Allchin v R; Skepevski v R

Court of Criminal Appeal (NSW)|2019-11-06|Before: Basten JA, Walton J, Bellew J

Solicitors: Ross Hill & Associates (Allchin) Maksisi Lawyers (Skepevski) Crown Solicitor's Office (Respondent) File Number(s): 2015/317549; 2015/300620 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 July 2018 Before: Townsden DCJ File Number(s): 2015/31749; 2015/300620

Judgment

BASTEN JA: On the afternoon of 28 August 2015 a drug supply involving almost 1kg of methylamphetamine took place on Johnson Street, Annandale in the inner west of Sydney.
The physical events were captured by police surveillance cameras. One of the accused, Christopher Allchin was seen to place a shopping bag carrying the logo of "Blush Cosmetics" in the back seat of a car driven by one Nathan Rowe. Mr Rowe was an associate of Zivko (Jack) Skepevski. Rowe and Skepevski lived in Newcastle. Police followed Rowe's vehicle until it was stopped on the M1 freeway. A search of the vehicle disclosed that the shopping bag contained a striped cardboard box in which was a plastic bag containing methylamphetamine. Following his interception, Mr Rowe took part in an electronically recorded interview in the course of which he implicated Mr Skepevski. Mr Skepevski and Mr Allchin were apprehended some six weeks later.
On 16 February 2016 Mr Rowe made an induced statement which implicated Mr Skepevski. Mr Rowe was charged, pleaded and sentenced for his role in the offending. He received a significant reduction of his sentence for an early plea and assistance to law enforcement authorities, based on his statement and undertaking to give evidence of the events of 28 August 2015.

Grounds of appeal

The events which involved the transfer of the drugs from Mr Allchin's possession to the back seat of Mr Rowe's vehicle were recorded by police surveillance cameras. There was no dispute as to what might be seen as occurring; there was a dispute as to what inferences could be drawn from the recorded events. Further, there was no dispute that the bag placed by Mr Allchin in the rear of Mr Rowe's vehicle contained methylamphetamine. The case against Mr Allchin depended entirely upon that evidence, and the inferences which could be drawn as to his knowledge that the bag contained a prohibited drug and in a quantity in excess of the lower limit of the commercial quantity, which was 250g. His notice of appeal contained one ground, namely that the verdict was unreasonable or could not be supported having regard to the evidence.
Mr Skepevski's involvement at Johnson Street, Annandale is also recorded and will be described below. In addition to walking with Mr Allchin towards Rowe's vehicle, and speaking to Rowe after the bag was placed in the vehicle, police followed Mr Rowe as he left the scene and observed Mr Rowe park in a Caltex station on the Pacific Highway, where he was briefly joined by Mr Skepevski, before each drove separately north on the freeway towards Newcastle. Mr Rowe was apprehended on the freeway and the drug recovered from the bag on the back seat of his vehicle.
Mr Rowe gave evidence implicating Mr Skepevski, who he said had directed him to drive to Johnson Street and then return to his, Mr Skepevski's, home in Newcastle with the bag provided by Mr Allchin. Mr Rowe also gave evidence that Mr Skepevski had inspected the contents of the bag at the Caltex station on the Pacific Highway.
The notice of appeal on behalf of Mr Skepevski contained two grounds. Ground 2 was that the verdict was unreasonable or could not be supported having regard to the evidence. Ground 1 asserted that the trial judge had refused to allow counsel to cross-examine Mr Rowe about "relevant matters", which was said to have occasioned a miscarriage of justice.
Each applicant provided written submissions in support of the grounds of appeal. Within the submissions were separate topics, or particulars of the unreasonable verdict grounds. The written submissions for Mr Skepevski particularised under ground 2 (unreasonable verdict) a matter which did not properly fall within that ground, namely a complaint of failure to call material witnesses.
The submissions for Mr Allchin identified three issues as to necessary findings of fact. The issues concerned (i) the existence of a joint criminal enterprise, (ii) the accused's knowledge of the contents of the bag and (iii) his knowledge of the quantity of drugs contained in the bag. However, the primary submissions with respect to these issues were articulated as a challenge to an application for a directed verdict brought at the conclusion of the prosecution case, and refused by the trial judge. While it was true that the arguments put in seeking a directed verdict substantially mirrored those which might support an appeal ground that the guilty verdict could not be supported on the evidence, different considerations apply to the assessment of those arguments as presented at trial and as presented in support of a ground of appeal. Counsel fairly conceded that there was no ground challenging the refusal of the application for a directed verdict and that no such challenge could properly be mounted. This Court will treat those submissions as directed to the only ground identified in the notice of appeal, namely that the verdict was unreasonable and could not be supported on the evidence.
Further, the submissions raised an entirely separate issue, namely that the prosecutor, in addressing the jury, had used rhetorical questions which tended to express an opinion of the prosecutor and also to divert the jury's attention from the obligation of the prosecution to prove each element of the offences beyond reasonable doubt. That issue should have been raised as a separate ground of appeal and will be dealt with as such.
The submissions also raised issues in passing which were not fully developed and, again, were not properly to be treated as particulars of the sole pleaded ground. First, there was a complaint that the prosecution case changed between the opening and closing addresses. Secondly, there was a complaint that the trial judge failed to summarise adequately the defence case for the jury, and further failed adequately to distinguish the cases against each accused. These matters, if they were to be pursued, should have been identified as separate grounds of appeal. They will be addressed as such.
Serious departures in submissions from the identified grounds of appeal cannot properly be dismissed as technicalities of no consequence; they have the potential to disrupt the orderly presentation and determination of an appeal and may lead to adjournments and unnecessary delay. They may also distract attention from the fact that some grounds may be available as of right, whereas other grounds, not involving questions of law alone, will require leave. [1]
In the present case, senior counsel for the Director took no point in relation to the issues noted above. Nor did she seek to preclude the applicants from pursuing arguments which had been raised in the written submissions. Because those matters had been ventilated in her written submissions, that concession was appropriate.
There remained a question as to whether the applicants should be required to file amended notices of appeal. That course was not directed, largely because it would not have solved the problem, to the extent that the written submissions were formulated by reference to inadequate directions to the jury, or as a challenge to an unsuccessful interlocutory ruling. The Court took the view that, being alert to the problems identified above, it could determine the appeals by reference to the substantive issues raised. However, it should not be assumed that such a pragmatic course will always be taken.
Some of the complaints were, in substance, that the accused had not received a fair trial. In oral submissions, counsel expressly identified their concerns in those terms. That characterisation was not inappropriate; however, it should have alerted counsel to the fact that the identified grounds were not appropriately addressed as elements of a verdict which was unreasonable or not supportable on the evidence.

Principles governing unreasonable verdict ground

The principles to be applied by the Court in determining whether a verdict is unreasonable, or cannot be supported, having regard to the evidence (the first limb of s 6(1) of the Criminal Appeal Act) were conveniently explained by Hayne J (with the agreement of Gleeson CJ and Heydon J) in Libke v The Queen [2] in the following terms: "It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. [3] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt."
There are two further points of principle which arise in relation to a case involving circumstantial proof. They were addressed in The Queen v Hillier: [4] "The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."
Secondly, while counsel for the applicants were at pains to state that the adverse inferences relied on by the prosecutor were mere speculation, the inferences they relied on as rational alternative hypotheses were also speculative. Referring to the need for the prosecution to establish not only that guilt is a rational inference in all the circumstances, but that it should be the only rational inference, any alternative inference should also be more than speculative. As explained in The Queen v Baden-Clay: [5] "For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added)." [6]

