Reported Decision : 140 A Crim R 595 New South Wales Court of Criminal Appeal CITATION : R v Stavrinos [2003] NSWCCA 339 HEARING DATE(S) : 11 November 2003 JUDGMENT DATE : 9 December 2003 JUDGMENT OF : Barr J at 1; Greg James J at 27; Miles AJ at 28 DECISION : Allow the appeal. Quash the convictions and direct the entry of verdicts of acquittal. CATCHWORDS : Criminal law - accused's right to silence - whether breached by Crown Prosecutor's closing address - whether consequent direction appropriate. LEGISLATION CITED : Criminal Appeal Act s8 CASES CITED : Petty and Maiden v The Queen (1991) 173 CLR 95 King v The Queen (1986) 161 CLR 423 PARTIES : Regina Anthony Stavrinos FILE NUMBER(S) : CCA 60399/03 COUNSEL : Applicant: S J Odgers SC Crown: D C Frearson SOLICITORS : Applicant: R Day Crown: S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1145 FILE NUMBER(S) : LOWER COURT Shillington ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060399/03 BARR J GREG JAMES J MILES AJ Tuesday, 9 December 2003 R v Anthony STAVRINOS Judgment 1 BARR J: The appellant Anthony Stavrinos appeals against convictions entered in the District Court and seeks leave to appeal against the resulting sentences. On 23 April 2002 the jury found him guilty of supplying the drug 3,4 methylenedioxymethamphetamine (MDMA) also known as ecstasy, on each of two occasions. On 6 June 2003 Shillington QC ADCJ sentenced him to two concurrent terms of imprisonment, each for two years with a non-parole period of one year. 2 The first occasion was late at night on 24 January 2002. The police had been watching the appellant for some time and followed him to a car park at the Spit. Another car arrived at that place at about the same time. The appellant and the driver of the other car got out of their cars and walked a little distance and spoke. The other driver re-entered his car and drove away. The police did not stop him. They spoke to the appellant and searched his car. They found quantities of two drugs in the car, namely 3,4 methylenedioxymethamphetamine (MDMA), or Ecstasy and 3,4 methylenedioxyamphetamine (MDA), or Speed. The amount of Ecstasy exceeded the trafficable quantity, but the amount of Speed was less than the trafficable quantity. 3 Over the next few hours the police searched the house where the applicant was living. In his bedroom they found further quantities of prohibited drugs and a number of resealable plastic bags. They also found a briefcase containing several envelopes, each containing amounts of cash. The total sum so found exceeded $17,000. Also in the briefcase were Ecstasy and Speed, a number of resealable plastic bags and a number of manilla folders containing the appellant's personal papers. 4 The amount of Ecstasy found in the appellant's bedroom exceeded the trafficable quantity. The Speed weighed less than the trafficable quantity. 5 It was the Crown contention that the appellant possessed all the quantities of drug for supply. There were thus four charges, two relating to the Ecstasy found in the car and in the bedroom and two relating to corresponding items of Speed. The Crown case on all the charges relied on the inference available from all the circumstances that the appellant was dealing in drugs, particularly his possession of the sums of money in the envelopes and the plastic bags. The Crown case on the Ecstasy counts was strengthened by the statutory presumption raised by the very amount of the drug possessed. On those counts the only issue for the jury was whether the appellant had shown that it was more likely than not that he did not have the drug in his possession for the purpose of supply. On the Speed counts, however, the Crown had to prove his intention beyond reasonable doubt. The jury found him not guilty on those counts. 6 The money in the briefcase was a matter of some importance on all four counts. The Crown said that, like the plastic bags, it showed that the appellant was a man who received substantial amounts of cash, as drug dealers do. The defence case was that the appellant, a man of Greek extraction, was holding the money in trust for persons who in accordance with Greek tradition had contributed to wedding presents for his brother. The brother had recently died. Some witnesses gave evidence in support of the appellant's contention. 7 The investigating police officers gave evidence. Detective Crisafulli said he told the appellant at the police station that the police had found a briefcase in his room. They wanted to ask him about the contents. Detective Crisafulli cautioned him and asked him if he could tell him what was inside the briefcase. The appellant replied "just some personal papers". The Detective tried to open the briefcase but it was locked with a combination lock. The appellant told him the combination and Detective Crisafulli opened the briefcase. So the money was revealed. 8 Detective Crisafulli gave evidence that in due course the appellant was invited to participate in a recorded interview and declined the invitation. The trial judge informed the jury immediately of the accused's right to silence and of the unavailability of any inference adverse to him arising out of his exercise of that right. 