Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Accomplice warning - Whether warning adequate or necessary - Whether proviso should be applied - Criminal Appeals Act 2004 (WA), s 30(4)

Criminal Appeals Act 2004 (WA), s 30(4)

1 JUDGMENT OF THE COURT: The appellant and his co-accused ("Reinke") were jointly charged with two counts:

(a) Between 1 January 2004 and 22 October 2004, at Cervantes, Reinke and the appellant cultivated a prohibited plant, namely cannabis, with an intent to sell or supply it to another.

(b) On 21 October 2004, at Cervantes, Reinke and the appellant had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

2 The appellant and Reinke pleaded not guilty. The prosecution relied on the presumption of intent to sell or supply the cannabis in question created by s 11 of the Misuse of Drugs Act 1981 (WA). Following a joint trial before Sleight DCJ and a jury, both were convicted and sentenced to two years' immediate imprisonment on count 1, and two years' immediate imprisonment on count 2 with 12 months to be served concurrently with the sentence on count 1. The total effective sentence was three years' immediate imprisonment with eligibility for parole.

5 On 21 October 2004, the police executed a search warrant at a property at Cervantes, occupied by Reinke and his family. When the police arrived, they heard noises emanating from a shed on the property, which was located approximately 100 metres from the main residence. The police announced their arrival and called for the door of the shed, which was locked from the inside, to be opened. The door was not opened, and the police entered by cutting a wire latch. They found elaborate hydroponic equipment and other items including 68 cannabis plants and approximately 15.4 kilograms of cannabis leaf material.

6 The police also found the appellant in the shed, who was hiding behind some plastic sheeting. When the appellant was interviewed by the police, he initially said he was "just having a look around" because he was interested in farming there, then he said he "just came out for a drive", and finally he said that he was "just having a quick look around" (ts 227 - 228).

7 The police discovered the appellant's key ring on a shelf in the shed. The key ring had on it, amongst other things, a padlock with a key in it, which the prosecution alleged was used to lock the shed. Reinke also had a key that fitted the same padlock, which was kept in another shed on the property (ts 69).

8 A fingerprint of the appellant was identified on a bottle of scotch found inside the shed, and Reinke's fingerprints were found on a transformer box, fluorescent lights and globe brackets inside the shed (ts 146 - 148).

9 The police searched Reinke's house and seized a tax invoice and quotation for a shed issued to Reinke, photographs from Reinke's computer (including two photographs of cannabis plants growing in a hydroponic set-up), and gloves (ts 75 - 76, 83, 84). Detective Sergeant Davis gave evidence to the effect that there were striking similarities between the cannabis plants in the photographs and those found in the shed (ts 77). A pink glove located at Reinke's house was similar in size, weight and style to pink gloves found in the shed, but white gloves located at Reinke's house were dissimilar to white gloves located in the shed (ts 159 - 160).

10 During a search of the appellant's place of residence in Cervantes, the police seized two receipts from Oakabella Pty Ltd, for the purchase of items including an "Integral Hydroponics FA021", a "150 millimetres spectrum AC Actsure fan", and "500 mil Oxy Plus" fertiliser (ts 85). The receipts displayed credit card numbers, but the police did not investigate them to ascertain the purchaser of the items (ts 104). The fan and the fertiliser described in the receipts were the same type as those found in the shed (ts 85, 104). The receipts were dated approximately five weeks before the day of the seizure (ts 85). The police seized another receipt, which was from Bunnings Warehouse, for the purchase of reticulation fittings (ts 88).

11 The police also seized from the appellant's place of residence a "Luca grow light", a white glove, a hessian bag with stones, a set of scales, a sheet of plastic, a pair of scissors, and green and black tubs (ts 88 - 92). An empty Luca grow light container was found in the appellant's motor vehicle (ts 88). According to Detective Sergeant Davis, the Luca grow light, stones, plastic sheet and tubs were similar to items of the same description which were found in the shed (ts 88, 90 - 92). The white glove differed from the white gloves located in the shed (ts 160-161). The scissors had a cannabis stain on them (ts 91), but they were not forensically analysed (ts 101).

12 The police also seized two quantities of cannabis leaf material from the appellant's kitchen (which weighed 0.89 grams and 24.6 grams), and a third quantity from a bedroom (which weighed 2.4 grams) (ts 87, 90). The cannabis seized from the appellant's place of residence was not forensically tested or compared with the cannabis found in the shed (ts 107).

