Reported Decision : 147 A Crim R 99 New South Wales Court of Criminal Appeal CITATION : R v Macris [2004] NSWCCA 261 HEARING DATE(S) : 8 July 2004 JUDGMENT DATE : 3 August 2004 JUDGMENT OF : Studdert J at 1; Kirby J at 2; Hislop J at 3 DECISION : Appeal upheld; convictions and sentences quashed; new trial ordered. LEGISLATION CITED : Evidence Act, ss 89, 137 Azzopardi v The Queen (2001) 205 CLR 50 CASES CITED : R v OGD (1997) 45 NSWLR 744 R v Naudi [1999] NSWCCA 259 R v Nguyen [2002] NSWCCA 342 PARTIES : Regina v John Macris FILE NUMBER(S) : CCA 60139/04 COUNSEL : D. Howard (Crown) P. Byrne SC (Appellant) SOLICITORS : S. Kavanagh (Crown) K. Kyriacou (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0127 FILE NUMBER(S) : LOWER COURT J.X. Gibson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60139/04 STUDDERT J KIRBY J HISLOP J Tuesday 3 August 2004 REGINA v John MACRIS Judgment 1 STUDDERT J: I agree with Hislop J. 2 KIRBY J: I agree with Hislop J. 3 HISLOP J: The appellant was convicted by a jury in respect of the following counts: Count 1: Supply prohibited drug (methylamphetamine) not less than commercial quantity contrary to Drug Misuse and Trafficking Act 1985 – s 25(2) - maximum penalty 20 years imprisonment and/or 3,500 units; Count 2: Supply prohibited drug (ephedrine) contrary to Drug Misuse and Trafficking Act 1985 – s 25(1) – maximum penalty 15 years imprisonment and/or 2,000 penalty units. 4 On the first count the appellant was sentenced to imprisonment for 3 years 4 months commencing on 18 November 2003 with a non-parole period of 2 years and 6 months. On the second count he was sentenced to a fixed term of 18 months commencing on 18 November 2003. Facts 5 On 26 March 2000, following information received from John Christopher, police executed a search warrant at the appellant's residence, a home unit in Surry Hills. The drugs, the subject of counts 1 and 2, were found by police during the execution of the search warrant at three different locations in the residence. In a cupboard under a stairwell, there was found a tin with the brand name "Versace" printed on it, which tin had been owned by the appellant for some time and had his fingerprints on it. Inside the tin were bags containing various coloured tablets, crystalline powder (the subject of the second count), plastic bags and a set of scales. In a drawer in some furniture in the dining room, the sum of $3,100 in cash together with 20 green tablets was found. In a bedside table in the bedroom upstairs, three blue tablets were found. All the tablets contained methylamphetamine. 6 The appellant, when initially asked by police, denied there were any drugs on the premises. He made no admissions in that regard. He did not give evidence. He called John Christopher as a witness. 7 Mr Christopher said in evidence that it was he who placed the items in the Versace tin and the drawer in the dining room. He did this because he had been arrested by police in relation to a fraud matter and he had believed at the time that it was the appellant who had provided the information to police which resulted in his arrest. He gave evidence that he had told the police that they would find drugs at the premises of the appellant and then went to the home of a known drug dealer where he obtained the drugs, plastic bags and scales which he then located in the two places where drugs were located in the downstairs area in the appellant's unit. He then joined police again when he attended with them at the appellant's premises and engaged in a form of mock arrest in which the police feigned a bit of a struggle with him before taking him away in handcuffs. 8 The only issue to be determined by the jury was whether the appellant had been proved, beyond reasonable doubt, to be in possession of the prohibited drugs as alleged. 9 The appellant appeals against the convictions. Three grounds of appeal are contained in the written Notice of Appeal. Leave to add a further ground of appeal in the following terms: (4) The introduction of the evidence in relation to the white powder on the coffee grinder caused a miscarriage of justice was sought and granted at the hearing. Ground One: "The directions to the jury on the manner in which they should consider the evidence of the witness John Christopher were erroneous and inadequate." 10 The first direction complained of was as follows: "Mr Christopher, you heard him and you saw him. All these things, the effect of Mr Christopher may have been nothing in his evidence, may have had no effect on you at all, although unlikely. He might have convinced you that the accused is innocent. It might raise a reasonable doubt in your mind as to the accused's guilt or it might help the Crown satisfy you beyond reasonable doubt the accused is guilty of each charge. It is entirely a matter for you the view you take of his evidence". 11 The appellant submits, in effect, that the evidence of Mr Christopher could not help the Crown satisfy (the jury) beyond reasonable doubt that the accused was guilty of each charge. 12 I do not accept that submission. The passage complained of does no more than inform the jurors that it is entirely a matter for them what they make of Mr Christopher's evidence and mentions a number of possible ways in which they might regard that evidence. 13 The evidence was capable of assisting the jury to accept the Crown's case as it established Mr Christopher's long standing friendship with the appellant and confirmed a number of the details contained in the Crown case such as the occurrence of phone calls, the mock arrest, the informing on the appellant which was consistent with Mr Christopher in fact acting as a genuine informer for the police. I note no relevant objection to the direction was taken at the trial. 14 The second direction complained of occurred when his Honour, following a discussion of the Crown's submissions in relation to Mr Christopher's evidence, directed the jury that: "If you think it is likely, or that there is a reasonable likelihood of him telling the truth, and when I say 'reasonable' I mean not a fanciful but not – the sun might not rise tomorrow morning possibility, but if you think there is a reasonable possibility that Christopher is telling the truth then you must acquit the accused because the Crown haven't satisfied you beyond reasonable doubt". 