9 Only one ground of appeal was pressed. It complained that the trial judge erred in not giving adequate directions to the jury concerning the appellant's right to silence. In her closing address to the jury the Crown Prosecutor said this about the appellant's answer to the investigating police officers in response to their question about what was in the briefcase - Ladies and gentlemen when the property was found - when the drugs were found – both in the car and in the briefcase, the accused indicated words to the effect of he didn't know what it was or he didn't know how it got there. Not whilst that is certainly a matter for you to take into consideration, I would remind you and his Honour will, I have no doubt, also tell you as a direction, that the accused had no obligation to say anything to the police. He's given a warning, he doesn't have to say anything and he doesn't say anything – as his Honour has already told you once and I've got no doubt will tell you again – you don't hold it against him for not saying anything. That's one of the four corners of our legal criminal system, the right to silence. But in relation to that ladies and gentlemen, you may think and this is entirely a matter for you, when you consider that warning that his Honour's given you and will no doubt give you again, that this money doesn't belong to the accused and it belongs to other people – quite apart from the money from his father – belongs to other people. Why didn't he say something? It's just something I'd ask you to think about ladies and gentlemen. 10 Having summed up on the law the trial judge went on to rehearse the submissions of the Crown Prosecutor and counsel for the defence. His Honour reminded the jury about the $17,000 found in the briefcase and continued- The Crown puts to you there is nothing in the briefcase to in any way differentiate between the different amounts which are said to have come from different people. It was not divided into bundles. There was nothing on the envelopes to relate those amounts of money to what was inside them and the paper bag, to suggest that this was money gifts. The Crown says well why would the accused not have told the police when they found that money, that it was not his money, it was in effect, his late brother's money, or perhaps it was the money of the persons who had given to him for safe keeping. Bearing in mind, as the Crown concedes, that there was certainly no obligation on the accused to say anything when he was asked about the items found in that briefcase. The Crown has submitted to you that when dealing with the two MDA charges, upon which charges the Crown has to prove that it was in possession for supply, that you would look at those general matters, which I have already referred to, the large amount of money, the envelopes with writing on them, which was really not explained and the presence of those resealable plastic bags. As I have already said, the Crown of course does concede, when dealing with the failure of the accused to make any mention of, on his case, who owned the large sum of money in the briefcase. It was certainly no obligation upon him to say anything. 11 It was submitted on appeal that those directions permitted the jury to reason in the way suggested by the Crown Prosecutor in her final address, namely that while the appellant had no obligation to say anything to the police about the money in the briefcase, the explanation offered at trial, that it was not his money but money he was keeping for his brother's wedding, could be discounted by reason of his failure to tell this to the police. 12 In Petty and Maiden v The Queen (1991) 173 CLR 95 it was observed that in a criminal trial it should not be suggested that previous silence about a defence raised at trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. See the judgment of Mason CJ, Deane, Toohey and McHugh JJ at 99. 13 The Crown submitted on appeal that the right of silence was not immediately invoked. Rather, at the Spit the appellant had denied knowing the nature of the tablets police found in the car. It seems possible that the difficulty with this submission maybe no more than a matter of terminology, but I would wish to make clear that a suspect's right to silence is not something that needs invocation. It exists. Moreover, I would not regard whatever the appellant may have said at the Spit as affecting in any way his right not to speak about things later found at the house. 14 Then it was submitted that after being cautioned the appellant told the police that the briefcase contained personal papers. The implication was that he had chosen not to exercise his right to silence and fell under an obligation, if he wanted to avoid an adverse inference in due course, to tell the police the source of the money he knew they would find in the briefcase. It was submitted that read in context the Crown Prosecutor's submissions amounted only to a comparison of the appellant's initial version - that the briefcase contained only personal papers - and the version put forward at trial - that it contained wedding presents in cash. 15 I do not accept that by asserting that the briefcase contained just some personal papers the appellant waived his right to silence about the money and its provenance. He did not assume any obligation to inform the police about the source of the money the failure to meet which would entitle the jury to draw any inference adverse to his interests, whether as to the novelty of the version put forward at trial or as to its suspicious nature or unacceptability. 