R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59

R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59 - NSWCCA 2003 case summary — Zoe

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CIRCUMSTANCES 6 In order to understand the issues raised on the appeal, it is convenient first to give a brief account of the background circumstances that can fairly be regarded as established and not in dispute, and a brief outline of relevant evidence and of how the Crown and the appellants put their respective cases before the jury. 7 During January, February and March 1998, the appellant Whelan was residing in a house, which was described as being owned by one Gerard Stewart, situated on a property Lot 283 Mount Pleasant Road, Wherrol Flat, which property was owned by a number of persons as tenants in common, including Mr. Stewart. 8 Mount Pleasant Road runs generally west from a road which is called on one map Big Run Road, but which appears to be the same road as one called Dingo Tops Road on other maps and which runs generally south-east to north-west. Some distance north-west of the intersection of Dingo Tops Road with Mount Pleasant Road, there is another road running generally west from Dingo Tops Road, called Potoroo Road. As well as having a front entrance onto Mount Pleasant Road, Lot 283 has a rear entrance onto Potoroo Road. 9 In circumstances which I will describe, the police located six sites in the general vicinity of these roads on which cannabis plants were growing. Site 1 was located just off Potoroo Road, not far from the rear entrance to Lot 283, and contained 78 plants or thereabouts. Site 2 was just east of the intersection of Potoroo Road and Dingo Tops Road, and contained 36 plants or thereabouts. Sites 3 and 4 were considerably over 11 kilometres away, close together and just off a road called Knodingbul Road which could be reached either by driving generally west along Potoroo Road, or alternatively by driving some distance north-west along Dingo Tops Road. Dingo Tops Road and Knodingbul Road were also linked by a road called Compartment 86 Road, identified on maps of the area as a four-wheel drive track. Site 5 was located just off Compartment 86 Road. Sites, 3, 4 and 5 contained respectively 64, 108 and 90 plants or thereabouts; and another site located just off Knodingbul Road, called Site 6, contained just 11 plants. 10 Commencing on 27 January 1998, pursuant to warrants granted for that purpose, ingoing and outgoing calls to and from telephone number (02) 6550 7299 connected to the house occupied by Mr. Whalen were monitored and recorded by police. These calls indicated that the appellant Willer was present at the house at times during February and early March 1998, and they include conversations by both appellants in which both of them talk about being very busy and going out at night. 11 The appellants were arrested at about 9pm on 12 March 1998 in the vicinity of Site 1. Shortly earlier, according to police evidence, they had been seen leaving a vehicle on Potoroo Road and then entering Site 1 with torches and a dog. One was then seen tending a rabbit trap, and both were seen inspecting cannabis plants. When the presence of police was announced, both ran from the site and were pursued and caught. The vehicle they had left on Potoroo Road was identified as a cream-coloured Ford Falcon Utility, registration THC 125. 12 On 13 March 1998, Sites 3 to 6 were located as a result of a helicopter search. Also on that day, two police drove north-west along Mount Pleasant Road from the house occupied by Whalen, and along a track which veered off that road about 300 metres or more from the house. About 200 metres along this track, they found cannabis wrapped in a tarpaulin and shade-cloth under a lantana bush, and also some more cannabis lying under some wires tied to trees. 13 Another house on Lot 283 was occupied by one Patricia Stone. On 13 March 1998, her vehicle was searched and a small quantity of cannabis was found, for which she was charged. She gave evidence at the trial that she was then on her way home after being away for a week, and that she did not place cannabis in the blue tarpaulin. 14 The Crown relied on similarities between the five crop sites (that is, the sites excluding Site 6) to support an inference that the appellants were cultivating all of them, in particular the use of newish tomato stakes in all but Site 2 (where the plants were 1-2 metres tall rather than up to 3 or 4 metres tall as at the other sites) and the use of mulch hay around the roots in all but Site 5. There were rabbit traps at three of the sites, and varying buckets, drums, twine and rope at the different sites. Site 6 was very different from the other sites, having small unhealthy plants. 