R v Pepe [2000] VSCA 208

Court of Appeal (Vic)|2000-11-03|Before: TADGELL, CHARLES and CHERNOV, JJ.A.

Criminal law - Conviction - Conspiracy to traffick in drug of dependence - Relationship between Div. 10 of Crimes Act 1958 and Drugs, Poisons and Controlled Substances Act 1981 - Whether conflict in practical operation of legislation - Whether presentment a nullity as disclosing no offence - Drug offences - Knowledge and intent - Where possession to be obtained in future with intent to sell or supply - Evidence of accomplice - No corroborative evidence - Whether verdict unsafe and unsatisfactory - Crimes Act 1958 , , , , ,

Criminal law - Conviction - Parity - Delay - Applicant resentenced.

The applicant who was born on 10 August 1956 pleaded not guilty on 25 October 1999 in the County Court at Melbourne to a presentment charging one count of conspiracy to traffick in a drug of dependence (count 1) and burglary (count 2). The trial commenced and at the close of the Crown case a submission of no case to answer was made. The judge determined that there was a case to go to the jury. No evidence was then led in support of the defence. On 5 November 1999 the jury returned a verdict of guilty on both counts.

The applicant admitted two prior convictions from court appearances on 7 May 1990 and 15 January 1991. The conviction on 7 May 1990 related to cultivating a drug of dependence and on that charge the applicant had been sentenced to four years' imprisonment with a non-parole period fixed of two-and-a-half years.

On 16 November 1999 the applicant was sentenced on count 1 to four-and-a-half years' imprisonment and on count 2 to two years' imprisonment, the total effective sentence being four-and-a-half years' imprisonment. The judge fixed a non-parole period of three years and nine months.

On 30 August 1996 three co-offenders, Richard McLean, Domenic Gisonda and Gary Whelan all pleaded guilty to a single count of burglary arising out of the same circumstances as the count of burglary charged against the applicant. On 6 September 1996 Whelan was sentenced to three years', McLean to two years' and Gisonda to 12 months' imprisonment in respect of this charge. McLean and Whelan sought leave to appeal against sentence, McLean's appeal being later abandoned and Whelan's appeal dismissed.

The applicant now seeks leave to appeal against conviction and sentence on grounds to which I shall turn shortly.

7 The prosecution's case was as follows. The principal Crown witness was an accomplice, John Polidoros. Polidoros gave evidence of a continuing conspiracy involving six identified offenders including himself which commenced at an uncertain date in February 1995 and ended with his arrest on 2 June 1995. Polidoros's evidence was that the men conspired to steal five separate illegal marijuana crops for the purpose of trafficking in that marijuana. The plantations were said to have been located for the group by Gary Whelan, a member of the Victoria Police involved in the surveillance of these crops. Whelan was said to have communicated his intelligence to a former police inspector, Robert McLean, who in turn passed the information over to his friend Domenic Gisonda. Various efforts were made to seize the different crops, none with any substantial success. The applicant was said to have introduced Polidoros into the conspiracy and remained his link with the group.

The evidence of Polidoros as to the existence of the security breach was confirmed by police evidence at trial. His evidence as to the conspiracy between Whelan, McLean and Gisonda was independently confirmed by evidence gathered by telephone intercepts. The Crown case was that these intercepted conversations provided confirmation of the applicant's role in the conspiracy. However it was the defence case that Polidoros lied when he placed the applicant in the conspiracy and that there was no confirmation or corroboration in the intercepted conversations for Polidoros's evidence implicating the applicant. Polidoros and other witnesses were cross-examined at length with a view to establishing that Polidoros had a motive for lying about the applicant. At the conclusion of the trial, the prosecutor in his address to the jury accepted that there was no corroboration of Polidoros's evidence against the applicant and the judge duly charged the jury on the basis that there was no corroboration for Polidoros's evidence. I shall have to return to these events when I deal with ground 3, concerning the intercept known as Tape 56.

