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[2018] VSCA 135
Court of Appeal (Vic)
2018-05-24
Mr J, Priest JA, Maxwell ACJ, Weinberg JA
Original judgment source is linked above.
DPP v Arico (Unreported, County Court of Victoria, Judge Chettle, 10 November 2016 (Conviction), 3 March 2017 (Sentence))
CRIMINAL LAW - Appeal - Conviction - Extortion - Trafficking in large commercial quantity of drug of dependence (ice) - Offer to sell drugs - Whether offer genuine - Whether conviction unsafe - Evidence of finding of gun and ammunition in applicant's possession - Whether relevant to extortion and/or trafficking charges - Whether danger of unfair prejudice outweighed probative value - Defence counsel conceded relevance - No anti-propensity direction sought - Leave to appeal refused - , , -.
EVIDENCE - Admissibility - Criminal trial - Charges of extortion, drug trafficking - Evidence of finding of gun and ammunition in applicant's possession - Whether relevant - Whether danger of unfair prejudice outweighed probative value - Extortion charges based on threats to shoot - Whether applicant in business of drug trafficking - Circumstantial case - - Indicia of drug trafficking - Evidence admissible - Evidence Act 2008 ss 55, 137.
CRIMINAL LAW - Appeal - Sentence - Trafficking in large commercial quantity - Offer to sell drugs - Plea of not guilty - Sentence of nine years' imprisonment - Whether manifestly excessive - Whether offer to sell less serious form of trafficking - Consideration of risk of harm - Appeal allowed - Resentenced to seven years' imprisonment - Drugs, Poisons and Controlled Substances Act 1981 s 71.
WORDS AND PHRASES - 'Offer for sale', 'accoutrements of drug trafficking', 'tools of trade'.
PART 1: CONVICTION APPEAL (S APCR 2017 0048)
1 The applicant stood trial in the County Court at Melbourne on three charges of extortion (charges 1, 2 and 6), one charge of intentionally causing injury (charge 3), and one of trafficking in a drug of dependence (methylamphetamine) ('ice') in not less than a large commercial quantity (charge 5) ('the first trial'). On 10 November 2016, he was convicted of these five offences. Charge 4 was an alternative to charge 3, and no verdict was therefore taken in relation to that charge.
2 In February 2017, the applicant again faced trial in the County Court ('the second trial'). He was convicted of one charge of being a prohibited person in possession of a firearm (charge 1), and one charge of possessing a drug of dependence (charge 3).
3 On 3 March 2017, the applicant was sentenced in respect of both trials to a total term of 14 years' imprisonment with a non-parole period of 10 years. He now seeks leave to appeal against conviction in respect of all five offences of which he was found guilty in the first trial. He also seeks leave to appeal against sentence in respect of both trials.
5 We have had the advantage of reading in draft the reasons for judgment of Priest JA concerning the conviction application. There were originally three proposed grounds of appeal. Ground 1 was abandoned prior to the hearing before this Court. Ground 3 contends that the verdict on charge 5 in the first trial is unreasonable and/or cannot be supported having regard to the evidence.[1] Priest JA would refuse leave to appeal on that ground. We respectfully agree with his Honour's analysis and conclusions regarding that ground, and have nothing further to add.
6 As to ground 2, the trial judge permitted evidence to be led of the discovery of a firearm and ammunition under the seat of a Vespa motorcycle located at the applicant's residence. The evidence was led in support of the extortion charges (charges 1 and 2) and the drug trafficking charge (charge 5). Ground 2 contends that this evidence should have been excluded entirely either because it was not relevant to any fact in issue or alternatively under s 137 of the Evidence Act 2008 ('the Act').
7 Priest JA would allow the appeal against conviction on this ground. For the reasons that follow, we respectfully disagree. We would refuse leave to appeal against conviction.
8 The case against the applicant turned primarily upon the evidence of Witness A, who had for many years been an associate of the applicant.
9 In order to understand the context within which the offences charged in the first trial were said to have been committed, it is necessary to have regard to Witness A's evidence regarding events that went back as far as December 2010.
10 On either 22 or 23 December 2010, Witness A and another associate of the applicant, Michael Pastras, agreed to sell a kilo of cocaine to a man named Toby Mitchell. Witness A said that he approached the applicant, who supplied him with the cocaine for $350,000. Witness A had earlier agreed to sell the cocaine to Mitchell for $375,000.
11 Witness A claimed that he had been dealing in drugs on behalf of the applicant for a considerable period prior to December 2010. He added that, in face-to-face discussions with the applicant, certain gestures were used to signify the relevant type and quantity of the drug in question. If it was cocaine, one or other of them would point to his nose. If it was ice, they would point to their eye.
12 According to Witness A, when the transaction with Mitchell took place, Mitchell collected the cocaine but did not hand over the $375,000. Rather, he gave Witness A a box which turned out to contain a collection of magazines. Witness A said that he had then told the applicant that Mitchell had ripped him off.
13 Witness A soon after arranged to meet Mitchell. He was accompanied by Pastras and a third person ('E'). Witness A arranged for E to remain in the car, armed with a gun, while he himself spoke with Mitchell.
14 The meeting did not go well. Mitchell and an unknown person attacked Witness A and Pastras. Pastras was rendered unconscious. Another car approached and, according to Witness A, there was an exchange of gun fire.
15 Later, Witness A rang the applicant, who met them at E's house. The applicant offered to speak to Mitchell on Witness A's behalf. According to Witness A, the applicant did so but was told by Mitchell that it was Pastras who had stolen the money. Witness A said that the applicant told him that he could either pay the $350,000 owing, or kill Mitchell. Witness A said that he elected to repay the outstanding amount.
16 According to Witness A, he borrowed $100,000 from his brother, and gave it to the applicant. He said that he carried out a number of interstate and local drug transactions on behalf of the applicant in order to 'work off' the remaining debt.
17 When asked what this involved, Witness A said that he carried drugs to Perth on the applicant's behalf. He said there were three such trips to Perth in 2011, over a period of some six months. He said that he booked those trips to Perth under false names, but he used his own name for the return trips to Melbourne.
18 Witness A claimed that he had paid off a total of $300,000 of the $350,000 debt by this means. The applicant told him that he would forgive the extra $50,000, which was to be the applicant's profit margin on the transaction.
19 In late 2011, Mitchell was shot and seriously injured. The applicant asked Witness A if he was responsible for the attack on Mitchell, and Witness A falsely said that he was.
20 In early 2013, the applicant discovered that Witness A had lied to him. He confronted Witness A, and told him that the $50,000 debt that he had previously forgiven now had to be repaid.
21 In mid-2013, Witness A moved house. Thereafter, a number of incidents took place. The words 'pay your bills' were spray painted on the outside of a car belonging to the wife of witness A (to whom we will refer as 'B'). The same words were painted on the letterbox and on the house itself. According to Witness A, he confronted the applicant about this and was told that the debt he owed would not go away.
22 On 14 April 2014, at about 3.30 am, a rock and a pot plant were thrown through the window of Witness A's house, and the house was set on fire. CCTV footage captured two men carrying out that offence. Subsequently, Witness A's father's car was vandalised.
23 Shortly thereafter, the applicant and Savas Pastras (Michael's brother) met with Witness A. The applicant told Witness A that the amount owing had increased from $50,000 to $100,000. The applicant said that, unless that amount was paid, Witness A's father's house would be blown up.
24 It was at this stage that Witness A made a statement to police, which triggered an investigation into these matters.
25 On 13 July 2014, the applicant told Witness A that unless he paid the sum of $100,000, plus $10,000 GST, the applicant would 'shoot up' both Witness A's mother's house, and his brother's house. This threat formed the basis of charge 1 (extortion).
26 Subsequently, the applicant organised for a false invoice to be prepared, whereby it would appear that a considerable amount of work had been done on Witness A's house by a builder and friend of the applicant ('J'). The idea was to convert Witness A's drug debt into what appeared to be a legally enforceable debt. It seems to have been contemplated that J would lodge a caveat, ostensibly to protect his interest under the sham invoice. Witness A would then sell his house. The applicant would ultimately collect his $110,000 from the proceeds of the sale. The origins of the debt would thereby be concealed.
27 On 11 September 2014, the applicant attended Witness A's house in order to implement these arrangements. He knocked on the front door and told Witness A that, unless he and his wife signed the sham agreement and acknowledgement of debt to J, he would shoot them. That conduct formed the basis of charge 2 (extortion).
28 According to Witness A, he told the applicant to 'fuck off'. Witness A claimed that the applicant then struck him to the jaw with his fist, causing him minor injury. That conduct formed the basis of charge 3 (intentionally causing injury). Witness A said that thereafter, both he and his wife signed the sham agreement between themselves and J.
29 The plan to sell Witness A's house failed because various people had lodged caveats over the property. The applicant then wanted Witness A and his wife to obtain a bank loan against the property in order to pay him back the money he claimed to be owed. Because the house was in B's name, the applicant demanded that she arrange such a loan. When she failed to do so, the applicant rang Witness A. That call was secretly recorded by police on 26 February 2015.
can't get away with it ... her brother will get a message very shortly anyway, don't worry, don't worry. I know where he is and I've got friends [of] mine there with him. He's gonna get a message very, very, shortly. We'll start with the brother first, okay, then we'll work out the rest after, okay.
...
She swore on her fuckin' kids to my face and shook my hand and apologised to me for fuckin' the bloke around, and said that she'd pay.
...
If she doesn't come and fuckin' see me, I'm tellin' ya now, in seven days - I'm givin' ya seven days. If she doesn't come and see me, well then don't worry about it. I'm tellin' ya now. You tell her and come and see me because you're not gonna suffer, she will. Believe me.
B's brother was in prison at the time. The applicant's threat over the phone formed the basis of charge 6 (extortion).
31 A week earlier, on 19 February 2015, as part of his plan to recover the debt purportedly owed by Witness A, the applicant met with him at a real estate agent's office in Brunswick. That meeting was covertly tape recorded by Witness A, who had been 'wired up' by the police. Witness A handed over $25,000 in cash which the police had provided to him. They discussed B's failure to arrange the bank loan. The applicant indicated that he wanted her to do so, and that he would provide a banker who could organise it.
32 At some point, well into the conversation, the discussion turned to drugs. The applicant offered to sell Witness A as much ice as he wanted, for $145,000 per kilo. He assured Witness A that the quality of the drug was good, and he claimed that he could obtain it from 'the Asians'.
33 That discussion concerning drugs formed the basis of charge 5, in the first trial. As indicated, that was a charge of trafficking methylamphetamine, in not less than a large commercial quantity. The form of trafficking alleged was an 'offer for sale'.[2]
34 It is necessary at this stage to set out precisely what form the conversation regarding drugs took. The key passages are as follows:
Witness A: I'll see you Monday, all right?
Applicant: You don't want me to take your rort over?
Witness A: No.
Applicant: Hey? I cleaned already ya bastard.
Witness A: Bullshit.
Applicant: (Laughs) Yeah.
Witness A: Swear.
Applicant: Yeah, it's the best.
Witness A: Swear on your daughter.
Applicant: I'm not going to swear on my daughter on that shit. I recruited him already. You think I'm going to wait for you, you banana.
Witness A: Thanks.
Applicant: What do you means thanks? I haven't but I will. You want to be in on it or not?
Witness A: Yeah.
Applicant: Well ... bring him. I've got someone else that can take it to him otherwise.
Witness A: What for? Why?
Applicant: Well you bring him.
Witness A: He's my mate.
Applicant: Well, bring him. There's time now. Trust me.
Witness A: How many?
Applicant: Whatever you want.
Witness A: How much?
Applicant: How much you want a 'bomb'?
Witness A: Nah...How much?
Applicant: Hey? Hey? A little kick. (whispers) I'll give you (inaudible) one forty five dyno.
Witness A: Bollocks.[3]
Applicant: Dyno.
Witness A: Bollocks. Fucking bullshit.
Applicant: Here. Shake. My word.
Witness A: (Inaudible) Yeah ... How much did you do it for?
Applicant: No, no, no ...
Witness A: Swear.
Applicant: I give you my word.
Witness A: Swear.
Applicant: I just gave you my word you fucking idiot. What's wrong with you?
([Z] returns)
[Z]: That's the landscape yeah? The advertising, the whole thing comes to $20,950.
Applicant: Fucking cheap.
[Z]: All right? And there's been no interest incurred.
Witness A: Let's not pay interest, we're going to resolve this next week, all right? Hold on to it, hold on to it.
Applicant: Hey I give you my word.
Witness A: One hundred and forty five?
Applicant: Yeah.
Witness A: For one of that?
Applicant: Dyno. As many as you want.
Witness A: Bollocks, bollocks...(inaudible)...shit.
Applicant: I give you my word. Dyno. (inaudible word)
Witness A: How big is it?
Applicant: Huh?
Witness A: How big?
Applicant: (inaudible)
Witness A: How big?
Applicant: Fucking like that. They're 'Mickey'[4], they ... it's the best around.
Witness A: Yeah yeah.
Applicant: From the Asians.
Witness A: Asians?
Applicant: Yeah. From there. I give you my word you fucking idiot. Have I ever lied to you?
Witness A: No, I'll speak to you Monday.
Applicant: No problem.[5]
35 The successful prosecution of charge 5 depended entirely upon what the jury made of that conversation. They had to consider what was said, in the light of evidence given about the conversation by both Witness A and the applicant.
36 Witness A said that during the conversation the applicant had pointed to his eye, signifying ice. He said that the applicant had also showed him a car key, which he understood to be a reference to a kilo. Finally, he said that the term 'dyno', which the applicant used, meant 'dynamite' - slang for 'pure', or high quality.
37 When the applicant gave evidence, he claimed that despite what had been said, he was not seriously offering to sell drugs. Rather, he had simply been joking, or testing Witness A. In his own terms, he said that was 'sussing out' Witness A because he believed that he may have gone back to his 'old ways', and reverted to dealing drugs. He claimed that it was the fact that Witness A had $25,000 in cash that led him to that belief.
38 The jury, by their verdict, plainly rejected the applicant's account of the conversation. It should be noted that the prosecution, at the request of the defence, called J to give evidence. He said that the applicant had told him, before speaking to Witness A, that he did not trust Witness A. He had said 'I'm just going to test him out again, play with him'. He said that he thought Witness A was 'up to something', that he was 'up to his old tricks' and that he was going to 'play' with him, 'try him out'.
39 The prosecutor applied, pursuant to s 38 of the Act, to cross-examine J on the basis that he had made a prior inconsistent statement regarding the events of 19 February 2015. Leave was granted.
40 The earlier statement had been made some three weeks or so after the secretly recorded conversation. J had not said anything then about the applicant 'testing' Witness A out, or not trusting him. It was put to J that he had simply made up that part of his story. The prosecutor ultimately invited the jury to reject that evidence entirely.
41 The applicant was arrested on 5 March 2015, in the car park of the Eureka Apartment building in Southbank. He was carrying a satchel in which police found the key to a black Vespa motor scooter parked in the carpark, adjacent to where the applicant's car was parked. Locked in a compartment under the seat of the motor scooter, police found a .45 semi-automatic pistol, three boxes of ammunition and a glass bottle of 1,4-Butanediol (a drug of dependence).
Ground 2: admissibility of incriminating items
The learned trial judge erred, and his judicial discretion miscarried, by his refusal to exclude from the trial, evidence of the discovery of a firearm and cartridges in the boot of the Vespa motor cycle, found close to the car-parking spots for the applicant and his wife, upon the execution of the search warrant on 5 March 2015, at the residential premises of the applicant, and by failing to find that the probative value of such evidence was outweighed by the danger of unfair prejudice to the applicant.
43 In considering the challenge to the admissibility in the first trial of the finding of the gun and ammunition, it is necessary to pay close attention to the authorities. Priest JA has undertaken that task, and we gratefully adopt what his Honour has distilled from the cases. We would add only the following.
44 There has long been a debate as to the principles governing the admissibility of evidence of incriminating objects found in the possession of an accused person. That issue has sometimes become conflated with the common law principles governing the admissibility of what was formerly called 'similar fact evidence'. Yet there are, and always were, conceptual differences between them.
45 A useful starting point is the notorious case of Thompson v The King.[6] There, the accused was convicted of gross indecency with two boys. The acts with which he was charged were said to have taken place on a particular day in March. The person who performed those acts was alleged to have made a further appointment with the boys three days later. In the meantime, the police were informed and kept watch, along with one of the boys, at a public lavatory, the appointed rendezvous. The boy pointed out the accused to the police and he was arrested. The accused maintained that it was a case of mistaken identity.
46 It was held that evidence of various indecent photographs of boys that were found in his room, and of items said to be indicative of homosexuality that he had on his person (including powder puffs), had been correctly admitted. The reasoning of the House of Lords in this case obviously reflects archaic notions. The case would almost certainly be decided differently today. Nonetheless, the basic principles embodied within the decision have been applied many times since.
47 Next there is the celebrated case of R v Armstrong.[7] There, a solicitor was charged with having murdered his wife by poisoning. His defence was that she had committed suicide. When arrested, he was found to be in possession of a considerable quantity of arsenic. He said that he had purchased it for the purpose of killing weeds. Evidence was led that he had attempted to poison a man with arsenic some eight months or so after his wife had died. That evidence was held to have been correctly admitted. It suggested that he was lying when he said that he had purchased the arsenic for an innocent purpose.
48 In the same way, in R v Hodges,[8] the accused was charged with being in possession of house breaking implements by night, without lawful excuse. He was found in possession of two skeleton keys, one of which had been filed down. His defence was that he had filed down one of these keys in order to get into his own lodgings. Evidence that he had shown the keys, or substantially similar ones, to two witnesses, with the suggestion that they should 'join him in an office-breaking enterprise', was held to have been correctly admitted.
49 Evidence of the possession of incriminating objects is often led to negate an alibi, or the possibility of mistaken identification. It is not essential, in such cases, that the incriminating material be shown to have been used in the actual commission of the crime charged.
50 In Thompson and Wran v The Queen,[9] the appellants were tried on charges of breaking, entering and stealing. The prosecution led evidence that, when arrested, they had in their possession implements for opening or breaking into safes. These included tools which clearly had not been used in the commission of the particular offences charged, as explosives had been used to blow open those particular safes.
51 The High Court held that the safe-breaking implements had been wrongly admitted. Priest JA has helpfully set out a number of passages from the joint judgment of Barwick CJ and Menzies J (with whom McTiernan J agreed).[10] We would add to those passages the remarks in the joint judgment that immediately preceded them:
Evidence that the prisoners had in their possession material, which might have been used to break into and to steal from the Darwin Bowling Club or the Darwin Squash Centre, or, was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes, e.g., a jemmy to break in, or a supply of gelignite, detonators, wires and batteries, suitable for the blowing of the safes. Some of the evidence admitted, however - of which instances have already been given - did no more than tend to show that the prisoners were well-equipped safebreakers.
We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used: R v Sims ... where Goddard C.J. said: 'Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused.'[11]
52 Priest JA has also dealt with a number of other relevant authorities dealing with the admissibility of incriminating material found in the possession of an accused.[12] Once again we gratefully adopt his Honour's analysis of those cases.
53 Recent authority on the admissibility of incriminating material found in the possession of an accused supports the conclusion that such evidence can be led even if the items in question cannot positively be linked to the commission of the particular offence charged.
54 In Falzon v The Queen,[13] the applicant was convicted of cultivation of a commercial quantity of cannabis, and of trafficking in a drug of dependence. The particular form of trafficking was said to have been possession of the drug for sale. The issue on appeal was whether evidence of the finding of a large amount of cash at the accused's property, some $120,800, had been properly admitted in support of the charge of trafficking.
55 It was submitted on behalf of the applicant that the evidence concerning the cash was irrelevant, and therefore inadmissible. Alternatively, it was submitted that even if the low threshold for admissibility posed by s 55 of the Act had been met, the evidence ought to have been excluded as having been 'unfairly prejudicial', pursuant to s 137 of that Act.
56 It should be noted that in Falzon, a substantial body of circumstantial evidence was led in support of what was said to be the 'business of trafficking' in a Giretti[14] sense. It was contended by the applicant that, rationally, the only use that the jury were likely to make of the finding of the cash would be to conclude that he was a major drug dealer, and that these were the proceeds of past sales. It was further contended that the jury would inevitably regard such evidence as bearing upon the applicant's tendency to engage in large-scale drug dealing, in circumstances where there had been no application under s 97 of the Act for the evidence to be led for that purpose. Moreover, it was submitted, the evidence concerning the finding of the cash could not, save through tendency reasoning, shed any light upon the applicant's intention, so far as the drugs found in his possession were concerned.
57 In a joint judgment, the majority (Priest and Beach JJA) held that the evidence concerning the finding of the cash had been wrongly admitted, and that there should be a new trial. In their Honours' view, each of the authorities was fact-specific and the evidence in question had no relevance to the case against the appellant as formulated by the prosecution.
58 Justice Whelan dissented. His Honour applied the reasoning of the New South Wales Court of Criminal Appeal in R v Sultana.[15] One of the charges in that case concerned supply of heroin. When the appellant was arrested, he had been found to be in possession of that substance. When his home was searched, a number of items said to be typically associated with drug trafficking were located. There were resealable plastic bags, a coffee grinder with white powder residue and other equipment, and some $29,000 in cash. Importantly for present purposes, a replica revolver and pen pistol were also found. One of the grounds of appeal was that the trial judge had erred in admitting evidence of the various items found at the appellant's home including, in particular, the firearms.
59 In Sultana, Gleeson CJ (with whom Handley JA agreed) concluded that the evidence concerning the finding of the various items was properly admitted because it tended to show that 'the appellant was in the business of dealing in drugs'.[16] Chief Justice Gleeson observed that this was 'not mere evidence of propensity to commit crime, or bad character'.[17]
60 Justice Whelan, in Falzon, also referred to R v Edwards,[18] where the appellant had been convicted of trafficking in a drug of dependence. A search of his person and of a car in which he was travelling had revealed plastic bags containing drugs, a sum of $2,950 in cash in one of his pockets, and again, importantly for present purposes, a firearm. It was submitted on appeal that this evidence should have been excluded. This Court (per Eames AJA, with whom Hayne and Batt JJA agreed) held that the evidence of the finding of the firearm had been properly admitted. It was stated that the jury might regard the possession of a gun as an 'accoutrement' of drug trafficking.[19]
61 In Edwards, the Court cited with approval the following statement by Gleeson CJ in Sultana:
Common sense indicates that supplying heroin on the street, as the appellant is alleged to have done, is a dangerous activity. A jury would be entitled to reason that possessing firearms, or imitation firearms, would be appropriate to the business of a street heroin dealer, and in considering whether the appellant was in that line of business, it was logically open to them to take into account the appellant's possession of such firearms. That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug-dealer as distinct from a person in some other line of dangerous work. None of the items in question, standing alone, would point to the nature of the appellant's occupation. It is their combined effect, in conjunction with the other evidence in the case, that is important.[20]
62 In R v Blackwell,[21] to which Whelan JA also referred in Falzon, the main issue was whether the evidence of the finding, in the possession of the applicant, of a pen pistol and a can of mace was admissible on a charge of possessing heroin for the purpose of sale. The pen pistol was located inside the applicant's house, and not on his person. Nonetheless, it was said to be well known that drug dealers 'may become involved in situations which place their personal safety at risk', and that it was 'not unknown for dealers to arm themselves with protective devices' such as pen pistols.[22]
63 Accordingly, the finding of such a weapon in the possession of the accused could provide circumstantial support for the prosecution case. It was said in Blackwell that the finding of:
items commonly associated with drug dealing ... usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person's possession.[23]
64 In Falzon, Priest and Beach JJA noted that the charge of trafficking there under consideration was not founded on any actual sale.[24] It was submitted that, contrary to the prosecutor's contention, the charge in Falzon had not been laid as a Giretti count. Rather, it had been laid on the basis of possession for sale on a single day. On that analysis, their Honours concluded, the evidence of the finding of the cash did not even meet the low threshold for relevance under s 55(1) of the Act_,_ still less could it overcome the balancing exercise required under s 137.
