Carbone v The Queen

[1989] HCATrans 186

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No All of 1989

B e t w e e n -

JOSEPH CARBONE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J
DAWSON J

Carbone

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 10.50 AM

Copyright in the High Court of Australia

AlT 4/1 /ND 1 23/8/89

MR P. WAYE: If the Court pleases, I appear for the

applicant with my learned friend, MS E. MARINUCCI.

(instructed by Mangan Ey & Associates Pty Ltd)

MR B.J. JENNINGS, QC: If the Court pleases, I appear with

my learned friend, MR B.J. ILLINGWORTH, for the respondent. (instructed by the Crown Solicitor for South Australia)

MASON CJ:	Yes, Mr Waye.
MR WAYE:	I hand up an outline of my submissions, if the
Court pleases.
MASON CJ:	Thank you.
MR WAYE:	If the Court please~  the applicant was charged
with, firstly, producing cannabis,
section 32(l)(a) of the -

MASON CJ: Mr Waye, we are familiar with the history of the

matter. We have read the judgments in the Court

of Criminal Appeal.

MR WAYE:  Thank you, if the Court pleases. May I shortly

outline the facts upon which the Crown relied.

And it was upon those facts that the applicant

argued that the case was not proved beyond reasonable

doubt. And the short outline of the facts, which

I will slightly amplify in my submissions, are

set out in the outline and they are all the facts

as I can see it which implicated the applicant.

The Crown case concerning the applicant

involved cannabis grown in seven glasshouses at

Short Road, Penfield which consisted of about

4224 plants, were maintained by a sophisticated

watering system and fertilizing system.

One Rocco Sergi, who was jointly charged,

was lessee of the premises on which the glasshouses

were situated and he was living on the premises

attending to the crop and was apprehended there

by the police on 19 May 1987 after a raid which

commenced about 6.50 am.	That is set out at
page 115 of the transcript.

On 15 May, four days before, Malvaso, who was jointly charged, was followed from his home

at Lot 100 Murray Road, Paracombe to the city where

his restaurant called Clemente Restaurants was
located.

At or near that restaurant he was met by Moyse who was not a co-accused but was a senior police

officer in charge of the drug squad in South Australia.

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He was driving a police vehicle but unmarked
and with Malvaso as a passenger the surveillance

team followed them both from Adelaide to the top

side of Short Road.

The glasshouses in which the crop was grown

were placed under surveillance and a Holden 1 tonne

tray-top utility, coloured orange, owned by the

applicant was seen in the close vicinity of the

glasshouses on this day, 15 May, from 3.27 pm to

3.55 pm. Moyse's vehicle was also parked near

the glasshouses.

Neither the applicant nor a co-accused,

Pietro Sergi, was seen at the crop site or near

the glasshouses - at page 65. And at page 81 of

the transcript: it was agreed by the surveilling

officers that they could possibly be sitting in

the Holden utility at the time.

Moyse and Malvaso and the third person, who was Rocco Sergi, were seen walking around near

the glasshouses in between these times. The police

officers concerned were Jackson, at pages65, 81

and now on page 39.

At 3.55 pm the Holden utility which had been

observed, driven by the applicant, with Pietro Sergi,

a co-accused, as a passenger, left the crop site

and was later seen to follow the vehicle driven

by Moyse, with Malvaso as a passenger, to Malvaso's

property at Lot 100 Murray Road, Paracombe. Moyse

parked his vehicle near the house about 4.34 pm -

at page 69 - - -

MASON CJ: Mr Waye, it seems to me that all you are doing

now is reading to us a slightly expanded version

of the naration of the facts contained in your

outline of argument.

MR WAYE:	I am, Your Honour, but I am coming to, perhaps,
one or two more important aspects in the next page
or so.
MASON CJ:	Yes, but is there any need to read to us what

we have already managed to read for ourselves.

MR WAYE:	No, perhaps I will just amplify it, with the Court's
leave, the matters which are not in the outline.

We have a picture of Moyse out unloading two

plastic bags which on all the inferences in the

evidence we can see contained cannabis and apparently

took them into the house of Malvaso. At 5.24 pm

that day the applicant, Pietro Sergi, had not been

actually seen near the premises. They left Lot 100 -

there had been about 50 yards separating the two

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vehicles - and drove back to the property of

Pietro Sergi at Lot 19 Seaview Road, Golden Grove.

What is important: the applicant had been under surveillance by various police officers from

22 April 1987 until his arrest on 19 May 1987 and

the only time he was seen in any way connected with the crop was when the vehicle was seen in

that short period of about half an hour on 15 May.

