Criminal law and procedure - Application to discharge jury

Publicity prior to and during trial - Prejudice - Trial Judge's direction to jury - Miscarriage of justice - Turns on own facts

Criminal law and procedure - Sentencing - Cultivating cannabis plants with intent to sell or supply to another - Plants cultivated by hydroponic method on commercial basis - 184 plants - Sentence of 8 years' imprisonment with eligibility for parole - Whether sentence excessive

Carter v The Queen (1997) 19 WAR 8

Dinsdale v The Queen [2000] HCA 54; [1999] 202 CLR 321

Ellis & Anor v R, unreported; CCA SCt of WA; Library No 920078; 11 February 1992

Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94

Troy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998

1 MALCOLM CJ: In my opinion this application for leave to appeal against conviction should be granted, the appeal allowed, the conviction quashed and a new trial ordered. I have reached this conclusion for the reasons to be published by Wheeler J with which I agree. It follows that the sentence imposed by the learned Judge should also be quashed. While it is not strictly necessary to comment on the merits of the application for leave to appeal against sentence, I agree with the comments of Wheeler J on the sentence which would have been appropriate in this case.

2 ANDERSON J: I agree with Wheeler J that no error was involved in refusing the application for a change of venue. However, in fairness to the applicant, it was necessary for the trial Judge to direct the jury in strong and clear terms that they were entitled to act only on the evidence presented at trial and on nothing else; and that if they had read or heard outside the courtroom anything about the case, or anyone involved in it, this should be put right out of their minds. In addition, they should have been directed not to approach the trial of the accused with any prejudices arising from any knowledge or beliefs they had concerning the accused's general lifestyle, activities or pursuits; and that they should consider the evidence objectively, dispassionately and without bias.

3 With respect, the direction which the trial Judge gave fell well short of this. It amounted to a direction to reject extraneous material which the jury considered to be irrelevant or which, in their judgment, they considered to be prejudicial. The danger is that some members of the jury might have understood this to mean that it was permissible for them to have regard for "relevant" extraneous material and extraneous material which they did not consider to be prejudicial. A good deal of the material in question identified the accused as a bikie and identified bikies generally with the drug trade. There was a danger that some members of the jury might have regarded that extraneous material as highly relevant and therefore as not something that they needed to exclude from their minds.

4 In the circumstances, the applicant cannot be said to have received a fair trial. I agree with the orders proposed by Wheeler J.

5 WHEELER J: The applicant in this matter seeks to appeal against both his conviction and sentence in respect of a charge of cultivating a quantity of cannabis with intent to sell or supply to another, of which he was convicted on 31 August 2001 in the District Court at Bunbury after trial

by a jury. He was sentenced on 2 November 2001 to a term of imprisonment of 8 years with eligibility for parole.

6 He is a third generation member of a family which has farmed in the Busselton area since the 1920's. The family business is centred upon dairy farming and viticulture and is operated from a number of properties. He is also a member of the Rebels Motorcycle Club and president of the Club's South West Chapter.

7 The applicant was the registered proprietor of a property located in Busselton on which there was a caravan situated next to a shed. On 13 October 1999 police executed a search warrant on the premises and found growing within the shed 184 cannabis plants, including 78 seedlings, under an elaborate hydroponic system. The prosecution alleged that the applicant had previously arranged for an electrician to install power points, light fittings and a meter box to the shed. They also alleged that amateurish work had been done to bypass the meter box to supply power to the shed. It was further alleged that the applicant's fingerprints were found on some light shades and the power box which were in or near the shed. The applicant gave no statement to the police but at trial maintained that a tenant known to him as Mr Lewis had carried out the cultivation of cannabis on the property without his knowledge.

