K v. THE QUEEN Nos. 393 and 394 of 1991 Judgment No. 2997 Number of pages -... [1991] SASC 2997 | Case summary

CWDS Criminal Law - taking part in cultivation of cannabis - husband and wife appealing against convictions - conviction of female appellant unsafe and conviction quashed - sufficient evidence to convict male appellant if accomplices believed - proper accomplice warning given - conviction not vitiated by failure of investigating officers to disclose police suspicions about accomplice's involvement in earlier cannabis crop - observations as to directions as to treatment of lies by accused person in evidence as positive evidence of guilt - appeal by male appellant dismissed.

JUDGE1 KING CJ The appellants were found guilty by verdict of a jury of the crime of taking part in the production of cannabis. They have appealed against their convictions. 2. On 17th March 1989 there was a police raid upon a property owned by Peter Belehris at Cooltong in the Riverland District. A crop of Indian Hemp was discovered growing on the property. That Indian Hemp is the subject of the present charge. Peter Belehris was absent at the time of the raid but his wife and two sons were arrested. Peter Belehris was subsequently charged in connection with the crop. He pleaded guilty and was given a suspended sentence. His wife and two sons were also charged with cultivating the crop. Those charges were not proceeded with. 3. Peter Belehris was the principal witness against the appellants. He gave evidence that he was introduced to the appellants by a man who was living on his property named Kottaridis. Belehris was in financial difficulties. He said that, about seven or eight months before the raid, during a visit to the property by the appellants, the male appellant proposed to him that Kottaridis should grow a crop of marijuana on the property of Belehris and that the male appellant would sell the crop. This was proposed as a solution to Belehris' financial difficulties. Belehris agreed to the proposal. His evidence was that the female appellant was "in town" during this conversation and therefore not present at it. Subsequently the male appellant brought marijuana seed to the property and also a sheet of plastic for use in the cultivation. The seed was planted and cultivated. Kottaridis did most of the work but Peter Belehris assisted in the cultivation. The male appellant paid a number of visits to the property and on at least two occasions brought fertiliser for use on the crop. The male appellant took an interest in Peter Belehris' financial problems and introduced him to a solicitor Mr. Harding. On occasions he would accompany Peter Belehris to see Mr. Harding about these matters. 4. Peter Belehris gave evidence that the appellants visited the property and inspected the crop on the Sunday before the raid. The male appellant said on that occasion that he would come to the property on the Monday or the Tuesday "to look after the marijuana and I wouldn't have anything to do with it". The appellants, so Peter Belehris said, came to his home on that Sunday evening and there was a discussion between him and the male appellant in the presence of the female appellant. The discussion was about Peter Belehris' financial problems and the male appellant told him to bring some of the marijuana to the appellants' home, that the male appellant would sell it and that the proceeds could be used to pay a debt of about $22,000 which Peter Belehris owed to Bonnins, a firm of solicitors. 5. On the Monday morning, according to Peter Belehris he took a quantity of marijuana to the appellants' home. When the female appellant left with the children for school, the male appellant took the marijuana from the boot of Peter Belehris car. Although Peter Belehris said that that occurred on the Monday, he also said that it occurred on the morning on which he was due in court and on which he went to Bonnins' office. It is clear from other evidence that that occurred on the Tuesday. 6. Peter Belehris and the male appellant then went to the office of Bonnins. They conferred with Mr. Allen the solicitor at Bonnins in charge of the case. The male appellant was introduced as Kostas and he gave an incorrect address although a correct telephone number. He conveyed that he would be responsible for raising the money required. Mr. Allen agreed to have pending bankruptcy proceedings adjourned for one week. Mr. Allen gave evidence confirming this conversation. On the Monday evening Peter Belehris telephoned the appellants' home. He spoke to the female applicant. A tape recording of that conversation was in evidence at the trial. The conversation was non-specific as to its subject matter. In it Belehris asked "Did you go over there?" and the female appellant replied "I didn't Vasilios went he'll go again in the morning at nine". Belehris told her to tell her husband "to arrange all his affairs" by the following morning. The female appellant said "Well the man is trying". I should mention at this point that on the evidence of Peter Belehris it would seem that that conversation took place on the evening of the day on which he and the male appellant interviewed Mr. Allen. On Mr. Allen's evidence, however, the interview took place on Tuesday the 14th March and that tends to be confirmed by the tenor of the telephone conversation which refers to a court case on the following morning and the need for the male appellant to be available at 9 o'clock. It would seem that the telephone conversation took place on the eve of the interview with Mr. Allen. 