R v Hortis [2004] VSCA 143

5. On 25 October 2002 the judge sentenced the applicant to five years' imprisonment on count 2 of the first presentment (trafficking in cocaine) and to sentences of one year, two years and two years respectively on counts 1, 2 and 3 of the second presentment. His Honour then cumulated the one year imposed on count 1 of the second presentment upon the five years imposed on the offence of trafficking in cocaine (count 2 on the first presentment). It followed that the total effective sentence imposed upon the applicant was one of six years. His Honour fixed a period of four years before the applicant would become eligible for parole. The applicant has informed us this morning that he has served nearly two years of that sentence.

8. The applicant seeks leave to appeal against the conviction recorded and the sentence imposed in respect of the offence of trafficking in cocaine charged as count 2 on the first presentment to which I have referred. The hearing of these applications has, unfortunately, been delayed for some time because the applicant has been unable to secure legal representation. He appears before us today in person and has been assisted by an interpreter whom the Court has duly sworn.

11. I would like to point out to the applicant that the fact that he is unrepresented does not necessarily mean that he is disadvantaged in presenting his application to us. The Court has been assisted by the representations that he has made to us; and the Court, in asking questions of the applicant, has always had it in mind that those questions are directed to, and the answers received for the purposes of, determining whether there is any substance in the grounds of the application which have been put to this Court. This Court is always concerned that unrepresented applicants should be able to present their arguments as fully as they can, but those arguments are supplemented by the fact that the Court is fully aware of the background to the arguments, it having had access to the transcript of the trial and related proceedings in the County Court.

15. In order to deal with the application for leave to appeal against conviction, and indeed the application for leave to appeal against sentence, it is necessary to recite very briefly the facts which have led to the conviction on count 2 of the first presentment. Those facts have already been considered and recited by this Court in the appeal brought by the applicant's co-accused, Ulysses Kokkinos, earlier this year. The facts as recited in that case are to be found in the judgment of this Court.[1]

18. Generally, the relevant circumstances arose out of what is sometimes called a police "sting" operation, in which an undercover operative, operating under the pseudonym of "Alex Baldwin", was investigating a drug operator called Maxwell Mundy. Baldwin was posing as a purchaser of drugs and in particular cocaine. The police investigation was aided generally by listening devices, telephone taps and, more particularly in respect of the applicant Hortis, police surveillance. The investigation covered a period from late August 1999 to the late evening of 2 September, when the principal offenders, including the applicant, were arrested in premises at Rothesay Street in Elwood. Evidence was also given by an accomplice called Mario Enache, who deposed to a number of meetings with the applicant which were the subject of police surveillance, and who claimed to have provided the cocaine which had been sought through a man whom he described as "John". Evidence was also given to the jury of the arrests made at the premises in Rothesay Street late in the evening of 2 September. It was said that at the time of the break-in to those premises there were attempts to flush a substantial percentage of the product, namely cocaine, down the toilet.

21. At the trial, the only evidence which was, I think, capable of directly implicating the applicant in the offences alleged against him came from the man Enache, who clearly was an accomplice and who had been arrested at the Rothesay Street premises himself. He subsequently turned Queen's evidence and, as Mr Hortis has correctly pointed out to the Court this morning, achieved a good result for himself by way of reduced sentences. At the trial of the applicant, a strong attack was made on the credibility of Enache and the evidence which he gave, particularly that evidence which was designed to incriminate the applicant in these offences. As I indicated to Mr Hortis, this Court has been provided with a transcript of the proceedings at trial, and, from a perusal of that transcript, some of those attacks which were made by the applicant's counsel upon Enache would seem to have at least the semblance of a foundation to them. Nevertheless, that is not the end of the matter. It appears that in the course of his directions his Honour gave a perfectly proper warning as to the use that the jury could and could not make of the evidence of the accomplice and the circumspection which they must have before any use could be made of that evidence. That direction, which I have carefully read for myself, was a perfectly full and proper direction and no complaint was made about it at the trial, nor could one reasonably have been made.