(1) facts and submissions

It is convenient to start with Mr Allchin's appeal, which requires an understanding of the surveillance evidence recorded at Johnson Street, Annandale. In addition, the prosecution tendered intercepts of telephone conversations between Mr Skepevski and Mr Rowe, and CCTV footage from inside the Empire Hotel on Johnson Street.
At about 12.15pm Vincent Bogdanovic arrived at the Recharging Café on Johnston Street, Annandale near Parramatta Road. He was joined at 12.30pm by Ashley Grech. At 1.10pm Mr Skepevski arrived, driving a white Toyota van, and joined Bogdanovic and Grech; they spoke for some little time. Just before 2pm Mr Skepevski telephoned Mr Rowe, who was in Newcastle, and asked him to meet him at a chicken shop in Wahroonga.
At 2.29pm Mr Allchin arrived at Johnson Street in a dark coloured Volkswagen dual cab utility. He joined Messrs Skepevski, Bogdanovic and Grech at 2.32pm, walking away six minutes later and driving off. At the end of the telephone call between Skepevski and Rowe at 2pm, Rowe had estimated that he would be at the chicken shop in Wahroonga at about 3.30pm. At 3.21pm Mr Skepevski rang Rowe again and directed him to come to Johnson Street, Annandale. At 3.39pm Skepevski rang Mr Rowe to ask if he were close; Rowe said he had been caught in traffic and was only at Pymble. At 4.20pm Skepevski rang Rowe again to find out where he was. Rowe was then on Johnson Street and Skepevski directed him to keep driving towards Parramatta Road, saying that he would be standing on the street about 100 metres before Parramatta Road. Two minutes later Mr Rowe stopped beside Mr Skepevski, before doing a U-turn and parking on the other side of the street. At 4.29pm Mr Skepevski crossed Johnson Street and could be seen speaking to Mr Rowe who was still in the driver's seat of his car.
At 4.46pm Mr Allchin returned in his vehicle and walked towards Mr Grech, carrying a Blush cosmetics bag. He then approached Skepevski and Bogdanovic. Skepevski and Allchin crossed Johnson Street diagonally in the direction of Mr Rowe's vehicle apparently in conversation. Mr Allchin walked to the back of Mr Rowe's vehicle and appeared to attempt to open the hatch. He moved to the passenger side rear door which he opened and placed the Blush cosmetics bag on the back seat. He then closed the door and walked back towards Mr Bogdanovic and Mr Grech. He appeared to have no communication at all with Mr Rowe. Mr Skepevski, however, went around to the driver's side of Mr Rowe's vehicle and appeared to speak to him through the car window. At 4.50pm Mr Rowe drove away down Johnson Street.
Mr Skepevski then went back to his van and opened the sliding side door. He removed two white plastic buckets, one inside the other. Mr Bogdanovic had walked across to meet him at the van and took the two white plastic buckets from him. Mr Bogdanovic walked back to join Allchin and Grech. Mr Skepevski drove off in his van. Almost immediately, Bogdanovic, Allchin and Grech entered the Empire Hotel on the corner of Johnson Street and Parramatta Road with Mr Bogdanovic still carrying the buckets. The CCTV footage from within the hotel showed Allchin and Grech stop in the bar area and Mr Bogdanovic proceed towards the toilets.
There was no footage of what happened in the toilet area, but Mr Bogdanovic shortly emerged with the buckets and he, Allchin and Grech then left the hotel. (It is not clear how long the men were in the Hotel, but Allchin and Grech remained standing in the same spot in the lounge until Bogdanovic returned, whereupon they walked out together.) Outside the hotel, Bogdanovic handed to buckets to Allchin who walked across Johnston Street towards his vehicle, placed them in the vehicle and drove off.
Of the subsequent events, none was directly relevant to the case against Mr Allchin except for the tracking of Mr Rowe's trip north on the Pacific Highway, his interception by police and the seizure of the Blush cosmetics bag with the striped box inside containing almost a kilo of methylamphetamine.
In his defence, Mr Allchin did not dispute that the drug was in the bag at the time he placed it on the back seat of Mr Rowe's vehicle. Nor did he deny that he was the person captured on camera in the events described above. The only other evidence relevant to his case was the discovery on a search of his home of a polo shirt resembling that worn by him on 28 August.
Mr Allchin's defence identified each element of the charge, noting that it depended upon an inference to be drawn from the known facts. There was, he submitted, no evidence of any prior arrangement or agreement between himself and Mr Skepevski; no evidence that he knew what was in the Blush cosmetics bag; no evidence that he knew the weight of the material in the bag, and no evidence that payment was received for the contents of the bag.
In practical terms, if the jury were satisfied beyond reasonable doubt that Mr Allchin knew or believed that the bag contained a prohibited drug, the other issues fell away. The weight of the bag was clearly well in excess of the 250g (and thus a commercial quantity) and there was no dispute on appeal that he was aware of the significant weight of the bag he was carrying. Further, there could be no reasonable doubt that the exercise he was engaged in was one which had been planned in advance; he brought the bag at a time when the intended recipient was present and he clearly intended to give the bag to Mr Skepevski by transferring it in his presence into a vehicle in which the latter wished the bag to be placed. There was clearly an agreement or arrangement as to what was to happen. If he were aware of or believed that the bag contained a prohibited drug, that arrangement constituted a joint criminal enterprise with Mr Skepevski. Again, there was no suggestion to the contrary.
The Director submitted that there were a number of aspects of the events on the afternoon of 28 August from which it could have been inferred that the participants, including Mr Allchin, knew that to be the case. First, there was in fact a supply of a significant quantity of a prohibited drug - a fact not in dispute. Secondly, to Mr Allchin's knowledge, there were five men involved of whom he was, it may be inferred from the surveillance, clearly acquainted with two (Bogdanovic and Grech) and, whether or not he knew Mr Skepevski before that afternoon, he knew by the time the supply took place that Mr Skepevski was to receive the package. (It was not to be inferred that he knew Rowe, but nothing turned on that.)
Thirdly, Bogdanovic and Grech had arrived at the Johnson Street location prior to 1.10pm, when they were joined by Skepevski. Mr Allchin met them pursuant, it may be inferred, to a prior arrangement, at 2.32pm. He then left. At that stage, Mr Skepevski had already directed Mr Rowe to meet him, although not at Johnson Street. Mr Allchin knew, it may be inferred, that he should return in order to hand over the bag, which he did. He arrived at 4.46pm, some 25 minutes after Mr Rowe, who was to collect the bag for Mr Skepevski, arrived in Johnson Street.
Fourthly, when he returned Mr Allchin had no hesitation in walking across the street to Mr Rowe's vehicle and placing the bag on the back seat, without any contact with Mr Rowe. Nor was there any hesitation in his identification of the vehicle to which he was delivering the bag. Although he walked with Mr Skepevski across the road, it appeared that both knew where they were going.
Fifthly, Mr Allchin did not then leave the vicinity, but waited until Mr Skepevski had recovered the two white buckets from his van and handed them to Mr Bogdanovic. Allchin then went with Bogdanovic and Grech into the Empire Hotel and waited while Mr Bogdanovic went into the toilet area. When they walked out of the hotel, Mr Bogdanovic was still carrying the white buckets. The three men walked along Johnston Street towards Albion Street. Mr Bogdanovic handed the white buckets to Mr Allchin, who then shook hands with Bogdanovic and Grech and, carrying the white buckets walked into Albion Street (which crosses Johnson Street parallel to Parramatta Road).
The appellant submitted that aspects of these events gave rise to purely speculative inferences. First, the prosecution case was that the white buckets contained money handed over by Skepevski for the drug which had been supplied, which was then counted by Mr Bogdanovic in the toilet area of the hotel, possibly removing some part of the money, before the buckets were given to Mr Allchin. That inference may, Mr Allchin submitted, be unfounded.
Secondly, counsel suggested to the jury, when Mr Bogdanovic took the buckets from Mr Skepevski, he held them firmly and with some care before entering the hotel. By contrast, when Mr Allchin received the buckets, he held them in one hand whilst negotiating traffic in crossing Johnson Street. Mr Allchin's behaviour, it was submitted, was inconsistent with a belief that the buckets contained a large sum of money. It was possible that Mr Allchin believed there were shoes or cosmetics in the bag he delivered; he may also have believed that Mr Skepevski was returning buckets to Mr Bogdanovic which he had borrowed on a prior occasion; Mr Bogdanovic may have asked Mr Allchin to take the buckets home for him.
Thirdly, a police officer (Senior Sergeant Dipple) gave evidence that the drug recovered, being about a kilo of methylamphetamine of 78% purity, might, depending upon the circumstances, attract a value of between $160,000 and $180,000. It was surprising, the defence submitted, that the police took no steps to recover the white buckets or the money which, on the prosecution case, had been paid for the drugs. These considerations, taken in isolation, might cast some element of doubt on the hypothesis that the buckets, when supplied by Mr Skepevski, contained payment.
However, following the mandate in Hillier, it is necessary to consider the whole of the evidence to identify available inferences and rational alternative hypotheses. The inference that the buckets contained payment for the drug would readily follow from the following circumstances in combination: 1. almost a kilo of methylamphetamine was transferred by Mr Allchin, who clearly had an association with Messrs Bogdanovic and Grech, to Mr Skepevski; 2. immediately the transfer had taken place, Mr Skepevski recovered the white buckets from his vehicle and provided them to Mr Bogdanovic; 3. Mr Bogdanovic took the buckets immediately to the unmonitored toilet area of the hotel; 4. Mr Allchin (and Mr Grech) accompanied him into the hotel; 5. when Mr Bogdanovic came out with the buckets, he handed them to Mr Allchin and shook hands with him.
Whether or not alternative explanations constituted a reasonably plausible alternative set of inferences, inconsistent with proof beyond reasonable doubt that Mr Allchin believed the bag contained a prohibited drug, was a matter for the jury. It was open to the jury to be satisfied beyond reasonable doubt that Mr Allchin knew or believed that he was delivering a parcel of drugs when he placed the bag in Mr Rowe's vehicle. While each element taken in isolation may be open to an explanation consistent with Mr Allchin's ignorance with the nature of the transaction he was involved in, the overall effect does not demonstrate a reasonable doubt the jury ought to have entertained.

