New South Wales Court of Criminal Appeal CITATION : R v BANIC [2004] NSWCCA 322 HEARING DATE(S) : 20/09/04 JUDGMENT DATE : 23 September 2004 JUDGMENT OF : Spigelman CJ at 1; Barr J at 2; Hoeben J at 33 DECISION : Appeal against conviction dismssed; Leave granted to appeal against sentence and appeal dismissed. PARTIES : Regina v Radovan BANIC FILE NUMBER(S) : CCA 2004/1809 CCA COUNSEL : Appellant: J Conomos Respondent: D Woodburne SOLICITORS : Appellant: Tsambas & Co Respondent: S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0744 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : - 11 - IN THE COURT OF CRIMINAL APPEAL 2004/1809 (60290/04) SPIGELMAN CJ BARR J HOEBEN J 23 September 2004 REGINA v Radovan BANIC Judgment 1 SPIGELMAN CJ: I agree with Barr J. 2 BARR J: This is an appeal against a conviction entered up in the District Court and an application for leave to appeal against the resulting sentence. On 27 October 2003 the appellant stood trial before a jury on a charge of suppling the prohibited drug methylamphetamine and on a charge of supplying the prohibited drug 3, 4 methylenedioxymethylamphetamine. The latter drug is known as ecstasy. The jury found the appellant guilty on both counts. The trial judge, Nield DCJ, sentenced the appellant for each offence to imprisonment for four years with a non-parole period of three years. 3 At about 3:40am on Monday 3 March 2003 the appellant and two companions were in a certain nightclub in Darlinghurst. A security officer, having received a complaint from a patron of the business, stood and watched them for fifteen or twenty minutes. The appellant was standing near a pillar to which was affixed a shelf which could be used as a table. During the time they were under observation somewhere between five and ten persons went individually up to them, had a very short conversation, and then returned to other parts of the establishment. The security officer suspected that the three men were selling drugs and called the police. A number of police officers responded to the call. Two of them, Constable Ritson and Sergeant Burke, paid special attention to the appellant while their colleagues concerned themselves with his two companions. 4 When Constable Ritson saw the appellant he was leaning with his left leg straight and his right leg crooked, his right forearm flat on the surface of the table. His hands were clasped together, resting on the table in front of him. He was smoking a cigarette, which protruded from between the fingers of his left hand. As he smoked he lifted the cigarette to his mouth, using his left hand, and then returned the hand with the cigarette in it and cupped it over the surface of the cupped right hand. Constable Ritson could not see whether there was anything under the cupped hands. The appellant made to move and constable Ritson directed him to remain where he was and keep his hands where he, Constable Ritson, could see them. A few moments later the appellant moved his hands apart and lifted them off the table. As he did so he straightened his body. Then Constable Ritson saw a plastic bag on the table where the appellant's hands had been resting. The bags contained a number of white tablets. 5 The police took possession of the bags. There was no dispute at the trial that they contained the drugs the subject of the charges. 6 Sergeant Burke was present close to Constable Ritson and the appellant when Constable Ritson was speaking to him. The appellant was leaning with his right elbow on the table and his hands clasped on the edge of the table in front of him. As he replied to what Constable Ritson was saying he straightened up and moved his arms away from the table. On the edge of the table, where his arms had been, sergeant Burke saw the plastic bag. 7 The accused gave evidence. He said that he was leaning on the bench around the column. The police came up to them and told them not to move. He had a cigarette in his hand and a bottle of water. He was leaning on the bench with his right hand but had both of his hands hanging off the table. He was smoking the cigarette and went to put the water onto the table, using his left hand. As he put it on the table he turned around. The police officer shone the torch behind him and his evidence continued – It was like the tablets were sitting like behind me, behind my right arm… 8 The applicant told the jury that under no circumstances was he selling drugs. 9 There was evidence that the applicant said, when told that he was under arrest for possessing drugs. They are not mine, they could be anybody's 10 Defence counsel had not suggested to the police witnesses that the appellant had had a bottle of water in his hand. Neither counsel referred to a bottle of water or the absence of a bottle of water in closing addresses 11 The issue at the trial was narrow. No joint enterprise of the three companions was charged and the crown took upon itself, in order to prove possession, proof that the appellant possessed the drugs by holding them within his cupped hands. Supply was constituted by possession for the purpose of supply in accordance with the appropriate statutory provision. 12 The verdicts show that the jury did not consider the appellant's account reasonably possibly true. 13 There are three grounds of appeal, namely – 1. His honour, Judge Nield strongly identified himself with the Crown Case as towards the end of his summing up at pages 26, 27 and 28 presented the accused and his evidence in an unfair and prejudicial manner. 2. It was apparent to the jury that his Honour in his summing up entertained strong views as to the guilt of the appellant. 3. The appellant did not receive a fair trial. 