14 In about March or April 2003, the appellant agreed with Reinke that Reinke would construct a shed on the Reinke's property to store the appellant's fishing gear (ts 173). The appellant paid Reinke $6000 for the shed, and it was erected in June 2003 (ts 173). The appellant also agreed to pay Reinke $100 per week rent for use of the shed, after a period of 60 weeks (ts 173). In about July 2003, Reinke complied with the appellant's request to connect water to the shed (so the appellant could wash his fishing equipment) (ts 174 - 175), and in November 2003, the appellant obtained permission from Reinke to connect electricity to the shed. Also in November 2003, the appellant wanted to put a freezer in the shed, and Reinke helped the appellant carry it into the shed. A little later, Reinke helped the appellant put some crayfish in the freezer (ts 176 - 177). When Reinke was in the shed, on those occasions, he only noticed fishing equipment inside. The appellant locked the shed with a padlock, and Reinke did not have a key to the padlock (ts 176).

15 In about late September or early October 2004, Reinke found photographs of cannabis plants on his home computer (which had been put there by Reinke's son) (ts 177). This led to Reinke confronting the appellant and demanding that he get rid of the cannabis (ts 179). According to Reinke, the appellant said he needed some time to find an alternative place for the cannabis, and Reinke obtained from the appellant a key to the padlock on the shed, to enable Reinke to check on the removal of the cannabis (ts 179). Reinke then entered the shed to look around, and touched things, but could not recall what he had touched. Reinke visited the shed about five or six more times (ts 180).

16 Reinke did not contact the police about the cannabis, because he did not want to "hurt" the appellant, but "just wanted it to go away" (ts 180). Reinke denied having any involvement with the cannabis (ts 181).

17 Reinke explained that the gloves found in his house were used by his wife to apply fake tan and to wear inside her leather garden gloves (ts 180). During cross-examination, Reinke gave evidence that, on one occasion, he and Aldo Misiani had shot a cow or sheep, and the appellant had given Reinke a key to a locked shed on the appellant's property so he could put the slaughtered meat in a refrigerator in that shed (ts 184, 186). Reinke then said that he was not sure if the shed on the appellant's property had been locked, and finally said that he did not think there had been a key and he did not think the shed had been locked (ts 184, 186). Reinke explained that he was mistaken when he said that the appellant had given him a key to the shed on the appellant's property (ts 187).

18 During cross-examination, Reinke said that he had never heard any sounds coming from the shed (ts 193) or seen any equipment being put into the shed (ts 194). Although the electricity used in the shed was sourced from Reinke's property, Reinke did not notice an increase in electricity usage as he did not pay the bills, and he did not notice the electricity outlets in the shed (ts 195). Reinke told the police that he touched "just about everything" in the shed, but in cross-examination he said that that statement was not correct, and at the time he said it, he could not remember what he had touched (ts 198). He also told the police that he had probably touched all the fluorescent lights in the shed, but in cross-examination he said that he only made that statement because he could not remember which lights he had touched (ts 200). Reinke explained that he touched the fluorescent lights, globe brackets and transformer box, because he was "just having a look" (ts 200 - 202).

19 Reinke's wife, Michelle Reinke, gave evidence that the appellant had approached them about storing some of his fishing equipment on their property. Reinke agreed to a shed being built for that purpose, and the appellant paid $6000 for Reinke to build the shed (ts 109). She said that the appellant visited the shed quite often, at different times and for varying lengths of time (ts 109 - 110). Ms Reinke said that she never saw anything being taken into or out of the shed, she never saw anyone apart from the appellant using the shed, she had no knowledge of what was in the shed, the shed was always locked, and nobody in the Reinke family visited the shed (ts 110 - 111). Ms Reinke said that on the morning of 21 October 2004, the day on which the police executed the search warrant, she had passed the appellant at the gate to the property, as he was coming in and she was going out (ts 116). Reinke was away and had asked the appellant to feed the pigs while he was gone (ts 116). Ms Reinke said it was possible that the appellant was bringing feed for the pigs to the property that morning (ts 116). Ms Reinke also gave evidence that because of the charges against Reinke, the Reinke family stood to lose the family home (ts 118).

20 The appellant gave evidence. His case was as follows.

21 The appellant denied asking Reinke to construct the shed, giving Reinke $6000 for the shed or paying him $100 per week rent after 60 weeks (ts 206 - 207). He said that he did not need a shed to store his craypots, floats and ropes because his property already had a shed (ts 206). Further, he said that he would not have paid $6000 for the construction of the shed or $100 per week rent without claiming those amounts as a tax deduction (ts 206).