15 The Crown also relied on surveillance of the area between 9 March 1998 and the time of the arrest. Broadly, the evidence of this surveillance was as follows, although it should be noted that there were some discrepancies in the police evidence. 16 On 9 March 1998 at about 8pm, a vehicle similar to that used by the appellants on 13 March, was observed to drive with two males on board north-west along Dingo Tops Road past the intersection with Potoroo Road. This or a similar vehicle was seen to return south-east along Potoroo Road to that intersection at about 11pm (at which time a dog was seen in the rear, "squeaky suspension" was noted, and it was said that the number plate light was not working). This vehicle stopped near the intersection, two men walked into the bush towards Site 2. Fifteen minutes later the vehicle went west along Potoroo Road and was seen to stop in the vicinity of Site 1. It returned to the intersection and turned south along Dingo Tops Road at about 12.30am. (Sites 1 and 2 were discovered as a result of these observations.) 17 On 10 March, at about 11.40pm, a similar vehicle with two people inside was seen to proceed north-west along Dingo Tops Road. This or a similar vehicle was seen to return to the intersection at about 12.35am, and to proceed west along Potoroo Road and stop near Site 1. Two men were seen to walk to Site 1 at about 12.50am, to go to a rabbit trap at Site 1 and to hammer stakes, returning to the vehicle at about 1.15am. The vehicle then returned to the intersection and proceeded south-east along Dingo Tops Road. 18 On 11 March, a similar vehicle drove north-west along Dingo Tops Road, and stopped near the intersection at which time the passenger got out and looked at the road. The vehicle then proceeded west along Potoroo Road at about 7.45pm. A noisy fan belt was noted and the evidence was that the rear number plate light was not working. A similar vehicle was seen driving south-west along Dingo Tops Road at about 10.49pm, and again it was said that the rear number plate light was not working. 19 In general terms, the evidence was that very few other vehicles were seen moving around on these roads at night during the time of the police observations. 20 There was evidence that when the vehicle THC 125 was driven to the police station, it was noisy and rattly to drive, but there was no evidence of any detailed inspection to establish that it had a noisy fan belt, or squeaky suspension, or that its number plate light was not working. In fact, the defence led evidence from two persons who inspected the vehicle, respectively on 4 July 1998 and 19 August 1998, that the number plate light on that vehicle was working, with its appearance suggesting that it had not been recently interfered with or repaired. The person who carried out the inspection of 4 July 1998 gave evidence on behalf of the defence that that vehicle had no suspension noise, and that the fan belt squealed only on hard acceleration. 21 The Crown also relied on the remoteness and ruggedness of the area, as making it unlikely that other persons were involved in the cultivation of cannabis on the discovered sites. However, the evidence did disclose that there were a few houses in Mount Pleasant Road, and that there were forest headquarters at the intersection of Dingo Tops Road and Compartment 86 Road. Maps in evidence showed other buildings (presumably including residences) along another road which went generally east from near these headquarters, namely Tallowwood Flat Road, these buildings being a similar distance from Compartment 86 Road as was the intersection of Dingo Tops Road and Potoroo Road. The evidence was silent as to whether or not there were more houses to the west of Knodingbul Road, or to the north of the intersection of Dingo Tops Road and Knodingbul Road. 22 There was evidence that a search of the house in which the appellant Whalen resided, conducted on 13 March 1998, disclosed Whalen's wallet containing $1,425.00 in cash, two two-way radios and a pair of night vision goggles, although none of these last three items were functional. On the same day, the cannabis referred earlier was found beside a track on Lot 283, the quantity being about 1.2 kilograms. 23 The Crown also relied on the telephone intercepts referred to earlier. 24 Apart from the evidence concerning inspection of the motor vehicle, the defence called evidence to show that the items found at the crop sites were very common, evidence to explain the purchase of rabbit traps and the possession of cash by Whalen, and (most relevantly) evidence from one David Wadsworth, who resided in Mount Pleasant Road in 1997 and 1998, and who said that he did not know Whalen at that time. His evidence was that there was a Ford Utility indistinguishable from Whalen's vehicle kept on a property in Mount Pleasant Road owned by one Ken Evans, on which there lived two men and one woman.