8 On 29 January 2001 the applicant brought an application in the District Court at Bunbury to transfer the trial to Perth, pursuant to s 577 of the Criminal Code. In support of the application he filed various materials, including affidavits of a number of persons concerning his general reputation within the southwest of the State and extracts from media reports concerning motorcycle clubs and their extensive criminal activities. At that time he had been president of the Southwest Chapter of the Rebels Motorcycle Club for some 22 years. I do not think it is necessary to outline all of the varied materials referring to "bikies" generally or to motorcycle clubs other than that to which the applicant belonged. However, it is to be noted that during the course of 2000 and into the very early part of 2001 there was extensive publicity, both in local newspapers in the southwest and in the Western Australian media generally, concerning a matter in which the applicant had been charged with, and eventually convicted of, assaulting a teacher at his son's school. He was often referred to as a "bikie" or "bikie leader" in that material. His photograph featured in some of that material. The Hon Bernie Masters MLA swore an affidavit in which he deposed that many people had visited or telephoned his office expressing concerns about safety in local schools as a result of that incident. He further deposed that many of the people who spoke to him about that incident mentioned that the applicant was president of the Rebels Motorcycle Club and referred to rumours that the applicant and/or members of that Club were involved in the distribution of illegal drugs.

9 The principles applicable in respect of such an application are not in doubt. The jury system is an essential part of the administration of justice in this State, and it is fundamental to that system that jurors be drawn from the ranks of local people and that trials be held where possible in the locality where the offences are alleged to have occurred. It is of particular importance in smaller communities and remoter parts of the State that justice be seen to be done in respect of offences alleged to have occurred in those localities. In many cases, although not apparently in this one, there is a further factor of considerable difficulty and inconvenience to witnesses which might be occasioned by a change of venue. Further, the mere fact that something may be known of an accused person, or that there may have been publicity surrounding the charge against him or her is not a sufficient reason for a change of venue, it being assumed that properly instructed jurors will follow instructions which they are given and put such matters aside. It is accepted that in some cases a change of venue will be necessary, but there is a heavy onus which lies upon the accused to show "an exceptional case and real and substantial reasons", before a change in venue will be granted: Grieves, Rose and Read v The Queen, unreported; FCt SCt of WA; Library No 8724; 18 February 1991.

10 The learned District Court Judge before whom the application was made refused it. He did so for two principal reasons, in a context in which he had been assured by counsel that both the Crown and counsel for the applicant had agreed that there would be no mention during the trial of the applicant's membership of the motorcycle club. The first reason was that, having regard to the time likely to elapse before the trial would take place, the publicity forming the basis for the application would be stale. The second was that the most intense publicity appeared to have occurred within the Busselton area and that, although Busselton was within the Bunbury jury district, the jury pool was likely to include a large number of persons from a much larger area and with a less intense interest in such issues. It does not appear to me that his Honour's discretion in that respect miscarried.

11 Subsequent to the application for change of venue, but prior to the trial, there appears to have been only one item of publicity directly relating to the applicant, although it was a striking one. On 23 March 2001 the front page of the West Australian newspaper detailed many allegations against members of the "Rebels Bikies", named and unnamed, including allegations that they planned to kill a rival gang leader and that they were involved in the distribution of very large quantities of methylamphetamine. The applicant's name was mentioned in connection with an allegation that he had been charged with money laundering, and he was identified as "the gang's Southwest Chapter President". This was not the subject of any fresh application, but forms part of the context against which subsequent events must be seen.

12 The trial commenced in the District Court of Bunbury on 29 August 2001 and was listed for three days. On the morning of the second day of trial an article reporting the trial appeared at page 3 of the South Western Times, a newspaper circulating within the jury district. It identified the applicant as "Rebels Bikie Leader" and went on to detail the prosecution's allegations. An application was made on behalf of the applicant to discharge the jury. His Honour refused to do so, ruling that an appropriate direction could overcome the prejudicial effect of the material, and ordering that there be no further reporting of similar material.

13 Again, the relevant principles are not in doubt. No rigid rule can be adopted to govern decisions in relation to an application to discharge a jury in respect of a prejudicial event occurring during trial. Much depends on the seriousness of the occurrence and the context of the issues, the stage at which it occurs, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. Much leeway must be allowed to the trial Judge to evaluate these and other considerations, bearing in mind that he or she will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from a reading of the papers and the transcript. However, it bearing those principles in mind, an appellate court must also decide for itself whether, in the relevant circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427.