22 As to Reinke's key, the appellant gave evidence that sometime before 21 October 2004, Reinke, Aldo Misiani and the appellant went shooting and shot some stray sheep. The appellant gave Reinke a key to a shed on the appellant's property so that Reinke could put the meat in a freezer in that shed the next day (ts 208). Reinke never returned the key (ts 208).

23 On 21 October 2004, as usual, the appellant went to Reinke's property to feed the pigs. He decided that the feed container needed washing, and he went to use a tap at the corner of the shed (ts 210). The appellant said he had nothing to do with connecting water or electricity to the shed (ts 210). The hose went under the door, so the appellant removed a little piece of wire that was holding the door shut, went inside the shed, and saw "marijuana everywhere" (ts 210). He had never seen marijuana in the shed until that time (ts 210) and had never been involved with its cultivation (ts 211). The appellant then put his keys down to get the water hose. His keys were on a key ring, which had a padlock (with a key in it) attached. The appellant said the padlock was with the keys because "we were packing up to go to Perth that afternoon", and the padlock was to the shed on his property, which was to be locked (ts 211 - 212). The appellant said he was "overwhelmed" when he went inside the shed. He touched the Scotch bottle (ts 212). He was in the shed for about two minutes before he heard voices. When he heard the word "police", he hid, but the police soon located him (ts 212).

24 The police later executed a search warrant at the appellant's property, and found two bags of cannabis in the appellant's kitchen (ts 213). The appellant said the cannabis belonged to his partner, Deanna Roberts, who smoked marijuana. The appellant said he did not use marijuana (ts 213). As to the receipts found by the police, the appellant said the Bunnings Warehouse receipt for some reticulation fittings related to maintenance work at a property in Geraldton that he had bought with a friend, Norm Gazeley (ts 213). The Luca grow light, the sheet of plastic, the green and black tubs and the bag of stones belonged to a friend, Clay Jones (ts 213 - 214, 217, 225, 236 - 237). The scales and scissors belonged to Ms Roberts (ts 214). The two receipts from Oakabella Pty Ltd were left in his car by a friend, Dan Lawson, when the appellant went to collect him after Mr Lawson's motor vehicle had broken down (ts 216). The appellant denied using his own or another person's credit card to pay for the items from Oakabella Pty Ltd (ts 217).

25 During cross-examination, the appellant explained that he had hidden from the police because he was scared and believed he might be blamed (ts 226 - 227). The appellant admitted he did not tell the police that he was at Reinke's property to feed the pigs, but initially said he was "just having a look around" and then that he "just came out for a drive", because he was under "duress or stress" (ts 227 - 228). Also during cross-examination, the appellant explained that the reason why the padlock to his own shed was on his key ring was so he would not lose it (ts 229) and because "we were going to Perth later on in the day" (ts 229). The appellant said the freezer in the shed used to be his, but he did not help carry it into the shed (ts 234, 239). The police found an empty Luca grow light box inside the appellant's vehicle, but the appellant said he did not know how it came to be there (ts 236). The appellant had given some evidence, earlier, that he had allowed other people, over the years, to drive his car (ts 218 - 219).

(a) Aldo Misiani said he had known the appellant for about 12 years, and remembered one occasion when sheep were shot, and the appellant had given a key to Reinke for the purpose of storing the meat on the appellant's property (ts 241).

(b) The appellant's former wife, Col-Anne Cronin, had known the appellant for about 20 years and was married to him for 10 years (ts 242). She had never seen him growing, cultivating, smoking or using cannabis (ts 242).

(c) Clay Jones, a landscape designer (ts 243), said he stayed "on and off" at the appellant's house for a period of about two months while looking for somewhere to live (ts 243). When he stayed with the appellant, Mr Jones would take with him some personal effects (ts 243). He brought, to the appellant's house, light globes for a hydroponic kit, stones to assist with water and nutrients and also a double-sided plastic sheet to assist with hydroponic growth, some of which were left behind after his departure (ts 243 - 244). During cross-examination, Mr Jones said he was planning to grow chillies and capsicum with the hydroponic equipment he had brought to the appellant's house (ts 244). He said the scales found at the appellant's property belonged to him (ts 245) (which statement contradicted the evidence of the appellant and Ms Roberts). Mr Jones said he used the scales for "weighing things", "possibly" cannabis (ts 245). He also said the green and black tubs, and the Luca grow light belonged to him (ts 246).