7. On Friday the 17th March, which was the day of the raid, Mr. Allen telephoned the male appellant at the number which he had been given. The male appellant, who answered to the name of Kostas, said that he had the money and arrangements were discussed for its payment before the court hearing on the following Monday morning. 8. Peter Belehris gave evidence that on the day of the raid he telephoned the female appellant and told her that his wife and children were in gaol. She did not want to know about his problems and hung up on him. 9. The story of Peter Belehris received some confirmation from his daughter Helen and his two sons Jim and John. John and Jim Belehris both confirmed the presence of the appellants at the site on the Sunday prior to the raid but did not give any real detail as to what took place. Both John and Jim Belehris also confirmed that the appellants were at the Belehris home on the Sunday evening and that there was a conversation in which both appellants joined as to Peter Belehris' financial and legal situation. They do not speak of any conversation as to marijuana. The evidence of Helen Belehris was to much the same effect as to the Sunday evening visit. Her evidence is to be contrasted with a statement which she had previously made to the police in which she said she had last seen the male appellant as he drove away from the block earlier in the day and her evidence at the preliminary hearing in which she said in relation to the Sunday evening "I couldn't hear what they were saying". All three children claimed that the appellants were inside the house for a substantial period of time. This is in conflict with the evidence of Peter Belehris who said that the appellants refused an invitation to come into the house and that there was a short discussion outside the house in which the arrangements were made for the delivery of the marijuana to the male appellant and its sale by him to pay the solicitors. 10. The male appellant gave evidence that he was introduced to the appellants by Kottaridis who was an old friend. Belehris told him of his problems and the male appellant introduced him to his solicitor in an effort to help. He denied that there was ever any conversation about marijuana or that he was involved in any way in the cultivation of marijuana on the Belehris property. At one stage there were tentative moves for an arranged marriage between the female appellant's brother and Helen Belehris but that came to nothing. The male appellant said that he accompanied Peter Belehris to his solicitor's office on two occasions concerning Belehris' affairs. At one stage Peter Belehris complained to him that the solicitor had let him down. On the Sunday morning before the raid Peter Belehris telephoned the male appellant and asked him to try to find some money because a bankruptcy hearing was pending on the following Tuesday. The male appellant approached his in-laws and a friend unsuccessfully. He said that he did this because he felt sorry for Belehris. He denied that either he or his wife were at the Belehris property on the Sunday before the raid. The male appellant said that Peter Belehris came to his house on the Tuesday morning the 14th March and that they went together to interview Mr. Allen. He denied that any marijuana was delivered on that day or the previous day. The male appellant claimed that Peter Belehris introduced him as Kostas and that he gave the incorrect address "because I didn't want to have any bills from Mr. Belehris in my box number". His evidence was that Peter Belehris told him that if the lawyer rang he was to say that he had raised the money. That was the reason for his telling Mr. Allen in the telephone conversation on the 17th March that he had the money. 11. The female appellant's evidence was substantially to the same effect as her husband's. Her explanation of the telephone conversation on the Monday evening the 13th March was that she had intended to go to her parents to ask for the money. She had not done so and her husband was going to go to them. She explained cutting off the telephone call from Peter Belehris on the day of the raid by saying that she did not want to have anything to do with Peter Belehris' problems. 