(2) joint criminal enterprise

As a particular of this ground, Mr Allchin submitted that there was no evidence of any prior agreement between him and Mr Skepevski. The submissions sought to obtain assistance from the decision of this Court in Romolo v R, [7] involving a consignment of methylamphetamine which had been imported from the USA. The applicant had been convicted on the basis that he and a second person (a Mr Hamzy) had taken steps to secure the release of the consignment from the freight forwarder in Australia. The question was whether such an arrangement or agreement had been demonstrated beyond reasonable doubt on the prosecution case.
Macfarlan JA held that the jury should have entertained a reasonable doubt on the basis that, although the applicant and Mr Hamzy both communicated with the freight forwarder in a similar fashion, using the same email address and mobile phone, and acted to achieve the same outcome, it was not possible to exclude the possibility that both had communications only with a third party from whom each took instructions, in which case a joint criminal enterprise directly between them was not established.
As explained by the concurrence of Fullerton J (Button J agreeing), the case turned on the way the charge was drafted. Fullerton J noted [8] that the case presented by the prosecution required as essential to proof of guilt that "there was some form of communication between the applicant and Mr Hamzy and that they knew each other". As she further noted, this was an onerous evidential burden as "neither fact is requisite for liability for a joint criminal enterprise".
Romolo provides no assistance in the present case. Although they were jointly charged, the indictment contained no express allegation of a joint criminal enterprise in terms which excluded all other parties. As explained in opening, in the evidence, and in his closing address, the prosecutor at all stages accepted that Bogdanovic and Grech were party to the arrangements for the supply of the drug. Further, the facts had no common element with Romolo, as the two accused met and were separate parties to the same transaction. Romolo does not stand for a principle of law which provides a precedent in the present case. The trial judge recognised this in rejecting reliance on it in refusing a directed verdict; it has equally no application on the appeal.

(3) conclusion

Accordingly, the principal ground in Mr Allchin's appeal must be rejected.

Allchin appeal - other challenges

It remains to consider three issues raised in Mr Allchin's written submissions, which did not properly fall within the nominated ground of appeal relating to an unreasonable verdict. These were: 1. change in the prosecution case; 2. rhetorical questions posed in prosecution address, and 3. failure to put the defence case in the summing up.

(1) change in prosecution case

Mr Allchin submitted, as part of his assertion that there was a lack of evidence as to a joint criminal enterprise, that the prosecution case as to who was involved in the joint criminal enterprise changed between the prosecutor's opening and closing submissions. The written submissions stated: "In his opening the crown had particularised the joint criminal enterprise to being that between the appellant and Mr Skepevski with the subsequent participation of Mr Rowe, in his closing the Crown expanded the Joint criminal enterprise to include Bogdanovic, and Grech who [were] never arrested or even charged with any offence."
Whatever the significance of the fact (of which there was evidence) that neither Bogdanovic nor Grech was arrested or charged in relation to these events, the suggestion that there was a change in the prosecution case was false. The prosecutor stated in opening: [9] "Now, Mr Skepevski parked his vehicle and walked along Johnston Street, to … the Recharging Cafe. He joined two other men, Vincent Bogdanovic and Ashley Grech - people who aren't before the Court, or haven't been charged - at an outdoor table and they remained there from 1.10pm to 2.30pm. … Now, the Crown will say that Mr Skepevski used Nathan Rowe as a driver to do various activities …. Rowe, who lived up at Newcastle, said it would take about an hour and a half to get there, and then, the next thing that happened is that Mr Allchin - the other accused in the dock - was contacted to come to Annandale. He turned up at 2.29. It's all seen on the video, and he parked his VW Amarok dual cab in Johnston Street, Annandale. Actually, Mr Allchin met and spoke to Skepevski, Bogdanovic, and Grech at 2.38pm, and then Mr Allchin walked to his vehicle and drove away, and the Crown say that in this case, it's likely he was going away to get the drugs."
After describing the further events, as depicted in the surveillance recording up to Mr Rowe driving away, the prosecutor continued: [10] "Now, Bogdanovic meets Skepevski on the passenger side of the white Toyota HiAce van. Skepevski opens the sliding door and removed two white plastic buckets, one [in] the other, from inside his vehicle. He handed those to Bogdanovic and then closed the door, and then Skepevski then gets into the driver's seat and he drives away. Bogdanovic, Grech, and Allchin were still there, then walk down the road … they walk in the hotel … and then you see Bogdanovic with the buckets … walk into the toilets. He stays in there for a short time, and then you see him come out. Now, what the Crown says that these buckets represent is the payment for the drugs that Allchin has placed in Rowe's car. The Crown doesn't have any evidence as such, but the Crown says it's a reasonable inference given the temporal connection between the two acts that this is the payment for the drugs. What the crown says is that Bogdanovic when he goes in the toilets may have taken some money out of the buckets for his share but, anyway, they come out, Bogdanovic is still holding the buckets. … [T]he buckets are transferred to Allchin and then you see Allchin walk off with the buckets. We say the buckets, there's a strong inference that inside the buckets is the money to pay for the drugs. We say the buckets are used obviously to disguise what's in them."
This was also the case outlined to the jury in the prosecution closing address.
Not only was there no change in the case, but Mr Allchin's trial counsel had been informed of the elements involving Bogdanovic and Grech before the trial commenced. Indeed, there had been an application to exclude the video footage in respect of the two white buckets. On 7 May 2016, the day before the prosecutor's opening, the trial judge, Townsden DCJ, gave a judgment rejecting that application. There was no challenge to the refusal of the application.
It is simply not open to the applicant to complain that the prosecution introduced Bogdanovic and Grech as partners in the joint enterprise only after the opening. The final form of the complaint, namely that the prosecution could not run a case against Allchin and Skepevski involving other accomplices without referring to them in the indictment, [11] is without substance.

