R v Sotiropoulos [1999] VSCA 115

34. The Crown called a pharmacologist and toxicologist employed by the Institute of Forensic Medicine. The purpose of his evidence was, it seems, to rebut what was expected to be the defence that trafficking did not occur, but drug-taking did, at the premises. The expert deposed that sleepiness and drowsiness were side effects of heroin use. Ultimately the Crown submitted that the relatively short time spent by most visitors at the premises as depicted on the videotape was inconsistent with those persons using and then leaving.

37. Dealing with Marmo's evidence, the applicant denied that he had sold any drugs to him. He said he thought that Marmo had asked if he might use heroin on one occasion when he came to the premises on 12 June. Two caps of heroin that were found by police at the premises on that day were in a packet of cigarettes in Marmo's possession. Marmo made a statement to the police after the raid. He admitted in his evidence that he had been terrified by the raid. He was later charged and dealt with in relation to using and possessing heroin. In the course of his exceedingly long cross-examination, Marmo made statements which were inconsistent with evidence that he admitted giving at the committal hearing and with the statement he made to police. He admitted that parts of his evidence at the committal were not true, but said in substance that the reason for his telling untruths was that he was in fear for his life.

40. Dealing with the evidence of Constable Tasiopoulos, the applicant denied that he made the statement attributed by Tasiopoulos to him when speaking to his daughter. He said he discussed with his daughter a concern for his wife because of the lack of security at home in his absence; and he discussed also the need for his wife to organise matters for his bail application and to make sure his family would not find out about his being in gaol for use of drugs. He said the conditions in the cells were noisy and at times it was difficult to hear his daughter. The applicant's daughter generally supported his version. The applicant admitted that he talked in the cells with his wife about losing face in the eyes of the family and admitted also that he had said that they were idiots for doing what they had been doing. He said, however, that this was said by him in the context of having become mixed up in the using of drugs. He further said that he had attempted to find the people who had visited his house but did not know where they lived.

43. In his notice of application for leave to appeal against conviction the applicant relied on a single ground, namely "That the learned trial judge failed to adequately charge the jury in his summation of the evidence resulting in a miscarriage of justice". His counsel at the trial (who was not counsel who appeared before us on his behalf) had taken but three exceptions to the judge's charge, none of which comprehended the ground set out in the original notice of application. Last Tuesday, 20 July, those representing the applicant persuaded the Registrar of Appeals to grant leave to substitute for the one ground four others, of which the Court received, unfortunately, very late notice. These were:

"1. That the learned trial Judge erred in not giving a direction to the jury as to the dangers of acting on the evidence of the witness Marmo on the basis that Marmo was an accomplice. 2. The learned trial Judge erred in not giving a direction to the jury in the terms set out in R. v. Faure 1993 VR 497 as to the dangers of acting on the evidence of the witness Marmo. 3. A miscarriage of justice arose by virtue of the prosecutor refusing to call the potential witness Rick Cooper. 4. The learned trial Judge erred in giving a Jones v. Dunkel direction against the accused, thereby giving rise to a miscarriage of justice."

47. I should say that the three exceptions that were taken at the trial to the judge's charge - none with success - are none of them referred to or comprehended in the grounds which are now before this Court. Further, it is very evident that none of the fresh grounds was the subject of any kind of submission made to the learned judge. As regards the first and second grounds, an exception timeously taken would certainly have enabled the trial judge to consider whether to give a direction of the kind whose absence is now said to have destroyed the trial.

50. As it is, neither of these first and second grounds can, in my opinion, succeed. The grounds depend on a two-limbed thesis: first, that Marmo was a tainted witness whose evidence could not be properly or fairly considered by the jury without specialised or extraordinary instruction from the judge; secondly, that Marmo's evidence was critical inasmuch as, without its acceptance, the Crown case could not succeed. I think that neither limb is sustainable. It is plain enough - I should think plain enough to anybody - that Marmo was a frail witness in the sense that he might readily enough be disbelieved in various aspects of his testimony, to some of which I have referred. He was a seasoned drug addict; he admitted that he lied in his evidence at the committal; and furthermore he was the only witness who gave direct evidence of the sale of heroin by the applicant.