12. The principal submission on behalf of the female appellant on the appeal was that, even accepting the evidence of Peter Belehris and the three children who gave evidence with all the other evidence of the prosecution, the conviction of the female appellant is unsafe and unsatisfactory. There was really very little evidence against the female appellant. On the evidence of Peter Belehris she was not present at the time of the original arrangements. He expressly said that on subsequent occasions the conversations as to marijuana with the male appellant were conducted, and apparently deliberately conducted, when the female appellant and her children were absent. She was present on the evidence of Peter Belehris and his children when the crop was inspected on the Sunday before the raid and at the conversation on the Sunday evening. There was also, of course, the recorded telephone conversation on Monday the 13th March. That is the sum total of the evidence against the female appellant. 13. On the evidence of Peter Belehris, the male appellant was clearly involved in the production of the crop. In those circumstances, I cannot regard the presence of the female appellant at the crop in the Belehris house on the Sunday or her participation in the telephone call, as incriminating. Her presence on the Sunday would be quite reasonable be explicable upon the basis that she was simply accompanying her husband perhaps with some knowledge of what he was involved in. The telephone conversation was non-specific and non-incriminating and at worst would simply indicate that she had some knowledge of her husband's affairs. 14. In order to provide a sound basis for the conviction of the female appellant, it was necessary that the evidence estabish that she was a party to the cultivation of the crop. Mere knowledge that her husband was involved, even if proved, would not be a sufficient basis for a conviction. I think that there was a case to answer, perhaps barely, but the female appellant denied her guilt on oath and I do not think that it would be safe, on the basis of such inconclusive evidence, to allow the conviction against her to stand. 15. If the evidence of Peter Belehris is believed, there is ample evidence to support the conviction of the male appellant. Peter Belehris received some support from his children as to some aspects of the case. The learned trial judge considered, however, that Peter Belehris and his three children were all accomplices. He warned the jury of the danger of convicting upon their uncorroborated evidence. He directed the jury that there was no corroboration. The evidence of these witnesses was open to considerable criticism. There were inconsistencies in the evidence of Peter Belehris and inconsistencies, particularly as to the Sunday evening episode, between his evidence and that of the children. The serious aspect of the matter was that he was involved in the growing of a marijuana crop on the same block of land the previous year. He originally told the police that the male appellant had instigated and was party to the growing of that crop also. In evidence, however, he said that that was not so and told an unlikely story about the involvement of two New Zealanders in the crop. 16. All these matters clearly required careful consideration by the jury. Not only were the Belehris family accomplices but the story implicating the appellants appears to have been told to the police for the purpose of securing the dropping of the charges against Mrs. Belehris and the two sons. It appears that the daughter was never charged. There was also the obvious motive on the part of Peter Belehris to endeavour to gain some leniency for himself. 17. There were, however, grave difficulties about the story of the male appellant. He clearly involved himself deeply in the financial affairs of Peter Belehris and, on his story, endeavoured to raise a substantial sum of money from a friend and relations simply because he felt sorry for him. There appears to be nothing in their relationship, which was of relatively short duration and consisted of only infrequent meetings, to render that explanation plausible. That story and the reason given for assuring the solicitor that he had raised the money are most unconvincing. 18. All these matters were for the consideration of the jury which had the great advantage of seeing and hearing the explanations given by the witnesses. I have reached the conclusion that the evidence was sufficient to justify a reasonable jury, if properly directed, in reaching a verdict of guilty. I would therefore not uphold the ground of appeal which complains that the verdict was unsafe and unsatisfactory. I therefore turn to consider the other grounds of appeal. 19. It was contended that the trial was unfair because the prosecution did not disclose to the defence certain information in the possession of investigating officers which could have been made the subject of cross-examination of Peter Belehris and was material to his credibility. Statements were tendered on the appeal by consent which indicated that two investigating police officers learned in March or April 1989 that a tractor allegedly belonging to Peter Belehris was found at a marijuana crop site in New South Wales in 1981 and that a police officer formed a suspicion that Peter Belehris may have been involved in the production of the crop. There was insufficient evidence to charge Peter Belehris and no charge was ever laid against him. It was agreed between counsel that this information was not communicated to the law officers who were conducting the prosecution. It was therefore not communicated to the defence. 