(2) putting rhetorical questions to the jury

The rhetorical questions, which will be noted below, arose specifically in relation to the conduct of Mr Skepevski. The written submissions for Mr Allchin recognised this fact, saying "[b]ecause [of the] nature of the joint trial it must be noted that the issues specific to the trial [of] Mr Skepevski must also affect the trial of the appellant given the fact that a joint criminal enterprise was alleged. The appellant thus also relies on the submissions made by Mr Bellanto SC [trial counsel for Mr Skepevski], though these were not an application made by [Mr Allchin's] counsel at trial for the trial to abort following the Crown prosecutor['s] address." On the other hand, Mr Skepevski made no complaint in this Court about the prosecutor's use of rhetorical questions.
At the trial, Mr Skepevski made an application to discharge the jury, in part on the basis that the prosecutor had used rhetorical questions which reversed the onus of proof. Counsel had relied upon the reasoning in this Court in Wood v The Queen. [12] While the trial judge rejected the application, he did direct the jury in two respects, first to disregard any personal opinion which may have been expressed by the prosecutor and, secondly, to repeat his earlier directions that the accused bore no onus of proof. The submissions for Mr Allchin on the appeal suggested that the direction was in all the circumstances inadequate to remedy the error made by the prosecutor.
This ground may be dealt with succinctly: it faces a number of formidable difficulties. First, it was not raised in Mr Allchin's notice of appeal, but, there being no objection on the part of the Director, this difficulty may be put to one side. Secondly, because trial counsel for Mr Allchin did not perceive the comments by the prosecutor as affecting his client, no direction was sought on behalf of Mr Allchin; nor did either counsel submit at trial that the direction given was inadequate. Thirdly, there was no substance in the complaint about the prosecutor's conduct. In the circumstances, the appropriate course is to refuse leave to raise the ground, pursuant to r 4 of the Criminal Appeal Rules.
To explain why the complaint was without substance, it is necessary to refer briefly to the statements of the prosecutor and the legal principles in play.
The first passage to which senior counsel for Mr Skepevski drew attention at trial related to Mr Bogdanovic taking buckets into the toilet area at the Empire Hotel, noting the prosecution's submission that there was an inference available "that he either took money out or put money in, did something with the buckets." The submission had continued: [13] "Otherwise, why would he have them with him in the toilets?"
Secondly, the prosecutor dealt with the incident on the Pacific Highway at Chatswood when Mr Skepevski asked Mr Rowe to stop his vehicle and appeared to inspect what he had in the back seat. The prosecutor said: [14] "He tells Rowe to pull into the service station on the Pacific Highway at Chatswood. Now, I wonder, members of the jury, why would he do that? Well, the Crown says the reason is obvious. … Skepevski hasn't actually seen these drugs at this stage. He doesn't know if he's been tricked or, common parlance, ripped off." In relation to the same matter the address continued: [15] "So you can imagine that Mr Skepevski is of course quite concerned about his merchandise that he's purchased back in Annandale, if indeed that's what you find occurred … and that's why he goes and asks Rowe to stop and chat to him, to have a look. Why else would they go there? Why else would they bother stopping there? Why not just meet up at his place in Newcastle?"
The final passage in fact related to Mr Allchin. The penultimate paragraph in the prosecutor's address was in the following terms: [16] "As for Allchin's knowledge of these drugs, well, that's pretty obvious, I'd suggest, members of the jury, the carrying across a bag which has a kilo of methylamphetamine in it. I mean, you don't have to be a genius to work that out surely. If it was suggested to you that he was a mere courier, why then did he go across to the van? Why did he go there earlier on that day, the Crown says to set this up, why did he go across to the van and get the buckets, because he's guilty of these offences."
It is convenient to consider first the objection that statements by the prosecutor involved expressions of his own opinion, rather than a detached presentation of the prosecution case. It is one thing to state the axiom that counsel present arguments for consideration by the tribunal, whether as to fact or law; it is another thing to assert that a particular statement is an expression of personal opinion, rather than an invitation for the tribunal to adopt a particular view of the fact or law. Complaints of breach of that principle usually arise in circumstances where the prosecutor has resorted to intemperate, inflammatory or prejudicial language. [17] On one view, the first example set out above involved no expression of personal opinion because it is worded in terms that "the Crown says there's an inference …"; whereas the second example crosses the line because the prosecutor says "I wonder". The trial judge, who heard the address as it was presented considered that the prosecutor was expressing an opinion when he stated, in the last example set out above, "you don't have to be a genius to work that out." The judge considered however that although such a statement crossed the line of that which was permissible and appropriate, he was satisfied that a clear direction would prevent any significant prejudice. There is no sound basis for doubting the approach adopted by the trial judge in this case. Especially is that so in the absence of any contemporary complaint about the terms of the direction, nor any suggestion in this Court as to what further should have been said.
The primary difficulty where the prosecutor puts a question to the jury, whether intended to be rhetorical or not, is the tendency to reverse the onus of proof by inviting the jury to convict if not satisfied that the accused has provided a sufficient answer to the question. [18] In this context, it is important to distinguish between questions put in cross-examination of an accused and rhetorical questions put to a jury.
Palmer v The Queen, [19] to which counsel for Mr Skepevski referred in submissions to the trial judge, dealt primarily with questioning of the accused, inviting him to explain why the complainant might have lied. The joint reasons of Brennan CJ, Gaudron and Gummow JJ observed that to ask such a question "is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused." [20] The joint reasons embraced two propositions explained by Sperling J in R v E, [21] namely that the question involved an invitation to speculate and was unfair to the accused, but qualified their acceptance of a third proposition namely that "the effect of the question is to reverse the onus of proof" because the question implies that "unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence and convict." With respect to that observation, the joint reasons continued: [22] "The third observation may overstate the effect of the question in a particular case, especially if the trial judge gives the jury a direction to the contrary. A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked."
There is an important distinction between questioning the accused as to the motives of another person and inviting the jury to consider whether there is a possible explanation for conduct of the accused, consistent with his or her innocence. Depending on the wording of the prosecutor's question, the latter may do no more than direct the jury's attention to the need to consider whether there is a rational explanation consistent with innocence in a circumstantial case where the more obvious inference involves criminality.
Both at the trial and in this Court, reference was made to this aspect of Wood v The Queen, where the prosecutor stated in the course of addressing the jury: [23] "Now, because I don't get another chance to speak to you and because I don't know exactly what [counsel for the accused] is going to say to you, I am going to suggest to you that there are 50 questions that you should consider, because these are questions, the answers to which will assist you in deciding how you resolve this case. … What I am suggesting to you is that during the course of [the address of counsel for the accused], you pay particular attention to any responses that he might have to these questions. He might choose not to respond to them at all, but, if he does choose to respond to them, I suggest to you that they might be of particular importance to you in resolving this case." The questions invited the jury to consider how the accused would have known certain things before the body of the victim was located, and why the accused did (or did not) take certain action.
Some of the questions were unobjectionable, some effectively reversed the onus of proof by calling for an explanation from the appellant, and some invited pure speculation. This was particularly so with respect to the invitation to the jury to rely upon a failure on the part of the appellant to respond to the questions.
In this, a circumstantial case, the prosecutor was entitled to identify for the jury the inferences which were said to flow from the evidence and which were necessary in order to establish elements of the offence. He was also entitled to suggest that there was no rational inference consistent with innocence which would cause them to entertain a reasonable doubt. There is no necessary error in formulating a submission in terms of a question that the jury must ask itself. To suggest that particular questions are asked rhetorically may be to imply that they did not require an answer. It is not apparent that the prosecutor's submissions in the present case were of that kind.
Further, individual sentences should not be taken out of context. The prosecutor squarely put to the jury that the conduct of the five men in Johnson Street, Annandale over a period of some five hours (Messrs Bogdanovic and Grech arrived at about 12.15pm), together with the fact that there was in fact a supply of a prohibited drug, allowed the jury to be satisfied beyond reasonable doubt that Mr Allchin was aware that he was carrying a bag containing the prohibited drug and placing it in the vehicle organised by the purchaser. The prosecutor was entitled to submit that the circumstantial evidence provided strong support for such a conclusion, there being no rational alternative hypothesis.
In these circumstances, the prosecutor did not overstep his function in a way which suggested a reversal of the onus of proof, but against the possibility that such an inference might be drawn, the trial judge gave clear directions to the jury, directions to which counsel required no amendment.

(3) explanation of defence case

The written submissions for Mr Allchin asserted that the trial judge had failed adequately to present the defence case in his summing up to the jury. Beyond the bald statement that that was the case, the written submission set out the summary which the judge in fact gave as to Mr Allchin's defence. Mr Allchin did not give evidence, nor did he call evidence. His defence was, as noted above, merely that the inference that he was aware of the content of the Blush cosmetics bag could not be drawn with sufficient confidence from the available evidence. The written submission did not articulate in what way the direction was deficient; there was no development of the submission orally.
It was also suggested, although the suggestion was not developed, that the judge failed to explain how the case against Mr Allchin differed from that against Mr Skepevski. But their respective involvements were patent, and addressed separately; it was not possible that the jury thought the intercepts of the Skepevski/Rowe conversations, or the events on the Pacific Highway related to Mr Allchin.
Counsel for Mr Allchin at trial sought no further direction, nor was any further direction articulated in this Court. Pursuant to r 4 of the Criminal Appeal Rules, leave to rely upon this unpleaded ground should not be granted.

Conclusions

Mr Allchin should have leave to appeal against his conviction on the ground articulated, namely that it was unreasonable or not supported by the evidence. To the extent that he requires leave to rely upon the other grounds identified in the written submissions, each lacks substance and leave should be refused. His appeal against conviction should be dismissed.