15 The appellant submits his Honour thereby misdirected the jury by alerting them to the need for them to be satisfied that "there is a reasonable likelihood of him telling the truth" which placed the standard of proof at too high a level and that the directions were misleading in that they tended to equate the concept of "reasonable likelihood" with "reasonable possibility". 16 The reference to "reasonable likelihood" was unfortunate, and, if it stood alone, would amount to a misdirection. However his Honour gave the correct direction in the same paragraph and thereafter continued: "If on the other hand, if you are satisfied that the Crown is correct in the circumstances, and that the only reasonable inference to be drawn is that the goods belong to the accused, then the appropriate verdict should be for you to convict him". 17 Moreover his Honour, in his introductory comments to the jury, had stated in clear and unequivocal terms that the onus rested upon the Crown to prove beyond a reasonable doubt all the elements that went to make up the charge, that at no stage throughout the proceedings was there any onus cast upon the accused to prove any of those elements or ingredients and that the appellant was presumed innocent until the jury was satisfied to the requisite degree the offence had been committed. His Honour repeated the correct direction as to the onus of proof in his summing up both before and after the direction complained of and immediately before the jury retired. 18 No objection was taken by counsel to this direction at the trial. When the matter is looked at as a whole, there is no adequate basis to conclude the jury may have been mislead by his Honour's comment or that any miscarriage of justice resulted. 19 If his Honour's directions were open to objection such objection should have been taken at the trial where they would have permitted of simple correction. The Criminal Appeal Rules r 4 has application. I would not grant leave under that rule. Ground Two: "The directions given to the jury regarding the use which they may make of the failure of the appellant to give evidence, particularly having regard to the specific question asked by the jury about that matter, were inadequate." 20 At the conclusion of counsels' addresses the jury asked "Why was John Macris not put on the stand and questioned?" 21 In response to the jury's question his Honour informed the jury: "In relation to (that matter), briefly, the fact is he does not have to go on the stand and give evidence. He was entitled to stay where he is and you draw no adverse (inference). That is his right. It is for the Crown to prove it and they have to prove it. I will come back to that in my summing up". 22 Subsequently his Honour said, in his summing up to the jury, "Now, Mr Macris didn't give evidence. There was a question you asked me about and the thing about that is this, Mr Macris doesn't have to give evidence. He is entitled to say to the Crown, as he says here, you prove it. And once again because he doesn't give evidence you don't draw any inference against him. The onus stays on the Crown from start to finish. He is entitled, as I say to do that. Because he is advised. He has people appearing for him. They make up their minds and he says - I won't give evidence. So you draw no inference against him because of that. That is his right. But he does call evidence. He calls Mr Christopher." 23 It is submitted for the appellant that these directions failed to inform the jury in the terms contemplated in R v OGD (1997) 45 NSWLR 744 and in Azzopardi v The Queen (2001) 205 CLR 50 at [51]. 24 In OGD at 751F Gleeson CJ (with whom Grove and Sperling JJ agreed) held: "… it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent". (The OGD direction) 25 In Azzopardi the majority held: "… if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in Court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt". (The Azzopardi direction) 26 A similar issue arose in Regina v Nguyen [2002] NSWCCA 342. In that case the trial judge had given a full Azzopardi direction, but had made no reference to the OGD direction. On appeal, Greg James J (with whom Giles JA and Dunford J agreed) held: "[51] In Azzopardi , the majority does not hold or suggest any such direction (i.e. an OGD direction) should be given, but did refer to a passage in the trial judge's charge to the jury in which the direction was given. This particular direction, however, attracted no attention from the High Court justices even though it was not apparently given by the trial Judge in Davis , the case determined by the High Court at the same time. [52] I am not persuaded that since Azzopardi the observation in Bargwann that such a direction should be given, except in extraordinary circumstances, or that in OGD that the direction is ordinarily necessary, where a jury is directed as here in accordance with the views of the majority in Azzopardi and where no Jones v Dunkel direction is given are applicable…" 27 There was no Jones v Dunkel direction in the present case. Accordingly applying Nguyen, it was unnecessary to give an OGD direction in this case provided an Azzopardi direction was given. 28 The precise words of the Azzopardi direction are not replicated in his Honour's directions to the jury in this case. However, the jury was warned clearly and on a number of occasions that the onus was at all times upon the Crown, that the appellant did not have to give evidence and no inference could be drawn against him by him not doing so. These references, though not in the precise terms of the Azzopardi direction, captured the essence of the Azzopardi requirements that the jury be warned that the accused's silence in court was not evidence against the accused and did not constitute an admission by the accused. 29 However, his Honour made no reference in his summing up to the requirements of the Azzopardi direction that the jury be warned that the accused's silence in court may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt. This omission involves error. Although the Azzopardi direction does admit of cases where a direction in its terms may not be necessary ("…almost always be desirable…") there is nothing in the facts of this case which would make such a direction inappropriate. 