53. The judge was quite evidently alive to Marmo's susceptibility. At the end of the Crown case his Honour said: "I did consider whether or not ... there's any reason for giving a special warning in relation to Mr Marmo. I'm inclined to think there isn't but I'd hear counsel on it." Then, after counsel for the Crown had asserted that there was no need to give such a warning, counsel for the applicant said that he had not turned his mind to the point and he asked if he might think about it overnight, to which his Honour responded: "Yes. Let me put it this way: I don't propose to do so unless you ask that I do, and if you so ask, then I'll consider it." Counsel said: "Yes", and his Honour continued: "But unless I hear from you, I shan't do it." Counsel said: "I understand, Your Honour." There the matter lay, for it was not mentioned again by judge or counsel, whether in the charge or by way of exception to the charge, or at all. It is indeed remarkable that in those circumstances the point is one that is sought now to be raised as so critical that the trial that was had should be treated as so unfair as to warrant the ordering of another.

56. The gist of what was put on behalf of the applicant in support of grounds 1 and 2 was this: that the nature of the evidence of Marmo, and of the witness himself, called on the learned judge to deliver a strong warning to the jury as to the dangers of acting on his evidence. It was conceded that Marmo could not strictly be classified as an accomplice, but, as counsel put it, he was in a position "just short of an accomplice", and was so clearly involved in the criminality for which the applicant stood trial that a strong warning was required to avoid the risk of a miscarriage of justice. It was said that his evidence was of a kind that is recognised by the courts as being potentially or inherently unreliable. It was said that he had a clear motive to lie and to minimise his own criminality and to exaggerate that of the applicant. Quite apart from that, it was put that the evidence given by Marmo was tainted by virtue of his having admittedly lied at the committal, made prior inconsistent statements, being a drug addict and having convictions for drug offences; and that the circumstances in which he came to make the statement to police after the raid on 12 June rendered his statement suspect.

59. My very strong disposition is, with respect, to regard as well justified the judge's impression that no special direction as to Marmo's evidence was required. That evidence, although far from insignificant, is to be looked at now, as it was at the trial, in the context of the evidence as a whole. The trafficking that was alleged was over a period in relation to which Marmo's evidence was referable to a time perhaps towards the beginning and at the end. Although it was evidence that was useful to give some context to the time scale that was alleged, the Crown was, of course, not obliged to prove the commencing date for the trafficking that it did allege. It is true that Marmo's evidence alone tended to prove actual sales of heroin by the applicant, but the Crown case, as I see it, would not depend on direct testimony of sales as an ineluctable ingredient of its proof. The Crown case was very largely circumstantial, and I should be prepared to say that the jury might have convicted on count 1 without necessarily accepting the evidence of Marmo. I shall not dilate on the strength of the Crown case, but observe that the jury might very well have thought it was strengthened rather than answered by the relatively feeble explanations of his conduct given by the applicant under oath.

62. Cases in which the need for a warning of the type that was called for in R. v. Faure has been recognised are limited. I refer, without reading it, to the passage in R. v. Campbell, an unreported decision of the Court of Criminal Appeal delivered on 14 November 1994, at pp.12-13. That was repeated with approval in R. v. Latina (unreported), a decision of this Court delivered on 2 April 1996, at p.10. The cases decided by appellate courts of the kind, like Faure, in which a warning of that kind has been recognised as being necessary are correspondingly few. There is R. v. Holt and Merriman (1996) 87 A.Crim.R. 82, particularly at p.89, in which it was common ground at the trial that a Faure warning was required. There is R. v. Hickey and Komljenovic (1995) 89 A.Crim.R. 544 at 567-9, in which it was held that a Faure warning was required. More recently, R. v. Brooks [1999] VSCA 5 and R. v. Maple [1999] VSCA 52 are decisions which, having surveyed the authorities in context, decided that no warning was required, notwithstanding that the witness or witnesses in respect of whom it was sought were, on consideration, thought to be unreliable. Mere unreliability is not, however, the test.