(1) ground 1 (restraint on cross-examination)

Ground 1 alleged a miscarriage of justice occasioned by the refusal of the trial judge to allow Mr Skepevski's counsel, Mr Bellanto SC, to cross-examine "the main prosecution witness about relevant matters". The witness was Mr Rowe. The matters about which he was sought to be cross-examined were identified as two messages between Rowe and a Mr Ray Fogg, the first of which emanated from Mr Fogg at 6.19pm on 27 August and read: "Right+to+see+u+tonight+at+8:30+and+2+fish". (This was identified in the transcripts of the telephone intercepts as 0040.)
There was a response to this message (0041) at 6.37pm, but the text was blank. Counsel at trial did not rely on this message. Rather, the second message on which he sought to rely was a text message from Mr Rowe to Mr Fogg at 3.27pm on 28 August (0048) which read: "Sorry mate still out fishing, would be late tonight or tomorrow".
Implicit in the statement of the ground is the proposition that the trial judge made a ruling prohibiting cross-examination of Mr Rowe in relation to those two text messages. It is necessary to provide some procedural background in order to understand the nature of the ruling.
As noted above, Mr Rowe drove from Newcastle to Johnson Street, Annandale at the behest of Mr Skepevski. He remained in his car until Mr Allchin had placed the Blush cosmetics bag on the back seat and shut the door. Following a brief conversation with Mr Skepevski, Mr Rowe drove off on his return trip to Newcastle. Mr Skepevski went back to his vehicle, removed the two white buckets and handed them to Mr Bogdanovic. He then got into his vehicle and drove off. At about 5.15pm, there was a telephone conversation between Skepevski and Rowe at which stage Rowe said he was on the Pacific Highway near Mowbray Road, Chatswood. Mr Skepevski asked him to pull into the Caltex service station so that they could have "a bit of chat and get, get going." Approximately one hour later, at 6.15pm, Mr Rowe was stopped on the shoulder of the M1 motorway and his vehicle searched.
Apart from some brief supplementary evidence and cross-examination of the police officer in charge, Detective Senior Constable Briscoe, Mr Rowe was the last witness called in the prosecution case. He gave evidence on Wednesday, 9 May 2018. He had completed his evidence-in-chief and was being cross-examined by Mr Bellanto at the end of the day. On the following morning counsel made an application under s 192A of the Evidence Act 1995 (NSW) seeking "an advance ruling" in relation to the telephone intercept messages. After identifying the messages, Mr Bellanto stated: [24] "Now, I intended to put those to this witness, that he was obviously corresponding in text with this person Fogg in cryptic terms and that it involved drug dealing. Now, I've raised the matter with my friend who kindly listened to what I had proposed. The difficulty for me is that if I introduce this evidence in cross‑examination, the Crown would seek to introduce other telephone calls or at least lead evidence suggesting that the man Fogg had illicit dealings with Mr Skepevski, which wouldn't ordinarily be introduced into evidence in this trial, and I think it's fair to say there are other calls between Mr Skepevski and Bogdanovic around about this time, which the Crown [doesn't] intend to lead as part of its case. So the difficulty for me is to know whether or not if I introduce these two calls through Rowe, whether your Honour would permit the Crown to then in reply or call evidence suggest--."
In the ensuring discussion between counsel and the trial judge, three issues were canvassed, namely (i) whether the application was premature, not knowing what Mr Rowe would say in answer to such questions; (ii) whether there should be a voir dire and (iii) how cross-examination should be limited once the relationship between Rowe and Fogg had been opened up.
Mr Bellanto said that he wished to avoid leaving the jury with the impression that Rowe had been acting "in a one off capacity at the behest" of Skepevski as some type of driver or delivery person. [25] The trial judge noted that the questions could not be asked in a vacuum and that once the issue of the relationship was opened, the prosecutor would be entitled "to explore that issue to some extent". [26]
The discussion then proceeded in the following terms: [27] "HIS HONOUR: … Is it the case that there is material suggesting this person Fogg has a relationship with both Mr Skepevski - on the Crown material - and Mr Rowe? Is that what you're saying? BELLANTO: Well, the instructions that we have would suggest that Rowe has an independent relationship with Fogg and others, quite separate from Mr Skepevski. … HIS HONOUR: But the Crown's position is that there's also a relationship between Rowe, Fogg and Skepevski as well. There is a relationship between the three. BELLANTO: Well, I don't know what the Crown allege in that regard. I mean, we haven't been given a statement from Fogg. We don't know anything about Fogg other than what we've been instructed. …"
While it was true that there was no statement from Mr Fogg disclosed to the parties, Mr Bellanto had a copy of the induced statement made by Mr Rowe the substance of which involved (i) a description of Rowe being introduced to Fogg by Skepevski; and (ii) Skepevski supplying drugs to Rowe to deliver to Fogg and receiving amounts of money from Fogg, which he delivered to Skepevski. When Fogg needed a package, he would text Rowe.
None of this evidence, which extended over several pages of the police statement obtained from Mr Rowe, had been led by the prosecution. Although Mr Bellanto did not identify precisely what questions he wished to ask Mr Rowe, Mr Bellanto stated that he wished to establish that "Rowe was acting independently of Skepevski, in his own endeavours, and some evidence of that is these two SMS messages." Thus it was tolerably clear that the relationship which the prosecution would seek to identify through Mr Rowe placed Mr Skepevski in the primary position of a drug supplier to Mr Fogg, with Rowe as the go-between. After some further discussion, with the trial judge reiterating that if the relationship were opened up, the prosecutor would be entitled in re-examination to ask questions about that issue, Mr Bellanto stated: [28] "BELLANTO: What I was endeavouring to do was to limit, confine it to the 27th and the 28th, because at the moment, there's no reference to any contact that Rowe had with anybody else, apart from the accused. So the way it stands at the moment, and probably will stand, is that the jury have a somewhat distorted view of the activity involving Annandale because we know from the text messages that Rowe was in contact with Fogg. HIS HONOUR: I can't see how the Crown cannot ask for instance, how did you first meet Fogg? They are asking about the relationship, in my view, in fairness, to the proper running of this trial, the Crown can simply ask the question, how did you meet Fogg? That is not going to help you, [one] iota. Met in gaol." (The last comment appeared to relate to how Mr Skepevski met Mr Fogg.)
The following exchange then took place: [29] "BELLANTO: … I mean I don't want to go in to all the relationship that Rowe had with Fogg, obviously not. I can understand why the Crown didn't lead it, because it is not admissible. HIS HONOUR: But if you ask questions in [relation] to issues in relation to the relationship and make suggestions as to, in fact, his involvement with drug dealing with Fogg, he is entitled to give an answer in relation to the accused. … You have opened up the whole issue. No-one else has. If you ask those questions, clearly, he will be able to give that answer, even without re-examination and you will be left with it. BELLANTO: Well, I don't know-- HIS HONOUR: I am not going to allow it. … On any view, the answers given, in a very large extent are likely to implicate your client … if it is given in accordance with what is set out in the statement, which is all we have …. Or, show a very strong inter connection between the witness Rowe, the accused Skepevski and this person called Fogg. Indeed, that the accused Skepevski is inextricably linked with this person called Fogg and how Mr Rowe came to know the person Fogg. In those circumstances, it is very clear, that if questions are asked, it is likely that this trial will derail and cause a discharge [of] the jury. Questions are disallowed on that issue. Now, I accept the difficulty. It is a weighing exercise, given the evidence but in my view, although it is relevant, the other considerations outweigh, in my view, the desirability of those questions being asked of the witness in those circumstances. BELLANTO: Thank you, your Honour. Your Honour, as perhaps a corollary of that, would your Honour be prepared to give a ruling along these lines, as to the admissibility of questions asked of Rowe that suggested he was involved in drug dealing, irrespective of any contact with Mr Skepevski, or associate with Mr Skepevski?" That line of questions was permitted.
In the event, the cross-examination of Mr Rowe concluded with a series of questions, which appear to have been put on instructions, the last of which involved the following exchange: [30] "Q. Can I also suggest this to you, that to support your gambling addiction you had your own network of suppliers and buyers of drugs which had nothing at all to do with Mr Skepevski? A. No."

(2) restraints on cross-examination - legal principles

The ground of appeal alleged that the trial judge had ruled that a particular line of cross-examination, accepted by the trial judge to be material to a fact in issue, had been prohibited, thereby causing an unfair trial. It was submitted that the judge had no power to foreclose a line of cross-examination and that whether counsel pursued a particular line of cross-examination was not a matter with which the trial judge could interfere. Authority for that proposition was said to derive from Wakeley v The Queen; Bartling v The Queen, [31] a case involving somewhat extraordinary circumstances which are important in identifying the scope of the principle said to be derived from it.
Mr Wakeley was charged with possession of small quantity of heroin, said to have been found by a police officer conducting a search of the premises in which he lived. A plastic bag containing the heroin was said to have been found in the toe of a shoe, but only on the third occasion on which an officer searched the room. Another officer expressed surprise at the discovery of the heroin because she had already searched the shoe including by banging the heel.
The proposed defence was that the heroin had been planted by police. As counsel submitted to the trial judge, "any suggestion that the heroin in the shoe had been planted by the detectives would inevitably have been met by a question in the minds of the jury: 'how could police officers obtain heroin to plant it?'". The cross-examination which was prohibited, but was held in the High Court to be relevant to that issue, concerned the death of the detective in charge of the search, the morning after the search had been undertaken. A post-mortem found traces of heroin (and other drugs) in his blood. In holding that the trial judge had erred in prohibiting the cross-examination with respect to the officer's death, the Court stated: [32] "The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness's assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel's instructions warrant it, of testing the evidence given by an opposing witness." Later in the same passage, the judgment continued: "It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel's discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case."