(d) Deanna Roberts, the appellant's partner, had known the appellant for about seven years, and been his partner for about five years (ts 246). She admitted that the two amounts of cannabis found in the kitchen were hers (ts 247 - 248), but was unaware of the cannabis located in one of the bedrooms (ts 248). She said that a number of people stayed with them in the five or six months prior to the police search (ts 249). She admitted the scissors were hers and that she used them to cut up marijuana and household materials (ts 249). Throughout the time Ms Roberts had known the appellant, she had never seen him growing, cultivating, harvesting or tending to cannabis plants or smoking cannabis (ts 250). During cross-examination, Ms Roberts said that the electronic scales belonged to her and not to Mr Jones (ts 250 - 251), and that she used them, not to weigh drugs, but in the kitchen. Ms Roberts said that she could not recall ever seeing the Luca grow light, the hessian bag containing the stones or the sheet of plastic at the appellant's property (ts 251).

(e) George Davis had known the appellant for about 30 years. He was familiar with the motor vehicle the appellant currently drove and had seen other people driving the vehicle (ts 254). He had also driven the vehicle (ts 254) and said it was part of the "job" of the people of Cervantes to lend their vehicles to other people (ts 254). During cross-examination, he said there had been no padlock attached to the appellant's keys when he had driven the appellant's vehicle (ts 254). He could not remember if he had driven the vehicle at about the time of the police search in October 2004 (ts 254).

27 In his summing up, the trial Judge gave the jury an accomplice warning. The sole ground of appeal is that he erred, in the course of doing so, by failing to direct the jury "adequately" that the warning in respect of the appellant's evidence related only to the use of that evidence against Reinke and that the warning had no application to the appellant's evidence in his own defence.

28 The material parts of the trial Judge's summing up, are as follows:

"The state's case is that each accused was involved in the cultivation and possession of the cannabis found in the shed on 21 October 2004. As such it is alleged that each is an accomplice to the other. Each accused is essentially denying being involved and suggesting the other accused was responsible for the plants and cannabis found in the shed.

It is the experience of the law that the evidence of an accomplice denying involvement and suggesting that another accused is responsible is frequently unreliable. An accomplice may seek to justify his own conduct and shift the blame to the other accused. In this case there is an added need for caution. In addition to each accused facing serious criminal charges, each, if convicted, faces the loss of all assets if he is convicted.

... For these reasons it is dangerous in this case to convict an accused upon the uncorroborated evidence of the other accused."

29 The trial Judge then went on to explain the concept of corroboration and to identify the evidence which was capable of corroborating each accused's involvement independently of the co-accused's evidence. Then, he said:

"It is for you to consider all of these items of evidence against each accused and to determine whether you accept the evidence against each accused and to determine whether you accept the evidence itself and if you do, whether you regard it as corroborating the evidence of the accomplice. If you do not find any corroborating evidence, you must regard [sic] the warning which I give you; that is, that it's dangerous to convict an accused on uncorroborated evidence of an accomplice. You may only do so if, after subjecting the accomplice evidence to close and careful scrutiny, you are satisfied by it and are satisfied to act upon it notwithstanding its source and notwithstanding that it is uncorroborated."

30 A trial Judge has a far greater discretion as regards the terms in which a corroboration warning is expressed when the alleged accomplice is a co-accused than when that person is giving evidence on behalf of the prosecution. In a case of the former kind, it will ordinarily be necessary to adapt the warning to meet the different circumstances of the case if, indeed, it is appropriate to give the warning at all: R v Henning, unreported; CCA SCt of NSW; 11 May 1990 at 47 per Gleeson CJ, Campbell and Mathews JJ; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 65, 66 per Brennan J, at 81 per Deane J, at 94 per Toohey J; Jenkins v The Queen [2004] HCA 57; (2004) 79 ALJR 252 at [32] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; R v Pearl [2005] QCA 237 at [15] per De Jersey CJ, with whom White J agreed. When a warning is given in this kind of case, it should be restricted to those parts of the evidence which inculpate the co-accused and it should be made plain to the jury that it does not apply to the accused's evidence in his own case: Henning at 47; Webb at 81 per Deane J.