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The accused point to The Clown - I have forgotten what his right name was - Kim or Les or something like that; anyway, the chap nicknamed The Clown, who is said to have lived down in one of those cases down near the river bed by the look of it, or where that low lying area where we passed there that morning. And Mrs Stone; they say, well, you could not exclude her. It is not a question of whether you are convinced that Mrs Stone did or did not have it. It is not a question of whether you are convinced that The Clown did or did not have it. You would need to be convinced beyond reasonable doubt that both of the accused had it to the exclusion of both those people, or any other persons you might find were in an about that particular area at that particular time. 30 In the course of dealing with a view that had been taken, the trial judge said this: Now, we all went out and had a view, had a look around the place, and I remind you that - I do not even know if I said this to you, so it may be that I am not reminding you of it, perhaps I am telling you for the first time - you did not go out to the Dingo Tops Road to make yourselves witnesses in this case. You went out there in order to more clearly understand the evidence, and of course, what you saw out there is evidence in this trial, so that you are entitled to draw inferences in relation to what you saw there, in so far as it is consistent with the evidence you have heard about the area. We covered, of course, some greater area than that which is involved in these proceedings, if I correctly understand these proceedings. 31 The trial judge directed the jury that it must consider the case against each appellant separately, on evidence relating to that appellant; and that it should not use the existence of count 2 as a pretext for compromise. He directed that the jury first should consider count 1, and proceed to consider count 2 only if it found the appellants not guilty on count 1. 32 Later, the trial judge returned to the surveillance evidence, and said this: So that there has been a lot said about the evidence of the comings and goings of different people, the directions in which they travelled. You have got all the maps. Various submissions have been made to you about what you should do with the various evidence of observations. The Crown has drawn your attention to what they say the observations prove. The defence has drawn your attention to alternative scenarios as to what the observations prove or do not prove. I am not going to go into all of them, because they are all on the maps and they have been dealt with at some significant length. 33 He directed the jury to the effect that it would draw an inference adverse to an appellant only if that inference was the "only available supportable inference", and not if there were other inferences available. But he went on: But before you can consider any available alternate inference, you must be able to identify such an inference. And I will be corrected in a couple of minutes if I am wrong, you may rest assured. I cannot identify an alternate inference for the contents of the telephone calls. I cannot, and I tell you quite bluntly, I cannot. And I am emboldened in that view because, unless I have missed it, nobody else has identified an alternate view, that is, an alternate inference available. And I will be quickly reminded if one exists.

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GROUNDS OF APPEAL 37 Both appellants relied on the same 26 grounds, which were as follows: 1. The trial miscarried. 2. The trial judge erred in permitting the Crown to present an indictment alleging the cultivation of 378 plants between 23/1/98 and 13/3/98. 3. The trial judge erred in permitting the Crown to present an indictment containing as count 2 an allegation of a separate cultivation of 78 plants. 4. The trial judge erred in failing to sever the 3rd count from the indictment. 5. The trial judge erred in failing to discharge the jury on 18/2/02. 6. The trial judge erred in leaving the 1st count to the jury. 7. The verdict on the 1st count was unsafe. 8. The trial judge erred in leaving the 3rd count to the jury. 9. The verdict on the 3rd count was unsafe. 10. The trial judge erred in failing to give the jury directions in accordance with Section 165 Evidence Act. 11. The trial judge erred in permitting the Crown to ask Detective Hickey whether there was anything which distinguished the accused from persons previously seen. 12. The summing up was inadequate and unbalanced. 13. The trial judge erred in permitting the Crown to tender the wallet of the accused Whalen and lead evidence that it contained $1425.00. 14. The trial judge erred in permitting the Crown to lead evidence against both accused of the finding of a two way radios and night vision goggles at Whalen's premises. 15. The trial judge erred in failing to distinguish the cases and the evidence. 16. The trial judge erred in refusing to sum up or refer in any way to evidence given by witnesses for the defence. 17. The trial judge gave inadequate directions to the jury on the drawing of inferences. 18. The trial judge erred in his directions to the jury in respect to the relationship between the 1st and the 2nd count. 19. The trial judge erred in his directions to the jury on consciousness of guilt. 20. The trial judge erred in his directions to the jury in relation to the view. 21. The judge erred in directing the jury that the accused could have done certain things to challenge the prosecution case. 22. The trial judge erred in directing the jury that the accused had not given an explanation or given any explanation of those parts of the Crown case that may require explanation. 23. The trial judge erred in directing the jury that a matter of fact appears uncontested or not capable of contest. 24. The trial judge erred in his direction to the jury concerning failure of defence counsel to put questions. 25. The trial judge erred in directing the jury that the cultivations on crop sites 2, 3, 4 and 5 were not located until after the accused had been arrested and processed. 26. The judge erred in directing the jury in respect to matters that were not in evidence before them. 38 It will be convenient to consider these grounds under the following headings. First, a number of grounds relevant to the identification of the vehicle or vehicles whose movement was observed on 9-11 March: grounds 10, 16, 23 and 24. Next, grounds relevant to the drawing of a further inference of involvement in Sites 3, 4 and 5: grounds 2, 3, 6, 7, 12, 18 and 19. Next, additional grounds relevant to count 3: grounds 4, 8 and 9. Next, other specific grounds: grounds 5, 11, 13-15, 17, 20-22 and 25-26. Finally, the ground relating generally to miscarriage of the trial: ground 1. 39 I will then consider the applicability of s.7(2) of the Criminal Appeal Act and the proviso under s.6 of that Act. Finally, I will deal with the question of sentence.