(3) restraints on cross-examination - conclusions

There is nothing in these passages to suggest that counsel has an unfettered discretion as to the scope and limits of cross-examination - a proposition which, in absolute terms, is patently unsupportable - nor that a judge has no power to intervene if he or she considers the cross-examination improper or an interference with the proper administration of justice. Furthermore, it is clear that Mr Bellanto was not asserting an unlimited right of cross-examination. This was not a case in which objection had been taken to a line of cross-examination, nor one in which the trial judge had sought to intervene to protect a witness or otherwise maintain the fairness of the trial. The ruling was made on the application of Mr Bellanto under s 192A of the Evidence Act. Counsel sought a ruling that would allow him to ask certain questions with confidence that he would not open up a subject which could give rise to unfavourable and prejudicial evidence in re-examination which might suggest that his client had a history of drug dealing. It is clear he did not intend to follow the proposed line of questioning without such reassurance.
The first reaction of the trial judge was that it was inappropriate and premature to deal with the issue before the specific questions were asked and the answers identified: hence the suggestion that a short voir dire might be appropriate, a suggestion which counsel did not embrace.
The questions which were to be asked were identified by reference to two text messages between Mr Rowe and Mr Fogg. It may be inferred from the ongoing exchanges that, as the judge took account of the contents of Mr Rowe's police statement, it became apparent to him that, regardless of any possible re-examination, there was a risk, indeed a likelihood, that Mr Rowe would adhere to his statement and would describe a relationship involving extensive drug dealing on the part of Mr Skepevski involving supplies to Mr Fogg. That such an exercise would likely lead to the discharge of the jury at the very end of the hearing of the evidence was not a matter which any trial judge would contemplate with equanimity. Any benefit to be obtained by the cross-examiner presumably depended upon Mr Rowe accepting that he was involved in a network of drug dealing which had no connection with Mr Skepevski. However, when he was asked that question in general terms, he denied it. There was no contradiction or exploration of his denial.
There are, accordingly, three aspects to the application and to ground 1 on the appeal. First, to the extent that the ruling sought by senior counsel limiting the scope of re-examination was refused, no basis for challenge to that refusal was identified. Secondly, it is apparent that counsel did not intend to cross-examine about the matters raised absent the protective ruling which he had sought. Accordingly, there is no reason to infer that any limit placed on cross-examination by the judge relevantly limited the scope of cross-examination which would have been undertaken. Thirdly, and in the alternative, if the judge's ruling did in fact prevent a line of questions being asked which would otherwise have been asked, no error was demonstrated. The reasonable expectation was and must be that the questions themselves would have opened up issues of other criminality on the part of the accused which would likely have led to an application to discharge the jury or, if counsel were embarrassed in making that application, an appeal seeking to set aside the conviction resulting from an unfair trial. It was entirely appropriate that the judge should take those matters into account. On the other side of the record, there was no basis suggested for anticipating an advantageous outcome for the accused, and certainly no benefit which would have outweighed the risk, approaching certainty, that an unfair trial would have resulted.
Ground 1 must be rejected.

(4) further evidence on appeal

In disposing of ground 1, it is desirable to explain a ruling on evidence made at the commencement of the appeal. Counsel for the appellant sought to rely upon an affidavit of his instructing solicitor which annexed various documents, some of which were contained in the appeal papers, but some of which were not.
The material included the sentencing judgment with respect to Mr Rowe, a copy of the agreed statement of facts on his sentencing, a copy of his criminal history and the Crown case statement prepared for the present appellants' trial. Unsurprisingly, the case statement was not in evidence; the other material relating to Mr Rowe was all available to be tendered at the trial, had it been relevant, and was not. No basis was demonstrated to accept it on appeal.
The proffered evidence also included a set of telephone intercept transcripts, some of which had not been tendered at the trial, and were not available on the voir dire.
The Director having objected to the reading of the affidavit at the commencement of the hearing, the Court rejected the affidavit and its annexures. However, counsel for Mr Skepevski was given leave to reopen the tender in relation to particular documents if reference to them proved necessary in the course of the hearing of the appeal. The only document to which reference was made in submissions was a telephone intercept (0053) being a text message from Mr Rowe to Mr Fogg at 5.30pm on 28 August 2015. It was probably sent when Mr Rowe was stopped at the Caltex service station in Chatswood. It read, "Good from 9pm tonight or anytime tomorrow".
This document was identified as part of the communications between Mr Rowe and Mr Fogg which could have been the subject of cross-examination at the trial. However, the two messages identified by senior counsel in explaining to the trial judge the scope of the proposed cross-examination did not include this message. It may be accepted that the present message falls into the same category as those to which reference was made, namely communications between the two men on 27 or 28 August 2015. For that reason, it would not have affected the outcome of the application made to the trial judge, nor his ruling. There is no purpose in admitting it as evidence on the appeal, although a copy of the document may be marked for identification "A" on the appeal.

Skepevski appeal - ground 2 (unreasonable verdict)