65 Priest and Beach JJA distinguished Sultana and Blackwell on the basis that the facts were materially different from those relied on to support the charge of trafficking in Falzon. They noted that a number of the items held to be admissible in those cases were commonly associated with drug dealing. These included paraphernalia such as resealable bags and scales. The same could not be said of an amount of cash, no matter how substantial that amount might be.
66 Their Honours noted that, in the cases where firearms or other weapons had been located in the context of alleged drug trafficking, there was seldom any temporal gap between the possession of the drugs and the finding of the weapons in question. They said:
Ordinarily, it is the combination of the finding of a sum of cash in proximity to other incriminating articles which will go to support a guilty inference as to the origins of the cash or a person's reasons for its possession. Thus, it has been held that the finding of cash contiguously with other incriminating articles which are themselves the accoutrements of the illicit drug trade - drugs, firearms and other weapons, cutting agents, scales and the like - might be relevant in proof of an accused person's participation in such activity. In the present case, however, there was no attempt by the prosecution to show a relationship between the sum of cash found at the applicant's home and the trafficking - by way of possession for sale - at the Sunshine North or Sydenham premises. The finding of the cash was suspicious, but nothing more.[25]
67 Falzon is obviously relevant to the determination of the present application. The decision of the majority would, on its face, support the proposition that the evidence of the finding of the gun and ammunition concealed in the Vespa ought to have been excluded, at least in relation to charge 5.
68 As recently as 19 April 2018, however, Falzon came before the High Court by grant of special leave. Immediately after hearing argument, the High Court - somewhat unusually - ordered that the appeal be allowed. The Court said that reasons would follow.[26]
69 We have read the transcript of argument before the High Court. Although it is impossible to anticipate precisely what the High Court will say in its reasons for judgment, the orders made by the Court indicate that Whelan JA's reasoning is likely to be approved in preference to that of the majority, and that Gleeson CJ's approach in Sultana is likely to be endorsed.
70 There are, of course, many other cases that deal with the admissibility of evidence of the finding of firearms which are not necessarily linked to the commission of the offence charged. For example, in R v Debs,[27] the finding of a Smith & Wesson revolver and a quantity of ammunition at the applicant's mother's house was held to be admissible on a charge of murder. This was on the basis that it showed that the accused might have had access to a weapon and ammunition of the same kind as had been used in the commission of the offence charged.
71 The better view of the authorities, as they presently stand, seems to be that evidence of the discovery of a firearm in the possession of an accused will be relevant if it can in some way be linked to the offence with which that accused is charged. Such evidence will not necessarily be found to be unfairly prejudicial for the purpose of s 137 of the Act.
Was the evidence relevant to charges 1 and 2 (extortion)?
72 As indicated, Priest JA would allow the appeal against conviction on charges 1 and 2 on the basis that the trial judge erred in permitting evidence to be led of the finding of the gun and ammunition ('the gun evidence'). In relation to those charges, his Honour considers the probative value of the evidence was weak and that it was outweighed by the danger of unfair prejudice, in the sense spoken of in s 137.[28] We respectfully disagree.
73 If, as the prosecution contended, the applicant was in possession of the Vespa and its contents at the time of his arrest, that fact alone could 'rationally affect the probability of the existence of a fact in issue' in the proceeding.[29] The fact in issue in relation to charges 1 and 2 was whether, as Witness A claimed, the applicant had on two separate occasions threatened to 'shoot' him or members of his family, or 'shoot up' their property.
74 In arriving at that conclusion, we bear in mind that in this country a threat to 'shoot' someone is somewhat unusual. It would be rare for any ordinary member of this community to have in their possession a semi-automatic handgun. While threats to injure or even kill are not so uncommon, Witness A's claims that the applicant threatened to shoot him fall into an altogether different category.
75 According to the applicant's own evidence, he had had the keys to the Vespa in his possession for anything up to 12 months before the date of his arrest.[30] That meant that it could be readily inferred that, at the time of the alleged threats, he had available to him the ready means of carrying out those threats. That inference was capable of adding considerable cogency to Witness A's account. It must be remembered that the threshold test for relevance under s 55 is not particularly high.
76 The applicant conducted his defence to charges 1 and 2 on the basis that Witness A's evidence was a lie. Once the jury decided that the applicant was, at the time of his arrest, in possession of the gun and ammunition, it was but a short step to conclude that he was also in possession of these items at the time of the alleged threats. In those circumstances, they were then entitled to treat that finding as supporting Witness A's credibility.
Was the evidence 'unfairly prejudicial' in relation to charges 1 and 2 (extortion)?
77 Section 137 of the Act requires a balancing exercise to be undertaken. If that balancing process results in a finding that the probative value is outweighed by the danger of unfair prejudice, the Court is constrained to refuse to admit the evidence. No element of discretion arises.[31]
78 For the reasons we have given, we consider the probative value of the evidence concerning the finding of the gun and ammunition to be substantial. Nonetheless, we must consider for ourselves whether the probative value of that evidence was outweighed by the danger of unfair prejudice to the applicant. The word 'danger' connotes more than 'a mere possibility'. It requires a 'real risk of unfair prejudice'.[32] Where any potential prejudice is minimal but the evidence has significant probative value, it will not ordinarily warrant exclusion under s 137.[33]
79 For reasons that will shortly become apparent, it will be seen that, as regards charges 1 and 2, there was no basis for excluding this evidence under s 137.
Was the gun and ammunition relevant to charge 5 (trafficking)?
80 As noted earlier, the charge of trafficking was based upon the extended definition of that term in s 70 of the DPCS Act. That definition relevantly provides that the offence can be constituted by an 'offer for sale'.
81 As previously indicated, there was no dispute at trial as to what the applicant said to Witness A during the course of the recorded conversation. Clearly, his words signified an offer to sell Witness A ice for $145,000 per kilo. In addition, he assured Witness A that the quality of the drug was good, and indicated that even larger amounts were available.
82 The only issue that the jury had to determine was whether, as the prosecution contended, the offer to sell at least a kilo of ice was genuine.
83 Of course, the prosecution could have confined its case on charge 5 to simply playing the recording of the conversation, and having Witness A explain what some of the terms used in the discussion actually meant. The applicant could then have given his alternative account of what transpired, explaining that he was simply 'testing' Witness A. The jury would then have had to decide whether they had a reasonable doubt about Witness A's account.
84 The prosecution went further, however, and sought to rely upon the gun evidence in support of the trafficking charge. As we have said, s 55 creates a low bar. The question is whether evidence that, on the day of the recorded conversation, the applicant had ready access to a concealed semi-automatic handgun and ammunition could have rationally affected the assessment of the probability of the offer for sale being genuine.
85 At no time did defence counsel contest the basis upon which the gun evidence was said to be relevant. To the contrary, as will be seen, defence counsel conceded relevance in pre-trial discussion.
86 As will appear, we regard the gun evidence as having significant probative value on the question whether the offer made was genuine. It therefore comfortably met the threshold of relevance.
Was the evidence 'unfairly prejudicial' in relation to charge 5 (trafficking)?
87 The threshold test of relevance being met, there is still the question whether evidence of the finding of the gun and ammunition was 'unfairly prejudicial', within the meaning of s 137, so far as charge 5 is concerned.
88 Clearly, in seeking to have this evidence led in support of the charge of trafficking, the prosecution was relying upon the proposition that guns and ammunition are 'accoutrements' of large scale drug trafficking of the kind here alleged.
89 In the present case, Priest JA would distinguish decisions such as Sultana and Blackwell. In his Honour's view, the facts of the present case bear few parallels with those earlier authorities. One important difference is said to be the absence of sufficient contiguity between the possession of the gun and ammunition and the allegedly incriminating conversation. That conversation took place some two weeks or so before the finding of the items in question. His Honour considers that gap in time to be significant, as in some cases it plainly would be.[34]
90 We have already dealt with the probative value of the gun evidence in support of charges 1 and 2. In our opinion, the same result follows from an analysis of the authorities with regard to charge 5.
91 As previously indicated, the applicant, on his own evidence, acknowledged that, as at the date of the recorded conversation, the Vespa had been parked in the basement of his apartment building for the best part of a year. He also acknowledged that throughout that entire period, he had been in possession of two keys to the Vespa, one of which he kept in his satchel, and another in his apartment.
92 In light of Sultana and Blackwell - and also, to some degree, of the High Court's decision to allow the appeal in Falzon - we are not persuaded that the trial judge erred in admitting this evidence in support of charge 5.
93 From the outset of the trial, the prosecutor made it clear that he would be presenting a circumstantial case in order to provide the necessary context within which the jury could assess the character of the recorded conversation. More particularly, counsel said that he would seek to show that the applicant was in the business of drug trafficking. As the prosecutor said:
[T]o give meaning and understanding to that conversation, the prosecution case is assisted by other evidence of [the applicant] being a longstanding drug trafficker.
94 The prosecutor identified a number of elements of the circumstantial case. He said that it would include evidence of:
95 In answer to a question from the judge, the prosecutor confirmed that the evidence proposed to be called was intended to demonstrate that the applicant was a drug dealer. Defence counsel then made reference to 'the drugs, the weapons, the ammunition and the money', and the judge responded:
It's starting to paint a compelling picture of a drug dealer.
96 The prosecutor pointed out to his Honour that he would need 'to determine the issue of probity [sic] against prejudice.' This was obviously a reference to s 137 of the Act_._ The prosecutor then said:
It's a kaleidoscope of indicia of drug dealing ...
97 The judge soon after noted that 'exactly the same point' applied to the evidence of the possession of the Blackberry as it did to the possession of the gun, that is:
Does it tend to strengthen the prosecution witness' evidence? Is it material surrounding circumstances which give context to the - which can, if the jury choose to, use to rely upon to support his evidence?
98 At no time did defence counsel contest the basis of relevance asserted by the prosecutor. To the contrary, defence counsel expressly conceded relevance. The circumstances which surrounded that concession were as follows.
99 The discussion concerned the severance of the charge of being a prohibited person in possession of a firearm. The judge said:
but in the context of the allegations and there is relevance, I think, to the - if he has [the gun], and I know you deny he has it ... possession of the pistol and the ammunition, it goes somewhat to give flavour and colour and force to the ...
As I understand you, if I severed off the charge of prohibited person possessing a firearm but allowed the evidence [of possession] to be led, you would not be concerned about that.
Defence Counsel: I don't think I could resist your Honour's observations about its relevance.
You can work on the basis that will be happening.
100 In our view, defence counsel's concession of relevance was correctly made. As appears from the discussion of the authorities earlier in these reasons for judgment, courts have consistently affirmed the relevance of evidence of this nature when what is in issue at trial is the character of a particular circumstance. In a number of the decided cases, the relevant circumstance has been the accused's possession of drugs, and the fact in issue has been the purpose of that possession.
101 We accept that the facts of the present case differ from those in Sultana, Blackwell, and Falzon in at least two respects. First, there were no actual drugs found in the applicant's possession. The case against him was about an offer for sale, and whether that offer was genuine. The relationship between that fact in issue and the items found in the Vespa is, in that sense, less direct than in those other cases.
102 Secondly, there was a gap of about two weeks between the recorded conversation, and the finding of the gun and ammunition. However, once the jury found, as they almost certainly did, that the applicant had been in possession of these items at the time of the conversation, that gap in time ceases to have any real significance.
103 As previously noted, the nexus between the possession of firearms and drug-dealing was specifically addressed by Gleeson CJ in Sultana as follows:
Common sense indicates that supplying heroin on the street ... is a dangerous activity. A jury would be entitled to reason that possessing firearms ... would be appropriate to the business of a street heroin dealer.[35]
104 Although the activity which Gleeson CJ here described as 'dangerous' was that of 'supplying heroin on the street', there is no basis for confining the probative force of such evidence to cases of street-level dealing. Self-evidently, his Honour was simply addressing the case before him. As the authorities recognise, drug dealing is notoriously dangerous at any level. Indeed, it might be thought that it becomes more dangerous the larger the quantities - and associated sums of money - changing hands. The general point was clearly made in Blackwell:
It is well known that drug dealers may become involved in situations which place their personal safety as risk. Accordingly it is not unknown therefore for dealers to arm themselves.[36]
105 In this case, there was no need for the jury to make assumptions about whether the carrying of guns was characteristic of drug dealing. The evidence given by Witness A, which was unchallenged on this point, demonstrated that guns were very much 'tools of trade' for drug dealers working in this particular milieu.
106 Early in his evidence, Witness A described the meeting which he and Michael Pastras had had with Mitchell on 26 December 2010. As noted earlier, Witness A's evidence was that he had purchased a kilo of cocaine from the applicant and then supplied it to Mitchell. Once he had been paid by Mitchell, he was going to pay the applicant the agreed price of $350,000.
107 The meeting on 26 December was about Mitchell's failure to pay for the drugs. Witness A took a gun with him to that meeting. As soon as Mitchell arrived, a fight broke out. It quickly became a gunfight. Witness A described how Mitchell's face turned white when he saw Pastras. In cross-examination, Witness A confirmed that he believed that this was because Mitchell was afraid that Pastras was armed, and might have killed him.
108 The cross-examination thus proceeded on the basis that Witness A was telling the truth about people having been armed, and about shots having been fired. The defence case was that the dispute was indeed about a drug debt but that it was not a debt which involved the applicant in any way. Instead, it was contended, Witness A had a debt to some people in Sydney, arising from drug deals which he had been engaged in on his own account. In effect, the defence positively affirmed the dangerousness of drug-dealing and that it was unremarkable for Witness A himself to have gone to the meeting armed.
109 Subsequently, Witness A gave evidence that when he first met Mitchell, Mitchell asked him 'where the gun was'. Witness A had responded by lifting his top and saying 'I haven't got a gun'. Again, there was no challenge to this evidence. Mitchell obviously assumed that Witness A would be armed for a meeting about a drug debt.
110 When Mitchell refused to pay, Witness A told the jury, the applicant said to him that he either had to pay the debt which he owed to the applicant or else kill Mitchell. It was put to Witness A under cross-examination that he had earlier said he was going to kill Mitchell. Witness A said, 'We were gonna organise it, yeah'. There was no suggestion from the defence that the killing of Mitchell for his failure to pay was, in itself, an implausible notion. Instead, the attack on Witness A was to the effect that he had lied in attributing to the applicant the suggestion that Mitchell be killed, and that he had done so in order 'to feather [his] own nest'.
111 Subsequently, defence counsel insisted on putting to Witness A (from one of his police statements) a conversation he had had with police about why he should not enter into a written contract with the applicant concerning the so-called debt owed to the builder. Witness A was asked whether he was told that:
the police concerns were that by signing a contract, and that a caveat being placed on the house, [the applicant] would no longer would need you and you would be expendable.
112 Witness A responded that this conversation 'may have' taken place. Subsequently, the trial judge pointed out to defence counsel - correctly - that this puttage tended to discredit the applicant. The judge asked:
What [on] earth is the relevance that the policeman says to [Witness A] 'Be careful about signing the contract or [the applicant] ... will kill him?'
113 As can be seen, the unchallenged evidence of Witness A (including under cross-examination) painted a very vivid picture of just how dangerous it was to be involved in drug dealing of this nature, and on this scale. The milieu in which Witness A admitted having operated in for years, as a long-term major drug dealer, was obviously a very violent one. The probative value of this evidence did not depend on it being shown that the applicant himself had carried, or used, a gun in any particular transaction. Rather, it established what otherwise would have needed to be assumed, namely, that guns were a part of the 'tools of trade' of drug traffickers, at least on this scale.
114 On that basis, the evidence that the applicant was in possession of a gun and ammunition, both before and after the conversation the subject of charge 5 took place, had substantial probative value. Of course, that evidence was not to be considered in isolation. Rather, it had to be considered together with all of the other evidence bearing on the question whether the applicant was indeed in the business of drug trafficking.
115 By parity of reasoning with cases such as Sultana and Blackwell, evidence of this kind may be relevant to establishing the character of a circumstance other than bare possession of drugs. In this case, the circumstance was the recorded conversation between the applicant and Witness A. Proof that the applicant was in the business of drug dealing was capable of 'rationally affecting' the jury's assessment of the probability that what he claimed was a 'try on' was in fact - as the prosecution contended - a genuine offer to sell drugs. As already pointed out, defence counsel conceded that this was so.
116 The cases also establish that evidence of relevant prior conduct can be probative for this purpose. As was said in McGhee,[37] the relevance of evidence:
tending to prove the existence of an ongoing business ... cannot be called in question merely because it shows that the [accused] has committed offences in the past and thus has a criminal disposition.[38]
117 A point of distinction between the applicant's case and that of the appellant in Sultana, the force of which we acknowledge, is the sheer volume of incriminating items located at Sultana's place of residence. It will be recalled that a series of items were located there, including cash, resealable plastic bags, a grinder, a penknife, a replica revolver and a pen pistol. As we have said, Gleeson CJ remarked that '[n]one of the items in question, standing alone, would point to the nature of the appellant's occupation'.[39] In other words, it was the 'combined effect' of the items, 'in conjunction with other evidence in the case' that was important.[40]
118 In the present case, there were, as has been seen, a number of references to guns and ammunition and their having been used in the course of drug-related activities. The entire account given by Witness A was replete with references of that kind, including what seems to have been a gun battle with Toby Mitchell.
119 While it is true that the references to guns were not linked to the applicant personally, the very fact of his close association with a host of others who were ready and willing to use such weapons, almost at the drop of a hat, gave greater force to the argument that the items located in the Vespa should be seen as 'accoutrements' of drug trafficking.
120 In our view, the danger of unfair prejudice was not such as to outweigh the probative value of the gun evidence in relation to charge 5. Accordingly, the judge was not obliged to exclude it under s 137.
121 The applicant was represented by experienced senior counsel at trial.[41] When the trial judge ruled that the gun evidence was admissible on charges 1 and 2, and on charge 5 as well, there was scarcely a murmur of dissent from the defence. There was no request for his Honour to give reasons in a formal ruling, nor was any subsequent attempt made to persuade his Honour to revisit that ruling. In particular, there was no attempt to draw his Honour's attention to any of the relevant authorities dealing with the admissibility of evidence of incriminating material.
122 The judge indicated, in discussion with defence counsel, that the finding of the gun and ammunition was, in his view, 'the only thing that really is controversial'. His Honour added 'I think that is relevant'.
123 At that point, senior counsel said to the judge, 'I assume that Your Honour in those comments has already looked at and considered s 137'. The judge responded, '137 is the prejudice side of it. There is no prejudice if [the gun's] not yours'. He added that the finding of the gun made 'more likely and more credible' what Witness A had said about the threats that were made (clearly referable to charges 1 and 2). The applicant's counsel simply responded, 'Yes'.
124 Not only was there no application for a separate trial on charge 5, but senior counsel did not take any exception to the way in which the prosecutor addressed the jury regarding that evidence in support of charge 5. The attack on the decision to admit the evidence at trial, specifically in relation to the charge of trafficking, was mounted for the first time before this Court. It was only at that stage that we were finally provided with a careful analysis of the relevant case law governing this subject. It must be said that the conduct of the trial was, in that respect, unsatisfactory. It is a far cry from the philosophy that underlies the enactment of the Jury Directions Act 2015. Defence counsel are expected to take a more robust role than appears to have been adopted in this case.
125 The prosecutor had correctly identified the s 137 question as one which the judge would have to determine. Self-evidently, it was for defence counsel to decide whether, and when, to develop argument in support of an application to have the evidence excluded under s 137. It appears that this never occurred. It did not occur pre-trial, or after the evidence was led, or at the conclusion of the evidence in the trial, or at any time in the course of the charge.
126 The prosecutor's closing address regarding charge 5 was squarely grounded in the circumstantial case which he had identified at the outset of the trial. Counsel told the jury that the intercepted conversation was:
a fair dinkum, genuine conversation about drugs, which shows that it's built on, and comes from, their previous drug trafficking association. ... It's the sort of conversation you have where, as Witness A has truthfully told you, they were in business together. In drug-trafficking business, that's where it all comes from, and why they slip into it.
The prosecution submits to you that it's a genuine offer, not only because of [Witness A's] evidence and this analysis of the actual tape, but also because there is other evidence to show that [the applicant] is genuinely, at the time in question, a genuine drug dealer, and in particular, as put to him, he had the tools of the trade and by this, I'm referring - and I'll come to it very shortly - the gun, the handgun and ammunition that's in the Vespa in the apartment carpark. His possession of the Blackberry phone, not - and I submit to you, you should reject it - a phone that he had found on the worksite and was holding for some other worker there and coincidentally had it in his bag when arrested by police on 5 March. That is, with respect, something you should reject, but again, a tool of the trade because of the special attractions. The secure code and the inability of the police to penetrate the Blackberry-type phone, ideal for this line of work and again, as put to [the applicant], so is - as a necessary part of that line of work - a handgun and ammunition. It's a genuine offer. The evidence supports [Witness A's] evidence, not only of the particular charge, but also the previous relationship and in particular, the illegal drug debt that started all this back when things went wrong at Allard Park or before that actually, before the - which I'll come back to - the incidents that you hear evidence about of the shootings and so forth at Allard Park.
128 For his part, defence counsel did not refer to the gun and the ammunition until the very end of his final address. After referring to 'a gun and ammunition found in the storage compartment [of the Vespa]', counsel made two brief submissions. The first - which the judge had to point out was incorrect - was that another witness had admitted ownership not only of the bike but also of what was found in it. The other was that the evidence of the Blackberry and the gun was 'a mischief ... a distraction'.
129 As already noted, there was never, at any stage, an application on behalf of the applicant to have charge 5 severed from the indictment. The only application for severance concerned charges 6 to 8, which dealt with the finding of the gun and ammunition (together with a small quantity of a precursor drug).
130 When considering whether the trial judge should have excluded the gun evidence in relation to charge 5 on the basis of s 137, it is necessary to have regard to the conduct of the trial and the various forensic choices made below.
131 It was always open to the applicant to request the judge to direct the jury, in strong terms, that the gun evidence was admissible only in relation to charges 1 and 2, and should not be taken into account when considering charge 5. The fact that his Honour had given an off the cuff 'ruling' to the effect that the evidence was admissible in relation to charge 5 as well did not prevent counsel from seeking such a direction.
132 The Jury Directions Act 2015 imposes significant obligations upon counsel when it comes to seeking proposed directions. Where no direction of the kind contemplated above was sought, and where such a direction might well have ameliorated any arguable prejudice flowing to the applicant from the 'spillage' of this evidence from charges 1 and 2 to charge 5, this Court will not readily conclude that this resulted in a substantial miscarriage of justice.
133 At the conclusion of the evidence, the judge discussed with counsel the respective requirements of ss 11 and 12 of the Jury Directions Act 2015. His Honour specifically pointed out that, under s 12 of that Act, counsel were obliged to tell him which directions they wanted the jury to be given, or not given. Defence counsel then requested directions on prior inconsistent statements and the evidence given under s 38 of the Act_,_ and an unreliable witness warning. Counsel made no reference, however, to the gun evidence and made no request for an anti-propensity or other similar warning.