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GROUNDS RELEVANT TO IDENTIFICATION OF VEHICLE 40 I commence consideration of these grounds by noting that the jury could not convict on count 1 unless it was satisfied beyond reasonable doubt that the appellants were cultivating at least two out of the sites 3, 4 and 5. A commercial quantity of cannabis is 250 plants; and the Crown could not establish cultivation of 250 plants without establishing that the appellants were cultivating at least two of those three sites. Further, in my opinion, the jury could not find beyond reasonable doubt that the appellants were cultivating Sites 3, 4 and 5, or at least two of them, unless it was satisfied beyond reasonable doubt that the vehicle or vehicles seen by police at about 8pm and about 11pm on 9 March, and the vehicle or vehicles seen at about 7.45pm and about 10.49pm on 11 March, was Whalen's vehicle. Even if it is accepted that, on the basis of the telephone intercepts, the appellants were doing more than cultivating Site 1 or Sites 1 and 2, and even accepting there were similarities between Site 1 and Sites 3, 4 and 5, a jury could not reasonably find beyond reasonable doubt that the appellants were cultivating Sites 3, 4 and 5, being over 11 kilometres away, unless the jury found that the appellants were on those nights headed in the direction of those sites and were absent for a time which could be sufficient to do some cultivation. I think in the circumstances of this case the finding as to the identity of the vehicle was a link in a chain rather than a strand in a cable: cf. Shepherd v. The Queen (1990) 170 CLR 573. 41 However, in my opinion, there certainly was evidence on which the jury could have been satisfied beyond reasonable doubt that it was the appellant's vehicle seen on these occasions: this could properly be based on the general consistency of the appearance of the vehicle, the telephone intercepts suggesting frequent night work, the scarcity of other vehicles and the remoteness of the area, and the circumstance that a vehicle similar to Whalen's vehicle was seen to visit Site 1 on 9 March and 10 March. 42 The defence case was that there were deficiencies and discrepancies in the police evidence of their observations (including the unexplained loss of some important evidence), that there was established to be another indistinguishable vehicle in the area, and that certain characteristics of Whalen's vehicle were different from characteristics of the vehicle observed by the police (especially in relation to the number plate light and squeaking suspension); and that case had to be fairly before the jury. 43 It was submitted for the appellants that this defence case was not fairly before the jury, for reasons advanced under grounds 10, 16, 23 and 24. 44 Ground 10 invoked s.165 of the Evidence Act 1995, which is in the following terms: 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. (6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B. 45 In my opinion, what was said by the Crown Prosecutor at the end of the summing up amounted to a request within s.165, so it is necessary to consider whether this was identification evidence within s.165(1)(b). 46 The circumstance that it concerned the identity of an inanimate object, rather than a person, does not mean that it cannot be identification evidence: see R v. Clout (1995) 41 NSWLR 312; Crupi (1995) 86 ACrimR 299; Theos (1996) 89 ACrimR 486. Furthermore, these cases indicate that the circumstance that the evidence seeks to establish identity by virtue of similarity of features, rather than outright identification, is also not determinative of the question. 47 However, in my opinion, these cases also indicate that in order for the evidence in question to be identification evidence, reliance on identification or similarity of features must be a "significant part" of what the Crown relies on in order to establish the identity of the person or object in question. In this case, in my opinion there was no question of direct evidence of identification, and the similarity of features was not a significant part of what was relied on. What was relied on, as indicated above, was the general consistency of the appearance of the vehicles observed with Whalen's vehicle, coupled with the telephone intercepts, the scarcity of other vehicles, the remoteness of the area, and the visits to Site 1. 