Polidoros's evidence in respect of the conspiracy was in the following terms. Polidoros had known the applicant for some time prior to 1995. They were friends and partners in a Prahran bar. The applicant is a close friend of Gisonda. Polidoros had met Gisonda at a social occasion at the applicant's house, and thereafter met Gisonda several times always in the company of the applicant.

Polidoros said that he went with the applicant to a place north of Bendigo with a view to "alleviating" a crop of marijuana which the applicant said they would find there. Polidoros said that, travelling with someone other than the applicant, they found their way to a vineyard possibly an hour's drive north of Bendigo in which marijuana plants were growing. There were six people in the group at the vineyard including Polidoros and the applicant. The group picked some of the marijuana but it was immature and when dried it shrivelled to nothing. They took this material back to Melbourne and threw it away, having spent some five hours pulling out useless weed. Polidoros said that all six, including the applicant, had been involved in setting up the marijuana to dry, knowing it was not high quality, but hoping to salvage what they could.

Some time afterwards Polidoros said the applicant told him about a further crop near Warragul. He said the applicant told him there was a fairly large plantation up there which he had good information that they could go in and "do" fairly safely, the applicant saying that this was inside information coming from a police source. Polidoros said the applicant discussed with him the location of surveillance cameras at the property and how to avoid them. The plan did not proceed and Polidoros understood, though not from the applicant, that the target had been raided. Polidoros said the applicant told him that his information was coming from within a police surveillance team and that the Special Operations Group were involved.

Shortly after the failed proposal in relation to Warragul, Polidoros said the applicant told him about a property at Dawson Street, Brunswick, the applicant's information again said to have been coming from an internal police source. The applicant was said to have told Polidoros that the premises, a garage and an old weatherboard house, were a storehouse for marijuana. The applicant said that the property was under part-time police surveillance. Polidoros conducted a reconnaissance of the property, looking to find any indication that there was in fact marijuana there. Again the job did not proceed, although there was discussion of employing others to do the job.

Polidoros said that at some time later the applicant gave him information, again supposedly drawn from a police source, about further properties at Bell Street, Preston and Austarc Avenue, Thomastown, saying that there was marijuana at these properties. There was discussion about employing third parties, but Polidoros decided to check the Bell Street property himself. He entered the property through the back and found an empty house with a few fragments of marijuana stalk. Later, Polidoros, with a co-offender, McKenzie, went to Austarc Avenue. Polidoros had learned that there were police surveillance cameras at the property. He went to the property on a couple of occasions. Polidoros said he discussed with the applicant the situation that all the other jobs had fallen through and they decided that they had to do something in relation to the property at Austarc Avenue. On 1 June 1995 Polidoros went with McKenzie to the Austarc property, hoping to find maybe 100 pounds of marijuana, which they intended to take and sell. Polidoros said that he and McKenzie saw the applicant at the Brighton home of a mutual friend and there Polidoros told the applicant that they were going back to the Austarc property that night. Polidoros and McKenzie duly went to the premises and climbed onto the roof. McKenzie dropped into the building and there set off an alarm, but they did not see anything that resembled either a crop or the remnants of a crop.

There was evidence called from a large number of police witnesses including Detective Senior Sergeant Graham John Larchin who, in July 1995, was officer-in-charge of a group, part of an operation code-named "Operation Buenos", which targeted a number of locations believed to support hydroponic crops, including properties in Dawson Street, Coburg; Bell Street, Preston; and Factories 6 and 7 of Lot 2 Austarc Avenue, Thomastown. Police witnesses gave evidence of installing surveillance devices and video-recorders at each of these premises.