134 In the exchanges with the prosecutor which followed, however, there was specific discussion about the gun evidence. The judge put to the prosecutor, who agreed, that the jury could not use that evidence unless they were satisfied beyond reasonable doubt that the applicant was in possession of the gun and the ammunition. His Honour then returned to the question of the relevance of the gun evidence. The following exchange took place:
His Honour: It seemed to me to be relevant for two reasons, to support the propositions of the threat to shoot, it makes it more likely that someone with a gun would say those things ...
Prosecutor: Yes.
His Honour: ... and I don't know whether you go further and say that it's the sort of kit and caboodle of the drug dealer.
Prosecutor: I do, Your Honour.
His Honour: All right.
Prosecutor: I think, again, as put to [the applicant], that the possession of not only the gun and the ammunition but also the Blackberry phone are all the tools of the trade, if you like, so far as the offer of ...
His Honour: Five, drugs, gun and the Blackberry.
Prosecutor: Your Honour ...
His Honour: I'll hear - I'm not cutting you out on this...
Defence counsel: Yes, I understand that.
His Honour: I'll just hear what [the prosecutor's] putting and come back to you.
135 In the event, although the judge had specifically reserved to defence counsel the right to do so, he made no further submissions on the subject of the gun and ammunition.
136 Plainly enough, defence counsel was given every opportunity to make a submission that the gun evidence should be excluded under s 137 because of the danger of unfair prejudice. Similarly, counsel had every opportunity to seek an anti-propensity warning with respect to that evidence. Counsel was, of course, under a statutory obligation under s 12 of the Jury Directions Act 2015 to do so if it was considered necessary that such a warning be given.
137 In oral argument during the course of the appeal, senior counsel for the applicant acknowledged that no such direction had been sought. Evidently recognising the force of ss 12-15 of the Jury Directions Act 2015, counsel explained that there was - as a result - no ground of appeal complaining that the judge should have given an anti-propensity warning and, by implication, that he thereby felt constrained not to seek to argue the point.
138 It was submitted, nevertheless, that the evidence should have been excluded under s 137, and that this Court should so hold. The particular danger of unfair prejudice relied on was that the gun evidence would unfairly lead the jury to engage in impermissible reasoning that, because the applicant was in possession of a gun, he was a person with a criminal disposition. From that, it would be inferred that he had engaged, and/or was likely to engage, in criminal activity.
139 The question whether the evidence should have been excluded is, of course, quite separate from the question whether an anti-propensity direction could, or should, have been given. Nonetheless, appellate decisions on s 137 are consistent and clear in holding that the danger of unfair prejudice for the purposes of that section must be assessed, at least in part, by reference to the capacity of the judge, by giving directions, to reduce or eliminate any such prejudice.[42]
140 Thus, in Bray (a pseudonym) v The Queen,[43] the Court referred to the 'mechanisms available to ensure a fair trial,' including the capacity of the trial judge to give 'appropriate and strong directions to the jury'.[44] Recently, in R v Dickman,[45] the High Court endorsed the view of the trial judge - and of Whelan JA in this Court - that the warnings to be given to the jury on identification evidence would 'minimise any risk that the jury might give the evidence disproportionate weight'.[46]
141 As Gleeson CJ and Hayne J said in Dhanhoa v The Queen,[47] the Act applies 'in an adversarial context'.[48] Their Honours said '[i]t is the parties, and their counsel, who define the issues at trial [and] choose the evidence that they will lead, and to which they will take objection.'[49] In that case, the defence had sought no directions or warnings with respect to the identification evidence. As their Honours noted:
Counsel may have any one of a number of reasons for not objecting.[50]
142 In Cooper v The Queen,[51] Priest JA (with whom Harper JA agreed) concluded that the judge should have given a propensity warning. It was, however, fatal to the ground of appeal that no exception had been taken. His Honour said:
[Had counsel] imbued with the atmosphere of the trial ... thought that a propensity warning was needed to protect his client's interests, he would have taken a further exception.[52]
[C]ounsel may well have thought that a more elaborate direction might have drawn more attention to the subject than was desirable.[53]
143 Assuming for the moment that an anti-propensity direction might have reduced, or at least significantly ameliorated, any unfair prejudice, we can readily understand why defence counsel would have taken the view that as little as possible should be said about the gun and ammunition. That may explain why, in his closing address, he scarcely mentioned that evidence.
144 It must be understood that this Court will not lightly entertain arguments about unfair prejudice for the purposes of s 137 where the defence could have requested a direction or warning which would at least have ameliorated such prejudice, but chose not to do so. To proceed otherwise would be to subvert the clear intent of the Jury Directions Act 2015, which is to make unambiguously clear that the responsibility for seeking necessary directions rests with trial counsel.[54]
145 If, contrary to our primary conclusion, the jury should not have been permitted to use the gun evidence when considering charge 5, there was still, in our opinion, no substantial miscarriage of justice arising out of the conviction for that offence.
146 As we have previously stated, the only realistic chance that the applicant had of being acquitted on charge 5 lay in his being able to raise a doubt as to whether the words that he used had an altogether different meaning, at least so far as his own state of mind was concerned. That obviously depended on his evidence being capable of acceptance by the jury.
147 It is trite that the rejection by a jury of an exculpatory account given by an accused is not ordinarily capable of being regarded as positive evidence of guilt. A case such as the present is different in certain key respects. In a practical sense, the applicant bore what Lord Denning once called a 'provisional burden', in the sense that as a matter of prudence, he really had to answer the case made against him. If he failed to do so, he might well, though not necessarily, find himself convicted.[55] Professor Cross described this as a tactical shifting of the burden of proof.[56]
148 Once the jury rejected the applicant as a credible witness, which they certainly did in this case, there really was no viable defence to charge 5. In fact, it may be doubted that the gun evidence played any significant role at all in the jury's determination that the applicant's words of offer were genuine.
149 Of course, to speak of a tactical shifting of the burden of proof is not, in any way, to diminish the overall and ultimate burden that rested on the prosecution of proving beyond reasonable doubt that the offer was, indeed, genuine. In that regard, the prosecution had to exclude all reasonable hypotheses consistent with innocence.
150 In assessing whether there may have been a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009, regard must be had to Baini v The Queen.[57] Baini establishes that a miscarriage of justice may occur where this Court cannot be satisfied that an error or irregularity in the trial, assuming that such error or irregularity is established, did not make a difference to the outcome of the trial.[58]
151 If this Court determines that a finding of guilt was, in a relevant sense, inevitable notwithstanding the error or defect in the trial, that may lead to the conclusion that no substantial miscarriage of justice occurred. The essential enquiry is whether the guilty verdict was, from a practical point of view, inevitable. If the jury, acting reasonably, may have entertained a doubt as to guilt, the guilty verdict cannot be said to have been inevitable.
152 Having reviewed for ourselves the entire body of evidence in the trial, and having taken into account the course taken by defence counsel below, we are satisfied that the admission of the gun evidence in support of charge 5 did not constitute or result in a substantial miscarriage of justice.
153 We have carefully studied the transcript of the applicant's evidence. He was, in our view, a witness whose evidence simply could not be accepted. It was lacking in credibility. We can well understand why the jury arrived at that conclusion.
154 The clear rejection by the jury of the applicant's contrived and spurious account of how and why he came to offer to sell a kilo of ice to Witness A clearly put an end to any realistic defence to that charge. In that sense, the conviction on the charge of trafficking was inevitable.
155 Although we have earlier provided a brief summary of the facts in this case, it is necessary to set out in some detail why we say the conviction on charge 5 was inevitable. That requires a more complete summary of both the applicant's evidence in chief and under cross-examination.
156 The applicant began by saying that he had known Witness A for many years. They had grown up living near one another. He agreed that he also knew Toby Mitchell, who used to frequent a café that was owned by the applicant's family.
157 The applicant claimed that Witness A's evidence of having approached him in 2010 in order to supply him with a kilo of cocaine, which Witness A was to on-sell to Mitchell, was 'nonsense'. He claimed that although Witness A had indeed approached him for money at that time, it was to repay a debt that was owing, and not to purchase drugs.
158 According to the applicant, Witness A had told him that he owed some 'guys' from Sydney $150,000. The applicant was a heavy gambler at the time. He said that he had plenty of money. He claimed that Witness A had proposed to him that if he loaned Witness A $50,000, he would be repaid twice that in 12 months.
159 The applicant said that he agreed to that proposal. He claimed that he handed over a brown paper bag containing $50,000 in cash. However, Witness A subsequently went back on the deal, prevaricated when pressed for payment, and thereby evaded repayment of the debt.
160 The applicant was then asked about Witness A's evidence concerning charge 1. It will be recalled that Witness A claimed that on 13 July 2014, the applicant had threatened to 'shoot up' his family's property. The applicant denied having made any such threat.
161 The applicant did not, however, deny Witness A's account of his having demanded $100,000. He claimed that this was regarding repayment of the original $50,000 cash loan, and had nothing whatever to do with any sale of cocaine.
162 The applicant repeatedly insisted that he had tried unsuccessfully, over a lengthy period of time, to turn the matter of the loan over to his lawyers. He did not deny Witness A's reference to $10,000 being payable by way of GST. However, he said that this was purely a mechanism to enable him to recover the original sum loaned. He claimed that the GST had become an issue because 'we were going to do an invoice because [Witness A] said his wife wouldn't come to the lawyers'.
163 The applicant said that because neither Witness A nor his wife were prepared to cooperate, it was decided that a fake invoice should be created, signifying work ostensibly done on Witness A's house. According to the applicant, the true figure for that work was somewhere around $4,000 to $4,500. For the purpose of the invoice, however, the price was inflated to $110,000. The applicant said that he organised the landscaping to take place, and he regarded Witness A as responsible for the payment of the bill. However, Witness A did not pay any part of that amount.
164 As regards charge 2, the threat said to have been made on 11 September 2014, the applicant insisted that he never sought to extort money from Witness A. He denied having threatened to 'shoot' Witness A, or any member of his family.
165 The applicant agreed that he was upset when he went to visit Witness A on that day. He claimed that the visit had nothing to do with the $100,000 that he was owed, but instead related solely to the relatively small sum owing to the landscaper.
166 He said that he had challenged Witness A about not having paid that sum. He acknowledged that he had grabbed Witness A by the shirt, and said that Witness A had, in turn, grabbed him. They had 'a bit of a wrestle' out the front of Witness A's house. The whole episode occupied only a minute or so. He denied having punched Witness A to the jaw, or having inflicted any blow of that kind to him.
167 According to the applicant, B then became involved. When he told her that Witness A had not paid the landscaper, she 'freaked out'. She supposedly said, 'that's it, I'm divorcing him'.
168 The applicant denied having been responsible for damaging Witness A's house and car. He said that B had asked him whether he was 'behind it' and he had told her that he was not.
169 As regards charge 5, the applicant agreed that at their meeting on 19 February 2015, Witness A had handed over $25,000 in cash, which the applicant had put in his car.[59] Moreover, Witness A had promised to pay him an additional $25,000 to $30,000, a week or so later.
170 The applicant claimed that moments before the recorded conversation with Witness A took place, he had said to J, who was there at the time, that he believed Witness A was 'up to no good'. He claimed that he had told J that he was 'going to have a go at him', to 'suss him out', and 'to see if he was up to his old tricks selling drugs again'.
171 The applicant was then asked about the recorded conversation. He agreed that it was his voice on the tape. He also agreed that the transcript was accurate. When asked about his use of the term 'dyno' (which, he agreed, was short for 'dynamite', meaning high quality drugs), he said that he had just been 'talking'. He claimed that he was trying to convince Witness A that he had a large quantity of ice available for sale. By implication, the applicant was suggesting that this was to persuade Witness A to bring along more money when they next met.
172 The applicant denied having made a serious offer to sell drugs. He added that he was 'upset' at the time, and that he had simply said whatever first came into his mind.
173 When asked about the recorded telephone conversation between himself and Witness A on 26 February 2015 (charge 6), the applicant maintained, entirely improbably, that his reference to B's brother, and the 'message' that he would get 'very shortly' in prison, did not amount to a threat to kill or inflict injury upon him.
174 The applicant was then asked about the Vespa, and its contents. He was asked how long, before March 2015 it had been parked in the basement of his building. He said that it might have been there for up to 12 months.
175 When asked about the gun and ammunition, the applicant claimed to know nothing about them. He said that the only reason he had the keys to the Vespa in his possession was because his brother-in-law, Delic, had given them to him so that he could shift it, if it became necessary to do so. He added that the Vespa was parked illegally. He agreed that he had the two keys to the Vespa for a period of at least some months.
176 We interpolate to say that the applicant called as a witness a friend, Yiannis Andos. This was in order for Andos to say that it was he, and not the applicant, who had purchased the Vespa.
177 According to the applicant, he had merely loaned Andos some of the purchase price. Andos claimed to have repaid that money shortly after the Vespa had been purchased.
178 Tellingly, however, a document prepared by the sales person who sold the Vespa contained the notation, 'Bike for Rocco'. In addition, Andos, in whose name the Vespa was first registered, had never been licenced to ride a motorcycle. Nor, according to an agreed statement of facts, was Jadran Delic, the 20-year-old younger brother of the applicant's wife, and the second registered owner. The applicant, on the other hand, did hold such a licence.
179 In addition, there were a number of covertly recorded telephone conversations tendered which involved the applicant and others, in the course in which he not only referred to the Vespa as his scooter, but also spoke of having ridden it.
180 The prosecution contended that it should be inferred that Andos and Delic were simply agents of the applicant, and that they had allowed the Vespa to be registered in their names for ulterior reasons. That inference was said to be supported by their seeming lack of any involvement with the Vespa.
181 Andos gave evidence to the effect that he had ridden the scooter. However, it must be said, that his evidence on that subject was not only vague, but utterly implausible. He acknowledged that when the Vespa was purchased in 2009 or 2010, he had been using ice heavily. He had been, and continued to be, on a disability pension. He claimed to have bought the Vespa from a Peter Stevens store for $10,500. He said that the applicant had lent him about half of the purchase price. He claimed that the applicant had been present with him when he bought the scooter.
182 When pressed, Andos could not recall the model, or engine size of the Vespa, or indeed anything else significant about it. He could not recall the precise amount that the applicant had contributed towards the purchase price. He said that the money used to buy the Vespa had been a loan from the applicant. He claimed that he had repaid that money within several weeks. He said that he had obtained that money by playing a 'box trifecta at the horses'.
183 Andos said that he had loaned the Vespa to the applicant for a 'while', but could provide no further particulars. He said that in the two years or so that he had owned the Vespa, he rode it five or 10 times. He claimed that on one occasion, he had ridden it from Melbourne to Port Arlington.
184 Andos said that he had sold the Vespa to the applicant's brother-in-law, Delic, after one or two years. He had needed money to buy ice. He said that the applicant had arranged the sale, and that it had been for cash.
185 In addition to Andos' evidence, it was clear from the purchase and registration documents found in the applicant's bedroom that in 2012 it was the applicant who had paid the registration fee for the Vespa.
186 The applicant also relied upon the fact that his DNA was not found on the gun. On the other hand, tests revealed that Delic could not be excluded as a contributor. The prosecution submitted that this was of no consequence. It would have been relatively easy for the applicant to have worn gloves when he handled that particular weapon. We note that Delic was not called to give evidence.
187 In summary, the jury in the first trial were well entitled to conclude that the Vespa, the gun and ammunition, belonged to the applicant, and had been in his possession for a considerable amount of time before any of the offences alleged had been committed.
188 Under cross-examination, the applicant was first asked whether he was aware, at the time of the recorded conversation, that Witness A was a drug dealer. He replied, 'not that I knew, but in recent times, I knew that he had been up to no good'. He linked that observation to Witness A's brother-in-law's arrest on drug related charges.
189 When asked about the events of 2010, the applicant insisted that Witness A had approached him, quite out of the blue, and simply informed him that he owed $150,000 to some people from Sydney who had just 'bashed' him. According to the applicant, he agreed to lend Witness A $50,000 in cash, despite acknowledging that Witness A had not been a particularly close friend at the time. He explained that he had seen that Witness A had been bashed, and wanted to help him out. The applicant then volunteered, 'it's not that $50,000 was a big deal. I used to gamble $100,000 in one day'.
190 It was suggested to the applicant that he had dealt in drugs in the past, and had continued to do so throughout the period between 2011 and 2014. The applicant rejected that suggestion.
191 The applicant was asked why he apparently spoke in code throughout a number of phone conversations that had been intercepted by police. He replied, somewhat peculiarly, that they never 'talked business' over the phone as they 'never had any business deals together'.
192 The applicant was also asked why, when he was arrested, he had a Blackberry mobile telephone in his satchel. He replied that the phone did not belong to him. He claimed that a worker had left it at a building site and that he was merely looking after it so that he could return it the following day. When asked to name the worker, he proffered a name. He was asked whether that person was going to be a witness in the trial. He replied that he did not know.
193 The applicant was then asked about Blackberry phones having locked codes. It was put to him that calls could not be analysed or examined by police. He said that he had never used a Blackberry.
194 The applicant was asked why, in discussions with J over the phone, he continually referred to the money that Witness A owed, as J's money. He agreed that this was not correct, and that the money was in fact owed to him. He said that he had used that terminology because the false invoice was prepared in order to make the money appear to be J's.
195 The applicant insisted that he had always wanted both Witness A, and his wife, to join him in consulting a lawyer in order to resolve their difficulties. He claimed, however, that they were unwilling to do so.
196 The applicant further insisted that he had always expected to be repaid, but was concerned that the loan may not be enforceable. There was no documentary proof of any cash having been given to Witness A, and he was therefore helpless in terms of recovering that sum. He agreed, however, that Pastras had been a witness to the original loan transaction, and could have given evidence about it. He claimed that it had never occurred to him to obtain a statement from Pastras confirming that the loan had been made.
197 The applicant was questioned about Witness A's claim that he had made several trips to Perth, transporting drugs on behalf of the applicant. Witness A had claimed that by assisting the applicant in that way, he had worked off some $200,000 of the remaining $250,000 that he owed for the cocaine, arising out of the Toby Mitchell rip-off.
198 The applicant was confronted with Qantas records showing that Witness A had indeed made several such trips from Perth to Melbourne in 2011. The applicant appeared also to have flown to Perth on at least two of those occasions, at around the same time as Witness A had. He insisted that this was sheer coincidence, and had nothing to do with Witness A's activities.
199 Of course, the prosecutor suggested to the applicant that his flight movements happened to accord with Witness A's account of having taken drugs to Perth on the applicant's behalf, and the applicant shortly thereafter flying to Perth in order to collect payment for those drugs.
200 It was put to the applicant that the Pastras brothers, Michael and Savas, who were both longstanding associates of his had, for some time, been engaged in trafficking drugs. He denied any knowledge of this.
201 The applicant also denied having been involved in causing the damage to Witness A's property. He was asked why he had told B that both she and her children were going to be safe. In a peculiar response, he said, 'from me, they were'.
202 When it was put to the applicant that, on 13 July 2014, he had threatened to 'shoot up' Witness A and B's house, his response was that, by that stage, Witness A had agreed to pay him the money that was owing. Accordingly, the applicant said, there was no need for him to threaten to 'shoot' at anything.
203 The applicant agreed that, over time, he became increasingly angry with Witness A. By 19 February 2015, their relationship had deteriorated to the point where the applicant, in his own terms, had been 'driven mad'.
204 When asked about the recorded conversation, the applicant agreed that he had said, at one point, 'that's why I attacked you'. He explained that this referred to his having grabbed Witness A by the shirt, and had nothing to do with any blow supposedly struck to the jaw.
205 When asked why he had a physical altercation with Witness A, the applicant said that it was because of the unpaid debt owing to the landscaper, and because Witness A would not answer his calls. The applicant said he had done Witness A a favour by arranging for the landscaper to work on his property, and Witness A had done the wrong thing by not paying him for that work. The applicant insisted that it was the $4,000 or so owing to the landscaper that had 'pushed him over the edge'. He denied that his anger stemmed from the far larger amount that Witness A owed him.
206 The applicant acknowledged that the 'scuffle' with Witness A could not have caused the injury to Witness A's face that could clearly be seen in a close-up photograph that was tendered. He also agreed that he had said, in the recorded conversation, that at the time of the so-called scuffle, he had 'lost the plot'.
207 The applicant was then questioned about his decision to 'suss' out Witness A, and see 'what he was up to'. His answer largely accorded with the evidence given by J. That was, that he did not trust Witness A and, prompted by the sudden and unexpected production of $25,000 cash, wanted to know whether Witness A had returned to his old, drug dealing ways.
208 According to the applicant, when he offered to sell ice to Witness A, he was trying to sound 'fair dinkum'. In other words, his aim was to convince Witness A that he was in a position to provide large quantities of that drug. He said that he had simply made up the figure of $145,000 for a kilo. He did that 'just to see' what Witness A's position was. He acknowledged that this was 'quite probably a stupid thing to do', but added that he had just been 'curious'.
209 There was then extensive cross-examination concerning the Vespa and its contents. The applicant agreed that, by March 2015, he had been living at the Eureka Apartments for about 18 months. He acknowledged that the Vespa could have been there for anything up to 12 months.
210 The applicant further agreed that, in a number of recorded phone conversations, he had spoken of the Vespa as his own. He claimed to have described it as 'my Vespa', simply because it was parked near his own car space. He agreed that he had a motorcycle licence, and also that he had ridden the Vespa in the past.
211 The applicant also agreed that on 24 September 2012, as the documents showed, he had paid the registration on the scooter. He said that he might have paid it on behalf of his brother-in-law, Delic, though he could not specifically remember having done so.
212 The prosecutor suggested to the applicant that the Vespa was a convenient location for him to stash his gun and ammunition. It was put to him that because he was a drug dealer, he needed to be able to protect himself, and to be in a position to enforce his debts. He rejected these suggestions.
213 Anyone reading the transcript of the applicant's evidence, and in particular his answers to questions put to him in cross-examination, would not be at all surprised to learn that the jury had rejected his entire 'sussing out' story. The applicant himself acknowledged that what he had claimed to have done was a 'stupid thing to do'. In fact, it was worse than that. From the applicant's own perspective, it simply made no sense.
214 In addition, there was a body of objective evidence that not only supported Witness A's account, but also showed just how improbable the applicant's explanation for what he said during the course of the recorded conversation, happened to be. In no particular order, these included:
215 In light of all this evidence, it is inconceivable that the applicant's account of having sought to 'test' Witness A, by making a 'non-genuine' offer to sell him a large quantity of drugs, could ever have raised a reasonable doubt as to his guilt on the charge of trafficking. The applicant alone knew what was in his mind when he said what he did to Witness A regarding the sale of ice. He alone could put a different gloss upon the words that were used, failing which the jury would inevitably have concluded that the offer was genuine.[60]
216 There is another point to be made. This links back to the question of 'unfair prejudice' as regards the admissibility of the gun evidence with regard to charge 5. As already noted defence counsel at trial did not seek severance of this charge. That meant that once the gun evidence was admitted in support of charges 1 and 2, the jury were always going to be aware of the fact that the applicant had available to him a semi-automatic hand gun and ammunition. Any damage that may have been done to the applicant by that evidence had already been done by that stage. No additional prejudice of any significant kind flowed from the admission of this evidence in relation to the charge of trafficking.