It is not necessary in considering this aspect of Mr Skepevski's appeal to repeat the description of the surveillance material which was relied upon with respect to both accused. There are, however, four aspects of the events which unfolded in Johnson Street, Annandale during 28 August which are of specific relevance to Mr Skepevski. First, it is clear that Mr Skepevski arrived after Mr Bogdanovic and Mr Grech and expected to meet them. Mr Skepevski did not live in or near Johnson Street, Annandale; he lived in Newcastle. It was clearly not a random meeting. Further, it was a meeting with a purpose, as confirmed by the steps he took to have Mr Rowe attend at the same place and take a bag with him in his (Rowe's) vehicle back to Newcastle.
Secondly, Mr Skepevski brought two white buckets to the meeting and gave them to Mr Bogdanovic before driving off. It was clear that this act was part of an arrangement and followed consequentially upon the delivery of the Blush cosmetics bag to Mr Rowe's vehicle. Mr Skepevski's immediate departure demonstrated that he did not expect the buckets to be returned to him.
Thirdly, although Mr Skepevski drove himself to the meeting and returned to Newcastle in his own vehicle, he took the step of having Mr Rowe drive from Newcastle to Johnson Street, Annandale in order to be given a parcel to take back to Newcastle. The parcel in fact contained a prohibited drug. There is no rational explanation available as to why Mr Skepevski would have arranged for the parcel to be taken by Mr Rowe, instead of carrying it himself, unless he knew that it contained a prohibited drug.
Fourthly, although Mr Skepevski accompanied Mr Allchin across the road whilst Mr Allchin carried the bag, Mr Skepevski did not handle the bag at any stage before it left Johnson Street. Accordingly, he would not have had any direct knowledge of the weight of the contents of the bag.
Mr Skepevski's defence raised two possible alternative explanations of the events of the afternoon of 28 August. One was that it was Mr Rowe, not he, who was the recipient of the drug. (Central to that inference was the proposition that Rowe may have had his own independent network of drug suppliers and customers.) Secondly, the prosecution had not proved beyond reasonable doubt that he had knowledge of what was in the Blush cosmetics bag when it was placed in Mr Rowe's vehicle. Fatal to that defence was the description given by Mr Rowe of what happened at the Caltex service station in Chatswood, if his account were accepted by the jury.
Mr Rowe's account was as follows. First, there was the telephone call from Mr Skepevski asking where he was and asking him to pull over at the Caltex service station and wait for Mr Skepevski. That element was not in doubt. It was also not in doubt that Mr Skepevski arrived at the service station and went to Mr Rowe's vehicle. There were two accounts of what happened at that point. First, there was the account given by Mr Rowe; secondly, there was an account given by the police officer who had been conducting surveillance and had followed Mr Rowe as he drove north, Detective Senior Sergeant Dipple. In an important respect, their accounts did not coincide.
Mr Rowe's evidence was that when he arrived at the Caltex service station he got out of the vehicle, walked around to the rear passenger door, opened the door and opened the bag. He saw there was a box inside but said, "I didn't go much further than that." He did, however, say that he "opened the bag, grabbed the box, but I didn't actually open the box." [33] He then got back in the driver's seat of his vehicle and waited for Mr Skepevski. His account of their meeting at the Caltex service station was as follows: [34] "Q. Did he say anything? A. He said, 'Did you have a look?' and I said, 'No,' at the time. Q. What did you both do then? A. Well, he went around to the car and I can't remember if I opened the door or he opened the door, but I got the bag and passed him the bag and - and then he's standing at the back passenger door, got the box and pulled bag inside the box and he's holding the - the drugs up. And that's when I - I thought, like, I was - we're out in the open here, it was a bit, sort of - I was - so I thought - a bit shocked at the time, it's - someone's going to see this, like, what - 'what are you doing?' It was a bit - yeah, a bit - sort of blasé. Q. Did you say anything to him? A. I - I can't remember if I did or didn't. Q. Did he say anything to you? A. He said, 'It looks good.' Q. What happened then? A. Well after that, he put it back in the - in the car and - and he had to go to the toilet and I - I sat in my car." Mr Rowe then left the service station in order to drive to Mr Skepevski's house. He was apprehended before he reached Newcastle.
Mr Rowe was cross-examined about the statements he made to police when he was apprehended on the M1. That conversation was recorded. He denied to them that he had anything of concern in the vehicle. It is clear that he lied to police in that regard; on any view he knew at that stage that there was a box containing a prohibited drug in the back seat. He agreed that he lied. He was further cross-examined at length about the arrangements he had made with police whereby he would plead guilty to the charges against him and would give evidence for the prosecution in relation to charges against Mr Skepevski.
The cross-examination highlighted discrepancies between Mr Rowe's initial account in his record of interview at Hornsby Police Station after he was apprehended and the evidence he gave in court. First, there was no reference in the record of interview to him opening the bag and seeing the box before Mr Skepevski arrived. Secondly, Mr Rowe's fingerprints were on the box, suggesting that he must at some stage have handled the box, presumably at the Caltex service station. Mr Skepevski's fingerprints were not found on the box or the plastic bag containing the drug which was inside the box.
It was suggested, no doubt with good effect, that if he were curious as to what was in the Blush bag, it is implausible that he would not have taken the lid off the striped box inside the bag, a step he denied. Further, on the basis that only Mr Rowe's fingerprints were found on the top and bottom of the box, and not Mr Skepevski's, his account with respect to who removed the box from the bag and who was holding it was implausible.
Finally, the evidence which primarily implicated Mr Skepevski was first recorded in the induced statement made by Mr Rowe and dated 16 February 2016. In that statement, his account of what happened at the Caltex service station, much of which was put to him in cross-examination, involved him opening the passenger door, putting his hand inside the Blush bag and taking out the box which he handed to Mr Skepevski, who opened it. Mr Skepevski then pulled out a plastic bag which contained a white substance, held it up in front of his face and said "It looks good", before putting the bag back in the striped box. Skepevski then lent into Rowe's car and put the box back in the black bag. In the course of cross-examination Mr Rowe confirmed that when Mr Skepevski took the plastic bag out of the box he was holding the box and that this happened outside the vehicle. [35]
The evidence that the bag containing the drug was taken out of the box outside the vehicle was inconsistent with the evidence of the officer conducting surveillance. Sergeant Dipple broadly confirmed the arrival of Mr Rowe at the service station, him looking inside the rear passenger door of his vehicle and the arrival of Mr Skepevski. He described Mr Skepevski and Rowe walking towards the rear of the vehicle and Mr Rowe opening the rear passenger door. [36] From where he was standing, the officer could not see into the back of the vehicle. His description of Mr Skepevski's action was as follows: [37] "A. Okay, so I don't stand with my back to you. So in short if I'm Mr Skepevski at the back. As the car door is open - the doors open here - I'm looking from like where that pillar is, that direction, so I just see him lean in, like the arms drop, sort of come apart then the right shoulder dips down. So I only see obviously the - the top part. Q. Top part of his torso. Is that right? A. That would be correct, yes. Q. Do you remember what Mr Rowe did when that was happening? A. He was - he looked over and then stood back. Q. What happened after that, did they speak to each other, have a conversation or appear to? A. Did have a conversation, yes."
Sergeant Dipple's evidence was inconsistent with the box being removed from the vehicle and the plastic bag being removed from the box outside the vehicle.
It would not have been open to the jury to be satisfied beyond reasonable doubt that Mr Skepevski either took the box in his hands, or removed the plastic bag from the box outside Mr Rowe's vehicle. Had he done so it seems implausible that Sergeant Dipple would not have observed that action. However, on the basis that that aspect of Mr Rowe's evidence was rejected, there remained no doubt that Mr Skepevski telephoned Mr Rowe whilst they were on the road, directed Mr Rowe to stop at the Caltex service station and wait for him there, and, when he arrived, looked in the back of Mr Rowe's car. There is a strong inference that he did so in order to check what was inside the Blush bag. Sergeant Dipple's evidence is inconsistent with Mr Rowe removing the box at that stage, rather than him handling the box at an earlier stage. However, it was open to the jury to infer that Mr Skepevski looked inside the back of Mr Rowe's vehicle where the box was in order to satisfy himself that the drug which was in fact in the box appeared to be there. No alternative rational explanation of his conduct, when viewed in combination with his conduct at Johnson Street, Annandale, was proffered. There was no rational alternative hypothesis of Mr Skepevski's conduct which was inconsistent with his guilt of the charge. Ground 2 of his appeal should be rejected.

(1) basis of challenge

Mr Skepevski complained, as a particular of the unreasonable verdict ground, that the prosecution had failed to call material witnesses with respect to the activities in Johnson Street, Annandale. That particular, identifying an absence of evidence, could not logically give rise to an unreasonable verdict. Accordingly, it is one of the matters which the Court must address as an independent ground.
The witnesses identified as "material" witnesses who were not called were Vincent Bogdanovic and Ashley Grech. There is no doubt that each could have given evidence as to the events of 28 August on and in the vicinity of Johnson Street. In particular, Mr Bogdanovic could give evidence, no doubt, as to what was in the white buckets and what he did when he took the buckets into the toilet area of the hotel. However, each was, on the prosecution case, involved in the criminal enterprise, primarily through association with Mr Allchin. They could, no doubt, also have given evidence as to their communications with Mr Skepevski.
The question raised by this ground is whether the prosecution had an obligation to call witnesses who were, on the prosecution case, jointly involved in the criminal enterprise, though not charged in that regard. The second point is to note the manner in which this arose at the trial.
Dealing first with the procedural point, the question of calling Bogdanovic and Grech occurred shortly before the prosecutor commenced his final address when a number of procedural issues were raised. Counsel for Mr Allchin noted that he would be referring to Bogdanovic and Grech being there and continued, "I'll be inviting your Honour to give the jury in your summing-up an absent witness direction if they consider that there were people who could have been called, should have been called and haven't." [38] The judge noted that he would "have to consider that" and the discussion moved on to other matters.
The next reference (although the Court was not taken to these references in submissions) occurred following the addresses of the prosecutor and counsel for both accused, in the course of an application to discharge the jury, before the judge commenced his summing up. Senior counsel for Mr Skepevski stated in making the application: [39] "The third point relates to something that arose in discussion with your Honour yesterday, about the failure to call Bogdanovic and Grech. Now, there are a couple of problems with this. The first one is, that they are relevant witnesses that go to significant aspects of the Crown case against the accused. As such, the Crown has a duty to call them - ."
In the ensuing discussion, the trial judge expressed some doubt as to the correctness of that proposition. He also requested an explanation as to why the issue of their absence had not been raised before the commencement of the trial. Senior counsel responded that "I don't have to answer that." [40] It was, however, an entirely legitimate question in a context where counsel acknowledged that he was aware that the two persons would not be called before the commencement of the trial and was, in effect, complaining of an unfair trial after completion of the evidence and the closing addresses.
In delivering his judgment on the application to discharge the jury, the judge noted that, on the prosecution case, the men were party to the joint criminal enterprise, but had not been charged. He dismissed the proposition that the prosecutor had an obligation to call parties to a joint criminal enterprise from whom statements had not been taken by either side. He concluded: "It should be noted that at no stage has counsel submitted that they were in possession of any information which would further the defence case. There is no suggestion that counsel would wish to call either persons in the defence case; no statements have been taken in respect to either person. I would accept the Crown's submission that if it was considered that either person was implicated in the offence, the Crown would not call them until they had been dealt with for the offence; generally it is a matter for the prosecution to determine which witnesses are called in the Crown case."