16 In the passage which I have extracted the Crown Prosecutor addressed the jury at some length about the appellant's right to silence and only then invited them to ask themselves why he had remained silent. The Crown Prosecutor nowhere asserted that the right to silence had been waived or abandoned because of what the appellant had chosen to say about the contents of the briefcase. The question of waiver never arose at the trial. It follows, I think, that the jury must have understood that the Crown was telling them that notwithstanding the appellant's right to silence they could evaluate the version put forward at trial (and discount it) by reference to his earlier silence about it. It must have led the jury to believe that the right to silence had its limitations. 17 The Crown Prosecutor's speech was self-contradictory and the trial judge should have told the jury that to reason in the manner invited would negate the appellant's right to silence and was impermissible. 18 The trial judge uncritically repeated the Crown's submission and impliedly lent it authority. I think that the jury must thereby have received the impression that the right to silence about which they had been told a number of times was subject to an exception that permitted them to infer from the appellant's failure to inform the police about the source of the money that his version put forward at trial was less likely to be true. 19 In my opinion this ground of appeal has been made good. 20 It was submitted that if the appeal was successful the Court ought not to order a new trial. S 8 Criminal Appeal Act relevantly provides as follows- (1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. 21 A new trial is not the inevitable result of a successful appeal against conviction and the Crown has to show that such a result is the most appropriate remedy: King v The Queen (1986) 161 CLR 423. 22 The amount of Ecstasy found in the car and the bedroom weighed 2.58 and 3.4 grams respectively. The corresponding amounts of Speed were 0.32 and 0.7 grams respectively. The trafficable quantity of both drugs is 0. 75 grams. 23 The acquittal of the appellant on the Speed counts shows that the jury were not satisfied beyond reasonable doubt that the appellant had the Speed for supply to others. His conviction on the other counts shows that they were not satisfied on the balance of probabilities that he did not possess the Ecstasy for supply. The only logical and evidential basis for distinguishing between the Ecstasy and the Speed lay in the amounts. Although they exceeded the trafficable quantity, the amounts of Ecstasy were not great. Users of that drug might well possess such quantities for their own use. 24 The money in the briefcase was not the only independent piece of evidence that tended to show the appellant's intention to supply. There were the plastic bags. The money was very important, however. The evidence of the appellant was that it had been made over to him by his father, his mother, and three family or personal friends named Crapis, Korkidas and Fawcett. The appellant's mother and father gave evidence, as did Mr Crapis and Mr Fawcett. All said that they had handed to or for the appellant amounts of cash as presents. Mr Korkidas did not give evidence but evidence was adduced about his temporary absence overseas. It seems to me that this evidence about the provenance of money and the fact of the acquittals on which the Crown bore the onus of proof shows that the Crown case is not of the strongest kind. Furthermore, at any retrial the defence case might become stronger because of the availability of Mr Korkidas. 25 The sentences imposed by his Honour commenced on 6 June 2003 and the appellant has now served almost half the non-parole period. I am not persuaded that there ought to be a new trial. 26 I propose the following orders- 1. Allow the appeal. 2. Quash the convictions and direct the entry of verdicts of acquittal. 27 GREG JAMES J: I agree with Barr J. 28 MILES AJ: The facts and background to this appeal are set out in the judgment of Barr J. 29 I agree that the appeal should be allowed and the conviction set aside. I also agree, for the reasons advanced by Barr J, that there should be verdicts of acquittal. 30 I would restrict the basis for allowing the appeal to the erroneous reference in the address of prosecuting counsel and in the summing up to questions by the police about the contents of the briefcase and statements by the appellant to the effect of not knowing what they were or how they got there. In fact he was asked no such questions and made no such statements. The erroneous references mean that the possibility of a miscarriage of justice cannot be excluded. 31 Without those errors, I think that it may be well arguable that neither the prosecutor nor the trial judge was in breach of s. 89 of the Evidence Act 1995. When the cash was taken out of the bag and counted in front of the appellant, it was arguably not in the course of official questioning, and further, there may have been no failure or refusal to answer a question or respond to a representation as contemplated by s89, simply because there were no questions and no representations. 32 If the case is outside s. 89, the extent to which the common law right of silence and its consequences go beyond s. 89 would have to be considered. 33 Further, I think that there is a real question about whether or how far the common law prohibition on drawing inferences from an accused's silence applies to an issue on which the accused bears the onus of proof. 34 BARR J: The orders of the Court are therefore as I have proposed. ********** Last Modified: 12/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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