14 In this case, it is apparent from the nature of the issues which I have outlined that much would depend upon the jury's assessment of the applicant's credibility. There appears to have been ample material from which it could be concluded that some person had been cultivating cannabis with intent to sell or supply, and doing so upon the applicant's property. The only live issue appears to have been whether the cultivation had been done by the applicant or by Mr Lewis (a person whom the prosecution alleged to be fictitious). I accept, both from the materials relating to the application for change of venue, and from notorious publicity within this State, that there is an association in the media and in the public mind between "bikie gangs" and the cultivation, production and distribution of drugs. So far as this applicant was concerned, there was the potential for the reference to him as the president of a motorcycle club, not only to arouse some general prejudice in that sense, but also perhaps to trigger in the mind of one or more jurors memory of the specific previous allegations relating to the applicant, to which I have referred. Against these factors, one must set the expectation that jurors will set aside preconceptions and predispositions which might impede their objective consideration of the evidence: Connell v R (No 6) (1994) 12 WAR 133 at 148. If it were not so, then notorious criminals or heinous crimes would be beyond the reach of criminal justice: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 613. One must bear in mind also the further circumstance that Judges of the District Court are experienced in conducting trials in small communities throughout Western Australia, and are well placed to evaluate the likely effects of local publicity and local prejudice.

15 Balancing the considerations to which I have referred, although the matter is a borderline one, I would not form the view that the risk of a miscarriage of justice in this case was such that the jury must have been discharged. However, the circumstances obviously called for a most careful, strong, and clear direction to the jury in respect of this issue.

16 The applicant complains of the direction which was in fact given, which was as follows:

" Sometimes people on juries hear about criminal cases and people involved in such cases before the matter comes to court, or even whilst they sit on a jury. This comes about either on the grapevine, that is by word of mouth, or via the media. Sometimes people of so-called notoriety sometimes are heard about as being involved in a criminal trial. Such sort of publicity is inevitable in a modern society where modes of communication are so wide and sophisticated. Nevertheless any person on a jury who hears about any such things, however it may come about and it is, must put aside any feelings of prejudice or sympathy arising from any such information.

People in Australia possess an innate fairness and I am sure that you do, being a part of the community. Thus when you act as jurors in this trial if you have heard anything or read anything which is irrelevant to the matter then you would obviously put that aside. If you have heard anything or read anything which could be said in any way to be prejudicial about a person connected to this trial you must ignore any such information and approach your task with an open mind, concentrating only on the evidence you heard in this court." (Underlining supplied.)

17 It is immediately apparent, that a false issue was introduced in the sentence in which his Honour urged the jurors to put aside anything which they had heard or read "which is irrelevant to the matter". Rather, their duty was to put aside anything which they had heard or read, whether they regarded it as relevant or not. It is true that in the last portion of this direction his Honour indicated that the jury's task was to be approached by "concentrating only on the evidence you heard in this Court", but that was said in the context of a general discussion about matters which could be "prejudicial"; a word not, in its legal sense, within the understanding of many jurors, and which his Honour did not in that context define. The difficulty with this direction is that, given the complexity of the subject matter and the difficulty of absorbing many instructions over a short period of time, the reference to ignoring publicity which was "irrelevant" may have left lingering in the minds of some jurors an understanding or impression that they could have regard to publicity which they believed to be relevant. Given the connection which apparently exists in the public mind between membership of a "bikie gang" and the production or distribution of drugs, there was a risk that the direction might have reinforced the potential prejudice which the reference to the applicant in the newspaper article could have caused. For that reason, it is my view that the application should be granted and the appeal allowed.