48 However, it was important that the jury understand that the police evidence, although accepted as honest, could perhaps be considered not substantially accurate because it did contain certain inconsistencies and deficiencies; that even if the police evidence was accepted as substantially accurate, it did not go further than showing that the observed vehicle or vehicles could possibly be Whalen's vehicle; and that there was evidence from the defence (about the other similar vehicle and differences between Whalen's vehicle and the observed vehicle or vehicles) which could suggest that the observed vehicle or vehicles was or were not Whalen's vehicle. Of course, the jury could have understood these things from the addresses of Counsel, even if they were not specifically pointed out in the trial judge's summing up; although, in circumstances where they were not pointed out, it would be particularly significant if they were obscured by the summing up. 49 Turning to ground 16, it was submitted that a summing up should adequately put the case for the accused: see Checconi (1988) 34 ACrimR 160 at 173, and cases there cited. 50 For the Crown, we were referred to s.99(1) of the Criminal Procedure Act 1986, which is as follows: 99(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. 51 In my opinion, the evidence referred to concerning the existence of another similar vehicle and possible differences between Whalen's vehicle and the observed vehicle or vehicles were such an important part of the defence case that they should have been referred to in the summing up. It could be said that this evidence had been heard recently and addressed on, and that therefore the jury would have it in mind; but in my opinion that would not absolve the judge from referring to such a significant aspect of the defence case. His failure to do so could at least lead the jury to think that this evidence had no relevance or merit. 52 Turning to ground 23, it was submitted that the trial judge was in error in relation to what he called the third undisputed fact, namely that the phone intercepts indicated that the sightings of the vehicle(s) occurred when one or both of the appellants were absent from the house. That inference was not merely not undisputed, but it seems to me was not a valid inference: assuming that there were no telephone calls at that time, that does not support a positive inference that one or both of the appellants were absent from the house. 53 Although, as pointed out for the Crown, the trial judge did direct the jury to disregard any opinions of fact which he expressed which did not accord with their own opinions, I think it was an error to give the judge's imprimatur to a wrong proposition of fact in this way. 54 Ground 24 was essentially the complaint that the judge's Browne v. Dunn comments were too strong, and in effect invited the jury to consider the question whether the police had got together to make a false case, thereby diverting them from the true question, that is, whether the Crown evidence established guilt beyond reasonable doubt. 55 I accept the Crown's submission that a Browne v. Dunn comment may be appropriate where, as happened in this case, submissions were made suggesting impropriety where the police witnesses were not given a fair opportunity in the witness box to deal with that suggestion: cf. R v. Birks (1990) 19 NSWLR 677. 56 However, in this case, where the jury was given so little assistance in approaching the question whether or not it was Whalen's vehicle that was seen on 9, 10 and 11 March, the extended focus on the question whether or not the police had got together and lied would in my opinion have tended to distract the jury from the real questions before it, namely whether it was satisfied that the police evidence was reasonably accurate, and whether this plus the other circumstantial evidence to which I have referred, but having regard to the defence evidence, was sufficient to satisfy the jury beyond reasonable doubt that the observed vehicle or vehicles was Whalen's vehicle. 57 In my opinion, for all the reasons set out above, this question was not fairly before the jury in this case.