65. It was submitted in this Court that Marmo had a clear motive to lie by seeking favourable treatment from the police in return for his co-operation. Had such a motive been demonstrated, that would be certainly one thing to take into account in deciding whether or not to give a Faure warning. For my part, however, I have not been able to understand what motive was alleged against him to lie at the trial, for he had by that stage been dealt with for his own offences committed at the applicant's house on 12 June 1997. In any event, potential weaknesses of Marmo's evidence and his own weakness as a witness of truth were patent, as I should think, to any lay juror. The cross-examination of him, most comprehensive, as I have indicated, brought that out. The weaknesses were apparently the subject of defence counsel's submissions and the judge referred to the criticism in his charge. All that aside, the greatest difficulty in the way of acceptance of the argument in support of grounds 1 and 2 is, I think, the failure of counsel to seek a direction from the judge. The matter, as I have indicated, was very clearly brought home to counsel by his Honour and then dropped. In the circumstances, it is perfectly legitimate to suppose that counsel made a forensic decision not to seek a Faure direction. One can perfectly well understand such a decision, if it were made. There was abundant corroboration of the evidence given by Marmo, so far as it really mattered, and, had a Faure warning been sought, the judge might well, and probably would, have drawn attention to the corroboration in the charge. That was something which, understandably, counsel for the applicant may have sought to avoid.

68. For these reasons, I think that grounds 1 and 2 must fail.

71. I turn to grounds 3 and 4. The witness Cooper was one whose name was endorsed on the presentment but, at an early stage of the trial - in fact, I think, before the Crown case began - the prosecutor announced that he did not intend to call him because his evidence was not relevant. Cooper had given evidence at the committal hearing that he had used heroin at the applicant's house on 29 May 1997 and that he had, while there, suffered an overdose and collapsed, to be revived by ambulance officers. Cooper denied in his statement that the applicant had ever sold him heroin or that he knew the applicant to be a supplier of heroin. Counsel for the applicant at the trial suggested, but not forcefully or at any length, that the Crown ought to call that witness. The judge said that he could not require that the Crown call Cooper and did not pursue the matter, nor did counsel take it any further. It was submitted before us for the applicant that it was hard to see why, if Marmo had been a relevant witness, it was open to the Crown to take the view that Cooper was not. One difference between them, of course, was that, while Marmo was in a position to depose to sales of heroin to him by the applicant, Cooper was not prepared to say that, and indeed denied it as a fact. The thrust of the argument on behalf of the applicant before us was that the applicant, by the Crown's refusal to call Cooper, effectively lost the opportunity to rely upon evidence that there was at least one user, but not purchaser, of heroin who had visited the premises during the relevant period. It was said that, having lost that opportunity, counsel for the applicant had lost with it a distinct advantage to cross-examine the witness and to get more out of him if more were forthcoming. It was, of course, open to counsel for the applicant to call Cooper himself as part of the defence case, for Cooper was in court and available. Counsel did not, however, call him. It may be that the reason for that was that Cooper had a number of quite serious prior convictions which, if brought out by the Crown in cross-examination, would presumably have tended to undermine his value as a witness.

74. The question whether the Crown has an obligation to call a person such as Cooper does not appear to be the subject of any clearly decided authority, nor were counsel able to assist the court by reference to any other authority. It is clear enough that the Crown has an obligation to call evidence which is relevant in the sense that it is essential to be unfolded in the case for the Crown, and whether the evidence of a particular witness is of assistance to or potentially inimical to the Crown case. I refer to the judgment of Dawson, J. in Whitehorn v. The Queen [1983] HCA 42; (1983) 152 C.L.R. 657 at 674.