30 I therefore conclude that his Honour's direction was deficient in that it made no reference to that part of the Azzopardi direction that the accused's silence may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. 31 Counsel at the trial did not object to his Honour's direction. It is true that if the objection had been taken at the trial, the deficiency could have been easily corrected. However the deficiency in the direction gives rise to the possibility of a real injustice being occasioned to the appellant. Accordingly I would grant leave under rule 4 and would uphold the appeal on this ground. Ground Three: "The learned trial Judge erred in admitting into evidence parts of the record of an interview conducted by investigating police at the time of the execution of a search warrant of the appellant's home, where the appellant responded "no comment" to various propositions being put to him by investigating police." 32 The process of executing the search warrant and the conduct of the search was recorded by videotape equipment. The appellant was present while the search was conducted and was asked various questions about his personal circumstances, his employment and his financial circumstances. In addition, as various items were located in the search, the appellant was asked questions about those items. The appellant answered "no comment" to a number of the questions. 33 As a result of technical problems in editing the video, it was not tendered. However an edited copy of the transcript of the video recording was tendered and admitted as an exhibit. Although ultimately appellant's counsel did not object to the tender or to copies of the exhibit being handed to each juror he had previously sought, unsuccessfully, to have excised the 'no comment' answers and the questions which gave rise to those answers. 34 Immediately before copies of the transcript were distributed to the jurors his Honour directed them in the following terms: "You will see in the document on a number the occasion the accused answers with the words 'no comment' or words to that effect. You don't draw any inference against the accused because of that. He is entitled to a right to silence, as you and I are. If interviewed by the police you don't have to answer any questions. And when he says 'no comment' and that sort of thing he is relying on his right of silence and you do not draw any inference against him in relation to him availing himself of that right which is the right of every citizen." 35 The appellant submits that the transcript should not have been admitted as its probative value was non-existent and there was a clear risk that despite the directions given by his Honour, it may have been used in a manner which was unfairly prejudicial to the appellant. If the evidence did have some probative value beyond that prohibited by s 89(2) of the Evidence Act 1995 the balancing exercise called for by s 137 of the Evidence Act 1995 could only be determined in one way. 36 The evidence was relevant to show the fact of and the detail and sequence of the search as well as the fairness of the police procedure. The evidence was not rendered inadmissible by the Evidence Act 1995 s 89(2) nor was its probative value outweighed by the danger of unfair prejudice to the appellant so as to render it inadmissible pursuant to the Evidence Act 1995 s 137. 37 His Honour gave clear and appropriate directions immediately before the exhibit was circulated to the jury and reiterated those directions in his summing up. These directions overcame any possibility of an unfavourable inference being drawn against the appellant c/f R v Naudi [1999] NSWCCA 259 at [16]. No miscarriage of justice resulted. Ground Four: "The introduction of the evidence in relation to the white powder on the coffee grinder caused a miscarriage of justice." 38 Cross examination of one of the police officers who executed the search warrant elicited the following evidence: Q: You saw nothing like the pill press in the premises? A: No Q: And commonly drug dealers dealing with powders make them into tablets have pill pressers when they are arrested at their premises? A: Sometimes Q: There was nothing called mortar and pestle where you can grind tablets and powders, nothing like that from the unit? A: Well, yes, the coffee grinder. Q: People have coffee grinders in their houses there is nothing suspicious in that? A: There is when there is white powder in them. 39 Appellant's counsel sought a discharge of the jury on the basis of that evidence. The application was rejected. Appellant's counsel then asked further questions of the police officer as follows: Q: In relation to the white powder you just mentioned found in the coffee grinder, it is correct to say that that was subject to the government analyst for examination? A: That is right. Q: And that was found to be a non-drug substance? A: That is right. 40 At the conclusion of counsel's addresses, the jury asked a number of questions including, relevantly, a question which his Honour answered as follows: I have got your questions, members of the jury. The first one reads, "was the white substance in the coffee grinder a cutting agent used for cutting drugs?" And the answer to that is that there is no evidence one way or the other. 41 No objection to this answer was taken by either counsel. Having answered the remainder of the jury's questions, his Honour proceeded to sum up. This matter was not referred to in the summing up. 42 The appellant submits that the introduction of the evidence in relation to the white powder on the coffee grinder caused a miscarriage of justice. However, in order to uphold that submission it would be necessary to conclude that the jury ignored the answer given by his Honour to its question and his directions as to the onus of proof. There is no material to justify such a conclusion. 43 If his Honour's answer was open to objection, such objection should have been taken at the trial where it would have permitted of simple correction. Rule 4 has application. I would not grant leave under that rule. Conclusion 44 The appeal succeeds on Ground 2 but fails on the other grounds. 45 I propose the following orders: (1) Appeal upheld. (2) Convictions and sentences quashed. (3) New trial ordered. ********** Last Modified: 08/06/2004 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.