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GROUNDS RELEVANT TO FURTHER INFERENCES CONCERNING SITES 3, 4 AND 5 58 I note first that, in my opinion, it is not necessary to give separate consideration to Site 2: slightly different considerations arise, and questions concerning Site 2 are not determinative of any issue in this case. 59 Looking first at grounds 2 and 3, it is clear in my opinion that cultivation on a number of different sites can be the subject of a single charge of cultivation of a commercial quantity: see Hamzy (1994) 74 ACrimR 341, Locchi (1991) 22 NSWLR 309. Furthermore, subject to a question of unfairness to which I will come, I see no objection to having a separate alternative count of simple cultivation, as in count 2. Under the statute, where a person is charged with cultivation of a commercial quantity, it is open to the jury to return a verdict of cultivation, if the jury is not satisfied that a commercial quantity was involved; but for this alternative to be explicitly before the jury as a separate alternative count seems to me to be productive of clarity rather than a matter that could be unfair. 60 Mr. Ramage QC for Whalen, however, submitted that there was the danger that the jury could reason that the appellants were guilty of more than what was charged in count 2, so that it would not be appropriate to convict them on count 2, and that could lead to a conviction on count 1 without the elements of count 1 being properly considered. 61 In this case, the trial judge correctly directed the jury to first consider count 1; and only move to count 2 if the jury did not convict on count 1. That was an appropriate direction, and went some way towards removing the danger suggested by Mr. Ramage. 62 However, in my opinion, whether or not there was a separate count like count 2, it was necessary to explain to the jury with some precision what was required before it could be satisfied on count 1, ie, that the appellants were cultivating at least two sites out of the three Sites 3, 4 and 5. It was necessary for the jury to understand that it was not sufficient that the appellants may have been cultivating cannabis on other undiscovered sites, or that they were cultivating just one of those three particular sites. Thus, if there were a reasonable possibility that the accused were not cultivating at least two of Sites 3, 4 and 5, but were cultivating only one of those sites and/or cultivating other undiscovered sites, then the jury had to return a verdict of not guilty on count 1. 63 This was not pointed out by the trial judge, and this absence was in my opinion exacerbated by the circumstances referred to in grounds 12, 18 and 19. 64 In relation to ground 12, it was submitted that the trial judge was in error in suggesting that only one inference could be drawn from the telephone intercepts, without making it clear that this inference (presumably, cultivation of cannabis at night) could be limited to Site 1 and perhaps other undiscovered sites. In my opinion, that is a valid complaint. 65 In relation to ground 18, the explanation given by the trial judge in relation to the difference between count 1 and 2 did tend to suggest that if the jury was satisfied that the appellants were cultivating more than Sites 1 and 2, then it could convict on count 1. 66 In relation to ground 19, the direction on consciousness of guilt did not point out that there was no sound basis for inferring from flight guilt in relation to any more than Site 1. 67 These points were not taken in this form at the trial, so leave may be required pursuant to s.4 of the Criminal Appeal Rules to raise them on appeal. There was in my opinion no tactical advantage in failure to draw the trial judge's attention to these matters; and in my opinion there was a real inadequacy in the directions such that the question of the further inference which needed to be drawn concerning Sites 3, 4 and 5 was not fairly put to the jury. Any necessary leave should be granted. 68 Turning to grounds 6 and 7, dealing with the question of whether it was open for the jury on the evidence to convict on count 1, my opinion is that it was open to the jury to find beyond reasonable doubt that it was Whalen's vehicle which was observed on 9, 10 and 11 March; and therefore that the appellants had about three hours on each of those nights during which they could have visited Sites 3, 4 and 5. If one puts that together with the moderate similarities between the sites, the remoteness of the area, the scarcity of other vehicles, and the telephone intercept material, there was in my opinion just enough evidence to support a conviction on count 1, assuming that the matter was put fairly to the jury.

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OTHER GROUNDS RELEVANT TO COUNT 3 69 Under ground 4, it was submitted that the evidence of extensive cultivation activity on Sites 1, 2, 3, 4 and 5 was prejudicial, and this prejudicial effect outweighed any probative value. 70 In my opinion, although it can be said that the evidence concerning cultivation on those sites could be prejudicial, that evidence was of substantial probative value: evidence that persons residing on a property where cannabis was found secreted beside a track in the vicinity of wires that, it could be inferred, were used for drying cannabis, were engaged in substantial cultivation activities in the general area, was of significant probative value in relation to an allegation that those persons had possession of that cannabis. 71 Indeed, turning to grounds 8 and 9, under which it was submitted that there was insufficient evidence to convict on count 3, it was only by virtue of evidence about this substantial cultivation activity that it would be possible to convict on count 3. Given that there were substantial cannabis sites near to Lot 283 and further substantial sites somewhat over 11 kilometres away from that property, and if there was no reasonable possibility that some other persons were cultivating those sites, that circumstance would go quite some distance towards establishing that it was the appellants who were responsible for placing the cannabis beside the track. If the jury was properly satisfied, on the basis of proper directions, that it was the appellants who cultivated those five sites (and I have held that that was possible), then in my opinion the jury could have been satisfied beyond reasonable doubt that it was the appellants who were in possession of this cannabis. 72 However, if the jury was not satisfied beyond reasonable doubt in relation to Sites 3, 4 and 5, and if it was not satisfied beyond reasonable doubt in relation to Site 2, then I do not think it could have been satisfied beyond reasonable doubt in relation to count 3. It follows that the misdirections that I have identified as being relevant at least to Sites 3, 4 and 5 also affect the conviction on count 3.