The application touching conviction is based on six grounds, although ground 2 was not pursued during argument. It is convenient to take first grounds 4 and 5, which were argued together with ground 6, and are in the following terms:

"4. The presentment for count 1 is a nullity and does not disclose an offence known to the law. Particulars (a) A presentment for a conspiracy to traffick in cannabis can only be laid under s.79 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). (b) The presentment was laid pursuant to s.321(1) of the Crimes Act 1958 (Vic). (c) The Drugs, Poisons and Controlled Substances Act 1981 forms a specific code for drug offences and purports to cover the field. Where a count of conspiracy to traffick a drug of dependency is laid it can only be laid pursuant to s.79 of the Drugs, Poisons and Controlled Substances Act 1981. (d) Pursuant to s.79 an agreement to traffick is purposive, requiring a joint purpose to traffick, whereas a conspiracy under s.321(1) of the Crimes Act would not have required the appellant to form an agreement with any person to traffick in cannabis. 5. The summing up of the learned trial judge in respect of the elements of conspiracy to traffic, as they related to this case, were fundamentally flawed because he did not address a specific purposive agreement to traffick between the appellant and others. 6. That there was no case to answer because there was no evidence to support a finding that the appellant agreed with another person or persons to sell cannabis."

Count 1 on the presentment alleged that the applicant and five co-offenders, Whelan, McKenzie, McLean, Gisonda and Polidoros, between February 1995 and 3 June 1995 agreed together to pursue a course of conduct which would involve the commission of an offence by one or more of them, namely the trafficking of a drug of dependence, cannabis. The charge was explicitly laid pursuant to s.321(1) of the Crimes Act. Section 321 provides -

" (1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence. (2) For a person to be guilty under sub-section (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement - (a) must intend that the offence the subject of the agreement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under sub-section (1) of conspiracy to commit an offence notwithstanding the existence of facts of which he is unaware which make commission of the offence by the agreed course of conduct impossible."

Sub-section (4) provides that the Director of Public Prosecutions must approve a presentment for an offence against this section.

Further relevant provisions of the Crimes Act are contained in Division 10, in ss.321C, 321D and 321E. Section 321C provides penalties for conspiracy including by sub-s.(1)(a) that where a person is convicted under s.321 of conspiracy to commit an offence or offences against a law or laws in force in Victoria, if the penalty for the relevant offence is fixed by law, the person shall be liable to a penalty not exceeding the penalty for the relevant offence. Section 321D provides that -

"Sections 321(2) and (3) and 321B shall apply, so far as they are capable of doing so and with such changes as are necessary, for the purpose of determining whether a person is guilty of conspiracy under any enactment other than section 321 or of conspiracy to cheat and defraud or of conspiracy to defraud."

Section 321E provides certain limitations in relation to prosecution and by sub-s.(3) provides that -

" (3) A person shall not be liable to be convicted in respect of the same agreement of both - (a) conspiracy under section 321; and (b) conspiracy under any enactment other than section 321 or of conspiracy to cheat and defraud or of conspiracy to defraud."

By s.321F(1) the offence of conspiracy at common law was thereby abolished.

The principal contention of Mr Richter who appeared in this Court for the applicant was that the charge alleged in count 1 should have been laid under s.79 of the Drugs, Poisons and Controlled Substances Act 1981 ("the DPCS Act"). Section 79(1) provides -

"A person who conspires with another person or other persons to commit an offence against any provision of sections 71, 71A, 71B, 72 or 73 is guilty of an indictable offence and liable to the same punishment pecuniary penalties and forfeiture as if he has committed the first-mentioned offence."

Count 1 of the presentment, of course, alleged that the applicant and his five co-offenders had agreed together to pursue a course of conduct involving the commission of an offence of trafficking in a drug of dependence, an offence under s.71 of the DPCS Act.

The argument that the presentment for count 1 was a nullity and did not disclose an offence known to the law ran as follows. Mr Richter argued that the DPCS Act was intended to codify and cover the field in relation to the law concerning legal and illegal dealings with drugs. He submitted that the whole structure of that Act demonstrated an intention to codify the law and cover the field relating to drugs, poisons and controlled substances. The submission was supported by reference to the Second Reading Speech on 23 September 1981 (in relation to Act No. 9719 of 1981) in which the then Minister for Health said[1] that -

"In addition to the changes I have already outlined, a number of other provisions included in the Bill are designed to strengthen the hand of our law enforcement agencies in dealing with the drug problem. One of these is the creation of a statutory offence of conspiring, confederating and agreeing to the illicit trafficking in and use of drugs. Conspiracy charges in respect to drugs are currently laid under the common law but under the new Act conspiracy will be a statutory offence - The penalty for conspiring to commit an offence will be the same as that of the offence itself."