14 His Honour summed up to the jury in conventional and comprehensive terms. The summing-up included these passages – Members of the Jury, no one can tell you how it is that you go about deciding the facts within the evidentiary material upon which you will base your verdicts in the trial. Neither the learned Crown Prosecutor nor the learned counsel for the accused can tell you. I cannot tell you. You must decide for yourselves how to do it… 15 Having instructed the jury about the assessment of the reliability of witnesses his Honour continued – In this case you are not concerned with the honesty of the witnesses called by the Crown Prosecutor. It was not suggested to you that anyone of the witnesses for the Crown was lying. Although the word was never used, learned counsel for the accused's cross-examination was designed to point out the possibility of the witnesses being mistaken, not that they were lying, but that they were mistaken. Now, members of the jury, learned counsel for the Crown, however, suggested that the accused is lying. Learned counsel for the Crown put to him that, having regard to the evidence of the others, the bag containing the tablets was under his cupped hands, which he denied. Now there cannot be any greater suggestion than that he is lying about where the bag containing the tablets was when it was on the table… I want you to understand two things about the accused having given evidence. Firstly, by his giving evidence, he did not take upon himself any burden, onus or obligation, and those words are interchangeable, to prove anything. By giving evidence, he did take upon himself any burden, onus or obligation to prove anything. The second thing is this. By giving evidence, his evidence becomes that of one of six witnesses in the trial. His evidence is not any better or any worse simply because he is the accused giving evidence in his trial… The Crown must prove the guilt of the accused and the accused does not have to prove anything. The Crown having asserted, must prove. The Crown must prove that the guilt of the accused. The accused does not have to prove anything. He does not have to prove that he did not have possession of the plastic bag containing the tablets of prohibited drugs. He does not have to prove that his hands were not cupped over that plastic bag when it was on the table. In other words he does not have to prove his innocence. He does not have to prove any reason or motive in any of the witnesses giving the evidence they have given… So, in this case, members of the jury, understand what it is that you are concerned with. Whether the accused possessed the plastic bag containing the twenty-three tablets by exercising control over it. And it all turns upon whether they were under his cupped hands or not. There is not any doubt that there was a plastic bag and that it contained twenty-three tablets. There is not any doubt that that plastic bag containing those tablets was on that bench where the accused was standing. The question is, were they under his cupped hands… So, members of the jury, I come back to what I have said already, the only question is, does the evidence satisfy you beyond reasonable doubt that the accused had the plastic bag containing the twenty-three tablets in his possession? If the answer is yes, you must find the accused to be guilty. If the answer is no, you must find the accused to be not guilty… 16 Then commenced the portion of the summing up complained of. His Honour said this – Now, members of the jury, this brings me to comment on the evidentiary material. Now you do not need another lawyer commenting upon everything. You have heard what the witnesses have said over a day and a bit. You have heard the learned Crown Prosecutor and the learned counsel for the accused submissions today. You do not need another lawyer repeating the evidence or repeating the submissions but there are some things I want to say, and about what I want to say, I want you to understand this. If, in what I say, I express an opinion about something, or if in what I say, you perceive what opinion I hold about something, you have got to disregard my expressed opinion or what you perceive to be my opinion unless it happens to coincide with the one that you yourselves form on the evidence, independently from what I say. Because, members of the jury, what opinion I may have formed, and I am sure you will understand, I would have formed an opinion, my opinion does not matter one jot. The only opinion that matters is the one that twelve of you form on the evidentiary material. Anyone who has sat in court, saw the witnesses, listened to what they had to say, seen the Exhibits, would form an opinion. I have done that. I have formed an opinion. The twelve of you have done it. You are asked to form an opinion. My opinion does not matter. The only opinion that matters is the one that the twelve of you form. 17 His honour then reviewed the evidence of the several witnesses and continued – Constable Ritson said that the accused was standing with a cigarette in his left hand. Sergeant Nuttall said that the accused had a cigarette in his left hand. Sergeant Burke did not mention seeing the accused with a cigarette in his hand. That does not mean that the accused did not have a cigarette in his hand, only that Sergeant Burke did not see it. The accused said that he had a cigarette in his left hand. Constable Ritson, Sergeant Nuttall and Sergeant Burke never mentioned a bottle in the accused's right hand. None of them was asked by learned counsel for the accused whether the accused was holding a bottle in his right hand. The accused told you he was holding a bottle in his right hand. You may think, members of the jury, that that was made up by the accused to explain how he could not have cupped his hands together. And you may think that because learned counsel for the accused did no suggest to Constable Ritson, Sergeant Nuttall or Sergeant Burke that the accused had a bottle of water in his right hand. If the accused wished to challenge those three police officers about his having a bottle in his right hand.Then members of jury, the challenge should have been made to them when they were in the witness box answering questions so that they could admit it or deny it or say they do not know about it. And not one of them was asked by the accused's counsel as to whether the accused had a bottle of water in his right hand. You my [sic] think, members of the jury, as I have said, that that was made up by the accused to explain how he might not have been able to cup his hands together on the table as Constable Ritson said they were cupped together, and as Sergeant