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OTHER SPECIFIC GROUNDS 73 In my opinion, none of the other grounds of appeal, either by themselves or in combination, justify interference with the convictions. I will deal with them briefly. 74 In relation to ground 5, in my opinion the publicity concerning Counsel for the appellant Whalen did not involve material risk of influencing the jury. 75 In relation to ground 11, the question "Was there anything about the accused you arrested on 12 March which distinguished them from the people you have seen previously?" could I think be considered a leading question in the circumstances, and on that basis should I think have been rejected. However, I do not think this could be considered an error material to the result. 76 As regards ground 13, there is a question whether Whelan's possession of $1,425.00 cash was admissible. On one view, it could be relevant only by suggesting that Whelan had sold drugs for cash on another occasion, which could only support guilt by way of tendency, a form of reasoning which was unavailable in the circumstances of this case. We were referred to R v. Sultana (1992) 74 ACrimR 27 for the proposition that evidence that an accused was "currently in the business of drug dealing" would be relevant to a charge of possession of drugs otherwise than as tendency evidence. However, evidence of possession of $1,425.00 cash falls far short of being evidence of carrying on a business of drug dealing, and, at least unless coupled with other evidence that might suggest the carrying on of some kind of business, I think this evidence should have been rejected. However, there was also evidence before the jury of other sources of cash for the appellant Whalen, namely by the sale of bush rock, and the finding of the cash was not referred to at all in the summing up. On the whole, I do not think this was an error which could materially have affected the result. 77 In relation to ground 14, in my opinion the finding of two-way radios and night vision goggles had some probative value, albeit marginal; and I do not think any prejudicial effect or risk of prejudice outweighed that probative value so as to require rejection. 78 In relation to ground 15, the alleged failure to sufficiently distinguish the cases against the two appellants, the trial judge did tell the jury that it had to consider the case of each appellant separately; and in any event, in my opinion there was no material difference in the evidence against them. 79 In relation to ground 17, it was submitted that the trial judge did not direct the jury that inferences could only be drawn from established facts. In my opinion that is not a universal principle. In cases where circumstantial evidence is relied on, as it was in this case, inferences may be drawn from a combination of facts, where some of these facts are not themselves established beyond reasonable doubt: cf. Shepherd. I do not detect any material deficiency in directions about inference. 80 Turning to ground 20, it is put that the directions concerning the view were in error, having regard to s.54 of the Evidence Act, which is as follows: 54 The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

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MISCARRIAGE 85 It follows from what I have said that I consider the trial did miscarry on the questions whether the jury was satisfied beyond reasonable doubt that it was Whalen's vehicle observed on 9, 10 and 11 March; and whether the jury was satisfied beyond reasonable doubt that the appellants were cultivating at least two of Sites 3, 4 and 5. Accordingly, in my opinion there was a miscarriage in relation to the convictions on count 1, in so far as that required satisfaction as to Sites 3, 4 and 5, and the convictions on count 3. 86 The question is then whether this led to a miscarriage in so far as the jury was satisfied beyond reasonable doubt of cultivation of Site 1. 87 It is possible that it would do so, because identification of the vehicle did have some relevance to satisfaction beyond reasonable doubt of cultivation of Site 1. The vehicle observed on those prior occasions was twice seen to visit Site 1; and a finding that the appellants were out at night cultivating cannabis in various places would tend to support the inference that what they were doing at Site 1 when arrested was in furtherance of cultivation rather than, say, just visiting and observing the site. 88 In my opinion, the question is then whether the errors which I have identified relevant to identification of the vehicle, which I have found to be material concerning the implication of the appellants in activities on Sites 3, 4 and 5, were material to a finding beyond reasonable doubt that they were cultivating Site 1. 89 On this matter, it is necessary to have regard to the other evidence which supported a finding that they were cultivating Site 1. There was the circumstance that they were arrested in the vicinity of Site 1, having been seen performing some activities on Site 1, at night. They had driven to Site 1 in a utility, not visited Site 1 in the course of walking in the area. There was the circumstance of flight when police presence was announced, and there were the telephone intercepts, powerfully supporting the inference that they were busy working at night. When one has regard to all that evidence, I think it is fair to say that the evidence concerning the identification of the vehicle observed on the earlier occasion only adds marginally to the case concerning Site 1. In those circumstances, I think the errors which I have identified in relation to identification of the vehicle can properly be considered as not material in relation to a finding beyond reasonable doubt that the appellants were cultivating Site 1.

