2 GREG JAMES, J: I have had the advantage of seeing in draft the judgment of Smart, AJ. The facts of the case sufficiently appear there.
3 I agree that the verdict, in the case of Groom, having regard to the necessity for a jury to be satisfied beyond reasonable doubt that she "suffered" or "permitted", rather than simply knew of her co-accused having the drug or some of it in the house for the purpose of supply, was not supported by the evidence and should be quashed.
4 I agree with what his Honour has said on that matter and agree that an acquittal should be entered.
5 On the appeal of Lonie, I agree with his Honour's conclusion that the trial miscarried and generally with his reasons. Particularly in relation to the counts of cultivation and supply, I agree that the trial judge's observations to the jury on the effect of the evidence of Donnellan undermined the legitimately available use of that evidence, to the disadvantage of the appellant. I consider that the trial judge erred in failing to direct the jury as to what evidence was not available to be used generally and in failing to direct the jury on the purposes for which that evidence could not be used. I consider the trial judge erred also in failing to give, as requested or as was necessary to ensure a fair trial, appropriate directions on reliability and credibility as to the evidence of those police officers asserted by Donnellan to be corrupt. Their evidence was at the least potentially unreliable in the light of what Donnellan had said.
6 On the count of setting a device, it is important to note that although the evidence of the appellant's involvement in the plantation would have been relevant, that evidence was within a narrow compass. The case on the cultivation count was left to the jury as made out on their satisfaction that the appellant had watered the crop. The Crown did not undertake the task of proving his wider or earlier involvement in eg., establishing the plantation. It did not seek to do so even to establish the charge of setting a device although it relied on the appellant having a motive for the setting of the devices, ie., to protect the plantation.
7 The admissions were capable of proving the appellant knew of the traps at the time the police spoke to him. The evidence on the cultivation count was capable of proving an involvement and interest by him in the plantation but, in the absence of proof of the nature and extent of that involvement, eg. in the establishing of the plantation, that knowledge, involvement and interest was insufficient to prove the appellant himself set the traps or was party to the setting of them even if he later was shown to have known of them.
8 On that basis, having regard to the way in which the Crown put its case, I agree that the conviction on that count cannot stand.
9 Even if there were evidence on which the appellant might have been found guilty, the case having been run on the narrow basis on which it was, I do not think a new trial on that count is appropriate, applying the principles referred to by Dawson, J. in Parker v. The Queen [1997] HCA 13; (1997) 186 CLR 494.
10 For the reasons Smart, AJ. gives, however, I agree that otherwise there should be a new trial.
SMART AJ:
Introduction
11 John Russell Lonie appeals against his convictions of on 31 March 1995 cultivating a prohibited plant, namely cannabis leaf, supplying cannabis leaf and setting a device capable of inflicting grievous bodily harm on any person with intent to inflict grievous bodily harm. He also seeks leave to appeal against the severity of a sentence comprising in all a minimum term of 4 years 3 months and an additional term of 17 months.
12 Carla Phyliss Groom appeals against her conviction of on 31 March 1995 knowingly taking part in the supply of a prohibited drug, namely cannabis leaf. She was acquitted by direction of a charge of knowingly take part in the cultivation of a prohibited plant. She was the de facto wife of Lonie. She was placed on a three year recognizance to be of good behaviour having regard to her previous good character, her persisting poor health and her comparatively minor criminality.
13 The cultivation charges arose out of a fenced cannabis crop in rugged bushland near Bucketty in the hills west of Gosford. The crop was spotted during a large scale police search of the hills and valleys west of Gosford involving the use of a police helicopter and a tracker dog. There were 225 mature plants estimated to have a street value of $450,000. The setting a device charge arose out of punji boards with protruding nails concealed along pathways in the fenced area. The supply charges arose out of about 1.75 kilograms of cannabis leaf having a street value of about $35,000 allegedly found in the home of the appellants at Somersby, some 40 kilometres from the crop.
14 One of the police officers involved in both areas, who acted as the exhibits officer was, by his own admission, corrupt. That corrupt officer said that two of the other officers were also corrupt. He had shared cash taken criminally with them. The appellants submitted that the judge erred when he failed to warn the jury (pursuant to s.165 of the Evidence Act 1995) that the evidence of Detectives Lenihan and Oosterhoff may be unreliable, that his directions about the unreliability of Detective Donellan's evidence were inadequate and his directions to the jury about police officers generally were likely to have misled the jury. This involved the contention that the judge had not fairly summarised the report of the Royal Commission into the Police Service.
15 Lonie made the following additional complaints, namely, that the judge failed to give a warning about the unreliability of an alleged admission at the Somersby house, that the judge failed adequately to direct the jury to consider the evidence in relation to the supply charge separately from that in relation to the other charges, that he erred in his direction as to an alleged lie and that the verdict in relation to the setting a device charge was unreasonable and could not be supported on the evidence.
16 Groom relied on these further grounds, namely, that the judge failed to adequately identify the evidence that was admissible against her, failed to adequately direct the jury about the use that could be made of her presence near the crop site and any knowledge she might have of Lonie's activities at the crop site and that the conviction was unsafe and unsatisfactory. This last mentioned ground needs to be re-formulated..