The argument continued that the DPCS Act contains various artificial notions such as the definition in s.70 of the verb "traffick" which it was submitted were not amenable to the general formulations in s.321 of the Crimes Act or the common law.

Mr Richter submitted that there had never been a trial of the applicant under s.79 of the DPCS Act. If it was inappropriate to have charged the applicant under s.321, then the trial was a nullity and the conviction must be quashed. On this argument it would also have followed that it would be equally inappropriate to enter an acquittal on count 1, since the applicant was, ex hypothesi, never at risk of being convicted.

It now becomes necessary to examine s.79 of the DPCS Act and the relevant sections of the Crimes Act and their legislative history. The DPCS Act was plainly enough intended to strengthen the hand of Victoria's law enforcement agencies in dealing with the drug problem, but I doubt whether on any view it could be said that the Act was an attempt to codify the relevant law or cover the field. The common law must still be relied on for the definition of a number of terms used in the Act, terms such as "occupier", "possession", and "conspiracy". The definition of the verb "traffick" is itself inclusive rather than exclusive. The Preamble to the Act describes it as "an Act to re-enact with Amendments the Law relating to Drugs, Poisons and Controlled Substances, to amend the Health Act 1958 and the Crimes Act 1958 and for other purposes." I can find no statement in the legislation (or for that matter the Second Reading Speech) from which it could be inferred that the intention of the legislature was to enact a self-contained piece of legislation in respect to the imposition of criminal liability covering drugs of dependence. Furthermore less than the usual assistance could be gained from Hansard in 1981, since the Act (in its form as at that time) was not proclaimed and did not come into operation. The Act of 1981 was significantly amended under the Cain Government before being brought into operation in December 1983 (as appears from the new Minister's Second Reading Speech[2]).

A further difficulty faced by the submission that the DPCS Act intended to cover the field is the fact that before 1981 there were already two Commonwealth statutes in part occupation of the same field (the Customs Act 1901 s.233B (Cth); the Narcotic Drugs Act 1967 Part III (Cth),; see now also the Crimes (Traffick in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth)).

The maxim of construction generalia specialibus non derogant may have effect where a provision dealing specifically with a particular topic conflicts with a provision in a later Act that deals generally with that topic along with others. As Wood, V.C. said in Fitzgerald v. Champneys[3] -

"The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case in which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a special enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act they had thus carefully supervised and regulated."

The major premise of the maxim's operation is, of course, that there is some conflict between the two provisions, or that the general enactment in some way derogates from the special Act.[4] The mere fact that a later general enactment covers the same ground as an earlier specific piece of legislation is not, in my view, sufficient to bring about relevant inconsistency or repugnancy. For the reasons given in [21] above, I can see no basis for saying that Parliament intended either that the DPCS Act remain as the sole enactment regulating the creation of offences of conspiracy in relation to trafficking in drugs, or that subsequent statutory offences in this field should only be provided for by amendment to the DPCS Act. The question then becomes whether there is any conflict or repugnancy between the two provisions.

Section 79 plainly requires the conspiracy charged to have a purposive element, as Mr Richter forcefully argued. A conspiracy consists of agreeing to or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means.[5] Mr Richter argued that all the Crown had established in the present case was an agreement to obtain possession of cannabis; if all that the prosecution could establish was an agreement by two or more offenders to steal cannabis, with each conspirator being aware that the other or others intended to traffick in their share of the stolen drug, that would not have been sufficient to establish an offence under s.79, there being no agreement between them to sell the drug.[6]