20. There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R. v. Paraskava (1983) Volume 76 Criminal Appeal Reports 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness. 21. I would feel some doubt whether information as vague and tenuous as that which was in the possession of the investigating officers in this case, would have given rise to the obligation even if it had been communicated to the law officers conducting the prosecution. The mere presence of the truck is but a tenuous link to the crop. Beyond that there was nothing more than the suspicion of a police officer. The events had occurred some eight years before. It is difficult to see how any cross-examination based upon the information would be likely to elicit answers materially affecting the credibility of Peter Belehris. 22. The fact is, moreover, that the information was not in the possession of the law officers conducting the prosecution. In many cases that would not be an answer. The prosecuting law officers might be expected to make reasonable enquiry of those instructing them as to matters potentially affecting the credibility of witnesses for the prosecution. There are limits, however, to the enquiries which prosecuting officers can be expected to make. R. v. Collister and Warhurst (1955) Volume 39 Criminal Appeal Reports 100. There seems to be nothing in the present case which ought to have alerted prosecuting officers to the need to make enquiries which would have elicited this information. It is regrettable that the investigating officers did not communicate the information to those conducting the prosecution but it was so vague and tenuous that their omission to do so is understandable. I do not think that the Crown Law officers are to be criticised, in the circumstances of this case, for failure to make the sort of enquiries which would have elicited the information. 23. I cannot think that the fact that the defence was not in possession of this information could possibly have affected the outcome of the case. It is perhaps unlikely that damaging admissions would have been obtained from Peter Belehris upon the basis of the information. In any event, the fact, if it were the fact, that he was involved in a marijuana crop in 1980 and 1981 would hardly have done any damage to his credibility. He was admittedly engaged not only in the cultivation of the crop which is the subject of this prosecution but also in the cultivation of a marijuana crop in the previous year in which, on his own evidence, the present appellants were not involved. The knowledge that he had been involved in a marijuana crop at some earlier point of time could hardly have taken the question of his credibility any further. I would reject this ground of appeal. 24. The remaining ground of appeal of the male appellant complains of the directions given with respect to the use which could be made of alleged lies told by the male appellant. It appears that counsel for the prosecution in his address to the jury placed before them a number of lies which he claimed had been told in the course of their evidence by the appellants and asked the jury to draw the inference that they disclosed a consciousness of guilt. The learned judge in the course of the summing up gave the jury a careful and detailed direction as to the use of lies as evidence of guilt. No complaint is made about the correctness in law of the direction which was given. Mr. Sulan QC for the male appellant argued, however, that none of the alleged lies attributed to the male appellant were reasonably capable of affording positive evidence of guilt and that the jury ought to have been so directed. He also complained that the learned judge had not clearly distinguished between lies alleged to have been told respectively by the male appellant and the female appellant. As to the latter point, it seems to me that although the learned judge gave a composite direction identifying the alleged lies, the jury would have no difficulty from the context in distinguishing the lies alleged to have been told by each appellant. There is no reason to suppose that they could have been misled, as Mr. Sulan suggested, into drawing adverse inferences against the male appellant because of lies alleged to have been told by the female appellant. I deal only with lies alleged to have been told by the male appellant. 