R. v. Lam Po on

CACC000243/1996

IN THE COURT OF APPEAL

1996, No. 243
(Criminal)

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Coram : Power, Atg C.J., Mortimer and Mayo, JJ.A. in court

Date of Judgment : 23 May 1997

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 25 March 1996 the applicant was convicted of trafficking in 6 kg of cannabis and some cannabis seeds by His Honour Judge Gould in the District Court. He was sentenced to 21 months imprisonment. He applies for leave to appeal against his conviction.

The facts

2. On 15 September 1995 the police searched a flat in Yin On Street, Tokwawan. The applicant was inside. There was found inside the cannabis in the charge. The applicant had pointed it out and at the time admitted trafficking in it. Also found in the flat were what is usually described trafficker's paraphernalia, in other words a quantity of plastic bags in which the drugs could be divided up and some scales.

The trial

3. At trial the applicant gave evidence, denying the charge. His defence was that the drugs were not his. He did not know the substance there was cannabis. It had been left in the flat by a former flat-mate who said that he was assisting a friend in a business selling Chinese herbs. That was what the applicant believed they were and they had been left there as security for some money that was owed. Also, there were urged - both in his evidence and on his behalf - a number of points about the police evidence suggesting that it was false.

4. The police evidence was that they had heard him on the telephone before entering the flat and breaking down the door. When they spoke to him, they never inquired to whom he was speaking. Secondly, when the drugs were found, there was no inquiry where they had come from. Next, there were no tests made for fingerprints on the drugs or the packaging. No gloves were used in the search by the police and also that there was no real search carried out.

5. In his reasons for verdict the judge considered each one of those points and finally having reached his conclusion against the applicant, he said:

"I have come to my foregoing conclusions in the knowledge generally that the Defendant has a clear record and has been of hitherto good character."

The application

6. Through Mr McLanachan, who appears for the applicant, he takes two points. The first is that in reaching his conclusion on the credibility of the witnesses upon which the case undoubtedly turned, the judge ought to have clearly said that he had considered the defendant's clear record and good character on both his credibility and his propensity to commit the offence. In other words, the judge ought to articulate a full Barrada direction.

7. It is clear to this Court from the words the judge used, that the judge had well in mind the effect of good character in a case such as this. This Court has said on many previous occasions that it is not necessary for a professional judge to give himself directions of law as if he were directing a jury. This Court will only interfere if it becomes clear from the circumstances and his reasoning that the judge has failed to take something into account which he ought to have taken into account. On that basis, this point is concluded against the applicant. There is nothing it. We can proceed to the next ground.

8. The next ground is that the judge used a remark about the matters to which we have already averted which demonstrated that he had for unjust reasons taken a lesser view of the applicant's credibility than he ought to have done. He said this:

"I do not think I should disbelieve the Prosecution witnesses simply because gloves were not used during the search. I think the police officers were lured in to direct an immediate action by the cooperative attitude of the Defendant. There was, after all, scarcely a 'search at all, in the convention sense - the Defendant told them where to look.

I might have taken a different attitude to the matters I have already mentioned if this had been a case where the Defendant alleged that the police had planted the drugs in his premises. However, in this case, the Defendant acknowledges that the cannabis and paraphernalia were already in his flat when the police entered."

Mr McLanachan submits that the judge drew an illogical inference against the applicant on the basis that this was not a case in which he was alleging that the police had planted the drugs in the premises. The remark was made by the judge giving an extempore judgment, I think it is not entirely clear what he meant. It was described in the course of submissions by the Acting Chief Justice as "somewhat delphic".

9. However, if put into its proper context, it would seem the judge was making reference to the fact that, as was agreed, there was scarcely a search. Whereas that might have been consistent with an allegation of the police planting the drugs, the absence of a full search was explained to the judge's satisfaction. There is no substance in the point.

10. For these reasons, we dismiss this application.

Representation:

Mr John McLanachan (M/s Ivan Tang & Co) for Applicant

Mr G. Di Fazio (Atg DPCC) (Crown Prosecutor) for Crown/Respondent