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CRIMINAL APPEAL ACT SECTIONS 6 AND 7 90 Section 6(1) of the Criminal Appeal Act 1912 provides as follows: 6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 91 Section 7(2) of the Criminal Appeal Act provides as follows: 7(1) … (2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. 92 The verdict of guilty returned by the jury on count 1 meant that the jury must have been satisfied beyond reasonable doubt that the appellants cultivated Site 1; and it follows from my discussion above that the finding was not vitiated by the errors that I have found in the judgment. In those circumstances, in my opinion s.7(2) of the Criminal Appeal Act authorises this Court to substitute a verdict of cultivation, either as a statutory alternative for count 1 or alternatively as a finding of guilty under count 2. 93 In those circumstances, it is not necessary to consider the proviso. If I had come to the view that the jury's finding beyond reasonable doubt that the appellants cultivated Site 1 was vitiated by errors, it may have been necessary to consider whether pursuant to the proviso, either on its own or in combination with s.7(2), this Court could have substituted a verdict of guilty on count 2 or as a statutory alternative to count 1, on the basis that it was affirmatively satisfied that such a verdict would involve no substantial miscarriage of justice. I think it is fair to say that this Court was in fact invited to take that course by Counsel appear for the appellant Willer. I am not sure that such a course is possible: s.6(1) appears only to authorise dismissal of an appeal if the court is satisfied that no miscarriage of justice has actually occurred. I think the better view is that the substitution of a verdict is only available if the Court is of the view that the jury's findings supporting such an alternative verdict are not vitiated by any material error, that is, any error such as could as a reasonable possibility have affected the jury's decision. 94 For those reasons, I propose that for each appellant a verdict of guilty on count 2 be substituted for the verdict of guilty on count 1 and 3.

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SENTENCE 95 Leave to appeal has been sought in relation to the sentences, on the assumption that the appeal against convictions is dismissed, essentially on the basis that the sentences were excessive. Although statistics suggest that these sentences were in the higher part of the range of sentences for such offences, I have not detected any error in the remarks on sentence, and I would not consider the sentences excessive so as to justify the grant of leave to appeal. Indeed, subject to the following qualifications, I am content to adopt the substance of the trial judge's reasons. 96 However, the substitution of a verdict of guilty on count 2 for verdicts of guilty on counts 1 and 3 has significance in three respects. Firstly, the maximum penalty for simple cultivation, as opposed to cultivation of a commercial quantity, is ten years rather than fifteen years. Second, the conviction on count 3 could have impacted on the penalty for count 1 in final adjustments made on the basis of the principle of totality. Third, a plea of guilty was offered by both appellants in relation to count 2, but not accepted by the Crown. This last matter suggests some discount for the utilitarian value of the plea is appropriate, and also justifies a more favourable view on the issue of contrition. 97 In very broad terms, the substitution of a verdict of simple cultivation rather than cultivation of a commercial quantity might be seen to justify a reduction in the sentence of about one-third, the offer of a plea of guilty to justify a reduction by a further 15% or thereabouts, and the element of contrition and the possible adjustment to totality to justify some further reduction. 98 Overall, my opinion is that the sentence of each appellant should be halved. That is, Whalen should be sentenced to a term of imprisonment for two and a quarter years, with a non-parole period of eighteen months; and Willer should be sentenced to a term of imprisonment of one year nine months, with a non-parole period of one year, entitling him to parole now. 99 I propose the following orders:

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Judgment (47 paragraphs)

Cases Cited (4)

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