 4 of the Criminal Appeal Rules or apply the proviso to s.6 of the Criminal Appeal Act in the absence of objection of trial. 45 True it is that it does not appear that at the time the challenged directions were given objection was taken by trial counsel for the appellant but it is not clear that there was any such examination of whether such a direction should have been given in this trial as was referred to by Gleeson, CJ. at Regina v. OGD (supra):- "As a practical matter, it will often be prudent for a trial judge, before giving directions which include a Jones v. Dunkel direction to raise with counsel, in the absence of the jury, the question whether such a direction should be given. That would give counsel an opportunity to suggest to the judge possible reasons for the accused's silence (or the failure to call a witness) which may not have occurred to the judge, and to debate the fairness of the direction." 46 It does not appear to me that it is appropriate to apply the proviso to a direction which might have the effect of seriously undermining the onus on the Crown. In addition, it was the Crown which positively sought a direction which, in my view, was erroneous in law. I consider the mis-direction fundamentally affected the appellant's right to a fair trial. Further, since it would have operated or could have operated so as to divert attention from the assessment of the credibility of TW's evidence in the light of the denials on oath and the credibility of the appellant, I am unable to say that "an appropriately instructed jury acting reasonably on the evidence before them and applying the correct onus and standard of proof, would inevitably have convicted the accused": (Wilde v. Regina (1988) 164 CLR 365 at 372). Having regard to what was said by the Court of Criminal Appeal in Taufua (supra) and the High Court in RPS (supra), I would hold that this trial miscarried, resulting in a serious miscarriage of justice. Rule 4 cannot apply. 47 I propose the following: that leave to appeal be granted; the appeal be upheld; the convictions quashed and a new trial ordered. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.