217 For the reasons set out above, this evidence would have had only the most marginal effect upon the jury's deliberations as to the genuineness, or otherwise, of the applicant's offer to sell ice to Witness A.
218 Even if one could make a reasonable case for a direction to have been given to the effect that this evidence should not be used in support of charge 5 (and even if one were to overlook counsel's failure to seek such a direction), the overwhelming nature of the case against the applicant meant that there was no substantial miscarriage of justice. The conviction on that charge was, indeed, inevitable.
219 For these reasons, we would refuse leave to appeal against conviction.
220 Following an 18 day trial in the County Court in October and November 2016 ('the first trial'), on 10 November 2016 a jury found the applicant guilty of three charges of extortion[61] (charges 1, 2 and 6);[62] one charge of intentionally causing injury[63] (charge 3);[64] and one charge of trafficking a drug of dependence (methylamphetamine) in not less than a large commercial quantity[65] (charge 5).
221 Later, on 16 February 2017, following a four day trial ('the second trial'), a jury in the County Court found the applicant guilty of one charge of being a prohibited person in possession of a firearm[66] (charge 1), and one charge of possessing a drug of dependence[67] (charge 3). The jury acquitted the applicant of a further charge of trafficking a drug of dependence (charge 2).
222 A plea in mitigation with respect to the convictions in both trials took place on 1 March 2017; and, on 3 March 2017, the trial judge imposed a total effective sentence of 14 years' imprisonment on the applicant, with a non-parole period of 10 years.
223 The applicant sought leave to appeal against his conviction in the first trial,[68] and against the sentence imposed upon him with respect to the convictions at both trials. These reasons are concerned only with the application concerning conviction, the application for leave to appeal against sentence being the subject of separate reasons.[69]
224 As to conviction, the applicant relies on two grounds of appeal:[70]
225 For the reasons that follow, I would refuse leave to appeal against conviction on ground 3. I would, however, grant the application for leave to appeal against conviction on ground 2; allow the appeal; set aside the convictions in the first trial; and order that there be a new trial. Maxwell ACJ and Weinberg JA jointly do not, however, agree with my ultimate conclusion as to conviction.
226 Had my views concerning the applicant's conviction coincided with those of another member of the Court, there would, of course, have been no occasion to consider the application for leave to appeal against sentence (save that the Court would have needed to revisit the sentences imposed on the two convictions returned on the second trial, if, for no other reason, to fix a new non-parole period).[71] Given that my ultimate conclusion with respect to conviction represents the minority view, however, of necessity I have had to consider the sentence application on the assumption that the convictions returned at the applicant's first trial have been left standing. As the separate judgments with respect to sentence makes clear, upon that assumption I have joined with Weinberg JA.
Factual background pertinent to the first trial
227 It is necessary to set out the facts as revealed by the evidence in the first trial.
228 'Witness A' gave evidence that in December 2010 he asked the applicant to supply him with one kilogram of cocaine. The price was $350,000. Witness A wanted to obtain the cocaine so that he could on-sell it to another individual, Toby Mitchell, for the sum of $375,000. His intention was to repay the applicant after he received payment from Mitchell - although it seems that he did not tell the applicant that he was dealing with Mitchell - and thereby make a profit of $25,000.
229 On 26 December 2010, Mitchell received the cocaine from Witness A but did not pay for it. The following day, Witness A and an associate, Michael Pastras, met with Mitchell and his associates at an oval in Brunswick, seeking payment. There was a fight during which shots were fired, but Witness A and Pastras were unable to recover any of the money owing for the cocaine.
230 Witness A later told the applicant that Mitchell had robbed him. In order to 'square' with him, the applicant gave Witness A the choice of either paying him the $350,000 or killing Mitchell. Witness A opted to pay the $350,000. So as to do so, he borrowed $100,000 from his brother, and expiated another $200,000 of the debt by undertaking other drug trafficking activities - including three deliveries of 'ice' to Perth - for the applicant. The applicant told Witness A he would forego the amount of $50,000 outstanding.
231 As it happened, in late November 2011, Toby Mitchell was shot outside Doherty's Gymnasium in Brunswick. The applicant asked Witness A if he was responsible. Witness A told the applicant that he was. That was a lie.
232 The applicant apparently discovered that Witness A had lied to him. In March 2013, he confronted Witness A, and told him that, because he had lied, Witness A was required to pay the $50,000 that the applicant had forgiven. Witness A, the applicant said, was 'dead to him'.
233 Not long afterwards, in mid-2013, Witness A moved to an address in Brunswick. After he moved in, a number of unsettling things occurred. Thus, both Witness A's wife's car, and the letterbox of the house, were painted with the words 'pay your bills'. Witness A confronted the applicant about what had happened. The applicant told him that the debt would not go away.
234 Sometime later, at 3.26 am on 14 April 2014, a rock and pot plant were thrown through Witness A's house window and his house was set on fire. CCTV footage captured two men carrying out the attack. Subsequently, Witness A's father's car was vandalised. After the fire at the house, and again after his father's car was damaged, Witness A made statements to the police.
235 Shortly after that, Witness A had a meeting with the applicant and another, Savas Pastras. Witness A was told that the debt had increased to $100,000, and that, unless that sum was paid, Witness A's father's house would be blown up. Thereafter, in the second half of 2014, the applicant made a number of threats and demands to Witness A. Significantly, on 13 July 2014, the applicant told Witness A that unless he paid the $100,000 plus $10,000 GST, he would 'shoot up' his mother's and brother's houses' (charge 1 - extortion).
236 With the idea of turning Witness A's drug debt into an ostensibly legally enforceable debt, the applicant said he would arrange for Witness A to sign a contract which would state that the money was owed to an associate of his (J), who would then lodge a caveat over Witness A's house property in order to collect $110,000 from the proceeds of sale. The applicant told Witness A to use an estate agent ('Z') for the sale of the house.
237 In anticipation of the auction of the house - which was to occur on 13 September 2014 - on 11 September 2014, the applicant went to Witness A's house. Witness A answered the front door. Witness A's evidence was that, when he answered the door, the applicant told him that he wanted Witness A and his wife to sign the contract to acknowledge a debt to J, and that he would shoot them if they did not sign (charge 2 - extortion). Witness A told the applicant to 'fuck off'. The applicant then hit Witness A hard to the chin with his fist, causing Witness A to suffer a minor injury and soreness to his jaw (charge 3 - intentionally causing injury). Witness A and the applicant fought until Witness A's wife came to the door. Both Witness A and his wife then signed the spurious agreement between them and J.
238 On 19 February 2015, the applicant met Witness A at a real estate agent's office in Brunswick to discuss the debt. Witness A wore a secret recording device and carried $25,000 in cash, provided by police. He gave the applicant the cash in purported part payment of the debt. The conversation then turned to drugs, and the applicant claimed to have already 'recruited' one of Witness A's associates. He asked Witness A whether he was 'in or out'. The import of Witness A's evidence at trial was that the applicant offered to sell Witness A 'ice' (methylamphetamine) for $145,000 a kilogram, assuring Witness A that the quality was good (charge 5 - trafficking in a large commercial quantity of a drug of dependence).
239 I pause to note that, in his evidence at trial, the applicant admitted the conversation concerning drugs. He claimed, however, that he was not seriously offering to sell drugs, but was testing Witness A out. Thus the issue for the jury on charge 5 was whether the applicant had made a genuine offer to sell drugs to Witness A. Upon the assumption that the jury acted properly - it will be remembered that ground 3 of the conviction application contends in effect that the verdict is unsafe and unsatisfactory - the jury's verdict on charge 5 means that the jury must have rejected the applicant's version, and must have been satisfied beyond reasonable doubt that the applicant was genuinely offering to sell Witness A a large commercial quantity of methylamphetamine.[72]
240 As it transpired, the scheme to sell Witness A's house collapsed because multiple creditors had lodged caveats against the property. The applicant then wanted Witness A to get a bank loan secured against the property, so that Witness A could pay the applicant the money he claimed to be owed. Since the property was in Witness A's wife's name, the applicant demanded that she arrange such a loan, but she failed to do so. On 26 February 2015, the applicant telephoned Witness A to discuss the loan. The call was recorded by police. During the call, the applicant was angry at Witness A's wife for not obtaining a bank loan over the property in order to pay the supposed debt. The applicant threatened to cause serious harm to Witness A's wife's brother, who was prison (charge 6 - extortion). He said:
... her brother will get a message very shortly. I know where he is and I've got friends of mine there with him ... We'll start with the brother first, okay? Then we'll work out the rest after, okay? ... I'm giving ya seven days ... you tell her to come and see me, because you're not gonna suffer. She will, believe me.
241 On 5 March 2015, the applicant was arrested by police in the car park of the Eureka Tower apartment block in Southbank. He was carrying a bag in which police found the key to a black Vespa GTV 300 motor scooter parked in the car park. Under the seat of the Vespa police located a Norinco NZ75 semi-automatic pistol, three boxes of ammunition[73] and a glass bottle of 1,4-Butanediol - a drug of dependence - in a traffickable quantity.[74] The prosecution's case was that the applicant was in possession of the pistol and ammunition (and the glass bottle containing drugs).
Refusal to exclude evidence of the finding of a firearm and cartridges in the Vespa
242 As I have just mentioned, in the course of executing a search warrant on
5 March 2015, police located a semi-automatic pistol and three boxes of ammunition under the seat of a Vespa motor scooter. Ground 2 of the conviction application claims that the trial judge erred in refusing to exclude 'evidence of the discovery of a firearm and cartridges in the boot of the Vespa motor cycle' - found close to the applicant's and his wife's car-parking spots - 'upon the execution of the search warrant on 5 March 2015'.
243 By way of background, the indictment initially filed against the applicant contained eight charges. Charges 1 to 6 reflected those upon which the applicant was ultimately tried in the first trial. Of the two further charges, charge 7 was a charge of being a prohibited person in possession of a firearm, and charge 8 was a charge of trafficking in a drug of dependence. Charges 7 and 8 respectively were based upon the applicant's alleged possession of the pistol, and of the traffickable quantity of drug found in the Vespa motor scooter.
244 Prior to a jury being empanelled, counsel for the applicant sought severance of charges 7 and 8.[75] Counsel also sought exclusion of any evidence concerning the applicant's possession of the pistol and ammunition, and the 1,4-Butanediol, on the trial of charges 1 to 6. Following an indication by the trial judge that charges 7 and 8 should be severed from the original indictment - I do not take his Honour to have formally ruled on the application for severance - the prosecution filed over two fresh indictments. The first of those fresh indictments contained charges 1 to 6, the subject of the first trial; and the applicant's alleged possession of the pistol and the drug discretely formed the basis of two of three charges contained in the second fresh indictment, the subject of the second trial.[76]
245 Notwithstanding the effective severance of the charge relating to the pistol for the purposes of the first trial, however, the prosecution indicated that it intended to lead the evidence of the applicant's alleged possession of the pistol and ammunition in support of its case with respect to two of the extortion charges (charges 1 and 2) and the drug trafficking charge (charge 5). Counsel for the applicant made an application for the evidence to be excluded. The judge refused the application. His Honour did not, however, deliver a formal ruling, instead merely remarking in the course of a somewhat fluid and discursive discussion with counsel that, so far as s 137 of the Act was concerned, he did not 'see any unfair prejudice'. As far as I can tell, there was no distinct articulation of the reasons (if any) which underpinned his inability to see any unfair prejudice.
246 Part of the relevant discussion was as follows:[77]
HIS HONOUR: There is an issue in the trial as to whether [the applicant] owned the vehicle and when he possessed the pistol. The only - I'm sympathetic to the proposition that the charges, that in themselves are difficult to prosecute jointly, that is [charges] seven and eight, with the rest, because to prove that he was a prohibited person would be to put effectively such bad character evidence before the jury that it would prejudice his case.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I don't take the prosecutor to argue with that.
[DEFENCE COUNSEL]: He doesn't seem to.
HIS HONOUR: No, and as to the drug, it's such a small amount that if there is to be a trial in relation to prohibited person possessing firearm, that would be conveniently dealt with at the same time. So for the order [sic.] for appropriate management of this trial, [charges] seven and eight should be severed. However, the only remaining issues is [sic.] what evidence from that search and investigation can be led, and that's what we're talking about.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: And the only thing that really is controversial is the finding of the pistol with the box of ammunition, and for the reasons that [the prosecutor] explained, I think that is relevant, your case is they're not mine away [scil., anyway?] and I didn't make the threats, and it's because that is the issue, the finding of the gun, if the Crown can put it in yes [scil., your?] client's possession, is of significance. If they contain [sic.] the jury will be told in no uncertain terms to ignore it.
[DEFENCE COUNSEL]: Yes, and I assume that Your Honour's in those comments has already looked at and considered s 137 [of the Act].
HIS HONOUR: 137 is the prejudice side of it.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: There is no prejudice if it's not yours. If it is yours the prejudice is perfectly appropriate if it is your pistol and the Crown can establish beyond reasonable doubt that you own that, that you were in possession of that pistol.
[DEFENCE COUNSEL]: Yes. There's one other ---
HIS HONOUR: It makes more likely and more credible the evidence of [Witness A], that you made the threats that he says you made.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: So that is the 137 - I don't see any unfair prejudice.
[DEFENCE COUNSEL]: Your Honour, the ---
HIS HONOUR: When you say it's not mine anyway and I'll demonstrate it's not mine.
247 Before proceeding, it needs to be said that the course followed by the judge in this case is not to be encouraged. One of the functions of a judge in a criminal trial is to rule on the admissibility of evidence, and to provide reasons therefor. It was unfortunate that the judge did not see fit to deliver a ruling - however brief - setting out the reasons for his inability to detect any unfair prejudice. Without the benefit of reasons, the parties, the public, the news media and this Court are all deprived of the opportunity of readily comprehending the considerations that the judge may have taken into account (or, for that matter, failed to take into account) in coming to the view that there was no unfair prejudice, and of subjecting the judge's analysis (if any) to proper scrutiny. Whilst I acknowledge that, if possible, rulings in criminal trials should be expressed with economy - and that most routine evidentiary rulings post-empanelment in the course of a trial will necessarily have to be brief - any evidentiary ruling delivered by a judge nonetheless must contain adequate analysis (some rulings, of course, particularly in areas such as tendency and coincidence evidence, requiring detailed analysis).[78] Without the benefit of an analytical ruling, during the hearing in this Court the parties and the Court alike were driven to the transcript in an endeavour to discern whether in the discussion between judge and counsel any reason (or reasons) justifying the non-exclusion of the impugned evidence was revealed. That is a highly unsatisfactory state of affairs. Legal practitioners are unable properly to carry out their functions, and this Court is unable properly to carry its functions, if trial judges do not properly carry out their functions.
248 I should add that counsel at both ends of the Bar table should have done more to ensure that adequate reasons were provided.[79] That said, it is sometimes difficult for counsel to bring themselves to press for reasons, particularly when the judge's manner is abrupt. Nonetheless, counsel should politely - but firmly - have insisted that the judge provide adequate reasons.[80] In the present case, however, I do not consider that the failure of defence counsel to do so can have any impact on the outcome of the present application.
249 Returning to the main issue, the following may perhaps be gleaned from the discussion between trial judge and counsel set out above:
• first, charges 7 and 8 should be severed for the 'appropriate management' of the trial;
• secondly, the judge thought it appropriate to sever charge 7, being a prohibited person in possession of a firearm, because to prove that the applicant was 'a prohibited person would be to put effectively such bad character evidence before the jury that it would prejudice his case';[81]
• thirdly, the judge was of the view that there was no prejudice to the applicant if the prosecution could prove that the applicant possessed the pistol;
• fourthly, the judge was of the view that the evidence made 'more credible' Witness A's evidence that the applicant made the threats alleged; and
• fifthly, the judge did not 'see any unfair prejudice' (although, at the risk of repetition, he gave no reasons for the inability to see any unfair prejudice).
250 As I have mentioned, two of the extortion charges (charges 1 and 2) involved threats to shoot Witness A or others connected to him. On those charges, the prosecution relied upon the applicant's possession of the pistol (and ammunition) in order to support Witness A's evidence that the applicant had indeed threatened to shoot him and others, given that he allegedly had the capacity to do so. On the drug trafficking charge (charge 5), the prosecution submitted that the applicant's possession of the pistol supported the conclusion that he was an active drug trafficker. The prosecutor contended that the pistol was in effect a 'tool of the trade', as was a Blackberry telephone found in his possession. That evidence was important, it was submitted, since, apart from Witness A's evidence, there was no evidence that the applicant was in the business of dealing drugs.
251 The manner in which the prosecutor sought to use the impugned evidence in support of the extortion charges, charges 1 and 2, may be discerned from his final address. When dealing with the question of whether Witness A's evidence was supported by any other evidence, the prosecutor said:
Again, I say that [Witness A], as to these charges evidence [scil., charges'?], is supported by other evidence. Firstly, Charges 1 and 2, that is, threats to shoot up houses in Charge 1 and threats to shoot Mr and Mrs [Witness A] in Charge 2, intending that they be fearing that it be carried out, or [Witness A] would be, are backed up because Mr Arico's alleged threats to shoot are, in fact, backed up by the fact that, as I'll argue in more detail later, he actually has a gun, a handgun and ammunition.
Now this, of course and you'll understand and I'll detail it in more submissions later on, is about the Vespa in Mr Arico's apartment car park, which I'll have to convince you about in due course, but the way it's put is that when I address you about that, the possession, as the prosecution submits to you, of the Vespa and therefore what's in it, the handgun and ammunition in particular, supports the evidence of [Witness A] about Mr Arico threatening to shoot houses and people respectively, because Mr Arico has an actual capacity to do so. In other words, he has a handgun and ammunition. So that, as I say, is evidence to support [Witness A] in terms of Charges 1 and 2.
252 And when addressing the question whether the applicant's offer to sell on charge 5 was a 'genuine' offer, the prosecutor put the following argument to the jury:
The prosecution submits to you that it's a genuine offer, not only because of [Witness A's] evidence and this analysis of the actual tape, but also because there is other evidence to show that Mr Arico is genuinely, at the time in question, a genuine drug dealer, and in particular, as put to him, he had the tools of the trade and by this, I'm referring - and I'll come to it very shortly - the gun, the handgun and ammunition that's in the Vespa in the apartment carpark. ...
The [Blackberry-type phone is] ideal for this line of work and again, as put to Mr Arico, so is - as a necessary part of that line of work - a handgun and ammunition. It's a genuine offer. The evidence supports [Witness A's] evidence, not only of the particular charge, but also the previous relationship and in particular, the illegal drug debt that started all this back when things went wrong ...
253 Senior counsel who signed the applicant's written case - different senior counsel appeared in this Court - submitted that the evidence of the possession of the pistol and ammunition 'was relevant, but in the context of this trial ... its probative value of any fact in issue was slight'. Upon the hearing, however, senior counsel for the applicant withdrew the concession of relevance with respect to charge 5 (and he also sought to emphasise that the evidence was wholly irrelevant on charges 3 and 6). Invoking s 137 of the Evidence Act 2008 ('the Act'), it was submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant.[82] Senior counsel principally submitted that, when regard is paid to the date of possession of the pistol and ammunition vis-à-vis the extortions and the trafficking, the evidence of possession had little probative value. Moreover, the risk of unfair prejudice - in particular, rank propensity reasoning - was significant, and outweighed any probative value that the evidence might possess.
254 Counsel for the respondent submitted, however, that the assessment of the danger of unfair prejudice must be made in light of the whole of the evidence before the jury. Where, as in the present case, the evidence before the jury was of the applicant making threats and being involved in drug dealings, 'there was no additional unfair prejudice by reason of the allegation that the applicant was in possession of the gun'. This was not, it was submitted, 'evidence of particularly offensive or distressing other activities', and there was 'no evidence that the applicant ever used the gun'. Counsel did, however, accept that the probative force of the evidence was reduced by the period intervening between the charged offences and the possession of the gun and ammunition.
255 Before turning to an analysis of the applicant's submissions, I note that in his charge to the jury, the judge directed the jury as to the relevance of the applicant's possession of the pistol and ammunition in the following way:
Again, the pistol and ammunition are only part of an inferential case because, the argument goes, if he had the pistol and ammunition, two things, one, it makes it more likely that he made a threat of the type of that [Witness A] said that: 'I'll shoot up the house or shoot you'. It is the sort of threat that someone with a gun would make is the argument. And, secondly, it is part of the tools of trade of a drug dealer when you combine it with other items that [the prosecutor] relied upon.
Now, that is the only relevance of the gun. There is no charge in relation to the gun. It is part of the circumstances which the Crown invite you to infer and conclude that [Witness A] is telling you the truth about what had occurred. ...
256 When considering the applicant's submissions in support of ground 2, it is useful to state some basic propositions. Thus, s 55(1) of the Act provides that 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. Section 56(1) provides that, save as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible; and s 56(2) provides that evidence that is not relevant is not admissible.
257 The Act does not define 'fact in issue', but it is clear that in a criminal trial facts in issue will be those that bear on the existence of the elements of the offence (or offences), behind which will be facts relevant to those facts in issue.[83] In the present case, the principal fact in issue on charges 1 and 2 was whether the alleged threats had been made. To be relevant and admissible, therefore, the impugned evidence needed to be capable of rationally affecting the assessment of the probability of whether the threats had occurred. On charge 5, trafficking by way of offer to sell, the principal fact in issue was whether the ostensible offer to sell drugs was a genuine offer. To be relevant and admissible, therefore, the evidence needed to be capable of rationally affecting the assessment of the probability of whether the offer to sell was genuine.
258 As I have said, the applicant's counsel conceded that the evidence of the possession of the pistol and ammunition was relevant to charges 1 and 2, but submitted that it was otherwise irrelevant. Moreover, relying on s 137 of the Act, he contended that any probative value that the evidence might have was outweighed by the danger of unfair prejudice to the applicant.
259 The Dictionary to the Act defines 'probative value' to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[84] Any assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.[85] Neither s 55 nor s 56 requires, however, that evidence be probative to a particular degree in order for it to be admissible. Hence, evidence that is of only some, even slight, probative value will prima facie be admissible.[86]
260 Turning first to charge 5, in my view the evidence of the applicant's possession of a pistol and ammunition was irrelevant to the issue of whether the alleged offer to sell ice was genuine. As I have indicated, the prosecution claimed that the gun and ammunition were 'tools of trade' of a drug trafficker, and that the inference that they were tools of trade was strengthened by the applicant's concurrent possession of a Blackberry mobile telephone (which, so it was submitted, is a kind of telephone favoured by drug traffickers because of the difficulty for law enforcement in penetrating the phone's security features).
261 Cases where an accused's possession of firearms (or other thing) has been held to be admissible generally share common features. Usually, the finding of a firearm (or thing) has been part of a circumstantial case, in which the possession of the firearm (or thing) has been but one piece of evidence tendered in support of other pieces of evidence in the prosecution's circumstantial case. (It will be remembered that the trial judge in the present case directed the jury that the possession of the firearm and ammunition was one of the circumstances from which the Crown invited the jury 'to infer and conclude' that Witness A was telling the truth.) Such evidence often has been held to be admissible, not because it can be established that the firearm (or thing) was actually used in the commission of a particular crime, but because it could have been so used.
262 On the other hand, evidence of the possession of a firearm has been held to be inadmissible in cases where the firearm (or thing) could not have been used in the commission of the charged offence. In circumstances where the firearm or thing could not have been used in the commission of the crime charged, the evidence is inadmissible as bearing on no more than mere criminal propensity.
