It was accepted on appeal that the evidence of surveillance and telephone intercepts related only to the Sylvania Waters count. His Honour was therefore in error to the extent that he thought the surveillance and telephone intercept evidence also related to Dooralong.
125 As I have noted, Armitage DCJ concisely summed up the Crown submissions as to the evidence relevant to each count. The Crown's address, which has been transcribed, was in fact very detailed as to this, and extends, on this issue, over a number of pages of transcript. In this case, it was sufficient, in my view, for his Honour to endorse, as he did, the manner in which the Crown had identified the evidence relevant to each count. This is not one of those aspects of a summing up, such as a direction of law or a matter of caution, in which the authority of the court is required to be put behind the proposition stated, and it is insufficient for a judge merely to restate arguments that have been put by one counsel or the other. What the jury needed was to be reminded of the evidence relevant to each count. This jury was so reminded.
126 A specific complaint was made that no direction was given in terms outlined in R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82. The reference is to a proposed direction, in a trial involving multiple counts, as to caution that might be exercised by a jury in the event that they doubt the credibility of a witness sufficiently to acquit the accused in relation to one count, on the remaining counts. The specific passages in Markuleski on which reliance was placed are to be found at [186], [257] - [266], and [279].
127 The reliance on Markuleski is misplaced. Markuleski is concerned with the trial of multiple counts where, to use the words of the Chief Justice at [186], the case is one of "word against word". Although, in the present appeal, issues about corroboration have been raised (to which it will be necessary to come) given the number of witnesses who were to be regarded as "accomplices", this was certainly not a case of "word against word".
128 On the appellant's argument, the asserted inadequacies in the directions had an unfair consequence upon the trial in a number of respects. Counsel pointed, for example, to a submission made to the trial judge on behalf of the appellant that, in relation to count 2, concerning the Dooralong premises, there was no evidence involving the appellant in manufacturing other than that of Simpson; and argued that the absence of a direction by the judge isolating the relevant evidence on each count:
"did not enable the jury to consider the arguments and submissions advanced on behalf of the appellant."
129 Two responses might be made to this. Firstly, the factual basis for the submission is incorrect. Phillips gave evidence of seeing the appellant, with Simpson, setting up the process in the shower recess, and of hearing Knight speaking to the appellant, Simpson and Drew about a problem in the process (although she agreed in cross-examination that she may have been mistaken about the former assertion). Further, as the Crown pointed out in its written submissions, there was a good deal of evidence showing the appellant's presence at Dooralong on several occasions, and of the circumstance that the premises were occupied by an acquaintance of the appellant. Secondly, it does not follow that, even if the judge had not isolated the relevant evidence on each count, the jury were unable to consider the arguments and submissions advanced on behalf of the appellant.
130 A criminal trial involves the interaction of a number of parties, including Crown and defence counsel and the judge. It is not necessary for the judge to repeat everything that has been put to the jury by either counsel. Juries can be and are trusted to consider the arguments put to them by counsel. That is the essence of the process on which the criminal justice system has relied for generations. Armitage DCJ was at pains to remind the jury, and did so comprehensively, of the arguments put to them by counsel.
131 A further matter to which counsel for the appellant referred concerned an asserted misdirection as to the evidence supporting the two conspiracy counts. The particular complaint concerned the passage in the summing up as follows:
"... The Crown seeks to prove the agreement, or the nature of the agreement, by direct evidence from Mr Simpson, and also by inferences from the evidence of Kim Knight, Georgina Phillips, Kathleen Simpson (formerly Ingall), Robert Proctor and also the telephone intercepts."
132 This, it was contended, was in error in that two of the witnesses named (Proctor and Kathleen Simpson) gave no evidence as to count 2, and two (Knight and Phillips) gave no evidence as to count 3; and the telephone intercepts related only to the Sylvania Waters charge. The direction, it was argued, was capable of confusing the jury by leading them to believe that they could use evidence generally to support inferences of agreement.
133 If the passage stood alone, there may be some substance to the appellant's complaint. However, on the very next page of the transcript of the summing up, the trial judge is recorded as having referred to the direct evidence relating to Dooralong and Sylvania Waters. The complaint is, accordingly, without foundation.
134 Another complaint made under this head, although seemingly only peripherally related to it when regard is had to the terms in which it is framed, concerned a direction given, at the request of counsel for the appellant, on circumstantial evidence. In order to give the directions sought, the trial judge obtained from the Crown Prosecutor a list of items of circumstantial evidence on which the Crown relied. The Crown Prosecutor provided to the judge a list. The judge, in effect, adopted the list and read it to the jury. The list consisted of items such as the appellant's contact with a rented motor vehicle, the surveillance officers' observations of the appellant and nobody else driving this vehicle, the content of conversations between the appellant and another man which were the subject of interception and a white drum found at the house of another person. His Honour then said:
"In addition to those three matters, as circumstantial evidence the Crown relies upon the accused's contact with Peter Dinham, Pauline Dinham, Damien Drew and Tony Brizzi."
135 The complaint now made is that, in giving the jury these directions, the trial judge failed to identify to which count each matter related, and ran together evidence relevant only in relation to one count or another without differentiation. In respect of the white drum to which his Honour referred, he did in fact note that that drum was connected with the third count; but otherwise what is said on behalf of the appellant is substantially correct.
136 One thing that makes this ground difficult for the appellant is that, two days before the direction was given, the Crown Prosecutor had handed his proposed list to the judge, who read it onto the transcript for the benefit of counsel for the appellant. Neither then, nor in the following two days, did counsel for the appellant complain that to direct the jury in accordance with the Crown Prosecutor's suggestions would be confusing or misleading.
137 Just why his Honour was persuaded to give any direction concerning circumstantial evidence is not apparent. This was not primarily a circumstantial evidence case. The principal evidence, and there was a great bulk of it, was direct evidence of various aspects of the appellant's involvement in each of the drug manufactures. There is a distinction between a trial that depends entirely or substantially upon circumstantial evidence, and a trial in which inferences might be sought to be drawn from pieces of evidence of themselves not probative of any issue. It is true, of course, that by the second and third counts the appellant was charged with conspiracy and this entailed the drawing of inferences about his state of mind (bearing in mind that Simpson gave detailed evidence of actual agreements) but the evidence of what the appellant did by way of participation and furtherance of the conspiracy was largely direct evidence. When the matter was raised by his Honour, counsel for the appellant submitted that, for example, the surveillance evidence:
"... must be circumstantial in a conspiracy case such as this, namely, that it is a circumstance that leads to the inference of agreement, not to the inference of the fact of the sighting or whatever the matter be."