(2) legal principles

The appellant relied upon observations made in Whitehorn v The Queen, [41] a case in which the appellant had been charged with and convicted of an indecent assault on his seven year old niece. She had not been called to give evidence. Murphy J and Deane J held that the trial miscarried on that ground. That was not a majority view; Gibbs CJ and Brennan J, agreeing with Dawson J, relied only on the unreasonable verdict ground for setting aside the conviction.
In any event, the case is not authority for the proposition put forward by the appellant in this case. First, Deane J, who was minded to uphold this ground, stated the principle in the following terms: [42] "… all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reasons exist from refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. … Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable."
It cannot be said that this proposition involves a conclusion that failure to call a material witness will necessarily give rise to a miscarriage of justice; indeed such a proposition was expressly rejected in Richardson v The Queen. [43] Nor can the application of that principle, qualified as it is, be translated from the failure to call the victim of an assault to a case where the persons who were not called were themselves involved in the criminal enterprise.
Dawson J, with whom Gibbs CJ and Brennan J agreed, stated: [44] "All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. …. No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused."
It is commonly the case, as it was with Mr Rowe and as occurred in R v Booth, [45] to which this Court was taken in argument, that it is the prosecution which will seek to rely upon the evidence of persons, whether described as co-conspirators or persons jointly involved in the same criminal enterprise, or, in older terminology, accomplices. The unreliability of such evidence has long been recognised and is now identified in s 165(1)(d) of the Evidence Act.
An approach treating such witnesses as inherently unreliable was upheld in R v Collisson. [46] The appellant, on trial for murder, sought a voir dire in order to question another person, Bradley, whom the defence alleged was the man responsible for shooting the victim. Bradley was called but declined to answer questions on the grounds that his answers might incriminate him. The trial judge, Whealy J, declined to grant a certificate under s 128 of the Evidence Act, on the basis that the evidence would be inherently suspect. The Court dismissed an appeal presented on the basis that the judge was wrong to assume the evidence was inherently suspect or unreliable, without having detail of what the witness would say. There was no error in declining the request for a s 128 certificate, nor in refusing an adjournment to allow Bradley to be charged and the case against him resolved.
Before leaving this issue, it is convenient to refer to two other High Court decisions identified in the course of argument. First, in The Queen v Apostilides, [47] the Court set out a number of propositions regarding the calling of witnesses by the prosecution. It is not necessary to repeat those propositions, which are only in part relevant in the present case. The second case is Dyers v The Queen [48] which involved a direction to the jury allowing them to draw an inference from the failure of the defence to call a person (not the victim) whose name appeared in the appellant's appointment diary against the time at or about which the offence of sexually assaulting a 13 year old girl was said to have occurred. The Court held that such a direction should not have been given, in part because it tended to undermine the principle that the prosecution at all stages bore the onus of proving the guilt of the accused.

(3) application of principles

A number of propositions may be derived from the authorities which, though limited in extent, lead to the conclusion that the ground relied on in the present case must be rejected.
First, many of the cases involved the failure of the prosecution to call one or more witnesses whose names had been listed on the indictment, thereby giving notice to the accused that the prosecutor considered their evidence to be material. There was no suggestion that any indication was given of an intention to call Bogdanovic or Grech; to the contrary, it was accepted that the accused knew before the trial that they would not be called.
Secondly, the principle that the prosecution should call material witnesses assumes that their evidence will be necessary for a full account of the relevant events. In nearly all respects, other than a number of conversations, the material events in the present case were recorded by police surveillance or, in the hotel, by CCTV which was available to the jury. The broad outline of events at Johnston Street, none of which was challenged, did not require them to be called.
Thirdly, the cases generally involve persons whose likely evidence is known to the prosecutor; in the present case no statements had taken from Bogdanovic or Grech. However, although the prosecutor did not know what they would say, he was entitled to assume that as persons who appeared to be involved in the criminal enterprise, their evidence would either involve self-incrimination or would be unreliable. There is no authority which supports the view that such witnesses must be called by the prosecution.
Fourthly, there are cases in which the judge, if persuaded that the prosecution should have called a witness but failed to do so, may advise the jury as to how they should treat the absence of such a witness. It would have been impossible for the judge to give any useful direction in relation to Bogdanovic and Grech in the present case, and none was ultimately sought.
Fifthly, the case law has at all times affirmed a fundamental proposition established in Richardson v The Queen: [49] "Once it is acknowledged that the prosecutor has a discretion and that there is no rule of law requiring him to call particular witnesses, it becomes apparent that the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice." There was no attempt by the appellants to explain how the failure to call Bogdanovic and Grech led to a miscarriage of justice.
Sixthly, if, contrary to the foregoing propositions, it were considered that the prosecutor should have called the two witnesses, in the interests of the accused, their knowledge that he did not intend to do so, combined with their failure to make any request that he do so at any stage before the conclusion of the evidence and the addresses confirms the conclusion that they had no basis to seek to have Bogdanovic and Grech called and for that reason were unable to explain to the trial judge (and in this Court) why no request to call the witnesses had been made at any earlier stage.
The failure on the part of the prosecutor to call Messrs Bogdanovic and Grech did not lead to a miscarriage of justice; the ground of appeal must be rejected.

Conclusions

For these reasons, each of the appellants should have leave to appeal his conviction for supplying a prohibited drug, but in each case the appeal should be dismissed.
WALTON J: I agree with Basten JA.
BELLEW J: I agree with Basten JA.

Endnotes

Criminal Appeal Act 1912 (NSW), s 5(1).
(2007) 230 CLR 559; [2007] HCA 30 at [113].
M v The Queen (1994) 181 CLR 487 at 492-493.
(2007) 228 CLR 618; [2007] HCA 13 at [46] (Gummow, Hayne and Crennan JJ) (references omitted).
(2016) 258 CLR 308; [2016] HCA 35 at [47].
References omitted.
[2018] NSWCCA 3.
Romolo at [83].
Tcpt, 08/05/18, p 157(25)-(43).
Tcpt, p 158(45)-159(17).
Appeal tcpt, 06/11/19, pp 38(45)-40(20).
(2012) 84 NSWLR 581; [2012] NSWCCA 21.
Tcpt, 15/05/18, p 405(46).
Tcpt, p 406(5).
Tcpt, pp 406-407.
Tcpt, p 412(5)-(10).
See, eg, R v Rugari [2001] NSWCCA 64; 122 A Crim R 1 at [32] and [60] (Carruthers AJ, Spigelman CJ and Sperling J agreeing).
Rugari at [35].
(1998) 193 CLR 1; [1998] HCA 2.
Palmer at [8].
(1996) 39 NSWLR 450 at 464.
Palmer at pp 8-9.
Wood at [607].
Tcpt, 10/05/18, p 281(27)-(40).
Tcpt, p 282(45).
Tcpt, p 283(13).
Tcpt, p 283(33)-(50).
Tcpt, p 286(6)-(16).
Tcpt, pp 286(36)-288.
Tcpt, p 316(30).
(1990) 64 ALJR 321; [1990] HCA 23.
Wakeley at 325, col a, D-E (Mason CJ, Brennan, Deane, Toohey and McHugh JJ).
Tcpt, p 251(27)-(40).
Tcpt, p 252(39).
Tcpt, pp 301(23)-302(20).
Tcpt, p 202(25)-(37).
Tcpt, p 202(46).
Tcpt, 15/05/18, p 392(45).
Tcpt, 16/05/18, p 455(44).
Tcpt, p 456(46).
(1983) 152 CLR 657; [1983] HCA 42.
Whitehorn at 664.
(1974) 131 CLR 116 at 121-122 (Barwick CJ, McTiernan and Mason JJ); [1974] HCA 19.
Whitehorn at 674-675.
[1982] 2 NSWLR 847; (1982) 8 A Crim R 81.
[2003] NSWCCA 212; 139 A Crim R 389 (Tobias JA, James and Howie JJ agreeing).
(1984) 154 CLR 563 at 575; [1984] HCA 38.
(2002) 210 CLR 285; [2002] HCA 45.
Richardson at 121-122. 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. Decision last updated: 22 November 2019

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Legislation Cited (2)

Cases Cited (25)

Cited By (2)