Burke said they were cupped together. Members of the jury, the accused told you that he was where the police say he was. He told you that he was on the particular side of the pillar as the police said he was. He told you he had his right elbow on the table around the pillar as the police said he had. He told you that the plastic bag containing the tablets was behind his elbow. The police say it was cupped under his hands. He told you that he was spoken to by Constable Ritson when he was told he was under arrest for possession of prohibited drugs. He told you that he did say "They're not mine, they could be anybody's". Police said that when he said that to Constable Ritson he was looking over his left shoulder and not at the plastic bag containing the drugs. He said to you that he did not know they were there. He said he did not know they were there until they were pointed out to him. You might ask yourselves, members of the jury, if the police are correct, how could the accused have said to police "they're not mine, they could be anybody's" if he did not know they were there and if he did not know what they were. Admittedly, Constable Ritson had said to him "You are under arrest for possession of prohibited drugs". From that, anyone would conclude that whatever Constable Ritson was concerned with was prohibited drugs. But the police say the accused said "they're not mine, they could be anybody's". Not "It's not mine, it could be anybody's". Rather "They aren't mine, they could be anybody's". Any you might think, members of jury, the use of the plural, "they," suggests a knowledge of what was in the plastic bag. Whether you do or not, of course, members of the jury, is for you to decide. All of these matters that I have commented upon, you must, as I have said already, disregard my opinion or what you perceive to be my opinion unless it coincides with the one that you yourselves form on the evidentiary material. What I have commented upon are all questions of fact, members of the jury, and they are all questions for you to decide. 18 When the trial judge had almost reached the end of his summing-up he invited counsel to raise matters in the usual way. In the absence of the jury defence counsel asked his Honour to discharge the jury. The application included this passage – …your Honour with great respect went a bit too far in expressing your opinion bearing in mind the imprimatur that your summing-up has in terms of the conduct of this trial and with great respect your Honour expressed your view fairly solidly to this jury and indicated to them in no uncertain terms, not only what your view was, but you also considered that this accused lied about his evidence as far as the bottle was concerned and in those circumstances you Honour, I think the harm has been done and I'd have to ask you to discharge the jury…it is fairly apparent that this jury would be influenced by your opinions as the judge in this case and there's really no alternative, it's not really a matter that can be corrected because my asking the jury to leave while I address you in itself creates an element of concern because the jury would infer that I am concerned on behalf of the accused with respect to certain aspects of the summing-up and it might engender in them a suspicion that I in some way feel that this accused is guilty, and second of course, they will go away with those final words of you honour's and they came to the end of a long and detailed and thorough summing-up as to what you felt of the evidence and the case for the Crown… 19 His Honour refused to discharge the jury. Although his Honour gave other short directions before inviting the jury to retire to consider their verdicts, there was no further reference to the topics the subject of this complaint. 20 The three grounds of appeal may be dealt with together. The submission on appeal was that such was the force of his Honour's expression of opinion about counsel's not having suggested to the police witnesses that the appellant had a bottle of water in his hand and about the inference that might be drawn from it, as well as about the inference that might be drawn from the terms of the appellant's denial that the drugs were his, referring to them in the plural, that the jury would have been diverted from their duty to make up their own minds about the facts. So the accused was denied a fair trial. 21 In R v Zorad (1990) 19 NSWLR 91 this court said at 106 – 107 – It was submitted that a trial judge should always refrain from expressing his view on such an issue (at least where it was contrary to the accused), and that he should be all the more careful not to appear to do so where the accused is unrepresented. We do not accept either of those submissions. A judge is always entitled to express his view of the facts, provided that he does so with moderation and provided always that he makes it clear that it is the jury's function (and not his) to decide the facts and that it is their duty to disregard the view which he has expressed (or which he may appear to hold) if it does not agree with their own independent assessment of the fact: Hoger v Ellas (1962) 80 WN (NSW) 869 at 875 – 876; [1963] NSWR 1033 at 1042 – 1043; cf R v Stranger (Court of Criminal Appeal), 28 June 1989, unreported at 10-12)… 22 There can be no doubt that his Honour had a view and that he expressed it in forthright terms. The jury would have so have understood it. But his Honour was entitled to express the view that he did. Moreover, his expression of opinion was balanced by the equally forthright direction that preceded it and, repeated, followed it. The jury could have been left in no doubt their duty was to make up their own minds about the facts, including the facts about which his Honour was expressing an opinion. Looking at the whole of the summing up, I do not think the words complained of were unfair or were unfairly prejudicial or denied the appellant a fair trial. 