263 Moreover, in cases involving the trafficking of illicit drugs, evidence of the possession of firearms generally has been held to be admissible where the firearms have been found in close proximity to drug paraphernalia, such that it can be inferred - from the combination of the possession of the firearm and other accoutrements - that the firearm is a 'tool of trade' of drug trafficking.
264 In one of the seminal cases concerning possession of the implements of crime, Thompson and Wran,[87] the appellants faced charges of breaking, entering and stealing, relating to two safes that had their doors blown off by the use of explosives. At trial, the principal issue was whether the safe-breakings were the appellants' work. The prosecution led evidence that the appellants had possession of implements for opening or breaking into safes. Significantly, those implements included some not appropriate for use in the commission of the crimes with which they were charged. So as to identify the appellants with the charged crimes, however, the prosecution proved that they had in their possession a collection of tools and implements, referred to as a 'kit', for the opening of safes either by blowing, by drilling or by picking the locks. The prosecution also led expert evidence about the way in which various parts of the 'kit' could be used to open a safe.
265 Barwick CJ and Menzies J (with whom McTiernan J agreed), did not think that 'evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime', it being 'sufficient if such tools might have been so used'.[88] Importantly, their Honours continued:[89]
In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition.
... we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, i.e., the propensity to steal from safes, and of the means to indulge that propensity. This conclusion is reinforced by the use made of the evidence by the learned trial judge, who referred to the proof of the possession of the 'kit' as a whole as 'evidence of tell-tale articles' and as 'evidence of suspicious articles or 'suspicious instruments'. In this way, what was admissible as evidence of identity, if it were admissible at all, was given a wider and an unjustifiable significance. Of course, evidence which is admissible because it is relevant does not become inadmissible because it also tends to prove the criminal propensity of a prisoner, although a judge should, in a proper case, in the exercise of his discretion, reject such evidence if its prejudicial effect is out of all proportion to its probative value. ...
267 Driscoll[91] concerned an accused person's possession of an array of firearms. The applicant was convicted of murder, the evidence being that the deceased had been shot twice in the head. There were no witnesses to the killing, but there was evidence from which it could be inferred that the fatal shots were fired from a .22 machine pistol recovered from the sea by an abalone diver, the pistol having previously been owned by the applicant. The applicant gave evidence that he had sold the machine pistol to another prior to the murder. Police searched the applicant's premises more than a year after the murder, and found a .32 Browning automatic pistol, a .303 rifle, a sawn-off shotgun, a .22 machine pistol and some ammunition. The machine pistol was very similar to that used to commit the murder. Police also found photographs of two alleged criminals. Investigators claimed that the applicant admitted that all the weapons were his, and made statements demonstrating some knowledge of the murder and the fact that it had been committed with a weapon similar to the .22 machine pistol found in his possession. None of this evidence was objected to.
268 Gibbs J - with whom the other members of the Court (Barwick CJ, Mason, Jacobs and Murphy JJ) relevantly agreed - held that the evidence of the finding of the .22 machine pistol, and the statements made by the applicant with respect to it, was admissible. Importantly, at the time the applicant made the statements attributed to him, he did not know that the police had recovered the alleged murder weapon. Thus, the applicant's insistence that the machine pistol found in his possession was not the weapon used in the murder might have been regarded as significant, since the jury might have inferred that the applicant knew what sort of weapon had been used in the murder and also that he believed that the weapon so used had been disposed of and was unlikely to be found.[92] Gibbs J held, however, that the finding of the other weapons in the applicant's possession was inadmissible:[93]
Those other weapons were not used in the crime charged and the fact that they had belonged to the applicant did not tend to show that he had committed the crime. The crucial issue in the case was one of identity: was the applicant the person who shot [the deceased]? No question of intention arose. The fact that the applicant had a number of weapons which were not used in the crime was not probative of the fact that he was the person who had committed the murder with which he was charged.
269 Festa[94] was also concerned with the finding of firearms_._ Festa, a female, was convicted, together with a male, Marc Renton, of two counts of armed robbery and associated offences, the charges relating to two bank robberies committed several weeks apart in the same area. Witnesses described the robbers, who wore disguises, as being a man and woman, the central issue in the trial being whether Festa and Renton were that man and woman. There was strong evidence that the male robber was Renton. According to the evidence, Festa associated with Renton during the period that the robberies were committed, and surveillance evidence showed her to be a frequent visitor to his unit. Festa had keys to Renton's apartment, and her fingerprints were found on various tools of crime found inside it. In Renton's apartment police located guns, various types of ammunition, a sledge hammer, an instruction manual for a radio scanner, a can of hair and wig sheen, two wig stands, instructions on the use of disguises and a bottle of spirit gum remover. Two of the guns - a .22 rifle with a distinctive curved magazine, and a shotgun - were similar to at least one of the weapons described as carried by the robbers during at least one of the robberies, but receipts demonstrated that two of the weapons found were purchased after the second robbery. Some of the ammunition was not capable of being fired by the weapons discovered in the police search, but was obviously referable to another firearm not located during the search.
270 The High Court (Gleeson CJ, Kirby and Callinan JJ; McHugh and Hayne JJ contra) held that the evidence of the finding of the firearms, which were similar to the weapons described as being used in the armed robberies, was relevant when viewed in conjunction with other evidence in the case, and was thus admissible. Kirby J (with whom Gleeson CJ agreed on this aspect)[95] held that the implements found in Renton's apartment were relevant not only to the 'criminal propensity' of the appellant and her co-accused, but they amounted to the 'tools of trade' of bank robbers apt for carrying out robberies 'linked by a particular and unusual modus operandi'. Thus, although the two weapons found in the premises purchased after the robberies - an assault rifle and shotgun - could not have been those used in the robberies, they were of the same character as the weapons carried by the offenders as described by witnesses.[96] Kirby J concluded:[97]
... In this case, the collection of items described was of the same character as those used in connection with the alleged offences. The items had to be viewed in relation to each other and to the crimes alleged in the indictment. So viewed, the evidence was specifically relevant. It was rightly admitted.
271 It is important to understand that the distinguishing feature of the finding of the firearms in Festa - particularly those that were not used in the robberies - is that they were part of a collection of the 'tools of trade', not just of armed robbers in general, but of armed robbers employing a particular modus operandi.
272 Debs[98] was a case mentioned by members of the Court in the course of oral argument. In that case, the applicant was convicted of the shooting murder of a young woman in 1997. She had been shot with a .357 Magnum solid lead
semi-wadcutter bullet with copper plating. Police searched the applicant's mother's house in July 2000. Police found a white plastic bucket buried underneath the house. The bucket contained several firearms, one of which was a .357 Magnum calibre Smith & Wesson revolver (that is, a gun of the kind used to kill the victim), said to be in near-new condition. Police also found a rifle and a number of other firearms at the bottom of a wall cavity at the house. Some four years later, in June 2004, a number of .357 Magnum calibre, Winchester-brand, solid lead, semi-wadcutter cartridges with copper-plated bullets - that is, the same kind of bullet as that found near the victim - were found buried in the garden of the applicant's mother's house. The evidence was that these bullets could be fired from the revolver found under the house.
273 The applicant's counsel at trial submitted that the evidence relating to the finding of the Smith & Wesson revolver and the ammunition at the applicant's mother's house was inadmissible. Counsel argued that it was evidence of mere propensity, since there was no evidence that the gun was the one that had fired the shot. There was also a temporal and geographical remoteness. Counsel further submitted that the prejudicial value of the evidence exceeded its probative value.
274 The Court (Vincent, Neave and Weinberg JJA) rejected the submission that the evidence of the finding of the Smith & Wesson revolver was inadmissible, observing that, 'Thompson and Wran and Theos[[99]] both support the view that the evidence, as to the finding of the Smith & Wesson revolver and the bullets, was admissible as evidence that the applicant might have had access to a weapon and to bullets of the same kind as those used in the murder of the victim'.[100] As to the finding of the other guns, the Court was of the view that the location of the guns in the bucket alongside the Smith & Wesson was admissible, but that the finding of the guns in the wall cavity was not. The Court said:[101]
Some of the photographs were taken to show the location of the Smith & Wesson revolver in the place where it was found, and thus to link the finding of the gun with the telephone call in which the applicant said that there was 'stuff' under his mother's house. That could only be done by showing the Smith & Wesson revolver in situ, along with the other guns in the bucket.
In Driscoll, Gibbs J referred to 'the principle of completeness',[102] which may permit evidence not otherwise admissible to be led if it is necessary to enable a jury to understand what has occurred.[103] In our opinion, the evidence of the finding of the guns in the bucket alongside the Smith & Wesson revolver was admissible, on that basis. The finding of the other guns in the bucket hidden under the house was 'inextricably intermingled' with the evidence of the finding of the Smith & Wesson revolver hidden under the house.[104]
However, the admission of evidence as to the finding of the guns in the wall cavity cannot be justified on a similar basis. The Crown did not need to lead evidence on this matter, or to tender photographs showing the guns in the wall cavity. As in Driscoll, 'the excision of [those] references would not have affected the sense of what remained or rendered it any the less intelligible',[105] even though the telephone conversation between the applicant and his daughter did refer to the guns in the wall cavity. Such evidence was inadmissible because, like the safe-breaking kit in Thompson and Wran, it was evidence as to propensity only, and had no other relevance or probative value. The situation cannot be equated with that in Festa, because other guns had no relevance to the murder of the victim.[106]
In the particular circumstances of this case, however, we do not consider that the admission of this evidence led to any miscarriage of justice. ...
275 In Blackwell,[107] the main issue was whether evidence of the finding of a pen pistol and a can of 'mace' were admissible against the appellant on a charge of possessing heroin for the purpose of sale. The appellant was found on the footpath outside his house with a ball of heroin, and bags of heroin, in his jeans pocket, together with a can of mace. Inside his house, police found a set of scales, a pen pistol capable of firing .22 calibre ammunition and a quantity of ammunition (capable of being fired in the pen pistol). Duggan J, with whom Prior and Debelle JJ agreed, observed:[108]
It is well known that drug dealers may become involved in situations which place their personal safety at risk. Accordingly it is not unknown for dealers to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs. ...
It is well accepted that if, in addition to being found in possession of drugs, a person is found also to have items commonly associated with drug dealing, then the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person's possession. ...
276 Edwards[109] was a case in this Court involving illicit drugs in which the admissibility of the finding of a pistol in the applicant's possession was in issue. At trial, the evidence was that the applicant drove up to a house in which illicit drugs were found. Police searched him. He was found to have a fully-loaded pistol - with the serial number drilled out - concealed beneath his clothing. He also had $70 cash in a wallet, and a further $2,950 in a pocket. In the vehicle driven by the applicant police found almost a kilogram of methylamphetamine in powder form, packaged in six small clear plastic bags, together with a box of .38 ammunition suitable for use in the secreted pistol. Eames AJA observed:[110]
... On the Crown case the accused was in possession of a very large quantity of drugs, and in the same box in which the drugs were found was a box of ammunition which fitted the gun. The trial judge was entitled to conclude that a gun might be properly considered by a jury as being an accoutrement of the crime of drug trafficking: see R v Sultana (1994) 74 A Crim R 27 at 28-9. In that case Gleeson CJ, with whom Handley JA agreed, considered a very similar situation, where a large quantity of money, a replica pistol and pen pistol, a mobile phone, plastic bags and other items were found by police. Gleeson CJ held that none of the items standing alone demonstrated drug trafficking, but that they were admissible because when taken together the items could be regarded by the jury as supporting the inference that the accused person was a dealer in drugs, as alleged. His Honour noted that common sense indicated that supplying drugs was a dangerous trade and that possession of firearms might be thought by a jury to be appropriate to the business of a street dealer in heroin. But as his Honour noted:
That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug dealer as distinct from a person in some other line of dangerous work.
It was the combined effect of the items which mattered, his Honour held. In my opinion the gun would no less be an item which 'might' be used for the purpose of carrying out the crime of drug trafficking than would plastic bags and scales: see R v Edwards (1993) 67 A Crim R. 539, at 542, a decision of the Court of Criminal Appeal dealing not with the present applicant but with a person with the same surname, and which held that such items had been properly admitted.
277 Sultana,[111] cited in Edwards, involved a charge of supplying heroin. One of the grounds of appeal challenged the admissibility on that charge of evidence of police finding eight items in the applicant's residence and car, being: first, a packet of Glucodin; second, plastic bags; third, two large quantities of money and a third amount of $500 found in separate locations; fourth, a coffee grinder; fifth, a replica revolver; sixth, a pen pistol; seventh, an (allegedly) opened penknife found in the appellant's car; and eighth, a mobile phone found in the car. The prosecution relied on the finding of these items to show that the appellant was in the business of dealing in drugs. Gleeson CJ (with whom Handley JA agreed) observed:[112]
In considering the significance of this evidence, the jury were, of course, not bound to consider the significance of each item standing on its own. The coffee grinder (item 4) was said to have a residue of white powder in it. A police witness gave evidence that Glucodin is used to 'cut' heroin, and that resealable plastic bags of the kind in question are regularly used by heroin dealers. A bag of the same kind contained the heroin the subject of the charge. The police officer also gave evidence of the market price of heroin in various quantities. Each of the items in question was perfectly capable of being used for an innocent purpose, but that does not determine the issue.
Evidence of this kind is frequently received on the basis that the Crown is entitled, in a case such as the present, to show that the accused was possessed of the implements or accoutrements of trade of a drug dealer. This, no doubt, is why there was no objection to most of the items, including the large sum of cash. ...
Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character: cf Harriman [1989] HCA 50; (1989) 167 CLR 590; 43 A Crim R 221; Thompson and Wran [1968] HCA 21; (1968) 117 CLR 313 at 316-317. If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence that, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor's scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter. Moreover, subject to discretionary considerations to be mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible.
278 Gleeson CJ then turned to consider the admissibility of the appellant's possession of the replica revolver and pen pistol. He observed:[113]
Common sense indicates that supplying heroin on the street, as the appellant is alleged to have done, is a dangerous activity. A jury would be entitled to reason that possessing firearms, or imitation firearms, would be appropriate to the business of a street heroin dealer, and in considering whether the appellant was in that line of business, it was logically open to them to take into account the appellant's possession of such firearms. That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug dealer as distinct from a person in some other line of dangerous work. None of the items in question, standing alone, would point to the nature of the appellant's occupation. It is their combined effect, in conjunction with the other evidence in the case, that is important. If the appellant had been overheard to say: 'In my business I meet a lot of dangerous people', that, I should have thought, would be relevant and admissible. I can see no difference between that evidence and evidence that he was found to possess firearms or replica firearms.
279 With respect to the charge of trafficking ice, charge 5, the facts of the present case bear few parallels to cases such as Blackwell, Edwards and Sultana. In those and similar cases, the possession of a firearm in close connection with quantities of drugs and drug paraphernalia, permitted the inference that the firearm was an accoutrement of the crime of drug trafficking, or that the appellant or applicant was carrying on the business of drug trafficking. Both Blackwell and Sultana, in particular, involved drug dealing at street level. Dealing at street level is, so Gleeson CJ considered, a 'dangerous activity', permitting a jury 'to reason that possessing firearms, or imitation firearms, would be appropriate to the business of a street heroin dealer'. But it was the combined effect of the firearms being found in conjunction with the other items that was important, since 'None of the items in question, standing alone, would point to the nature of the appellant's occupation'.
280 Furthermore, the facts of this case bear no resemblance to those in Festa, where the evidence of the possession of the relevant firearms was admissible because the firearms were part of a collection of the 'tools of trade' of armed robbers employing a particular modus operandi (not just of armed robbers in general). Moreover, the facts of this case are completely unlike those of Thompson and Wran, Driscoll and Debs, where a firearm or other implement had previously been used to commit a crime - the manner in which the firearm or implement was used in its commission being known - and the accused was later found in possession of a firearm or other implement which could have been used to commit it.
281 In the present case, the conversation founding charge 5 occurred in circumstances where there is no suggestion that the applicant's alleged trafficking on that occasion was accompanied by the use of a firearm. Indeed, insofar as the evidence suggested that the applicant had been involved in drug trafficking on previous occasions - including his supply of cocaine to Witness A for $350,000, and the drug deliveries by the applicant through the agency of Witness A - there was no evidence that the possession or use of a firearm formed any part of the applicant's modus operandi. Hence, the circumstances of the applicant's possession of the gun and ammunition could not have had any bearing on an assessment of whether the applicant's offer to sell drugs to Witness A was genuine. The applicant's possession of the pistol and ammunition therefore went to nothing other than rank propensity or 'criminal disposition'.
282 Maxwell ACJ and Weinberg JA have expressed the view that there was no need for the jury to make assumptions about whether the carrying of guns was characteristic of drug dealing, since the evidence given by Witness A demonstrated that guns were tools of trade for drug dealers 'working in this particular milieu'.[114] Further, their Honours have observed that while it is true that references in the evidence to guns were not linked to the applicant personally, the very fact of his close association with a 'host of others who were ready and willing to use such weapons, almost at the drop of a hat, gave greater force to the argument that the items locked in the Vespa should be seen as "accoutrements" of drug trafficking'.[115]
283 With great respect to their Honours, although the evidence may have established that the applicant was a drug dealer; and although one might make assumptions about firearms being one of the tools of trade of street-level drug dealers (particularly if the relevant firearm is found in proximity to other trappings of drug-dealing); there was not a jot of evidence that the applicant's individual method of operating as a drug dealer 'in this particular milieu' involved resort to firearms. This was not a case where Witness A's - or Michael Pastras' or Toby Mitchell's - use of a firearm was, or was said to be, admissible against the applicant. Their acts in relation to firearms, using the kind of reasoning permitted by Tripodi[116] (and similar cases), was not, nor could it have been, invoked. Nor was this a case in which there was any 'expert' evidence before the jury as to the usual methods employed by drug dealers.[117] In those circumstances, to say that the applicant's possession of the pistol and ammunition is admissible against him because he is part of a 'particular milieu' is, with respect, to do no more than say that the applicant is of bad character or has a criminal disposition, thereby exciting rank propensity reasoning.
284 Even were I wrong about the relevance of the applicant's possession of the pistol and ammunition on charge 5, however, any probative value that the evidence could be said to possess was very slight. The applicant's possession of the pistol and ammunition on 5 March 2015 was both temporally and geographically remote from the conversation in which the alleged offer for sale was made on 19 February 2015. In circumstances in which the jury was very likely to infer from the applicant's possession of the firearm and ammunition that he was a man of bad character or otherwise possessed criminal propensities, there was a palpable danger that the jury would improperly use the evidence, the inherent prejudice flowing from that potential misuse not being readily amenable to a judicial warning against its misuse.
285 For these reasons, the evidence of the applicant's possession of the firearm and ammunition was inadmissible in proof of charge 5.
286 I am also of the view that the evidence was inadmissible in proof of the extortion charges, charges 1 and 2.
287 In oral argument, counsel for the respondent acknowledged that there was a 'temporal disjunct' between the threats founding charges 1 and 2 and the applicant's possession of the firearm and ammunition. In that regard, it will be remembered that the events of the first charge were alleged to have taken place on 13 July 2014, and those relating to the second charge on 11 September 2014, in circumstances where the firearm and ammunition were not located until 5 March 2015. There was no evidence as to when the applicant came into possession of the pistol and ammunition. It was thus mere speculation to suggest that, at the time that he threatened to shoot others, the applicant had the ready capacity to make good those threats. Hence, the prosecutor's submission to the jury that 'the handgun and ammunition in particular, supports the evidence of [Witness A] about Mr Arico threatening to shoot houses and people respectively, because Mr Arico has an actual capacity to do so', cannot be accepted.
288 Assuming for the sake of argument, however, that the evidence was relevant - so much having been conceded by the applicant's counsel - I consider that, due to the temporal gap between the alleged threats and the possession of the firearm and ammunition, its probative value was weak. Due to the time intervening between the threats and the possession of the firearm and ammunition, I regard any connection between the two - and thus the probative value of the evidence - as tenuous, such that the prejudicial effect of the evidence outweighs its probative value.[118] And as I have already said, given that the jury very likely would infer from the applicant's possession of the firearm and ammunition that he was a man of bad character or otherwise possessed criminal propensities, there was a palpable danger that the jury would improperly use the evidence, the prejudice flowing from that misuse not being readily curable by judicial direction.
289 It has been recognised that unfair prejudice may be occasioned to an accused person because the subject evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence.[119] Hence, when discussing the risk of unfair prejudice (albeit not in the context of s 137), Gleeson CJ observed in Festa:[120]
... The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term 'prejudice'. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.
290 As previously mentioned, the applicant's counsel conceded that the impugned evidence was relevant on charges 1 and 2. But as I have indicated, I regard the probative value of the evidence as weak. There is a real risk, in my opinion, that the danger of improper use of the evidence outweighed any legitimate inculpatory use that the evidence might have had. In light of what was before the jury as to the applicant's other activities, the risk of the misuse of the evidence was not readily amenable to alleviation by judicial direction. Thus, the failure of counsel to seek any direction or warning with respect to the evidence is of no consequence.[121]
291 Before leaving this ground, I should return briefly to the prosecution's submission that the inference that the pistol and ammunition were tools of trade was strengthened by the applicant's concurrent possession of a Blackberry mobile telephone, since the Blackberry is a kind of telephone favoured by drug traffickers because of the difficulty for law enforcement in penetrating the phone's security features. I find that argument unpersuasive. It is common knowledge that the Blackberry is a telephone used in a variety of circumstances by people from various walks of life.[122] In the circumstances of this case, the applicant's concomitant possession of the Blackberry and pistol and ammunition could not properly support the inference that the pistol and ammunition were tools of trade of drug trafficking.
292 Since the evidence of possession of the pistol and ammunition was wrongly admitted, justice has miscarried. I am persuaded that the miscarriage of justice is substantial. As to that, the applicant gave evidence in his own defence. I find myself unable to conclude that the impugned evidence might not have been the decisive piece that conclusively - and terminally - impaired the applicant's credit. In my view, it was not inevitable that the applicant would have been convicted of charges 1 to 6 had the evidence not been wrongly admitted.
293 The convictions in the first trial must be set aside.
Is the verdict on the trafficking charge unsafe and unsatisfactory?
296 Charge 5, trafficking a drug of dependence, methylamphetamine, in not less than a large commercial quantity, was based on an offer by the applicant to sell[123] methylamphetamine to Witness A in a quantity that was not less than a large commercial quantity.[124] The only live issue at trial with respect to charge 5 was whether the jury were satisfied beyond reasonable doubt that what the applicant said in the recorded conversation of 19 February 2015 amounted to a genuine offer to sell.
297 As I earlier mentioned, the conversation between the applicant and Witness A on 19 February 2015 was covertly recorded. It was played to the jury while Witness A gave evidence.
298 Witness A said that he attended the meeting with the applicant carrying the $25,000 in cash provided by investigators to be given to the applicant. Towards the end of the conversation, there is a discussion which Witness A said was about drugs. No mention of drugs was made orally. Witness A said that the applicant 'pretty much like tapped near his eye', which meant that he was talking about ice. Moreover, the applicant indicated that he could supply a kilogram, because he gestured towards his car key, 'key' being a reference to 'kilogram'. Among other things, the conversation contained the following exchange:
Applicant: How much you want, a 'bomb'?
[Witness A]: Nah ... How much?
Applicant: Hey? Hey? A little kick. (whispers) I'll give you (inaudible) one forty five dyno.
[Witness A]: Bollocks.[125]
Applicant: Dyno.
...
[Witness A]: One hundred and forty five?
