Written Submission to the Court of Appeal - Assignment Example

The Federal state of Australia In the Court of Appeal Appeal No…. of 2011 A………………………………………………………………………………… Appellant Verses The Crown………………………………………………………………………Defendant Written Submission Head note Yes. The appellant was unfairly judged. The Judge erred in Law in deciding that the appellant was guilty of being in possession of the prohibited drug, heroin yet he just kept it in trust for the complainant. The prosecution failed to prove beyond reasonable doubt that the appellant was in possession of the drug. It is acknowledged that the complainant’s evidence (W1) was not convincing although the thrust evidence coincided with the facts. If the complainant could not convince the Court as to the trafficking and possession of the drug, then the Judge was egregiously partisan thereby denying the appellant a right to a fair hearing. Besides, the evidence of W2 cannot be relied upon because it needed to be corroborated. Although the Judge cautioned the Jury about this evidence, his conviction and sentence was based on uncorroborated evidence. This is in itself is bad law. Therefore, the appellant should be acquitted of the offence on ground that the approach adopted by the learned trial Judge was unfairly speculative because it was not proved beyond reasonable doubt. Brief facts: A was tried and convicted of trafficking Heroine, a prohibited drug in Australia. A is appealing against the conviction. The Appellant, A, managed a licensed premise where it is alleged that he had kept heroine. He then gave a parcel containing this drug to the complainant (W1) claiming that someone left it there for that person. The appellant claims that at the material time, he didn’t know that the parcel contained the drug. At the trial it ought to be proved that he was in possession of a prohibited drug. W1 did not give the evidence as required by the court. However, W2, who had been indicted of the same offence volunteered to give the evidence against the appellant. This evidence was not corroborated. On appeal it is contended that the judge erred in law and fact in convicting the appellant and the approach adopted by the learned trial Judge was unfairly speculative; was egregiously partisan adversely to the appellant. Law applicable Drugs, Poisons and controlled Substance Act, 1981. Misuse of Drugs Act, 1986. Criminal Appeals Act, 1912 and Criminal Code Act, 1995 Case Law The appeal is brought under s. 12 of the criminal appeals Act, 1912 which allows defendants or accused person to appeal against any sentence or conviction. It’s also based on Criminal Code Act, 1995 Part 26, and Division 13:1:2 that gives the legal burden as resting upon the prosecution and standard of proof being beyond reasonable doubt. For purposes of this appeal, conditions for the applicability of “section 6 (1) of the Criminal Appeal Act 1914 (NSW)” for special leave to appeal have not been called in question. Issues 1. Who are the parties involved in this case? 2. Whether the Judge erred in law and fact in relying on the Jury’s verdict. Resolution of issues Issue one: The parties involved in this case include the following: a) The appellant, A, who was accused of trafficking and possessing a heroin, a prohibited drug. b) The complainant, W1, in whose trust the appellant kept a parcel containing blocks of heroine. c) W2 (the accomplice), who was separately indicted on the same offence but given a lesser punishment for volunteering to give evidence against the appellant, and d) The prosecution or the crown, charged with the duty to prove the case beyond reasonable doubt. Issue No two: Yes. The Judge erred in law and fact in relying on mistaken uncorroborated evidence, and the fact that the case was not proved beyond reasonable doubt. Justification: For a person to be guilty of drug trafficking, he or she must have prepared, manufactured, sold, exchanged, agreed to sell, offered to sell, and found in possession for sale “a drug of dependence.” (Drugs, Poisons and Controlled substance Act, 1981, S.70 ).In the instant case, the appellant was accused of offering, agreeing for sell and being in possession per evidence from the prosecution witness W2. This evidence ought to be corroborated. Similarly, for a person to be in possession, that person must have control and custody of the drug which should be proven in court except where the drug did not belong to the accused person (Drugs, Poisons and Controlled substance Act, 1981, S.4 ). Although the drug was found on the licensed premises of the appellant, the drug did not belong to him but to the complainant. The appellant shown that someone had left the parcel containing the blocks of heroine there for the complainant. As an experienced Judge, he ought to have called that witness who had left the parcel at the appellant’s premises to testify. This witness wasn’t called and instead the Court relied on the evidence of appellant’s worker who was being indicted for the same offence and whose evidence was not corroborated. This was premafacie an illegal conclusion. It was incumbent upon the prosecution to prove beyond reasonable doubt that the appellant trafficked and possessed the drug. All these were not done which explains the innocence of the appellant. The right to a fair hearing is cardinal principle that cuts across the web of Australian criminal law. This means that for a person to be guilty of an offence, the offence should be proved beyond reasonable doubt. Proving a case beyond a reasonable doubt means convincing without doubt to the Court that the facts and issued alleged are true coupled with pre meditated malice afore thought. This heaviness (burden) lies on the prosecution throughout the whole trial process (Drugs, Poisons and Controlled substance Act, 1981, s. 104). The accused does not bear any legal and evidential burden to prove the ingredients of the offence. It is incumbent upon the prosecution to prove the case beyond reasonable doubt that the prisoner is guilty of the offence and liable to suffer punishment (Misuse of Drugs Act, 1986, S. 57(c)). Where the prosecution fails to prove