18 I add some further observations in relation to directions of this kind. The trial Judge in a situation such as this obviously has a dilemma. Direct reference to the publicity in question may serve only to reinforce its impact upon those who have read it, or even cause others to seek it out, while oblique reference may not suffice to cure the potential prejudice. Generally, it may well be better to take the decision which his Honour obviously took of avoiding direct reference to the material concerned.

19 There are a number of ways in which directions can be given to the effect that jurors must act upon only the evidence presented in court, and disregard any extraneous materials which they may have seen or heard, and an appropriate direction will be tailored to the circumstances of the particular case. It may be of assistance if I refer to some matters which it will often be desirable to include in such a direction. It may be helpful to remind jurors of their oath to determine the issues in the case "according to the evidence", and to explain that material which is not either tendered as an exhibit or read into evidence or given orally as evidence from the witness box, is not evidence. Often, the judge may briefly explain to jurors the need for such a rule, observing that a trial in which the accused is not privy to some information, or only some jurors are privy to some information, is obviously not a fair one, since no one would like to be tried in secret upon evidence which they had not even heard. He or she may remind jurors of the fact that witnesses are on oath and of the way in which they have seen evidence tested in court, pointing out the difficulty of establishing whether extraneous materials are accurate without such testing. Where media reports are involved, jurors may be reminded that those quoted in the press do not always accept the accuracy of the quotation. Against that background, jurors are directed to make a determined effort to put from their minds anything which they may have seen or heard outside the court room which relates to the trial or to the accused. I do not suggest that such a direction is suited to every case. It is not his Honour's failure to do any of the things which I have mentioned which is of significance here, but rather, as I have mentioned, the implicit suggestion that only "irrelevant" extraneous material should be disregarded.

20 In the light of the conclusions I have reached in respect of the appeal against conviction the sentence imposed on the applicant must necessarily be quashed. However, it may be of assistance if I set out my views regarding the application for leave to appeal against sentence. The applicant relies entirely on Day v The Queen [2001] WASCA 284, in which a cultivation by hydroponic method on a commercial basis involving a total of 109 plants resulted in a sentence of 3 years and 6 months, from a starting point of 5 years, with discounts for a plea of guilty and for the particular needs of the applicant's child in that case. Kennedy J would have imposed that sentence having regard to a schedule of sentences in like cases produced to the court. Steytler J agreed with the sentence proposed by Kennedy J, but expressed the view that there should be some "firming up" of sentences imposed on offenders who fall into the category of drug traffickers. His Honour observed that it should not be assumed that the existing range of sentences continued to provide a reliable guide. Miller J, in dissent, expressed the view that past sentences for cultivation of cannabis were clearly lower in many cases than they should have been, and for that reason considered that the appropriate starting point was 6 years in that case, discounting it to one of 4 years and 6 months. Because of the observations made by Steytler and Miller JJ in Day's case, neither the actual sentence imposed in that case, nor the schedule of sentences in prior cases produced to the court, represents a reliable guide to appropriate sentencing in respect of the cultivation of significant quantities of cannabis.

21 In this case, the quantity clearly was significant. There was only a very belated indication of remorse at the conclusion of the trial in a letter written to the learned sentencing Judge. There were a number of very favourable character references produced on the applicant's behalf, and he was apparently responsible, with his partner, for the care of three young children. Otherwise there were no mitigating circumstances. Even from the brief facts which I have recited, it is apparent that the offence involved significant premeditation and organisation, and that the quantity of cannabis cultivated was substantial. However, even given all those factors, it appears to me that a sentence of 8 years, having regard to the statutory maximum of 10 years' imprisonment, is excessive.

22 A sentence somewhere between 8 years and the maximum would be appropriate to a very large cannabis cultivation enterprise, which demonstrated a very significant degree of organisation and planning. It appears to me that a sentence of the order of that suggested as a starting point by Miller J in Day's case would have been more appropriate to the circumstances of this case. I would have regarded a sentence of 7 years as the top of a sound discretionary range for an offence of this type, with a sentence of 6 years as appropriate, having regard to the somewhat limited factors in favour of the applicant.