31 Where the evidence inculpating a co-accused is essentially the same evidence as is given by the accused in his or her own defence, a direction of this last kind might confuse, rather than assist, the jury. As Brennan J pointed out in Webb (at 65), the jury would, in such a case, be directed to treat that evidence in one way when deciding the guilt or innocence of the accused and in another way when deciding that of the co-accused who was inculpated by that evidence (see also R v Cheema [1994] 1 WLR 147 at 157 per Lord Taylor of Gosforth and Pearl at [19]). Given this prospect of confusion, and given that the potential operation of self interest in a case of this kind will generally be "blindingly obvious to the jury", it seems to us to be preferable that no accomplice warning should ordinarily be given in this kind of case: R v Johnston [2004] NSWCCA 58 at [150] per James J, with whom Santow JA and Whealy J agreed; R v Lowe [2004] QCA 398 at [19] per Davies, Williams and Jerrard JJA; Pearl at [16]. We have said that an accomplice warning is not mandatory in every case involving accomplice evidence. As the High Court pointed out in Jenkins (at [32]):

"Although the common law rule about accomplice warnings is a rule of law ... the rule is not so mechanical as to call for a warning in any case in which an accomplice gives any evidence which may be relied upon to establish the prosecution case. The application of the rule must be related to its purpose, and will require a consideration of the issues as they have emerged from the way in which the case has been conducted."

32 In our opinion, when the evidence in this case is assessed, it is clear that the question for the jury came down to that of whether the cannabis had been cultivated by one or both of the accused and, if one, which one. There was no reasonable possibility that the cannabis could have been cultivated by anyone else. In those circumstances, and in circumstances in which Reinke blamed the appellant and the appellant, by denying that he had grown the cannabis, effectively blamed Reinke, it must have been "blindingly obvious" to the jury that each of them had a self interest in blaming the other. Consequently, it seems to us that no accomplice warning should have been given.

33 That leaves the question whether the accomplice warning that was given led to a substantial miscarriage: s 30(4) of the Criminal Appeals Act 2004 (WA). That question must be answered even though counsel for the respondent made no submission in that respect.

34 In our respectful opinion there was no substantial miscarriage of justice. The trial Judge made it plain to the jury that the State bore the onus of proving the charges against each accused beyond reasonable doubt. He also told them (ts 294 - 295) that, even if the evidence of an accused was disbelieved, the jury could not find an issue against that accused contrary to his evidence if it gave rise to a reasonable doubt. As will be apparent from what we have already said, when he came to give the accomplice direction, the trial Judge made it plain that the danger to which he referred was that of convicting either accused upon the uncorroborated evidence of the other accused.

35 It is true that, in the course of doing so, he said that the experience of the law was that the evidence of an accomplice "denying involvement and suggesting that another accused is responsible is frequently unreliable", and also that an accomplice "may seek to justify his own conduct and shift the blame to the other accused". However, these comments were made while explaining what the approach of the jury should be when considering the impact of that evidence on the question of guilt or innocence of the other accused. Also, the jury must have understood its task to be that of deciding whether, having regard for the competing self interested evidence of each of the accused and the extent to which the evidence of each was corroborated by objective evidence, either or both of them had been proved beyond reasonable doubt to be guilty of the offences charged. In these circumstances, it seems to us that the giving of the accomplice warning and the failure, in the course of it, to direct the jury to distinguish between the appellant's evidence against Reinke and his evidence in his "own case" (which direction, as we have said, would have given rise to some confusion, if not bemusement, on the part of the jury), could not have given rise to any miscarriage.

36 We should add that there was no suggestion, in anything said by the trial Judge, that the evidence of any of the other witnesses called by the appellant for the purpose of bolstering or corroborating his evidence should be treated with suspicion. Moreover, the warning that was given was of real assistance to the appellant in respect of the directly incriminating evidence given by Reinke, including evidence of the admission which, he said, had been made by the appellant.

37 We are consequently not persuaded that, in the particular circumstances of this case, the appellant was disadvantaged by the fact, or form, of the warning. We are fortified in this conclusion by the fact that, at the trial, experienced counsel for the appellant sought no redirection in this respect.

38 Finally, it seems to us that the evidence against the appellant was overwhelming, even putting to one side the evidence given by Reinke. The appellant was hiding in the shed when the police discovered the cannabis. He was untruthful, even on his own version of events, when asked what he was doing there. He had, on his key ring, the key to the padlock that locked the shed. His fingerprint was on a bottle of Scotch found inside the shed. He had cannabis in his home. He had receipts for items of the kind found in the shed and used for the growing of the cannabis. Items found in his house were similar to items found in the shed and used for the growing of the cannabis.

39 For this reason, too, it seems to us that the limited effect of the misdirection could not reasonably be supposed to have influenced the result of the trial and, hence, could not have given rise to a substantial miscarriage: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Libke v The Queen [2007] HCA 30 at [45] per Kirby and Callinan JJ.