Applicant: Yeah.
[Witness A]: For one of that?
Applicant: Dyno. As many as you want.
...
299 Witness A explained that 'bomb' means good quality. He also said that 'dyno' was short for 'dynamite', which itself meant 'pure'.
300 The effect of Witness A's evidence was that the applicant had offered to sell him a kilogram of ice for $145,000. Initially, Witness A's evidence was that he thought the applicant was 'pulling [his] leg', but the applicant indicated that he was not. Witness A said that he then believed the applicant was 'serious'.
301 J was present for part of the conversation between the applicant and Witness A, but did not participate in it. He said that there was a 'conversation about drugs, but it was a joking conversation.' Under cross-examination by defence counsel, J agreed that, prior to the conversation about drugs, in the absence of Witness A the applicant had said to him: 'When he comes out ... I'm going to 'suss him [Witness A] out. It sounds as if he's into drugs and the like. I'm going to have a bit of fun with him'.
302 Detective Senior Constable Liam O'Connor gave evidence during cross-examination that when Witness A returned from the 19 February 2015 meeting, Witness A disclosed he had been made an offer to sell drugs. Witness A did not attend a further meeting with the applicant about drugs, because police deemed it to be unsafe. Detective O'Connor disagreed with the suggestion that the police had not sent Witness A to a further meeting with the applicant because the investigators considered the applicant's offer to sell drugs was a joke.
303 The applicant gave evidence. He denied supplying Witness A with a kilogram of cocaine. Witness A, he said, borrowed $50,000 from him sometime after December 2010, on the promise to repay $100,000 in twelve months' time. Repayment was due on 9 June 2012, at the time that the applicant was married. The applicant said that he was 'always trying to recover [his] money' from Witness A, but 'there was always an excuse, always a story, "I'm going to pay you", "I'm waiting for this", "I'm waiting for that"'. When Witness A was selling his house, it was decided to produce a fake invoice for works on the house so that a caveat could be lodged. The applicant told Witness A that the ten per cent GST on the invoice was Witness A's problem, and 'he agreed that he would pay for it'. So far as the meeting on 19 February 2015 was concerned, Witness A gave the applicant $25,000 cash in repayment, and promised another $25,000 or $30,000 the following week.
304 The applicant's evidence was that he put the $25,000 in his car. His evidence continued:
And did you at that point in time have a conversation with [J]?---Yeah, we had a brief chat. I told him he gave me 25 grand, I put it in the car. He's up to no good, this guy. You know, when he comes out, I'm going to have a go at him. You know. I'm gonna suss him out. See what he's up to. You know? He might be up to his old tricks selling drugs again or trying stooge him into paying us our money. All we wanted - all I wanted was my money. I would have said anything to him to get my money.
And what - when you say you told [J] that he might be up to his old tricks?---Yeah.
Dealing in drugs again. What knowledge did you have---?---I knew he was up to no good, especially when his brother-in-law got pinched, he'd come and told me all the story that he sent him there and what should I do and what do you think and all - asking me what I think he should do and what he - all this sort of stuff.
All right. Now, when we - we do hear, when we listen to the recorded conversation and indeed, when we try to follow it on the transcript, you offering him a kilo of what's called [dyno]. What's [dyno]?---Whatever. I just was talking. Just trying to convince him that - I just wanted to get my money off him. I was just trying to convince him that I had drugs, bring some money and all this sort of stuff. That's it.
Yes. And you mentioned the word [dyno], what was that as you understood it?---[Dyno]. Good, good quality.
Yes. And were you being - were you seriously offering to sell him---?---No, I wasn't.
Did you intend to provide him with a kilo or more of any illegal product?---Not at all. Not at all.
305 Under cross-examination, the applicant repeated, 'I was gonna suss him out and have a bit of fun with him'.
306 J had given evidence in the prosecution case. He said that the applicant told him that he was going to 'suss' Witness A out concerning the $25,000 that had been mentioned. The applicant said 'it sounds as if he's into drugs and the like', and that he was going to 'have a bit of fun with him'. J said that he was present when the applicant had the conversation about drugs, and gave the following evidence:
Tell the jury again, as best you can remember, what happened thereafter?---Ah, I was a few metres - a couple of metres away but I mean, I got parts of it, but I wasn't involved in the whole conversation. But it was basically along the lines of um, you know, what are you up to, are you up to your old tricks [?], and talking about someone that they knew and from what I understood, it was something to do with um - I, I took it to be a conversation about drugs, but it was a joking conversation.
Why first of all, did you take it to be a conversation about drugs?---Just by words that were said.
Well what words?---I don't remember the specifics. I don't, I don't - I just - you know, I wasn't involved in the conversation. I just heard them joking and laughing and, and that's pretty much it.
307 In oral argument, counsel for the applicant described the applicant's assertions in the recorded conversation as mere 'puffery'. The applicant was, counsel submitted, simply 'playing around'. Counsel argued 'that it is not open on the evidence to find beyond reasonable doubt that the offer was genuine', as distinct from jesting, joking, playing around or 'mucking around'. The corollary is that it is 'not open on the evidence to exclude beyond reasonable doubt the hypothesis consistent with innocence, namely that the offer was not genuine, or that the offer was joking, playing around, and so on'. Counsel submitted that the taped conversation demonstrates the participants' jocular manner. Acting properly, the jury could not have been satisfied beyond reasonable doubt that the applicant's offer to sell Witness A drugs was genuine.
308 When developing his submissions, counsel submitted that the formulation of Hayne J in Libke[126] had not been repeated in more recent decisions of the High Court, although the Court had not 'expressly' cast doubt upon the accuracy of that formulation.[127] Counsel warned against the approach in some cases which suggested that the appellate court should look to see if there is 'a fundamental block or a fundamental hurdle to a conviction',[128] but was content with the formulation in Klamo: was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?[129]
309 Counsel for the respondent submitted that it was well open to the jury to be satisfied beyond reasonable doubt that the applicant had made a genuine offer to sell over a kilogram of methylamphetamine to Witness A. The two had enjoyed a long association, which had included the applicant supplying Witness A with drugs. Counsel contended that the recording itself demonstrates the genuineness of the offer to sell, not only by the tone of the conversation, but by reference to drug jargon such as 'dyno' and 'bomb'. Neither the evidence of J nor the applicant was of sufficient weight to necessitate the jury having a reasonable doubt about the genuineness of the offer.
310 The correctness of the test propounded by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen[130] is not in doubt. It has consistently been endorsed by the High Court.[131] Thus, whether a verdict is unsafe or unsatisfactory is a question of fact that the appellate court must decide by making its own independent assessment of the evidence. The appellate court must determine whether, notwithstanding that there is evidence upon which a jury might convict, nonetheless it would be dangerous in all the circumstances to allow a verdict of guilty to stand.[132] M v The Queen makes clear that where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the question which the appellate court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[133] In answering that question the court must pay full regard to the considerations, first, that the jury is the body entrusted with the primary responsibility of determining guilt or non-guilt, and, secondly, that the jury has had the benefit of having seen and heard the witnesses.[134] In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appellate court.[135]
311 I have listened to the taped conversation of 19 February 2015, paying due regard to the inflection in the voices of the speakers - as the Court was invited to do by counsel - both with and without the assistance of the accompanying transcript. Moreover, I have read the evidence in the trial, paying particular attention to the evidence of J and of the applicant. To my ear, the taped conversation reveals that the speakers do appear to be in a jovial mood. That does not necessarily dictate the conclusion, however, that the subject-matter of the conversation was a joke, or that the apparent offer to sell drugs was not genuine. One cannot discern any distinct mention of the drug ice in a kilogram quantity. But Witness A's evidence was that the applicant's gesture to his cheek indicated that the drug on offer was ice, and his gesture to a key indicated a kilogram lot. Pre-eminently it was a question for the jury - who saw and heard Witness A give evidence - whether they were satisfied of its truth and accuracy. Furthermore, the jury had the considerable advantage of observing each of Witness A, J and the applicant, give their evidence. Thus, the jury
were in a much better position than this Court to determine whether, in all the circumstances, they were satisfied beyond reasonable doubt that the applicant had made a genuine offer to sell a kilogram of ice to Witness A.
312 Recognising the possible unreliability of Witness A's evidence - I note that the judge gave the jury an unreliability warning with respect to it - and having paid earnest attention to the taped conversation, I find myself unable to conclude that it was not open to the jury to reject the applicant's and J's evidence, and to accept the important aspects of Witness A's evidence. In my view, it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the applicant's offer to sell ice to Witness A was genuine.[136]
314 I would grant the application for leave to appeal against conviction on ground 2; allow the appeal; set aside the convictions in the first trial; and order that there be a new trial.
315 I have had the advantage of reading in draft the joint reasons of Weinberg and Priest JJA concerning the application for leave to appeal against sentence. Their Honours would refuse leave to appeal on all grounds except those which concern the sentence on charge 5, that of trafficking in a large commercial quantity ('LCQ') of methylamphetamine, or 'ice'.
As regards the grounds which their Honours would reject, I respectfully agree with
their conclusions and their reasons, and have nothing to add. I have, however, come to a different conclusion regarding the sentence on charge 5. For reasons which follow, I consider that the sentence of nine years' imprisonment on that charge is unimpeachable. I would therefore refuse leave to appeal on those grounds also.
316 Put shortly, there is nothing about the circumstances of this offence, or this offender, which would indicate that the sentence imposed is outside the range reasonably open in the circumstances of the case. As this Court has said repeatedly, the ground of manifest excess is a stringent one, difficult to make good.[137] Appellate restraint in interfering with sentences on this ground reflects the clear policy of sentencing law that the imposition of sentence is a matter for judges at first instance, unless it can be shown that something has gone obviously or badly wrong.[138]
317 Trafficking in a large commercial quantity of a drug of dependence ('LCQ trafficking') carries a maximum penalty of life imprisonment. Self-evidently, the legislature has thus signalled its intention that this offence is to be treated as being of the utmost seriousness. The legislative policy underpinning that maximum has been reinforced, repeatedly, by decisions of this Court which emphasise the scourge of drug trafficking and the incalculable harm which it inflicts on our community.[139]
318 The task of the sentencing court is, as the High Court has emphasised, to deliver individualised justice.[140] In this case, most of the individual circumstances pointed toward a higher, rather than a lower, sentence. Specifically:
You were not a rehabilitated man when you were released from jail in 2008 and you are a drug dealer and a standover man.[143]
319 As the sentencing judge noted, there was little on which the applicant could rely by way of mitigation. The judge accepted that:
the probable or near certain prospect of deportation hanging over [his] head, particularly when [he has] an unwell wife and a young child, will make [his] time in custody more onerous for [him] than it would be for others without those problems.[144]
His Honour also took into account the fact that, in the period up to the date of sentencing, the applicant had been treated as a high-security prisoner, meaning that he was required to spend more time confined to his cell than other prisoners. This disadvantage was not expected to continue after sentence, however.[145]
320 I turn to consider the sentencing parameters within which the sentencing task fell to be carried out.
321 Axiomatically, general deterrence is of great importance in sentencing for drug trafficking offences. It is necessary to send a message to would-be drug traffickers that, if they are caught, they will face very long prison sentences indeed.[146]
322 In Haddara,[147] this Court highlighted the particular importance of general deterrence where the drug trafficked is - as it was here - methylamphetamine or 'ice.' Describing methylamphetamine as 'a scourge on society', the Court said that the prevalence of the offence of trafficking in methylamphetamine was:
a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence.[148]
323 In making those observations, the Court had reviewed evidence of the increased prevalence of trafficking in methylamphetamine in non-commercial quantities, commercial quantities and large commercial quantities. The Court concluded that
sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence.[149]
324 As appears from the reasons of Weinberg and Priest JJA, there is a clear and consistent line of authority in this Court establishing that, where acts of trafficking are concerned, potential harm is viewed as seriously as actual harm. As this Court (Hansen, Whelan and Beach JJA) put it in Taumoefolau v The Queen:
The legislative scheme governing trafficking does not distinguish between the acts which constitute 'trafficking' in such as a way as to render less serious acts which do not result in distribution from those which do. The acts which constitute trafficking include preparing a drug of dependence for trafficking, manufacturing a drug of dependence, and selling, exchanging, agreeing to sell, offering for sale or having in possession for sale a drug of dependence.[150]
325 Crucially, for present purposes, their Honours went on to say:
The harm (actual and potential), or in the words of Weinberg JA in Trajkovski the 'deleterious effects', of particular conduct is a potentially relevant matter depending upon the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. This is made clear in Spaull. The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight, as was said in Zandi and the cases it cited. In any particular case, actual harm, both its presence and its absence, can be taken into account, as this Court said in Haidari.[151]
326 The plea transcript reveals that neither the prosecutor nor defence counsel assisted the judge with reference to any authorities relevant to the sentencing task.[152] His Honour's own research had, however, led him to Taumoefolau. His Honour referred to the above passages and invited counsel's submissions, thus directing himself entirely correctly.
327 The reasons in Taumoefolau refer to the earlier decisions in this line of authority, namely, R v Mihalo,[153] Mokbel v The Queen,[154] Chandler v The Queen,[155] Director of Public Prosecutions v Holder,[156] R v Spaull,[157] Director of Public Prosecutions (Cth) v Haidari,[158] and Zandi v The Queen.[159] In Holder, for example, the Court (Maxwell P, Neave and Redlich JJA) said:
The potential harm of an unsold or unsupplied drug of dependence is viewed as seriously as the actual harm caused by the sale and distribution of the drug. That is why possession for sale is a species of trafficking. In short, the seriousness of the trafficking is unaffected by the fact that the drugs do not reach the public.[160]
328 In Zandi,[161] the Court (Priest and Beach JJA) dismissed an appeal against a sentence of seven years imposed on an offender who pleaded guilty to one count of attempting to possess a marketable quantity of a border controlled drug, cocaine. The maximum penalty for that offence was 25 years' imprisonment. The offender believed that the substance he was given was cocaine. In reality, it was a benign substance.
329 The Court rejected a submission that the offending was less serious by reason that no real drugs would ever have been possessed, saying:
There were, as we have said, no real drugs. There was no prospect of any illicit drugs being disseminated. But the appellant did not know that. He intended to take possession of a large amount of cocaine - two kilograms - and handed over substantial cash to obtain it. Indeed, his resolve to obtain such a large amount of cocaine may be gleaned from the fact that he had sourced - and paid over - $65,000 for it. That, to us, is not consistent with mere 'fantasy'. Plainly, the appellant had a commercial motive. He intended to be part of a relatively large importation and, it might be inferred, he intended to make a substantial profit from the distribution of drugs to be obtained as part of that importation.
In light of these factors, the appellant's moral culpability was, in our opinion, high. That moral culpability was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets. He fully intended that the drugs would be obtained by him and disseminated into the community.[162]
330 With respect, their Honours' analysis applies even more forcefully to the present case. This was not a circumstance where the offender was under any mistaken belief as to the existence of the drugs in question. Both he and Witness A knew from their prior dealings that the applicant was a person who was able to source drugs which Witness A could then on-sell. As the joint reasons in the conviction appeal make clear, the prosecution case was based on the proposition that the applicant was in the business of drug trafficking.[163] And the judge made an affirmative finding that the applicant was a drug-dealer.
331 The applicant's intention was that the transaction take place, if Witness A accepted the offer. His motive, as the judge found, was to profit from the misery of others.[164] As in Zandi, his moral culpability
was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets.[165]
332 Nor, with respect, could any conclusion favourable to the applicant have been drawn about the capacity of Witness A to pay the price specified by the applicant. The jury by its verdict accepted the Crown case, namely, that the drug debt which the applicant was seeking to enforce by his acts of extortion was a debt arising from the transaction involving Toby Mitchell. It will be recalled that, on that occasion, the applicant supplied the cocaine to Witness A, who on-sold it to Mitchell. Witness A's intention was that he would pay the applicant once Mitchell had paid him, and thus put him in funds. He would deduct his own profit margin before paying the applicant the agreed price.
333 The ground of appeal highlights the judge's statement that the LCQ trafficking charge fell 'towards the lower end of the range of sentences for such offending.'[166] It must be assumed, with respect, that his Honour was intending to refer to 'the range of seriousness', rather than 'the range of sentences'. Thus understood, this was an orthodox assessment of seriousness, given that the sentencing regime for trafficking offences is quantity-based. His Honour's statement simply reflected the fact that offences of LCQ trafficking may involve quantities which represent multiples of the specified large commercial quantity. It said nothing about the applicant's culpability.
Current sentencing practices for trafficking in a large commercial quantity
334 In the light of the decisions of the High Court in R v Kilic[167] and in Dalgliesh, current sentencing practice for an offence, or a particular category of an offence, is to be viewed as but one of many factors to be taken into account by a sentencing judge in arriving at a just sentence. The same applies when this Court is determining whether the sentence imposed was within the range reasonably open. As this Court (Tate and McLeish JJA and Kidd AJA) said recently in Schanker v The Queen, it is an error:
to elevate the importance of sentencing practice ... to the point where it is determinative of the appropriateness of the sentence in question. The sentencing practice informs, but cannot determine, the appropriate sentence in a particular case.[168]
335 To the extent, however, that sentencing practice can properly inform this Court's task on this application, it provides no assistance to the applicant. On the contrary, both the recent decisions of this Court and the Sentencing Overview helpfully prepared by the Judicial College of Victoria[169] reveal that a sentence of nine years' imprisonment for LCQ trafficking, after a plea of not guilty, is wholly unremarkable for a case at the low end of quantity for LCQ.[170] It is, of course, unsurprising that this should be so, given that the maximum penalty is life imprisonment, a matter to which this Court has repeatedly drawn attention.[171]
336 The following recent decisions of this Court are instructive:
(a) in Stanley (a pseudonym) v The Queen,[172] Redlich and Ferguson JJA and Beale AJA dismissed an appeal against a sentence of eight years' imprisonment for LCQ trafficking (methylamphetamine). Unlike the applicant, the offender in that case pleaded guilty;
(b) in Hoang v The Queen,[173] Priest and McLeish JJA dismissed an appeal against a sentence of eight years' imprisonment for LCQ trafficking (cocaine). In that case, unlike the present, the offender had pleaded guilty and was able to rely on his youth as a mitigating factor. Their Honours described the sentence of eight years as 'well within the range';[174]
(c) in Nguyen v The Queen,[175] Priest, Kaye and Coghlan JJA refused leave to appeal against separate sentences of 11 years' imprisonment imposed on an offender who had pleaded not guilty to two charges of trafficking. One charge was for LCQ trafficking (heroin), the other for commercial quantity trafficking (MDMC). In refusing leave, their Honours quoted the following passage from the judgment of Kaye JA in Dawid v Director of Public Prosecutions:
The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.[176]
337 Finally, reference should be made to the 2017 decision of this Court in Gregory (a pseudonym) v The Queen.[177] That case concerned an offender who had pleaded guilty to trafficking in a commercial quantity ('CQ trafficking') of ice. That offence carries a maximum penalty of 25 years' imprisonment. The Court (Maxwell P, Redlich and Beach JJA) held that the sentence of eight years and six months' imprisonment was within the range reasonably available.
338 More generally, the Court in that case upheld a submission by the Director that the then-current sentencing practice for CQ trafficking was erroneously 'clustered' under 10 years' imprisonment. The Court said:
As with any other category of offending, there is wide variation in the seriousness of CQ trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.
It would therefore be expected - and Parliament must be taken to have intended - that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
As we have seen, there is no such spread of sentences for CQ trafficking. On the contrary, sentences for this offence over the past decade are 'clustered' under 10 years' imprisonment. This reflects, as the Director submits, a 'persistent error' in the manner in which serious instances of this offence have been treated. It demonstrates, moreover, that the objective seriousness of this offending has been wrongly categorised.
For these reasons, in our view, CSP for CQ trafficking in the upper category of the offence is plainly inadequate. As the Court has said after reaching similar conclusions in relation to sentencing for other offences, sentencing courts should no longer regard themselves as constrained by existing sentencing practice for offences in that category.[178]
339 Relevantly for present purposes, the Court made reference in its concluding remarks to the need for correspondingly higher sentences for LCQ trafficking:
In particular, sentencing courts should not treat 10 years as a ceiling for this [CQ trafficking] offence. Sentences for LCQ trafficking will also need to increase, substantially, in order to maintain appropriate sentencing relativities.[179]
340 In Dalgliesh, the High Court majority described as 'clearly correct' this Court's conclusion that the then-current sentencing for incest offences of mid-range seriousness reflected 'a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence and the moral culpability of the
offender [and] amounted to an error of principle'.[180] The High Court emphasised that, when sentencing practice for an offence is thus identified as inadequate, that conclusion must be given effect to, including in relation to the offender before the Court. The duty of the sentencing court is to impose 'a just sentence'.[181]
341 Plainly enough, therefore, the sentence imposed on the present applicant must be considered in the light of what was said in Gregory about the inadequacy of sentencing for CQ trafficking, and the need for increases in sentences for that offence - and for corresponding increases in sentencing for LCQ trafficking. That additional consideration reinforces my conclusion that there is no substance in the applicant's contention that the sentence of nine years' imprisonment for LCQ trafficking was outside the range reasonably open.
342 The applicant stood trial in the County Court, at Melbourne, on three charges of extortion (charges 1, 2 and 6), one charge of intentionally causing injury (charge 3), and one of trafficking in a drug of dependence (methylamphetamine) ('ice') in not less than a large commercial quantity (charge 5). On 10 November 2016, he was convicted of these offences.
343 Subsequently, in February 2017, the applicant again faced trial in the County Court. He was convicted of one charge of being a prohibited person in possession of a firearm (charge 1), and one charge of possessing a drug of dependence (charge 3).
On 3 March 2017, the applicant was sentenced, in respect of all offences of which he had been convicted in both trials, to a total term of 14 years' imprisonment. A non-parole period of 10 years was fixed. The sentence is summarised in the following
Extortion Crimes Act 1958 (Vic) s 27(b)
Extortion Crimes Act 1958 (Vic) s 27(a)
Intentionally cause injury Crimes Act 1958 (Vic) s 18
Trafficking in a drug of dependence not less than a large commercial quantity Drugs Poisons & Controlled Substances Act 1991 (Vic)
Extortion Crimes Act 1958 (Vic) s 27(a)
Prohibited person possess firearm Firearms Act 1996 (Vic) s 5(1)
Possess drug of dependence Drugs, Poisons Controlled Substances Act 1981 (Vic) s 73
400 penalty units or to level 6 imprisonment (5 years maximum) or both that penalty and imprisonment
2 years and 6 months of the sentence on F10806448.3 to be served cumulatively upon the sentence of Indictment F10806448.1 (11 years and 6 months)
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991
Other relevant orders: Forfeiture and disposal orders on both indictments.
344 Maxwell ACJ has concluded that leave to appeal against sentence should be refused. We respectfully disagree. For the reasons that follow, we would grant leave to appeal and allow the appeal. We would set aside the sentence imposed on charge 5, and substitute a sentence of seven years' imprisonment on that charge. That would make a total effective sentence of 12 years' imprisonment. We would fix a non-parole period of nine years.
345 The facts surrounding the commission of these offences are compendiously set out in the joint judgement of Maxwell ACJ and Weinberg JA regarding conviction, and in the dissenting judgment of Priest JA. These reasons should be read in conjunction with those judgments.
346 The applicant, aged 38 when he came to be sentenced, was born in June 1978 in Calabria. The applicant came to this country at the age of only nine months. He grew up in the north western suburbs of Melbourne.