23 It was submitted that particular unfairness resulted from his Honour's statement that the police witnesses should have been challenged with the proposition that the appellant had had a bottle of water in his hand. Reference was made to the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677. In a passage commencing at 686 his Honour drew attention to the rule of professional practice known as the rule in Browne v Dunn and to the need to apply the rule flexibly, particularly in criminal proceedings. As his Honour observed, the consequences of a failure to observe the rule will vary depending on the circumstances of the case, but will usually be related to the central object of the rule, which is to secure fairness. His Honour said this at 690 – However, as in the present case, it is often suggested that the practical effect of the rule goes a good deal further. It is one thing to say that the interests of fairness to a witness or a party require observance of the rule, and that some interest of fairness may well produce various consequences if the rule is not observed. However, the rule is often invoked for the purpose of entering into another area of discourse, that is to say, the drawing of inferences by a tribunal of fact. This is what is often behind references that are made to a "comment" following apparent non-observance of the rule. It is important, in the interests of accuracy, to consider the substance of the comment to which the reference is made. It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence or unsworn statement of a person should be disbelieved, perhaps as a recent intervention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel. Depending upon the circumstances of the case either or both of the comments may be available: se, eg, R v Robinson [1977] Qd R 387 at 394. However, especially in a criminal trial, there are considerations which may indicate the need for action. 24 His Honour referred to the South Australian case R v Manunta CCA 28 July 1989 unreported and continued – I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of "mouthpiece" for the client, conducting the case in the close conformity with the client's directions. For reasons that have already been explained, this is far from the truth… 25 The differences between the accounts given on the one hand by Constable Smith and Sergeant Bourke and on the other by the accused were simple and stark. The description given by the two police officers of the manner in which the appellant held his left hand cupped over his right, cupped, hand was essential to the Crown's case on possession because it showed that the accused was knowingly holding his hands so as to conceal whatever was underneath them. If the accused was handling an object that would have made it impossible to for him to conceal anything in the manner described by the Crown witnesses, it was essential to put it to those witnesses. It is not easy to imagine circumstances in which counsel, knowing that the accused was going to give such evidence, would not put it squarely to the Crown witnesses. No reason emerged at the trial why the proposition had not been put. 26 As I have observed, the Crown prosecutor made no reference to this matter in his closing address. If he had, however, it could not in my view be fairly submitted that such a submission ought not to have been made. I think for the same reason, that the trial judge was entitled to express an opinion about the consequences of the failure to put such an important matter. While I accept the need pointed to by Gleeson C in R v Birks to approach cautiously the application of the rule in Brown v Dunn, particularly where it is invoked in order to invite the drawing of an inference adverse to an accused person, I think that it was a proper subject for comment. 27 If a trial judge is directing a jury about the failure of counsel to put a proposition to a witness it will usually be desirable for the jury also to be told that there may often be reasons, of which the jury are unaware, why such a thing was not done. There was no direction of that kind in the present case. After his Honour refused to discharge the jury counsel said no more about the matter. Counsel knew that the jury were about to retire and had a responsibility to assist the trial judge in properly directing the jury. It was not appropriate in my opinion for counsel merely to observe that the matter could not be corrected or that if anything else was said the jury would infer that counsel believed that his client was guilty. 28 As I have said, no reason emerged at trial why counsel had not cross-examined accordingly. In the circumstances it would have been reasonable to infer that there was no reason, other than that counsel did not know when cross-examining that the accused was going to give evidence about a bottle of water. The inference about recent invention would reasonably follow. 29 In my opinion these grounds of appeal have not been made good and the appeal should be dismissed. 30 The application for leave to appeal against the sentence did not raise the suggestion of any particular error on the part of his Honour. The single ground was that the very length of the sentence bespoke error. It was pointed out that the amount of the drug involved was small, not much more than that was necessary to give rise to the statutory provision deeming possession to have been for the purpose of supply. It was submitted that although the applicant had a substantial criminal history there was no conviction of a drug offence other than a 1991 conviction for the possession of cannabis leaf. 31 Even so, the applicant had a long and troublesome criminal history, as his Honour observed. He is a man of thirty-one years of age. His Honour observed that he had twice commenced rehabilitation and had twice relapsed. His Honour appreciated that the applicant had the support of his mother and his de facto wife but doubted whether he was at all motivated to cease his criminal conduct. His Honour found it impossible to tell whether the applicant would be rehabilitated. 32 In my opinion the sentence lay within the proper range of sentencing discretion. I would grant leave grant leave to appeal against sentence but would dismiss the appeal. 33 HOEBEN J: I agree with Barr J. ************ Last Modified: 09/24/2004 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.