77. This was a case in which, so far as I can see, the evidence of Cooper was by no means essential to the unfolding of the case for the Crown, and it may be contrasted with such cases as R. v. Armstrong, where the witness whose calling was in dispute was a witness to a very serious assault upon a victim which was the subject of the charge against the accused. I may say much the same as to R. v. Shaw (1957) A.Crim.R. 425, at 436 and 450. In that case, the witness whose calling was in dispute was undoubtedly a person whose evidence was essential to the story which the jury were entitled to receive. In the present case the evidence of Cooper did nothing to forward the Crown case which was unfolded against the applicant. Was Cooper's evidence, though, to be regarded as "relevant" in the sense I have mentioned because it might be useful to the defence? Did it matter that at some stage of the trial, albeit after he had announced that he would not call Cooper, the prosecutor learned, because counsel for the defence had announced it, that the defence would be as it was, that is to say, that the premises were used for the ingestion of heroin, but not for the trafficking of it? The answer to this question may well depend on matters of degree. The failure of the Crown to call a witness would constitute a ground for setting aside a conviction only if, when it affects the conduct of the trial as a whole, it would be perceived to give rise to a miscarriage of justice. Mr Mullaly conceded before us that he must establish a miscarriage before this point may succeed. It was suggested that the evidence of Cooper could do something to strengthen the evidence given by and on behalf of the applicant that using, not trafficking, was carried on at the premises. As against that, however, one has to consider the strength of the Crown case bearing in mind the numbers of people who were said to have visited the premises for short periods over the period in question. The evidence of one person that he attended and used, but did not buy, could, it seems to me, make very little difference indeed on the question as a matter of practical importance to the case that was put before the jury on behalf of the accused. The logical connexion between the evidence of a fact and a question at issue can properly be regarded as so slight as to render the fact too remote to be usefully relevant: cf. R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376, at 380-1, for a reference to which I am obliged to Brooking, J.A. We might decide the point by reference to numbers or proportionality but, in the end, it seems to me that it is right to regard the Crown's failure to call Cooper as de minimis, and one which on that account this Court should not heed. What difference to the outcome of the trial might it reasonably be supposed that the failure to call Cooper made? So far as I can see, it can on no view be said that the failure was such as to constitute a miscarriage of justice.

80. That being so, little need be said about the final ground, that the judge was wrong to have given a Jones v. Dunkel direction. Certainly the applicant had been unable to identify any of his so-called friends who had visited the premises, apart from Cooper. The judge gave a conventional Jones v. Dunkel direction to the jury, instructing them that, if they were satisfied that there was no proper explanation for the applicant's failure to call any of these witnesses, they might take the failure into account by way of assuming that they could not have said anything useful in support of the defence. On one view, the Crown, which had encouraged that kind of direction, did adopt inconsistent stances, saying in the first place that Cooper's evidence was irrelevant but inviting the jury to take into account the defence's failure to call him. Again, however, that seems to me not to have given rise to a miscarriage of justice. The Crown case was a very strong one on any view, and to send this case back for retrial on the footing that there was on that account a miscarriage of justice would border upon the irrational.

83. For these reasons, I would dismiss the application for leave to appeal against conviction.

86. Little was said on either side about the application for leave to appeal against sentence. It was said to be a manifestly excessive sentence. In my opinion it certainly was not manifestly excessive. The applicant had prior convictions including a number for drug offences, and including in particular one for trafficking in heroin in 1986. He was sentenced for that to be imprisoned for six years and a minimum term of four-and-a-half years was fixed. It was said that the judge placed undue emphasis on deterrence, particular and general, and that he undervalued the prospects of rehabilitation. So far as I can see, the prospects of rehabilitation were not made to appear very strong. On his own story, although he had been free from conviction for relevant offences for some ten years, the applicant certainly had not been free from the commission of drug offences, being a habitual possessor and user over a long period of time.

89. It was said that, if nothing else was excessive, the sentence of six months for possession of heroin, being the small residues found on the scales and on the cardboard, was certainly manifestly excessive. Again, I am unable to agree. The maximum sentence for that was five years, and a sentence of six months cannot, in my opinion, be said to be out of the range. The same must be said, I think, of the sentence for trafficking, the maximum penalty for which was 15 years.

107. The order of the Court is that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.