347 During the course of the plea, the applicant's counsel tendered a psychological report prepared by Carla Lechner. She noted that the applicant had a prior history of offending, namely that he had previously served a lengthy term of imprisonment. She also noted that the applicant continued to deny any involvement in the present offences. It was because of that continued denial that his Honour found that the applicant had not been entirely honest with Ms Lechner, and took that into account in assessing the weight to be given to her report.
348 The applicant has had, and continues to have, a notorious profile in the media. He complained to Ms Lechner of having been relentlessly pressured by police. She diagnosed him as presenting with symptoms of depression and anxiety, stating that in her opinion, he fulfilled a diagnosis of Adjustment Disorder with Depression and Anxiety (DSM 5).
349 The applicant left school part-way through Year 10. He told Ms Lechner that he had not been interested in school, and acknowledged that he had often been in trouble. He claimed that his father had been violent towards him. He said that he began using drugs in order to 'escape'. He added that his relationship with his father had subsequently improved.
350 The applicant had worked in Johnny's Green Room in Carlton, which his father had acquired in about 1993. He had begun using ecstasy and cocaine when he was aged 17. During that time, he would disappear from home for weeks at a time.
351 The applicant said that he fell into bad company with older persons. He became involved in various nefarious activities. He told Ms Lechner that after he had been convicted of attempted murder in 2001, he had cleaned up his life, and cut ties with those who had led him astray. He had been released from prison in July 2008, and had worked in the family business, at Café Trevi in Carlton, after his release.
352 The applicant met and married his wife in 2013. They soon had a daughter, who was aged four when the applicant came to be sentenced. It seems that his wife suffers from Lupus, an autoimmune disease which can be very serious, as it was in her case. In August 2015, his wife underwent a kidney transplant.
353 The applicant told Ms Lechner that there were severe financial pressures upon him at about that time. He explained that this was why he continually pressured Witness A to repay the $50,000 that he maintained he had loaned him in 2010.
354 The sentencing judge properly accepted the applicant's time in custody would be more onerous by reason of his wife's medical condition. His Honour said that he would take that into account as a mitigating factor. He also noted that the applicant was likely to be deported to Italy when eventually released from custody. This too, would make imprisonment more burdensome for him, and would therefore also be treated as a mitigating factor.
355 The applicant insisted, in his discussions with Ms Lechner, that the claims made about him in the media as to his status as a 'mafia boss', were completely false. He nevertheless was kept in 'high security' in prison.[182] This too, would make imprisonment more burdensome for him.
356 The applicant's previous criminal history may be summarised as follows. As the sentencing judge noted, in May 1998, he was before the Melbourne Magistrates' Court on charges of criminal damage, possession of a drug of dependence, and two charges each of unlawful assault and failing to answer bail. He was convicted and fined an aggregate total of $1,200.
357 In June 2001, after a trial in the Supreme Court, the applicant was convicted of attempted murder. It seems that he fired a number of shots at the driver of an adjacent vehicle, wounding him in both arms. The shooting seems to have been an example of what we today might describe as 'road rage'.
358 The applicant was aged only 21 at the time. He was described on the plea as 'immature'. Nonetheless, the gravity of the offending can be seen from that fact that he was sentenced to a term of nine years' imprisonment, with a non-parole period of seven years. That sentence was affirmed on appeal.[183]
359 In December 2001, some six months or so after being sentenced for the attempted murder, the applicant was dealt with in the County Court on a charge of kidnapping, which was committed before the attempted murder. He was one of three men, all of whom pleaded guilty to that charge.
360 In relation to the kidnapping, the victim was attacked in the street by four men[184] who pulled up near him in a car. The victim was punched, kicked, and 'pistol whipped'. He was then locked in the boot of the car, but managed to work the release mechanism. He jumped from the car and tried to escape. The car stopped, the victim was pursued and again caught. He was again kicked and punched.
361 Two of the assailants were armed with guns. The victim was put back in the car and threatened that, if he moved, he would be killed. He was taken to the home of one of the men, and kept there while money was demanded for his release. In the end, a ransom of $5,000 was paid.
362 The applicant was sentenced to a term of four years and six months' imprisonment on that charge. Two years of that sentence were ultimately made cumulative on the sentence for the attempted murder.
363 Both the conviction for attempted murder, and that for kidnapping, were plainly very serious. Both offences involved the use of handguns. Nonetheless, the sentencing judge in the present case recognised that these offences were committed when the applicant was still a very young man. It should be noted that neither of these convictions involved drugs.
364 The sentencing judge, having identified the mitigating factors that he proposed to take into account, went on to say:
There are no other relevant mitigatory factors. You do not get the benefit that flows from a plea or pleas of guilty. You have exhibited absolutely no remorse. You have lied to the psychologist, as I said, as to the character and nature of your dealings with [Witness A]. ... You did not lend $50,000 in cash. You were not a rehabilitated man when you were released from prison in 2008 and you are a drug dealer and standover man. You intended [Witness A] to fear violence to himself and his family and indeed you violently assaulted him at a time his property and that of his family were being subjected to an orchestrated attack and damage. As I said repeatedly during your plea, I am not sentencing you for any crime save those [for which] the jury returned verdicts of guilty. I make it clear that I am not punishing you for your alleged drug dealing with Mitchell or [Witness A] between 2010 and 2013. I am not, in any way, holding you responsible for the attacks on [Witness A]'s home and vehicles.
Your evidence to the jury in your first trial was clearly rejected by the jury and the constructed false story exposed for what it was. Witnesses you have called at both trials lied about your involvement in extremely serious offending and, again, that evidence was rejected by the jury.
You threatened death and serious injury on three discrete occasions.
Your history for violence, shooting people, make those threats real. You punched [Witness A] to the chin, you possessed the means to inflict death or serious injury with a .45 calibre pistol and ammunition you possessed. You trafficked in a large commercial quantity of a drug of dependence.
I accept that the intentionally cause injury charge and the trafficking in a large commercial quantity of drugs charge fall towards the lower end of the ranges of sentences for such offending. Your extortion offences and firearms offence do not.
The maximum penalty set by Parliament for your offences clearly establishes how seriously the law regards each of your offences. The principles of general deterrence, specific deterrence and just punishment dictate that substantial terms of imprisonment must be imposed for your offending.
Trafficking in large commercial quantity of drugs threatens the stability of our society. You sought to profit from the weakness and addiction of others.
You were a complete outlaw at the relevant time. You saw Brunswick as your personal fiefdom. You controlled real estate agents, bankers and building contractors. You could persuade people like [Z], [J] and Pastras to do what you required to be done.
You were an experienced criminal with a serious, violent history. It is no coincidence that [Z] suggested that [Witness A] should be 'put in the boot'. On 5 February 2015 a telephone conversation between you and [Z] was recorded by police. At one stage during that conversation you said 'He's a fucking lying dog, this cunt'. [Z], 'Mate he's a fucking - he's got to go in the boot mate, that cunt, I'm telling ya. He's fucked'. You, 'Ah, you should never joke like that, Peter'.
Your conviction in December 2001 for kidnapping involved you and others attacking a man in his car. You were one of four men who pulled up near him in a car. He was then punched, kicked and pistol whipped, he was put in the boot of the car. You told [Z] not to joke. You were surveillance alert but clearly the conduct was the way you had acted in the past.
You continually threatened and sought to intimidate [Witness A]. The three charges of extortion for which you were convicted are to be viewed against a series of ongoing threats and implied threats by you.
On 5 December 2015 you were recorded saying to [Witness A] 'You and your fucking dog, missus, okay youse haven't - you dragged this - you heard what I fucking said. You and your fucking dog missus have dragged this out enough. If the money's not paid next week you fucking watch, cunt. I've had enough of ya, see ya later'.
On 26 February 2015 you told [Witness A] - [Witness A] said to you 'I'm returning your call'. You said 'Okay, if she wants to play games, tell her I'm gonna start playing fucking games too now, okay? Good luck to ya's'. They're just two examples of your ongoing attempts to threaten and intimidate [Witness A] and his wife.
It follows, in my view, that each of your extortion charges are serious examples of that offence. As for your pistol I was referred to a number of authorities by your counsel and obviously I have considered each of them. I consider your offence to be a serious example of the offence of prohibited person possessing a firearm for seven reasons.
You had a large quantity of ammunition, 150 rounds;
The weapon was a pistol;
The weapon was operational and functional;
You have prior convictions involving the use of firearms;
You were a high level drug dealer at the time and
You had no legitimate use or need for a pistol.
For all these reasons I am satisfied beyond reasonable doubt that you possessed the semi-automatic pistol for a purpose associated with ongoing criminal activity. You had it stored ready for use when you required. ... All your offending is objectively grave. Criminals should not possess dangerous pistols and ammunition.
...
Insofar as your prospects for rehabilitation are concerned I accept that you care for your family and that you are a hardworking man. However your prior criminal history, your lack of remorse lead me to conclude that your future prospects are poor and that you are still a violent and dangerous man.[185]
365 So far as the proposed grounds of appeal against sentence are concerned, they were initially stated somewhat more elaborately than they were ultimately argued. The proposed grounds are as follows:
1.1 The Applicant was a 'complete outlaw' at the relevant time, and 'saw Brunswick as (his) personal fiefdom', that he 'controlled real estate agents, bankers and building contractors', and that he 'could persuade people like [Z], [J] and Pastras to do what (he) required to be done';
1.2 That witnesses the Applicant called at both trials 'lied about (his) involvement in extremely serious offending'; [186]
...
2.1 the three extortion charges were serious examples of that offence;
2.2. the offence of a prohibited person possessing a firearm was a serious example of that offence;[187]
366 It was submitted in support of ground 1.1 that the description of the applicant as a 'complete outlaw', was inflammatory, emotive and failed to have regard to the evidence given at both trials. While that description may have accorded with what was being said about him in the popular press, it was submitted that there was no evidence at all of the applicant having been involved in drug trafficking in the years 2012 to 2015, save for the recorded conversation on 19 February 2015.
367 It was further submitted that the sentencing judge had erred by failing to have regard to the fact that Witness A had voluntarily entered into the arrangement whereby the loan claimed by the applicant would be repaid.
368 It was submitted by the respondent that, self-evidently, that particular argument was entirely specious having regard to the evidence led at the applicant's first trial and, in particular, the jury's obvious acceptance of the thrust of Witness A's account.
369 In relation to ground 1.1, it was submitted on behalf of the respondent that the evidence led at the first trial justified the sentencing judge's finding that the applicant was 'a complete outlaw' at the relevant time. That evidence also justified the finding that he 'saw Brunswick as his personal fiefdom'. It was plain, according to the respondent, that the applicant exercised control over a number of real estate agents, bankers and building contractors. It was also plain that he could persuade people like Z, J and Michael Pastras, to do whatever he asked them to do.
370 In that regard, the respondent noted that Z had been present when the false invoice that J had prepared was signed. Moreover, the recorded conversations between the applicant and Z demonstrated that Z was acting in the applicant's interests, and not those of his actual client, Witness A. In addition, the applicant discussed with Z the state of the caveats over Witness A's property. He told Witness A that Z would not talk to him unless the applicant was present.
371 It was also submitted by the respondent that the reference to the applicant 'controlling banks' was a reference to the applicant having arranged for Witness A to obtain a loan through one of the applicant's contacts at the Commonwealth Bank.
372 As regards the applicant's control over J, the respondent submitted that the evidence spoke for itself. It included an intercepted telephone call in which the applicant directed J as to what to say if contacted by the bank in respect of a loan application.
373 As for Michael Pastras, the respondent submitted that his evidence concerning the events of 27 December 2010, was plainly concocted to accord with the false account given by the applicant regarding the 'loan' to Witness A.
374 Proposed ground 1.2 complains of the sentencing judge's finding that various unspecified witnesses who the applicant 'called at both trials', had lied about his involvement in extremely serious offending.
375 In so far as the witnesses in question were J and, to a lesser degree Michael Pastras, the point being made seems to be that they were called by the prosecution, and not by the defence. Nonetheless, it is clear that this was done at the behest of the defence. The prosecution sought and was granted leave to cross-examine them. In these circumstances, the point being made is without merit.
376 Insofar as this proposed ground relates to Delic, who was called by the defence in the second trial, no conclusion can be reached other than that he lied at the behest of the applicant, in an effort to protect him.
377 In our opinion, and largely for the reasons put forward on behalf of the respondent, there is no substance to either ground 1.1 or 1.2. The judge's description of the applicant as a 'complete outlaw', who 'saw Brunswick as [his] personal fiefdom' was a rhetorical flourish. It was couched in emotive language, which would have been better avoided. Plainly, however, it was not intended to be taken literally, or to reflect his Honour's actual assessment of the applicant's true level of criminality. Rather, the sentencing judge was intent upon making it unmistakably clear that the applicant's conduct should be strongly denounced.
378 The question is whether his Honour's somewhat extravagant use of language bespoke an erroneous interpretation of the facts, or of the applicant's background, of a kind that tainted the sentence imposed, and vitiated the exercise of the sentencing discretion. In our opinion, it did not.
379 We are reinforced in that conclusion by the careful manner in which his Honour, in other parts of his sentencing remarks, identified each of the aggravating and mitigating factors that were present. He articulated them clearly and explained why, in his view, they carried the weight that they did. All in all, the sentencing remarks were not suggestive of a judge who had lost sight of the salient facts, and the need to sentence according to law.
380 Proposed ground 1.2 in particular is entirely devoid of merit. It is based upon a technical error made by his Honour in describing the witnesses who lied as having been 'called' by the applicant. In fact, as was conceded by counsel for the respondent, two of these witnesses were called by the Crown, plainly at the behest of the applicant. Their evidence was never accepted by the prosecution as truthful, and their credibility was strongly challenged by the prosecutor at trial.
381 In these circumstances, there is no merit in either ground 1.1 or 1.2.
Proposed grounds 4 and 5, putting to one side the sentence on charge 5 (trafficking)
382 As regards these proposed grounds, it was acknowledged on behalf of the applicant that they did not admit of detailed argument. As noted earlier, proposed ground 2 became simply a particular of grounds 4 and 5.
383 It was submitted that the sentencing judge should not have found that the three instances of extortion, or the possession of the gun, were serious examples of those offences.
384 Before this Court, senior counsel added to that particular argument by submitting that the total cumulation of 12 months of the sentences imposed on charges 2 and 3 on the base sentence, was manifestly excessive. In particular, that was because the threat that gave rise to charge 2, and the blow to the jaw that gave rise to charge 3, both occurred within moments of each other. They therefore should have been viewed as essentially part of the same transaction, and attracted a large measure of concurrency.
385 It was also submitted that the two years and six months' cumulation between the sentences imposed for the offences dealt with in the first trial, and those imposed in respect of the second trial, was manifestly excessive.
386 In particular, it was submitted that when sentencing the applicant for the possession of the gun, the sentencing judge had taken into account, as an aggravating factor, the applicant's status as a 'high-level drug dealer'. The only evidence of such 'drug dealing', at that stage, was the offer to sell that gave rise to the charge of trafficking in the first trial. The applicant had already received a sentence of nine years' imprisonment for that particular conduct, and it could not therefore be used again as an aggravating factor on the charge of possession of the weapon. This was said to amount to a form of double-punishment.
387 The respondent submitted that the threats themselves, to shoot Witness A and his family, were inherently serious. So too, was the offence of being a prohibited person in possession of a firearm. The extortion charges, in particular, had to be viewed against the background of the applicant having, in the past, committed serious offences involving the use of a firearm in acts of extreme violence.
388 We are not persuaded that the sentencing judge fell into error in dealing with the extortion offences, or the offence of being a prohibited person in possession of a weapon. There is nothing to indicate that any of the individual sentences imposed on those charges, or any orders for cumulation, were inappropriate.
389 It was well open to his Honour to cumulate 12 months of the sentences on charges 2 and 3, on the base sentence. Equally, it was well open to cumulate two and a half years of the sentences imposed in respect of the second trial upon the total effective sentence of 11 years and six months imposed with regard to the first trial.
390 The sentencing judge's reference to the fact that the weapon was in the applicant's possession in the context of his being a major drug dealer does not, when read in context, indicate double punishment. Nor does it indicate a failure on his Honour's part to recognise that the applicant had already been dealt with, by that stage, for trafficking. It is rather nothing more than a recognition that the offending involving the weapon took place against a particular background which made it more serious than it might otherwise seem.
391 The sentencing judge found that the trafficking fell 'towards the lower end of the range of sentencing for such offending'. That particular finding was open to his Honour, based upon the nature of the offence itself, and the quantity of the drug offered for sale. It was submitted on behalf of the applicant that a sentence of nine years' imprisonment for an offence so characterised, could not be justified.
392 In oral argument, that submission was thoughtfully developed. It was contended that the objective gravity of trafficking by way of an 'offer for sale' could, in a particular case, be significantly less than the objective gravity of other more usual forms of trafficking, such as by way of possession for sale, sale itself, or supply. Trafficking by offer for sale can, in some circumstances, be entirely preparatory in nature, well removed from an actual supply of drugs.
393 It was noted that there was no evidence of any drugs being possessed in this case. Nor was there any evidence to suggest that there really was any likelihood that drugs would actually be supplied to Witness A, despite the applicant's offer being genuine so far as he was concerned. In effect, the actus reus of this offence consisted of the utterance of a few passing words, in the course of a conversation about a number of other things.
394 Of course, the applicant's moral culpability was every bit as great as that of an offender who had available to him, at the time, the drugs of which he spoke. We fully recognise that the applicant's offer to sell a kilo or more of the drug was a genuine offer, and intended to be such.
395 However, the objective gravity of an offence involving drugs has more than one component. It involves, as a separate limb, the risk that the drugs which are being trafficked will find their way into the community. For several reasons, here, there really was never any such risk.
396 Of course, the fact that Witness A had shown himself unable to pay off even small debts, such as that allegedly owed to the landscaper, did not necessarily mean that he could not have arranged for the on-sale of drugs to someone else. That, after all, was said to have been the basis of the Toby Mitchell transaction. However, given his background, the prospects of his being able to organise such a sale, on profitable terms, would have to be regarded as questionable.
397 More importantly, the fact that Witness A was 'wired up' by the police meant that there was never any possibility of him actually receiving any ice from the applicant. In that sense, the risk of drugs finding their way from the applicant to Witness A, and then into the community, was minimal.
398 It was submitted on behalf of the respondent that the characterisation of this particular trafficking offence as being at the 'lower end' of the range, did not mean that the offending was not serious. That submission is, of course, plainly correct. Trafficking in a large commercial quantity of a drug of dependence carries a maximum term of life imprisonment. The applicant told Witness A that he could supply as much of the drug as might be required. He assured him that it would be of high quality. Deterrence, both general and specific, were of primary importance as sentencing factors.
399 One the other hand, it must be remembered that the sentencing judge properly characterised this particular offence as being at the 'lower end' for offending of this kind. The offer for sale involved one kilo, or perhaps more. One kilo was the threshold for large commercial quantity.[188] On a quantity based sentencing regime, this was at the very bottom of the range for this particular offence.
400 It must also be remembered that the evidence overwhelmingly suggested that the offer that was made was in no way premeditated. The only reason it seems to have come up in the course of the conversation was the somewhat surprising, so far as the applicant was concerned, payment of $25,000 in cash by way of an instalment on a debt that was, by that stage, years old.
401 Although the applicant spoke of obtaining drugs from 'the Asians', there was a paucity of evidence to suggest that this offer for sale was part of a highly organised criminal enterprise. Moreover, nothing at all happened between the time of the offer and the date of the applicant's arrest, some two weeks or so later. There was no follow-up, and one could reasonably infer that whatever the applicant's intent had been when the offer was made, his own actions did not indicate a strong desire to pursue the transaction.
402 We understand, with respect, why Maxwell ACJ has formed the view that an offer for sale should not be regarded as inherently less serious than a sale itself. Of course, no distinction of that kind can be found in the language of the relevant section of the Drugs, Poisons and Controlled Substances Act 1981. In strictly legal terms, an offer to sell is on all fours with a sale. It is not inherently, and in every case, to be viewed as akin to an attempt to traffick (which would normally attract a significantly lighter sentence than the completed offence), but is rather a form of the completed offence itself.
403 It was submitted by the respondent that the point sought to be made by the applicant had already been determined against him by this Court in Taumoefolau v The Queen,[189] where it was said by this Court (Hansen, Whelan and Beach JJA):
The authorities we have reviewed make clear the importance of the fact that the legislative scheme governing trafficking does not distinguish between the acts which constitute 'trafficking' in such a way as to render less serious acts which do not result in distribution from those which do.[190]
404 In fact, Taumoefolau does not support the submission put forward on behalf of the respondent before this Court. The Court went on to say in that case:
The harm (actual and potential) ... of particular conduct is a potentially relevant matter depending on the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. ... The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight ... In any particular case, actual harm, both its presence and its absence, can be taken into account ...[191]
405 The specific acts giving rise to the charges in Taumoefolau formed part of a 'complicated course of conduct' which demonstrated an ongoing business of trafficking. Although not all of the conduct giving rise to the charges resulted in the actual sale of drugs, there was evidence that the applicant had substantial quantities of ice in his possession, and had made a number of arrangements for that drug to change hands.[192] In that sense, actual harm, both potential and actual, was properly to be taken into account.
406 In R v Spaull and Rush,[193] the applicants were convicted of trafficking in ice by manufacture for sale, though their attempts to manufacture the drug were unsuccessful. In that case, the Court rejected an argument that the applicants' criminality was reduced by the fact that - despite their best endeavours - there was no yield from their attempts to manufacture the drug. It should be noted, however, that there was no suggestion in that case that, generally speaking, a particular offender's failure to achieve their goal could never be taken into account when considering the objective gravity of their offending.
407 In Chandler and Paksoy v The Queen[194] the applicants were found to have been in possession of some 13 kilos of ice, which they had manufactured and prepared for distribution. In that case, Maxwell ACJ and Weinberg JA observed that:
Other things being equal, manufacturing a large commercial quantity of a drug for distribution is no less culpable than the distribution of that quantity of drug. The definition of 'traffick' in s 70 of the [Drugs, Poisons and Controlled Substances Act 1981] makes the manufacture of a drug of dependence an act of trafficking, in the same way as preparing a drug for trafficking and selling or offering for sale as an act of trafficking. Under this legislative scheme, the potential harm of the manufactured drug is viewed as seriously as the actual harm of the distributed drug.[195]
408 Of course, there is a difference between the 'potential harm' that results from manufacturing a large commercial quantity of a drug for distribution, and the less proximate conduct of someone like the applicant who, in somewhat abstract terms, merely speaks of offering a drug for sale. There is a difference between having in one's possession a drug that is available for immediate distribution, and offering for sale, in the most general of terms, a quantity of that drug.
409 In Director of Public Prosecutions v Holder (a pseudonym),[196] the respondent trafficked large commercial quantities of ecstasy. Although not every supply in relation to which agreement had been reached eventuated, the respondent had, nonetheless, completed a number of large transactions. He was clearly equipped, by virtue of his possession of large commercial quantities of the drug at the relevant time, to enter further such transactions.
410 In that case, the Court (Maxwell P, Neave and Redlich JJA) specifically addressed the relative seriousness of the various forms of trafficking contained within s 70 of the Drugs, Poisons and controlled Substances Act 1981. Their Honours observed that:
As the Director correctly submitted, trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to ultimate consumers. The legislative scheme which establishes the offence of trafficking does not distinguish between acts of trafficking on this basis. The potential harm of an unsold or unsupplied drug of dependence is viewed as seriously as the actual harm caused by the sale and distribution of the drug ... In short, the seriousness of the trafficking is unaffected by the fact that drugs do not reach the public.[197]
411 Their Honours' reasoning, in that passage, seems to us to have been unexceptionable. However, the present case was not one of an 'unsold or unsupplied drug of dependence', at least in the sense in which that expression was used in that case.