On the other hand, s.321 creates a different but overlapping offence, as Mr Richter accepted. The offence provided by s.321(1) requires proof that a person has agreed with others on pursuing a course of conduct which will involve the commission of an offence by one or more of the parties to the agreement. The nature of the overlap appears readily from an examination of Division 10 of the Crimes Act, to which reference has already been made. By s.321(2) for a person to be guilty of a conspiracy to commit a particular offence under sub-s.(1), both he and at least one other party to the agreement must intend that the offence the subject of the agreement be committed. Section 321B provides that the conviction of a conspirator may stand notwithstanding the acquittal of the other conspirators. Section 321C provides penalties for a conviction of conspiracy under s.321. Section 321D, the terms of which have already been set out, expressly requires the application of ss.321(2) and (3) and 321B, for the purpose of determining whether a person is guilty of conspiracy under any other enactment. Then there is s.321E which provides that a person shall not be liable to be convicted in respect of both conspiracy under s.321 and conspiracy under any other enactment. Division 10 of the Crimes Act thus recognizes and accommodates the fact that provision for the offence of conspiracy has been or will be made in other statutes. Sections 321D and 321E in particular make it quite apparent that the legislature had in contemplation the existence of earlier legislation providing for an offence of conspiracy comparable to, or overlapping with the provisions of s.321.

The provisions of Division 10 to which I have just referred seem to me to give no justification whatever for the view that s.321 would be inconsistent with s.79, or repugnant to it, if the reach of s.321 extends to conspiracies in relation to trafficking in drugs. The maximum penalty for the two offences is identical by virtue of s.321C(1)(a). But since, as Mr Richter contended, the elements of the two offences are different, there is no obvious reason why the two provisions cannot stand together and have full operation independently of one another - particularly as s.321 and its neighbours appear to recognize the existence of, and accommodate, provisions in the nature of s.79. It follows that I do not accept that Parliament's intention was that a charge of conspiracy in relation to an offence involving drugs should be laid under s.79 rather than s.321, or that the only charge appropriate to the circumstances of the present case would be one laid under s.79.

The Crown case was that a number of persons had entered into an agreement that they would burgle premises, and steal and sell the cannabis they found there. The Crown was thereby alleging that these persons had agreed that a course of conduct would be pursued, which would involve the commission of an offence by one or more of them, and in my view such an allegation fell clearly and appropriately within the terms of s.321(1).

Mr Richter mentioned a further argument under his earlier submission that all that had been established here was an agreement to obtain possession of cannabis, namely that it is only once possession has been obtained that one can join in an agreement to have it for sale. But this argument must fail in the light of its express rejection by the High Court in Romeo v. The Queen[7].

Accordingly, ground 4 is not made out. Ground 5 was not separately argued, but was said simply to flow from ground 4 in that the judge did not develop the purposive elements of trafficking which must be proved to establish a charge under s.79. Ground 5 accordingly is also not made out. Ground 6, that there was no case to answer, was very shortly argued on the basis that there was no evidence of agreement to sell or supply drugs on the part of the applicant. This ground is more appropriately considered under ground 1 to which I shall turn shortly.

Ground 3 claims that there is a substantial risk that the jury misused Tape 56 as corroboration of the evidence of Polidoros because -

(a) the prosecutor erroneously told the jury that it could, in effect, use call No. 56 as corroboration of Polidoros;

(b) the direction by his Honour which sought to correct the argument of the prosecutor to the effect that Tape 56 could be used as confirmatory of the evidence of Polidoros (albeit it was not corroboration) was insufficient to obviate the risk that the jury may have accepted the prosecutor's invitation and used Tape 56 as corroboration.

Tape 56 was an intercept in evidence of a telephone call made at nearly midnight on 3 June 1995 by Gisonda to the applicant's home. Polidoros had been arrested by the police the previous day. The applicant's wife answered the phone, and Gisonda asked her to wake the applicant. Gisonda was then talking to another male in the background whose voice was identified by Inspector Farnsworth in the witness box as that of McLean. The call continued as follows -