He had not been at the crop during that period

of surveillance from 22 April and the surveillance

evidence was he was just carrying out his ordinary

lawful pursuits.

Fingerprints of Malvaso and Rocco Sergi were

found at the crop site but none of the applicant's

were found. A rifle was found in the hay bales

in the glasshouses which belongs to the applicant.
There was no evidence that the applicant provided
any of the gardening materials, the watering system
or fertilizing system that were found in the
glasshouses or that he was in any way connected

with them.

On the night of 15 May 1987 which led to the

applicant's plea to taking part in selling cannabis

the police legally intercepted two telephone

conversations between the applicant and Malvaso.

There were two earlier telephone conversations

to the co-accused Pietro Sergi by Malvaso. One

was at 6.39 pm, the telephone call being from

Malvaso's restaurant, called Da Clemente to

Pietro Sergi, where discussion about meeting the

proposed buyer Staltari occurred. At 7.07 pm on
15 May there was a further telephone call from

Da Clemente Restaurant to the home of Pietro Sergi, a similar conversation took place.

At 7. 10 pm on 15 May 1987 there was a telephone

call from Malvaso to the applicant where Malvaso

said, in effect, he was too busy and requested that the applicant to meet the man Staltari at the Inglewood Hotel and show him the cannabis.

At 8.35 pm on the same night the applicant

telephoned Malvaso at the restaurant and told him
that he had shown Staltari the cannabis and Staltari

had taken a sample but would not take the rest

as it was too wet.

The applicant was charged with taking part

in the sale of cannabis only on 15 May - that is
the presentment - and although later Staltari took
possession of the cannabis which was upwards of

the value of $2500 there was no suggestion the

applicant was involved in that transactions.	His
involvement was taking part in the sale of the

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cannabis was showing the cannabis to Staltari,

about 8 pm on 15 May, and he had no further

connection with the cannabis after that night.

The arrest night was the night of 19 May and

about 7.40 pm the applicant's house at Lot 31

Seaview Road, Golden Grove was searched pursuant

to a warrant and approximately 400 cannabis seeds

in a plastic bag were found in a cupboard in the

kitchen of the house. A dry store for cannabis

was found in a shed at the premises.

On 22 May 1987 a search of the applicant's

utility found three old small minute fragments

of cannabis, two the size of a pinhead and one

the size of two pinheads among the debris on the

driver's side floor of the car.

The old dried plant stem found in the shed at the applicant's house was, on examination by

a forensic expert, Dr Harding, found to be too

old to come from the Short Road cr~p.	Harding
said, at page 420:

I think it is unlikely from the state of the

maturity of that piece of cannabis that it

did come from that crop.	I think it came
from somewhere else.
Q.	So your conclusion was that that stalk

came from somewhere else aside from Penfield,

is that correct? A. Yes, that is correct.

At page 426, Harding could not connect the seeds

found at the crop, because seeds are ambivalent - seeds found in the applicant's house with the crop but the sweepings from the utility, page 422, he

could not connect with the crop.

When questioned by the police on the night

of 1 9 May the a pp 1 i cant , in effect , s a id , at pages 1 3 1

to 136, he normally drove the utility in question,

he did not remember going to the property at Short

Road on 19 May, he was on his own that day, he was a friend of Malvaso, he could not remember

if he had been to Malvaso's home on 15th, he could

have. He knew Rocco Sergi, never heard of Moyse

and knew nothing of the plantation at Short Road,

Penfield. He said he grew a few cannabis plants

for himself and that he smoked cannabis.

It was argued by the defence that the presence of his rifle at the crop site could be explained

by the fact that he knew Rocco Sergi; he admitted in the record on interview he knew him, that Rocco Sergi had had a meal at his house and Rocco Sergi,

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the occupant of the premises was the nephew of

Pietro Sergi, the co-accused, and had been staying

at Pietro Sergi's house. And that was proved by

letter written by the Department of Immigration

to Rocco Sergi at Pietro Sergi's home.

It was then argued the rifle could have either

been loaned to Pietro Sergi - the rifle found at
the crop site belonging to the applicant - then
given to Rocco Sergi or perhaps the applicant had
loaned the rifle himself to Rocco Sergi.

It was argued that his presence at Short Road

on 15 May at the crop site was the only occasion
on which there was any evidence, despite of the

surveillance, that he had attended at the premises

and was consistent with him being enlisted by

Malvaso to arrange the sale of the cannabis

harvested on that day by Malvaso and Moyse.