25. It is now necessary to turn to the grounds of appeal which have been filed with this Court in respect of the conviction application. As I have already indicated, it is never easy for unrepresented litigants to conduct their own appeals in this Court. This Court therefore takes those disadvantages into account in considering the grounds of the application. The conviction application specifically raises two grounds of appeal: first, that there was error by the trial judge in failing to discharge the jury on the third day of the trial when Enache gave evidence, which was unsolicited, reflecting upon the applicant's criminal propensity. The second ground which is raised is that the verdict was unsupported by the evidence.

28. In respect of the first ground, it can be said that that ground arose on the third day of the trial in the course of the evidence being given by the accomplice Anache. In what was described as an unresponsive answer, the witness gave evidence that in one of his conversations with the applicant the applicant had told him that he knew someone who "sells speed". It was put by counsel for the applicant that this evidence was prejudicial to his client's cause because, so it was said, it portrayed his client as a person who was prepared to engage not only in trafficking cocaine but also in trafficking other illicit substances. His Honour refused to accede to the application for a discharge of the jury, concluding, in accordance with the authorities, that there was "no high degree of need" to do so; and he exercised his discretion against the application for the discharge of the jury. In the course of discussions with the applicant in this Court this morning, it is not surprising that the applicant failed to fully grasp the circumstances of this ground of the application, which was drawn by his solicitors following the trial. Mr Hortis is not, and does not profess to be, an expert in criminal procedure. It is for that reason that I have considered, with some care, the basis of this ground of the appeal. But, having considered carefully the ground of appeal, I am quite unable to conclude that his Honour's discretion in refusing on this account to discharge the jury has miscarried. In the context in which the impugned evidence was given, it would, I think, have made little impact upon the jury's consciousness. It is, to my mind, inconceivable that the jury, acting reasonably and in accordance with, and paying heed to, the instructions given to them by the judge, could have been swayed by this piece of impugned evidence to return a verdict contrary to their sworn duty, influenced by any prejudice that might be said to have arisen from that evidence. I therefore cannot regard this ground as having been made out, and I would refuse it.

31. The second ground I regard as contending that the verdict was "unsafe and unsatisfactory" in the sense that there was insufficient evidence before the jury to support it. Once again, and having given careful consideration to the whole of the material before the Court, I am of the view that this ground cannot succeed either. The applicant's major complaint to us, both as verified in what he has told us this morning and also in the written document which he has provided to the Court, is about the evidence of the accomplice Enache. He claims that Enache is nothing but a liar, and submits that his evidence as given at the trial can be shown to be inaccurate. As I have already intimated, there are a number of aspects about Enache's evidence which seem to me to be capable of supporting the strong attack which was made upon it. However, although it may be said that Enache's evidence drew together the threads of what was otherwise a circumstantial case against the applicant, it seems clear to me that the circumstantial case which was so made was a strong one, and that the circumstances demonstrated not only that the crime alleged against the applicant had been committed, but also that he was a party to its commission.

34. I am accordingly unpersuaded that either of the conviction grounds is made out, and the application for leave to appeal against the conviction must be refused.

38. The application for leave to appeal against sentence is directed, as I have indicated, only to the sentence of five years which the judge imposed in respect of count 2 on the first presentment. The application is essentially founded upon the ground that the sentence imposed was manifestly excessive, but grounds 2 and 3 really amount to particulars of the first ground, and they are that the judge failed to give sufficient weight to the applicant's personal circumstances, in particular his age, which is now 62, and failed to give sufficient consideration to the applicant's involvement when compared with the involvement of the co-accused Kokkinos, who also received five years' imprisonment for the same offending.

41. It is appropriate, I think, that I record that the Court, when dismissing the appeal against sentence of the co-accused Kokkinos, made the following remarks:

" ... the sentence on count 2 was within the range open to his Honour for the offence the subject of that count, having regard to the seriousness of the offending (including the amount of cocaine agreed upon), the maximum penalty provided and the fact that the applicant had a prior conviction for a serious drug offence."