25. In the recent cases of The Queen v. Forrest an Unreported Decision of the Court of Criminal Appeal delivered on 5th October 1988 and Harris v. The Queen an Unreported Decision of the Court of Criminal Appeal delivered on the 18th December 1990, this Court has deprecated the tendency to resort too readily to lies alleged to have been told by accused persons as supplying positive evidence of guilt. It is unnecessary to repeat what was said in those cases. Care should be taken by trial judges not to leave to juries as evidence of guilt, lies told by an accused person in an effort to exculpate himself. The ordinary consequence of such lies is merely to discredit the witness as a witness of truth rather than to supply positive evidence of guilt. It is for the trial judge, and ultimately the Court of Criminal Appeal, to decide whether any given lie is reasonably capable of possessing a significant tendency to indicate a consciousness of guilt. There should be a clear tendency to indicate a consciousness of guilt before a lie is left to a jury as capable of affording positive evidence of guilt. 26. I cannot regard the lies that were left for the consideration of the jury in the present case as possessing any great cogency as indicators of a consciousness of guilt. In the end, however, I am not prepared to say that they were incapable of being reasonably so regarded and that the judge was wrong in leaving them to the jury. 27. The first lie relied upon was the denial by the male appellant that the appellants were present at the crop site on the Sunday before the police raid. Evidence of their presence was given not only by Peter Belehris but by the three children. If the jury were convinced particularly by the evidence of the children that the appellants were indeed present, that might raise in their minds the question why the male appellant, if he were innocent, would deny his presence in Cooltong. The next alleged lie is the male appellant's claim in evidence that his reason for not ringing Peter Belehris after his wife told him of the arrest of Mrs. Belehris and the children, was merely that he wished to have no more to do with him. It was suggested that the real reason was that he knew the reason for the arrests and therefore he could not give the true reason for his failure to ring. The next alleged lie is the male appellant's evidence that, although he knew the allegation of the visit to the crop on the Sunday, and although innocent, he never discussed with his wife their whereabouts on that day or the possibility of an alibi. The suggested inference is that this was a lie to conceal that the true reason for the non-discussion was that he was in truth present at the crop site on the Sunday. The last alleged lie was not put to the jury in a particularly felicitous style but it amounts to an allegation that the evidence of the male appellant that the explanation for the telephone conversation on the Monday night was the male appellant's attempts to raise money by way of loan for Peter Belehris because he felt sorry for him, was a lie and gave rise to the inference that it was told because the true explanation would have implicated him in the illegal crop. 28. I think that some judges may have regarded the potentially probative weight of the alleged false statements as relatively slight and may not have given such prominence to the topic in the summing up. I think, however, that the allegedly false statements relied upon were capable, although by no means compellingly capable, of leading to the suggested inferences and I cannot therefore say that the learned judge was wrong in leaving them to the jury. The direction laid considerable emphasis upon explanations of lies which are consistent with innocence. The direction was correct in law and I do not think that there are any grounds for apprehending that the male appellant has suffered any injustice in consequence of the form of the direction. 29. I have reached the conclusion that the complaints against the summing up are unfounded. 30. It was undoubtedly a real question for the jury as to whether they could be satisfied beyond reasonable doubt upon the evidence of the accomplices especially in the light of the criticisms which could be validly made of their evidence. The jury was however properly directed as to the issues in the case and received a clear warning as to the danger of convicting upon the uncorroborated evidence of the accomplices. The male appellant's explanation of his financial involvement with Peter Belehris was unconvincing. The credibility of the witnesses was a matter for the jury and I am satisfied that it was reasonably open to them to find the verdict of guilty against the male appellant. 31. I would therefore allow the appeal of the female appellant, set aside her conviction and substitute a verdict and judgment of acquittal. I would dismiss the appeal of the male appellant.

K v. THE QUEEN Nos. 393 and 394 of 1991 Judgment No. 2997 Number of pages - 9 Criminal law - cannabis [1991] SASC 2997 (30 August 1991)

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K v. THE QUEEN Nos. 393 and 394 of 1991 Judgment No. 2997 Number of pages - 9 Criminal law - cannabis [1991] SASC 2997 (30 August 1991)

Cases Cited (2)