If ground 1 of the notice of appeal, that is

page 268, relates to the warrant which was relied

upon to search the applicant's premises at No 35

Seaview Road, Golden Grove, on the night of

19 May -

MASON CJ:  You did not take this point at the trial, did

you?

MR WAYE:	This ground was not argued before the trial judge.
It sets out the notice of appeal at page 268 - - -
MASON CJ:	And the Court of Criminal Appeal declined to deal

with it because it had not been taken at the trial?

MR WAYE: Exactly.

MASON CJ:  Why should we deal with it in those circumstances?

MR WAYE: Because - I say this, if the Court pleases, it

becomes a matter of importance in consideration

of the authorities, that if a point is not taken

at the trial and it is an important point it could

lead, the omission of that evidence, to a miscarriage

of justice, particularly the finding of the seeds

at the house of the applicant. That behoves

an appellate court to reconsider the matter and

allow the argument to be put.

Perhaps if I could deal with that aspect.

It has been considered in GIANNARELLI AND ANOR

V REG, 49 ALR 577.	The Chief Justice Sir Harry Gibbs
at page 582, line 15:

It is, of course, only in an exceptional

case that this court will give special leave

to appeal from a decision of a Court of

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Criminal Appeal affirming a conviction when

the point that the applicant seeks to raise
in attacking the conviction was not taken

either at the trial or in the Court of Criminal

Appeal.

Here it was taken in the Court of Criminal Appeal.

MASON CJ:  Mr Waye, before you elaborate this point in full

you will have to persuade us that in the circumstances

that I have outlinErlto you, the history of the
failure to take the point at the trial, the manner

in which it was dealt with by the Court of Criminal

Appeal, that it would be appropriate for us to

consider it at this stage of the proceedings.

MR WAYE: If the Court pleases, I can only put it on this

basis, that it recognized in GIANNARELLI's case

and other authorities, STIRLAND particularly,

(1944) AC 315, at 378, that in certain circumstances,

although the point was not even taken before the

Court of Criminal Appeal, if it could lead to a

miscarriage of justice it behoves the final appellate

court to reconsider the matter or consider it for

the first time.

As was said in GIANNARELLI's case, the point

was not taken either at the trial or in the Court
of Criminal Appeal; that was emphasized. Here,

at least, it was taken before the Court of Criminal

Appeal.

In the affidavit of the instructing solicitor

in the transcript he said he overlooked it. The

matter was canvassed at the committal proceedings.

The evidence of the seeds was relied on as

a cogent and circumstantial part of the case against

the applicant.

GAUDRON J: Mr Waye, is it not this, at the end of the day,

even if you had been right on this point, all you

could have done was ask the trial judge to exercise

a discretion to exclude the seeds?

MR WAYE:	Unless the warrant, Your Honour, was inva1id ab initio
because it was improperly obtained.
GAUDRON J:	What greater - you say that would affect the

admissibility of the evidence?

MR WAYE: Yes, it could. It is an alternative argument.

McHUGH J:	How?
MR WAYE:	In the case of HILTON V WELLS, which was an
interception, which all the Court said was it was
an illegal interception under the TELECOMMUNICATIONS

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INTERCEPTION ACT, there the warrant to place the

interceptor was related to drug offences. As we

know, evidence was obtained in that case of a

conspiracy to pay the Minister of Justice,
Mr Jackson, in New South Wales, money to effect

early release of prisoners. The majority of the Court said, "Yes, the warrant is illegal because

on the face of it it only relates to the intercept

of narcotic offences.", but nevertheless, because

of, I think it is section 7 or 6 of the

TELECOMMUNICATIONS ACT, it did not prevent its

admissibility.

Although it was illegally obtained it was

nevertheless - and it was inadmissible on the general

principles there was nothing in that particular

Act that prevented it being led before a court.

The minority decision - and it was three to

two - said, "Yes, if it is ~[legally obtained its

inadmissible and the provisions of the

TELECOMMUNICATIONS ACT does not authorize its

admissibility in a court of law."

There is very little authority - and it makes

it a point of general interest - as to whether

or not the applicant for a search warrant is obliged
to go before the issuing justice of the peace,
in this case a stipendiary magistrate, and personally
apply for it. The only actual judgment that I

could find is the decision of this court where

Mr Justice Cox, after dealing with the matter,

said, "Yes, because it is a judicial expression

to issue the warrant, the justice issuing it should

require the applicant to appear before him personally

and satisf.y him personally. l1

So, I say that this ground has two points

of general interest: one, does an applicant

for a warrant have to apply for it personally before
the issuing officer or member of the court;	and,

secondly, the effect of the failure to take the

point at the trial in so far as it jeopardizes

the chance of an accused person receiving a fair

trial according to law.