The same comments, I think, can be made in respect of this applicant, although he is somewhat older and perhaps has more health problems than Kokkinos. This morning the Court has canvassed at some length the current health problems of this applicant. Whilst it seemed that the applicant is not in as good health as he could be for a man of his years, I am satisfied that proper arrangements have been made for the treatment of the applicant in his present state of incarceration.

46. Unless the sentence imposed by the trial judge is so far beyond that which was available to be imposed (having regard to the fact that the maximum sentence was 15 years) so that this Court is able to say that the discretion of the judge has manifestly miscarried, we are not at liberty to interfere with the sentence which his Honour has imposed. It is not the function of this Court to re-exercise a discretion which has been exercised by the trial judge unless we are affirmatively satisfied that the judge's discretion has miscarried, either by discrete error or by imposing a sentence which on its face is manifestly excessive. I cannot see a basis for interfering with the exercise of his Honour's discretion, and I must therefore conclude that, for my own part, the application must fail.

49. For those reasons, I would dismiss the applications for leave to appeal against conviction and sentence.

59. I agree with what has fallen from the learned President, but would wish to add a couple of observations of my own concerning the first ground of appeal.

62. The decision of the Court of Criminal Appeal in R. v. Knape[2] suggests that an irregular disclosure of evidence of an accused's bad character must result in the jury being discharged unless it can be said that the disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty. But that is not the law. As is shown by subsequent decisions of the Court of Criminal Appeal in R. v. Boland[3] and R. v. Vaitos[4], and was observed by the New South Wales Court of Criminal Appeal in R. v. George, Harris and Hilton[5], the informing principle is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial.

65. That approach was sanctioned by the High Court in Crofts v. The Queen[6], in which it was said that much depends on the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. The point was reiterated by this Court in R. v. Su[7]. There are no rigid rules. The principle is one of necessity. There must be a high degree of need for discharge before that course should be adopted.

68. Like the learned trial judge, I do not consider that the accidental disclosure of the applicant's knowledge of someone who dealt in "speed" created a high degree of need for the discharge of the jury. To begin with, the evidence which was given was not at all clear and is unlikely to have made much impression on any member of the jury. In the second place, the evidence was given relatively early in the trial and so by the time of conclusion of the trial, passing reference to "speed" was in all probability so far in the background that it is doubtful that any member of the jury would recall it. In the third place, if any member of the jury did retain a recollection of what was said about "speed", the directions which the judge gave to the jury during his charge as to the evidence and what use could be made of it almost certainly meant that any reference to "speed" would have been excluded from consideration. The judge was prepared to give the jury a specific direction immediately after the evidence about "speed" was given that they were to ignore it, but counsel for the applicant requested his Honour not to do so. The applicant cannot now be heard to complain that a specific direction was not given.

71. A good deal of leeway is to be allowed to a trial judge in evaluating considerations relevant to the fairness of the trial. That is so because the judge will usually have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from reading transcript[8]. It is therefore significant that almost immediately after the mention of "speed" his Honour's perception of the event was that it would not have any effect upon the jury.

74. 22 I, too, would dismiss the applications for leave to appeal against conviction and sentence.

78. The formal order of the Court will be that the applications for leave to appeal against conviction and sentence are refused.

[1] [2004] VSCA 83.

[2] [1965] VicRp 63; [1965] V.R. 469.

[3] [1974] VicRp 100; [1974] V.R. 849 at p.866.

[5] (1987) 9 N.S.W.L.R. 527 at p.533.

[6] [1996] HCA 22; (1996) 186 C.L.R. 427 at p.440.

[7] [1997] 1 V.R. 1 at p.39. See also R. v. Miller [2000] VSCA 67; (2000) 112 A.Crim.R. 323.

[8] R. v. Brown [2000] VSCA 102.