"PEPE: Hello. GISONDA: How are you? PEPE: Hang on. GISONDA: What are you doing, sleeping? PEPE: Yeah. GISONDA: You find out anything else? PEPE: Hey? GISONDA: Did you ... PEPE: No, nothing yet. GISONDA: Ahh. Why - you gunna go back to sleep or ... PEPE: No. GISONDA: Yeah. Well can - can you come round now. PEPE: When? Where are you? GISONDA: Down work. PEPE: Brighton? GISONDA: Yeah. PEPE: OK. I'll see. GISONDA: Well be - be quick, ahh. PEPE: No not quick. I just got up. GISONDA: Yeah. Don't have a shower. 'Cause it takes fuckin' half an hour to have a shower ... PEPE: Well why? What's so - what's so urgent? GISONDA: There is my friend here. PEPE: What does he want to see? GISONDA: He says that it wasn't him. No, set up. No way. Unless he has been - or someone went there around and saw him, but it's not ... [The last five lines had been translated from a foreign language.] PEPE: Yeah. Dom, you got me at home. GISONDA: Yeah. PEPE: OK? GISONDA: Ohh. PEPE: I'll be as quick as I can. GISONDA: All right. PEPE: ... anyhow. Is - there's no need for me to speak to him. I'll find out first what's going on okay? GISONDA: Alright."

The Crown case was that the background voice in the conversation was that of McLean. It was put that a fair reading of the conversation showed a nexus or connection between the friend (McLean) and Pepe. McLean was a co-conspirator and the tape revealed that something which required urgent attention was not to be discussed on the telephone. The friend wanted to speak to Pepe and Gisonda was saying that the friend (McLean) was saying that McLean had not been the cause of the arrest of Polidoros. The Crown's argument was that the conversation supported everything Polidoros had said as to Pepe having a connection with McLean and Gisonda. Mr Richter on the other hand said that the tape showed no more than that Polidoros was a friend of Gisonda and the applicant, who was concerned about Polidoros's conduct. It had never been contested that Pepe and Polidoros had known each other well, indeed they had been partners in a business. Mr Richter's submission was that the call was not capable of offering any corroboration and did not independently show any conspiracy of which Pepe was a member, but had been elevated into non-corroborative support. He submitted that there had been the most speculative bolstering of the notion that Pepe knew the others in the conspiracy well, and in other words that the tape's evidentiary value had been stretched beyond its capability.

The principal argument about Tape 56, however, was the following. The prosecutor in his address to the jury told them that this intercept might not be legally corroborative of Polidoros, but that it was "very very much supportive of what he says", and it showed that the evidence of Polidoros was reliable. Mr Richter then argued that the judge gave a direction to the jury which was insufficient to obviate the risk that the jury may have accepted the prosecutor's invitation and used the evidence of Tape 56 as corroborative. He argued that although the judge did give the jury a warning, that warning was undercut by the reference to the tape being supportive. He argued that the jury should have been told that the tape was irrelevant and that the judge's failure to give an appropriate direction might have tipped the jury into a conviction.

At the end of the prosecutor's address to the jury, the judge asked the prosecutor whether he was suggesting that there was any corroboration of Polidoros's evidence. The prosecutor replied that he was not, but that he said there was evidence which was supportive of his evidence, but nothing that amounted to legal corroboration. Defence counsel then addressed the jury on the basis that there was no corroboration, and that the case stood or fell on Polidoros as an uncorroborated witness, the rest being "speculation, interpretation".

The judge during his charge told the jury that the Crown did not suggest that the evidence of the tape could corroborate Polidoros. His Honour gave the jury a full explanation of the reasons why the law regards the evidence of accomplices as unreliable, and dealt with some matters raised by defence counsel as throwing further doubts on Polidoros's evidence. The judge then gave a clear warning to the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice and said that there was no corroborative evidence. His Honour explained that the Crown relied on the evidence of telephone calls as in some way supportive evidence, but pointed out that supportive evidence is not corroboration. That evidence, his Honour said "goes to establish a conspiracy between Whelan, McLean, Gisonda and Polidoros, but doesn't implicate [the applicant] in any way." Shortly afterwards his Honour said -

"I repeat the direction I have just given to you, that it is dangerous to convict on the uncorroborated evidence of an accomplice. You may convict upon such evidence, but you should not do so unless you have subjected the evidence to close and careful scrutiny, and after such scrutiny are satisfied of its truth and satisfied that it is safe to convict upon it, notwithstanding its source and notwithstanding that it is uncorroborated."