412 The conduct considered in Taumoefolau, Spaull, Chandler and Holder was rightly regarded as having been as serious as if the drugs had been distributed into the hands of consumers. In the present case, however, the applicant's conduct was not accompanied by the features of exchange, sale, manufacture, possession or distribution, such as were present in those cases. It was an offer to sell, of a preliminary kind at that stage, and nothing more.
413 The risk that the distribution of drugs poses to the community is a relevant sentencing factor, and this Court has so held in cases of police undercover activity. In Director of Public Prosecutions (Cth) v Haidari,[198] Harper JA (with whom Weinberg and Priest JJA agreed) said:
It is also necessary to take into consideration the fact that the respondent's offending put no one at risk; and that factor, when properly taken into account, diminishes the respondent's culpability.[199]
414 Harper JA went on to cite the following passage in R v DW[200] per Hulme J:
[I]f the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending.[201]
415 In some ways, the fact that Witness A was 'wired up' by the police, and provided with cash in order to 'entrap' the applicant, makes his situation somewhat analogous to that of the respondent in Haidari.
416 Counsel for the respondent, in her oral submissions, argued that a sentencing judge is entitled to assess the criminality of the conduct, not just by its potential consequences, but also by the intentions of the offender. Of course, that is a truism. Moral culpability is always of critical importance in assessing the gravity of an offence. So too, however, are the consequences of the offending, potential or actual.
417 At one stage during the course of argument, counsel for the respondent seemingly accepted that proposition. However, in the final analysis, she returned to the position stated in the written case, arguing that there was no difference in terms of the objective gravity of the offending, between an offer for sale and a sale. In other words, she rejected the proposition that there might be a hierarchy of seriousness as to the species of trafficking.
418 Common sense would suggest that the heinousness of any particular conduct should be viewed according to the particular facts of a given case, and not in the abstract. Fortunately, common sense happens, on this occasion, to accord with the most authoritative statement of principle by the High Court in that regard.
419 In Ibbs v The Queen,[202] the High Court observed that:
When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.[203]
420 That case concerned an act of sexual penetration, where several distinct categories of penetration were included within a single section of the relevant statute dealing with sexual assault. All of those categories carried the same maximum penalty.
421 The statement of principle set out in Ibbs seems to us to be directly applicable to the particular issue raised by this proposed ground. We note that Ibbs appears not to have been cited in any of the cases upon which the respondent relied in support of her submission that there is no hierarchy of seriousness between the various forms of trafficking contained in the relevant Act. Yet, when the High Court has spoken upon a particular point, its decision is, for our purposes, the last word on that point.
422 An offer for sale of a large commercial quantity of drugs can, in a particular case, fall towards the higher end of the scale, rather than the lower end. It can, in an appropriate case, warrant a sentence of life imprisonment, or something approaching it. However, that is not to say that just because the maximum sentence for a particular offence is life imprisonment, a sentencing judge should do any more than bear that maximum in mind in assessing the gravity of the offence, as viewed by the legislature. It does not mean that any sentence imposed for a lower level form of the offence, as the judge found this to be, necessarily warrants such a sentence.
423 With great respect, we consider that the sentence of nine years' imprisonment for this particular offence, committed in these somewhat unusual circumstances, to have been not merely severe, but outside the range that was reasonably available for offending of this nature. That translates to a conclusion that the sentence of nine years' imprisonment was manifestly excessive.
424 Where, as in this case, a genuine offer to sell drugs is made but the conduct lacks what counsel for the applicant, in his written case, described as the 'trappings of actual commerce', a judge would not err by moderating, at least to some degree, the sentence based upon the lesser risk of harm likely to flow from that act of trafficking.[204]
425 For these reasons, we consider that the sentence of nine years' imprisonment on charge 5 was outside the range reasonably available to the sentencing judge.
426 We should add that we are fortified in that conclusion, to some degree, by reference to the Sentencing Advisory Council's Sentencing Snapshot which stated that the average sentence in 2014-15 for trafficking in a large commercial quantity, was of the order of eight years' imprisonment.[205] The average length of imprisonment of those sentenced in 2011-12 for that offence was some six years and five months. In 2013-14, it increased to eight years and six months. Of the 61 persons sentenced for that offence during the period 2010-11 to 2014-15, only 13 received a sentence of nine years or more. A total of 37 persons received sentences of more than five, but less than nine years.[206]
427 It can safely be assumed that although a number of these cases involved pleas of guilty (and there may have been other mitigating factors present), not all were to be regarded as being at the 'lower end' of objective gravity, as the sentencing judge found the applicant's case to be.
428 In all the circumstances, we would grant leave to appeal against sentence on ground 3. We would set aside the sentence on charge 5. In lieu thereof, we would sentence the applicant on that charge to seven years' imprisonment.
429 We would refuse leave to appeal on all other grounds.
430 The reduction of the sentence on charge 5 should lead to a reduction in the total effective sentence, encompassing both indictments, from one of 14 years' imprisonment to one of 12 years' imprisonment. We would fix a new non-parole period of nine years.
431 For the avoidance of doubt, we would affirm all other individual sentences, and all other orders for cumulation made below.
[2] Drugs, Poisons and Controlled Substances Act 1981 s 70 (definition of 'traffick') ('DPCS Act').
[3] This was a colloquial translation of a Greek word (footnote added).
[4] According to Witness A, 'Mickey' was short for 'Mickey Mouse', which was slang for grouse, or high quality (footnote added).
[9] [1968] HCA 21; (1968) 117 CLR 313 ('Thompson and Wran').
[11] Thompson and Wran [1968] HCA 21; (1968) 117 CLR 313, 316 (citations omitted).
[12] His Honour discusses Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, R v Sultana (1994) 74 A Crim R 27, R v Blackwell (1996) 87 A Crim R 289, R v Edwards [1998] 2 VR 354, Festa v The Queen (2001) 208 CLR 593, R v Tracey [No 6] [2005] SASC 360 and R v Debs [2008] VSCA 240; (2008) 191 A Crim R 231.
[13] [2017] VSCA 74 ('Falzon').
[14] Giretti v The Queen (1986) 24 A Crim R 112 ('Giretti').
[15] (1994) 74 A Crim R 27 ('Sultana').
[16] Ibid 28. Sully J also found that the evidence had been correctly admitted.
[18] [1998] 2 VR 354 ('Edwards').
[20] Sultana (1994) 74 A Crim R 27, 29-30 (emphasis added). See Edwards [1998] 2 VR 354, 368-9.
[21] (1996) 87 A Crim R 289 ('Blackwell').
[23] (1996) 87 A Crim R 289, 290. See also R v McGhee [1993] SASC 4070; (1993) 61 SASR 208, 209-10.
[24] Falzon [2017] VSCA 74 [128].
[26] R v Falzon [2018] HCA Trans 68 (19 April 2018).
[27] [2008] VSCA 240; (2008) 191 A Crim R 231 ('Debs').
[29] That being the test for relevance under s 55 of the Act_._
[30] The applicant's evidence was supported by photographs of the Vespa showing it to be covered in dust when the applicant was arrested. In fact, the applicant conceded that he had not ridden the Vespa for many months.
[31] See R v Cook [2004] NSWCCA 52. We note that ground 2 in the present case is couched in the language of an attack of the exercise of discretion. Insofar as that ground relies upon s 137, it is drafted in misconceived terms. The section does not, as we have said, involve any exercise of discretion, but rather, a balancing exercise.
[32] See R v Lisoff [1999] NSWCCA 364 [60].
[33] See R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302.
[35] Sultana (1994) 74 A Crim R 27, 29.
[36] Blackwell (1996) 87 A Crim R 289, 290.
[39] Sultana (1994) 74 A Crim R 27, 30.
[41] This was not senior counsel who appeared on the applicant's behalf before this Court.
[42] See, for example, Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182, 219 [142], 221 [150]; MA v The Queen [2011] VSCA 13; (2011) 31 VR 203, 209-10 [25]; R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, 239 [72], [74]-[75]; R v Em [2003] NSWCCA 374 [121]-[122]; Cruz v The Queen [2017] ACTCA 48 [33].
[43] [2014] VSCA 276; (2014) 46 VR 623, 645 [101].
[45] (2017) 344 ALR 474, 482 [36]-[38], 484 [47], 486 [57].
[53] Ibid. See also R v Wright [1999] VSCA 145; [1999] 3 VR 355, 360-1 [16]-[17].
[54] See Dunn (a pseudonym) v The Queen [2017] VSCA 371 [4]-[6], [85].
[55] Lord Denning, 'Presumptions and Burdens' (1945) 61 Law Quarterly Review 879.
[56] See J D Heydon, Cases and Materials on Evidence (Butterworths, 2nd ed, 1971) 28-30.
[57] [2012] HCA 59; (2012) 246 CLR 469 ('Baini').
[59] It will be recalled that, unbeknown to the applicant, this money had been supplied to Witness A by police.
[60] In R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 324-5 [50]-[52], the High Court reiterated the well-established principle that when an accused person has knowledge of a particular fact, and is silent on that matter, any hypothesis consistent with innocence may cease to be reasonable. The same principle must apply when the accused gives evidence regarding a particular matter, and that evidence is entirely rejected by the jury. See also Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, 227-8, cited with approval in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 632-3 [27]. Although the Jury Directions Act 2015 has abrogated the Weissensteiner direction when it comes to charging the jury (largely because of difficulties encountered by judges in explaining its nuances), the principle itself can still be invoked on appeal when considering the strength, or otherwise, of the prosecution case at trial.
[61] Crimes Act 1958, s 27. The maximum penalty is 15 years' imprisonment.
[62] Charge 1 alleged a breach of s 27(b) of the Crimes Act 1958 (involving a threat where, if the threat were carried out, the life of a person would be endangered), and charges 2 and 6 were laid under s 27(a) (involving a threat to kill or inflict injury on a person).
[63] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.
[64] The jury was not required to return a verdict on an alternative charge of recklessly causing injury (charge 4).
[65] Drugs, Poisons and Controlled Substances Act 1981, s 71. The maximum penalty is life imprisonment.
[66] Firearms Act 1996, s 5(1). The maximum penalty is 10 years' imprisonment.
[67] Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty is five years' imprisonment.
[68] An application for leave to appeal against conviction in the second trial - on the basis that the verdicts on charges 1 and 3 were unsafe and unsatisfactory - was abandoned prior to the hearing.
[70] A further ground, ground 1, which asserted that the judge erred in permitting two witnesses to give evidence from a remote location, was abandoned prior to the hearing.
[71] See Criminal Procedure Act 2009 s 277(3); R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
[73] They were three Winchester Super X (50-quantity) ammunition boxes marked as 9 millimetre Luger calibre, Silver-Tip hollow-point. Each box contained fifty such cartridges (a total of 150). The cartridges were suitable for use in the Norinco NZ75 semi-automatic pistol.
[74] Although the convictions are no longer challenged, in the second trial the jury convicted the applicant of being a prohibited person possessing a firearm (charge 1) and possessing a drug of dependence (charge 3).
[76] Charge 1 related to the possession of the pistol. The applicant was acquitted on charge 2, trafficking in a drug of dependence, 1,4-Butanediol, but was found guilty of the alternative charge of possessing a drug of dependence (charge 3).
[77] Emphasis added to this and following extracts.
[78] See Justice Mark Weinberg, Adequate, Sufficient and Excessive Reasons, [2014] VicJScol 9, [93].
[79] R v Caine (1990) 48 A Crim R 464 was a case where the Court (Crockett, McGarvie and Beach JJ) was directly concerned with a failure to take exception to a trial judge's directions on provocation in a murder trial. Bearing in mind the provisions of the Jury Directions Act 2015, the following statement from the case (at 475) might readily be adopted and adapted for the purposes of rulings made on matters of evidence or law in the course of a trial:
We turn to consider the relevance of the fact that no exception was taken at the trial to the charge on provocation. We do not think that the learned judge received the assistance from either end of the Bar table to which he was entitled. The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client's case is put to the jury in a way which is as favourable to the client's interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial. We do not suggest that in this case counsel for either party deliberately refrained from taking an exception.
[80] In a different context, McGarvie J said in R v Garth (1990) 49 A Crim R 298, 305:
The usual principle is that a misdirection that could have been cured if an exception had been taken cannot found a successful application for leave to appeal if the exception was not taken: Clarke and Johnstone [1986] VicRp 64; [1986] VR 643 at 662; [1986] VicRp 64; (1986) 21 A Crim R 135 at 155. Here an exception was taken, but the passage last quoted did not meet the exception and no further exception was taken. It should have been. Counsel should politely but firmly insist on an exception until the judge redirects or states that no redirection will be given.
[81] Exhibit J in the second trial was an Admission of Fact, signed by the applicant, dated 15 February 2017, which contained the following: 'I, ROCCO ARICO, admit the following facts pursuant to section 184 of the Evidence Act 2008 having been advised to do so by my legal practitioner:- ... 7. That of 5 March 2015 Rocco Arico was a prohibited person within the meaning of that term in sections 3 and 5(1) of the Firearms Act 1996. ...'.
Moreover, when directing the jury on the elements of the relevant offence, the judge said:
The prosecution must prove three elements to prove that offence. Firstly that the accused man was, at the relevant time, a prohibited person. That is not in dispute. That is admitted in the notice of admission, you do not need to worry about that ... (emphasis added).
[82] In the written case, counsel cited Dupas v The Queen [2012] VSCA 328; (2012) 40 VR 182; IMM v The Queen (2016) 257 CLR 300; and DPP v Paulino [2017] VSCA 38.
[83] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[84] The common law position was described in R v Chee [1980] VicRp 32; [1980] VR 303, 308 (McInerney, Anderson and Brooking JJ):
Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.
[85] IMM v The Queen (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ).
[87] Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 ('Thompson and Wran').
[91] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 ('Driscoll').
[94] Festa v The Queen (2001) 208 CLR 593 ('Festa').
[98] R v Debs [2008] VSCA 240; (2008) 191 A Crim R 231 ('Debs').
[99] [R v Theos (1996) 89 A Crim R 486.]
[100] Debs [2008] VSCA 240; (2008) 191 A Crim R 231, 246 [64].
[102] [Driscoll v The Queen] [1977] HCA 43; (1977) 137 CLR 517 at 533.
[103] See also Festa (2001) 208 CLR 593 at 621 [90], where McHugh J referred to the principle that inadmissible evidence which is 'inextricably connected' with admissible evidence may be admissible on that basis.
[104] Compare R v Tracey & Ors [No 6] [2005] SASC 360, where evidence as to the finding of shot gun shells not used in the murder was held to be relevant and admissible because of a recorded conversation relating to shells and bullets and the finding of discarded shells and bullets. The bullets were linked to two of the accused by finger print evidence.
[105] Driscoll [1977] HCA 43; (1977) 137 CLR 517, 533 (Gibbs J).
[106] Query whether the reasoning in Festa might apply if the Crown case against a person charged with murder was that they were a killer for hire.
[107] R v Blackwell (1996) 87 A Crim R 289 ('Blackwell').
[109] R v Edwards [1998] 2 VR 354 ('Edwards').
[111] R v Sultana (1994) 74 A Crim R 27 ('Sultana').
[116] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.
[117] For example, see R v Marinovich [1990] WASC 226; (1990) 46 A Crim R 282; Marchesano v The Queen [2000] WASCA 225; (2000) 116 A Crim R 237; R v Morrison [2002] SASC 399; (2002) 136 A Crim R 222. See also Evidence Act 2008 s 79.
[118] See Murrell v The Queen [2014] VSCA 334, [66] (Redlich JA).
[119] Dickman v The Queen (2017) 344 ALR 474, 484 [48] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
[120] Festa (2001) 208 CLR 593, 603 [22].
[123] In relation to a drug of dependence, s 70(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 defines 'traffick' as including 'sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence'.
[124] By virtue of s 70(1) and Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981, a 'large commercial quantity' of methylamphetamine is 750 grams.
[125] This was a colloquial translation of a Greek word.
[126] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113].
[127] For example, see SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; GAX v The Queen [2017] HCA 25; (2017) 344 ALR 489; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308; Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158; BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387.
[128] See O'Brien (a pseudonym) v The Queen [2014] VSCA 94, [79]-[82] (Priest JA).
[129] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 654 [40] (Maxwell P) ('Klamo').
[131] For example, Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387; Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158; GAX v The Queen [2017] HCA 25; (2017) 344 ALR 489.
[132] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3.
[136] This assumes, of course, for argument's sake, that the jury were not improperly influenced by the evidence of the applicant's possession of the pistol and ammunition.
[137] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].
[138] Ibid. See also R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309 [14]; Camblin v The Queen [2013] VSCA 1 [19]-[21]; Stanley (a pseudonym) v The Queen [2017] VSCA 54 [46]-[49].
[139] See, eg, Gregory (a pseudonym) v The Queen [2017] VSCA 151 [80] ('Gregory').
[140] See, eg, DPP v Dalgliesh [2017] HCA 41; (2017) 349 ALR 37, 47-8 [49] ('Dalgliesh').
[141] DPP v Arico (Unreported, County Court of Victoria, Judge Chettle, 3 March 2017) [44] ('Reasons').
[146] See, for example, Nguyen and Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681 [34] (Propositions 7 and 8).
[150] [2015] VSCA 221; (2015) 253 A Crim R 508, 518-19 [33] (citations omitted).
[151] Ibid 519 [36] (emphasis added) (citations omitted).
[152] Cf Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 74 [39].
[156] [2014] VSCA 61; (2014) 41 VR 467 ('Holder').
[159] [2015] VSCA 24 ('Zandi').
[160] [2014] VSCA 61; (2014) 41 VR 467, 472-3 [25] (emphasis added) (citations omitted).
[162] Ibid [17]-[18] (citations omitted).
[165] [2015] VSCA 24 [18].
[167] [2016] HCA 48; (2016) 259 CLR 256 ('Kilic').
[168] [2018] VSCA 94 [223] (citations omitted) ('Schanker').
[169] Judicial College of Victoria, Victorian Sentencing Manual (at 20 April 2018) 33 Drug Offences, 'Recent cases - VSCA overview - Trafficking in large commercial quantity sentences' [33.13.2.1].
[170] See, eg, Le v The Queen [2011] VSCA 42 (12 years and six months' imprisonment, plea of not guilty); Falzon v The Queen [2013] VSCA 246 (11 years' imprisonment, plea of guilty); R v Bugeja [2010] VSCA 321; (2010) 30 VR 493 (10 years' imprisonment, plea of not guilty).
[171] See, eg, Schanker [2018] VSCA 94 [229]; Hoang v The Queen [2018] VSCA 86 [36]; Vi v The Queen [2017] VSCA 254 [50]-[51].
[176] [2013] VSCA 64 [53] quoting Dawid v DPP [2013] VSCA 64 [35].
[178] Ibid [97]-[100] (emphasis added) (citations omitted).
[179] Ibid [102]. See also Fernando v The Queen [2017] VSCA 208 [61].
[180] [2017] HCA 41; (2017) 349 ALR 37 [53].
[182] He claimed that he was shackled whenever transported.
[183] R v Arico (No 1) [2002] VSCA 229.
[184] One of the four men involved in the kidnapping died before the charge could be dealt with.
[185] DPP v Arico (Unreported, County Court of Victoria, Judge Chettle, 3 March 2017) [30]-[44].
[186] Grounds 1.3 and 1.4 were abandoned at the commencement of oral argument.
[187] During oral argument, counsel for the applicant submitted that ground 2 ought to be seen as a particular of grounds 4 and 5, and not as a standalone ground.
[188] The figure for a large commercial quantity of methylamphetamine has since been reduced from 1kg to 750g (for a mixture of a drug of dependence with another substance) by s 20 of the Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017.
[189] [2015] VSCA 221; (2015) 253 A Crim R 508 ('Taumoefolau').
[190] Ibid [33] (citations omitted).
[191] Taumoefolau [2015] VSCA 221; (2015) 253 A Crim R 508 [33], [36] (emphasis added) (citations omitted).
[192] The Court described the sentencing judge's characterisation of the applicant's conduct as 'most favourable', from the offender's point of view. That characterisation was 'two ounces "actually transacted" and a "willingness or attempt to source and move seven to ten ounces"' at [40].
[193] [1999] VSCA 18 ('Spaull').
[194] [2010] VSCA 338 ('Chandler').
[196] [2014] VSCA 61; (2014) 41 VR 467 ('Holder').
[198] [2013] VSCA 149; (2013) 230 A Crim R 134 ('Haidari').
[202] [1987] HCA 46; (1987) 163 CLR 447 ('Ibbs').
[204] See R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152, 168 [97], where Johnson J said, 'although the fact that drugs are not disseminated in the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case'. To the same effect, is the decision of the New South Wales Court of Criminal Appeal in Ly v The Queen [2008] NSWCCA 262, where Hislop J observed that, in a case of 'deemed supply', the fact that the drugs had not been disseminated in the community would not carry much weight by way of mitigation, because this was not an isolated occasion of possession for supply.
[205] Sentencing Advisory Council, Sentencing Snapshot No 195: Trafficking in a large commercial quantity of drugs (June 2016).
[206] Ibid. See also Stanley (a pseudonym) v The Queen [2017] VSCA 54 (sentence of 8 years' imprisonment for trafficking in over 2 kilos of methylamphetamine); Cavanagh v The Queen [2016] VSCA 305 (sentence of 7 years' imprisonment for trafficking in over 3 kilos of methylamphetamine); Tran & Chang v The Queen [2016] VSCA 79 (sentence of 12 years' imprisonment for trafficking in over 13 kilos of methylamphetamine); McKinnell v The Queen [2014] VSCA 39 (sentence of 9 years and 9 months' imprisonment for trafficking in 'very significant amounts' of methylamphetamine over a 12-month period). We are, of course, conscious of the limitations associated with treating the quantity of the drug as the sole, or perhaps even determinative, factor in assessing the gravity of the offence. See The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550.
Arico
The Queen [2018] VSCA 135
(1989) 167 CLR 590
(1977) 137 CLR 517
(1993) 61 SASR 208
(2011) 31 VR 203
(2014) 46 VR 623
(2003) 217 CLR 1
(2016) 258 CLR 308
(2016) 257 CLR 300
(2007) 230 CLR 559
(2011) 243 CLR 400
(2017) 344 ALR 489
(2014) 311 ALR 158
(2008) 18 VR 644
(1994) 181 CLR 487
(1997) 191 CLR 439
(1998) 194 CLR 106
(2011) 32 VR 361
(2014) 253 CLR 58
(2014) 41 VR 467
(2010) 30 VR 493
(1987) 163 CLR 447
(1968) 117 CLR 313
(2001) 208 CLR 593
(2012) 40 VR 182
(2006) 66 NSWLR 228
(2017) 344 ALR 474
(2012) 246 CLR 469
(1993) 178 CLR 217
(2000) 199 CLR 620
(2000) 203 CLR 452
(2001) 206 CLR 650
(1961) 104 CLR 1
(2013) 303 ALR 387
(2002) 213 CLR 606
(2007) 228 CLR 618
(2017) 349 ALR 37
(2011) 31 VR 673
(2016) 259 CLR 256
(2015) 256 CLR 550