the case beyond reasonable doubt, the accused is legally entitled to be acquitted. The phrase “beyond reasonable doubt” is the standard of proof in all criminal cases (Woolmington V D.PP, 1935). Convicting an accused without proving the required burden negates the constitutional and international presumption of innocence (European Convention on Human Rights, article 6(2)). Any attempt to whittle down this presumption cannot be entertained in law especially where the Judge attempts to define burden of proof based on rational belief as was the case in the instant case (Green V R,1971-1972). This rational Judgment is illegal and does not confer a right to a fair hearing per the Court in R V Punj (2002). Therefore, in relying on the uncorroborated evidence of W2 and the Jury’s verdict which did not weigh legally the gravity of relying on the evidence of W2, the Judge assumed a community standard but not the required standard of proof beyond reasonable doubt. That community standard is legally unreliable and explains how the Judge erred in law (Rv Irlam, 2002). Drawing inspiration from words of Lord Viscount Sankey in Wilmington’s case, as he was then, there is no way a prisoner can be sentenced of an offence if the prosecution fails to prove the case beyond reasonable doubt. His Lordship opened floodgates of criminal litigation that it’s the duty of the prosecution to prove the case beyond reasonable doubt and where the prosecution fails to do so, the prisoner is entitled to an acquittal (Woolmington V D.P.P, 1935). The above presupposition was adopted and incorporated in the Australian Criminal Jurisprudence under Drugs, Poisons and Controlled substance Act, 1981, (s. 104) and the misuse of Drugs Act (S.57(c)). Therefore, the Judge erred in law and fact to conclude that the accused was guilty of drug trafficking when the case was not proved beyond reasonable doubt. In dealing with drug trafficking in Australia, the prosecution must prove beyond reasonable doubt that the accused offered to sell, possessed the drug with intentions to sell, attempted to sell the prohibited drug or offered to sell it to another per the Court in RPS v The Queen (2000). These ingredients were not proved beyond reasonable doubt. Relying on the evidence of W2, who was the appellant’s employee, required an extra great care which shouldn’t have been left to the jury to decide. The Judge even though cautioned the Jury about taking necessary great care while relying on the evidence of the accomplice, that evidence ought to be corroborated with another supporting evidence. In the instant case this wasn’t followed. It is upon this backdrop that the Judge erred in law and fact to convict and sentence the appellant. However, the evidence of an accomplice can be accepted without corroboration if the Judge or the Jury, takes great care in weighing that evidence. This is because a conviction based upon such evidence causes some degree of uneasiness in the administration of criminal justice if not weighed properly. Such a witness though honest may be mistaken. The Judge should caution the truth of the testimony, because conditions favoring proper identification are difficult for lack of corroboration. Therefore, there should be supporting evidence pointing to the guilt of the accused. It’s possible that a mistaken witness can be convincing. As a Judge you should weigh the length of time within which the witness saw, heard, touched, and observed the commission of the offence. Furthermore you should examine the relationship between the accused and the witness and familiarity at the time of committing the offence. The purpose of this is to evaluate the quality of evidence being adduced to Court. If the quality is so good, the danger of mistaken witness is avoided and the accused would be rightfully convicted and sentenced. If the quality is poor, there is a high propensity and probability that the evidence adduced should be corroborated to avoid miscarriage of justice. The evidence of W2 was just a comment and the judge should at all times caution the jury of passing a verdict on a mere comment as stated in Azzopardi v The Queen (2001). In the instant case, the jury and Judge did not follow the above process. They only relied on the testimony of W2 without proper identification as to the correctness of that testimony. This made the evidence adduced to be poor. So it ought to be corroborated. The Judge ought to have placed it upon the prosecution to corroborate that evidence by bringing on more witnesses to testify, especially the one who left the parcel at appellant’s premises. This was not done. In fact, to show that the accused was innocent, facts show that the evidence of W1, who was the complainant was not convincing to the court and even the appellant’s counsel chose not cross examine W1 because his evidence supported his defense. The Judge did not warn the Jury about basing their conviction on a mere comment of W2 and that why he relied upon a community standard of proof. The prosecution therefore failed to prove the case beyond reasonable doubt. Conclusion In conclusion therefore, the case was not proved beyond reasonable doubt hence by denying the appellant a fair hearing. The prosecution failed to prove beyond reasonable doubt that the appellant was in possession of the drug at the material time. Basing on a community standard of proof was a wrong approach. The approach adopted by the learned trial Judge was unfairly speculative; was egregiously partisan adversely to the appellant; and had the effect of depriving the appellant of his entitlement at law to a summing-up that was fair and balanced. It is our prayer that the appellant be acquitted of the homicide. References Azzopardi v. The Queen (2001) 205 CLR 50. Criminal Appeals Act, 1912 Criminal Code Act, 1995 Criminal Appeal Act 1914 (NSW) Drugs, Poisons and Controlled substance Act, No 9719 (1981). Green V R (Crown (1971-1972) 126 CLR 28. Misuse of Drugs Act(1986). R V Punj ( 2002) QCA, 333. RPS v. The Queen (2000) 1999 CLR 620. Rv Irlam QCA 235 (Court of Appeal 2002). Woolmington V D.PP, 1901 (Hous of Lords May 23, 1935) Read More