The evidence of Polidoros covered three matters, first that there has been a conspiracy, secondly its nature and scope and thirdly that the applicant was a participant. Neither the existence of the conspiracy nor its scope or nature was the subject of challenge by defence counsel during the trial. The real question for the jury was whether the applicant was a participant in the conspiracy. The evidence at the trial confirmed Polidoros's evidence as to the first two matters, and accordingly the Crown put to the jury that they were entitled to act on Polidoros's truthfulness because his evidence had been confirmed in other respects. At the end of the judge's charge no exception was taken by defence counsel.

In all these circumstances I do not think that there was any risk that the jury might have used the evidence of Tape 56 impermissbly as corroboration of Polidoros's evidence, nor was the judge's direction in any relevant respect inadequate. Furthermore, in light of Inspector Farnsworth's evidence as to the additional voice on the tape being that of McLean, the evidence of the tape (the admission of which had not been the subject of objection) was plainly relevant. Ground 3 also fails.

I turn then to grounds 1 and 6. Mr Richter first took the Court at length through the evidence-in-chief of Polidoros of the five specific locations and the attempts made to remove the crops of marijuana found or expected in each place. He submitted that the evidence was vague and the six conspirators had not each been involved with all locations. In particular he submitted that there was no evidence of anything more than a plan to steal the marijuana, no evidence that there was any agreement to sell or traffick the product, and therefore no conspiracy to traffick. Accordingly, so the argument ran, the conviction was unsafe and unsatisfactory whether the charge was brought under s.321 or s.79. Secondly it was argued that Polidoros was a most unsatisfactory witness and that the jury could not rely on his evidence. The argument was that Polidoros was an accomplice, who believed he was still open to be charged, not having been given any indemnity from prosecution. But, Mr Richter said, Polidoros was not just an accomplice; he was a disreputable character with an incentive to lie because he believed he could still be charged with other offences, and was playing a double game with the police. All these matters, it was said, made the verdict doubly dangerous.

In response, Mr Holdenson for the Crown took the Court at equal length through the evidence of Polidoros, not only in chief, but also in cross-examination, where he was asked a number of questions the answers to which may well have confirmed his earlier statements in the jury's mind. Polidoros testified to having gone to some five sites, looking for marijuana. He said that the information as to these sites came from the police to the applicant (a former police officer), who passed the information on to Polidoros. There was a substantial body of evidence contained in Polidoros's answers which would have entitled the jury to conclude, if they believed him, that the applicant had counselled and procured Polidoros and others to commit burglaries at at least some of the five sites identified by Polidoros. Furthermore some of Polidoros's answers, particularly under cross-examination, would also have entitled the jury, in my view, to conclude that the proposed course of entering the properties and stealing any marijuana found there was made with the intention, on the part at least of the applicant and Polidoros, that they would sell the marijuana so obtained and which, in the case of the Austarc Avenue property, was expected to be "worth a lot of money", of which Polidoros said he would "be entitled to a share".

The transcript of the trial and counsel's addresses show that the existence of a conspiracy involving at least Whelan, McKenzie, McLean, Gisonda and Polidoros to steal any marijuana found at the five identified premises, and thereafter to traffick the crop was never challenged, nor was the scope or nature of the conspiracy. Polidoros's evidence covered all of these aspects, and his evidence was confirmed by other evidence at the trial, in particular the telephone transcripts. The critical question for the jury was whether the applicant was a participant in this conspiracy.

There was I think considerable force in the criticisms made by Mr Richter of both the evidence of Polidoros, and his reliability as a witness. But each of these criticisms was made, with vigour, during the trial, both by defence counsel in his address, and by the judge in his charge. The question whether Polidoros should be believed was very much one for the jury, properly instructed, to determine. As I have previously noted no exception was taken by defence counsel to the judge's charge. The failure to take exception will be relied on by this Court as an indicator that counsel present saw no injustice or error in what was done; R. v. Wright[8]; R. v. Williamson[9].

The question this Court must ask[10] is -

"Whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations."

I do not think it can be said that Polidoros's evidence was so vague, unreliable, or otherwise defective that the jury should have been told to disregard it, or given any more stronger warnings than they received. Applying the test set out above, in my view on all the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Grounds 1 and 6 therefore both fail and so, accordingly, also the application for leave to appeal against conviction.

I turn now to the application in relation to sentence. The application is made on four grounds, but it is unnecessary to set them out. The learned judge stated at the outset of his reasons for sentence that the applicant had been found guilty and was convicted of the offences of trafficking in a drug of dependence and burglary with intent to steal. His Honour continued that these offences carried the maximum sentences of 25 years' and 10 years' imprisonment. Now the applicant had, of course, been convicted of conspiracy under s.321, and the relevant maximum for this offence was not 25 years, but 15 years. Mr Holdenson conceded that in the circumstances of the present case this amounted to sentencing error, and that this Court must accordingly re-sentence the applicant.

In his submissions on sentence, Mr Richter relied on the argument of parity. The conduct being punished was said to be effectively the same as that for which the co-offenders had received significantly lower sentences. He submitted that the sentence imposed for the conspiracy was out of proportion to the punishment imposed on the others. Mr Richter also relied on the fact that the conspiracy had been alleged as lasting until June 1995, whereas the applicant was not tried until November 1999. Gisonda, McLean and Whelan had been sentenced on 6 September 1996 and their sentences had all been completed before the applicant stood his trial. The judge said as to the argument of delay that it had resulted from defence conduct, and was not a matter that assisted the applicant with respect to sentence. An examination of the history of the prosecution showed that while some of the delays had been occasioned by defence applications for legal aid, there had been no defence conduct before March 1998, other than entering a plea of not guilty and contesting the committal, to explain the delay in commencing the applicant's trial.

There is, I think, nothing in the argument of parity. The applicant faced a charge of conspiracy which the co-offenders did not. The latter pleaded guilty and were entitled to a sentencing discount. But the applicant was in my view entitled to have taken into account the lengthy delay before his trial commenced and evidence had been given by the applicant's brother of the effect that this delay had had upon him.

In all the circumstances therefore, I would grant the application as to sentence and allow the appeal. I would re-sentence the applicant by substituting for the sentence imposed on the charge of conspiracy a sentence of three-and-a-half years' imprisonment. The sentences should be concurrent since, as the judge said, the burglary count arose out of counselling and procuring within the conspiracy. The total effective sentence would therefore be three-and-a-half years' imprisonment. I would fix a non-parole period of two-and-a-half years.

I also agree that, for the reasons given by Charles, J.A., the application for leave to appeal against conviction should be dismissed, the application for leave to appeal against sentence granted and the appeal allowed, and the applicant re-sentenced as proposed by his Honour.

[1] Hansard, Victorian Legislative Assembly, 929.

[2] Hansard, Victorian Legislative Assembly, 16 June 1983, 5296.

[4] Refrigerated Express Lines (A/Asia) Pty.Ltd. v. Australian Meat and Livestock Corporation [1980] FCA 38; (1980) 29 A.L.R. 333 at 346-347 per Deane, J.; Smith v. R. [1994] HCA 60; (1994) 181 C.L.R. 338 at 348; Pearce, Statutory Interpretation in Australia, 4th ed. (1996), par. 7.18-7.21.

[5] Newland [1954] 1 Q.B. 158 at 166 per Lord Goddard, C.J.; Shaw v. DPP [1961] UKHL 1; [1962] A.C. 220 at 273 per Lord Reid.

[6] Trudgeon (1988) 39 A.Crim.R. 252 per Gleeson, C.J. at 254-255.

[8] [1999] VSCA 145; [1999] 3 V.R. 355, at 356 and 360-361.

[10] M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 493.

At a glance

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Judgment (77 paragraphs)

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