I do not think I can put it any higher than

that, Your Honour the Chief Justice.

MASON CJ:  Yes, thank you, Mr Waye. The Court is of opinion

that the matter not having been taken at the trial

it should not be considered in support of your

application.

MR WAYE: If the Court pleases.

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MASON CJ:	So you can proceed to the next ground.
MR WAYE:	Ground 2 is concerning the admission of the finding
of the 400 cannabis seeds at the applicant's house.
The Court of Criminal Appeal said it had a tendency
to connect the appellant with the crop. At
page 206B, Mr Justice Olsson, when sentencing
Malvaso said:

planting and cultivation of a substantial

crop of cannabis - using seeds supplied by

him -

Moyse. The Chief Justice, at page 238:

Malvaso contacted others to organise the growing of the crop and passed on to them the seeds which were supplied by Moyse.

So the Crown were in possession of information that the seeds for the crop - and the crop was in the process of being harvested - came from Moyse

to Malvaso.

There was no evidence, I suppose it could

be argued, that Malvaso could have passed on those

seeds he received from Moyse to the applicant and

he retained the 400 found by the police; .the rest

he used to grow the crop. A tenuous argument and

not sufficiently connected, in my submission, as

there was no evidence led that Malvaso had handed

even one seed to the applicant to allow that

evidence of the possessing of the seeds in his

house which were found on 19 May being admitted.

In my submission, it was too tenuous to show

a tendency to connect the applicant with the crop.
It merely showed a propensity of the applicant

to be involved with cannabis. And it should have

been excluded in the exercise of the judicial

discretion.

This is probably not a ground of general

importance but relevant to the fifth ground that
the verdict was unsafe and unsatisfactory. Evidence

of propensity is not admissible, MAKIN's case

and PERRY V REG.

The Chief Justice said, in the decision of

the Court of Criminal Appeal; "I think the possession
of 400 cannabis seeds in these circumstances possessed
a tendency to connect the appellant with the crop

and therefore is relevant for the consideration

of the jury on that question."

It is submitted that in a circumstantial case

factual material relied upon to prove with other

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proven factual material, guilt, should be proof

beyond reasonable case, CHAMBERLAIN's case.

It is my submission that there was not sufficient

evidence placing the seeds in a circumstantial

factual basis to prove that factual basis beyond

a reasonable doubt if added to the chain or a link

in the evidence.

As there was no evidence that Malvaso had

ever given the seeds received by Moyse to the

applicant and therefore it could be inferred that

those seeds were the balance of the seeds used

to grow the crop, there was not a word about that,

it was too tenuou~ there was a vital absence of

a link in the chain of evidenc~ and therefore

possessing a tendency to connect the appellant
with the crop was not sufficient for it to be
admissible as a circumstantial fact to prove guilt

and should have been included.

Now, I come to ground 3, Ehe NATIONAL CRIME

AUTHORITY ACT. As far as I know this matter has

not been considered and probably because the

situation has not occurred before.	The Act has
been substantially amended.	I understand the Court

has a copy of the Act and the amendments are not

relevant.

I will deal with the general tenor of the

Act and the purpose of the Act. The general functions

of the authority under the NATIONAL CRIME AUTHORITY

ACT are set out in section 11 and the purpose of

the National Crime Authority, really, is to collect

and analyse criminal information and intelligence

and make investigations into relevant criminal

activities.

Where reference is made to the authority,

under section 13, to investigate possible offences: against a law of the Commonwealth or of a Territory.

Under section 12:

The Authority shall -

..... assemble any evidence of an or:ence

against a law of the Commonwealth or of a

Territory, or ..... a State, that it obtains

in the course of its investigations -

Is the Court seized of the factual basis as regards the interrogation of the applicant? It

is set out in the judgment of the Chief Justice

and it is simply this, that the two interrogating

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officers were members of the New South Wales

Police Force, which were seconded to the National

Crime Authority. They were not and never had been

members of the South Australian Police Force or

of the Federal Police Force.

Being so seconded and being members of the

authority as defined in the Act, my submission

is that they were prohibited by section 12 from
interrogating a suspect. There is no doubt that

the applicant was a suspect.

GAUDRON J: What follows from that if it be the case?

MR WAYE:	His Honour the Chief Justice, after all, said,
"Well, any person or citizen has the right to
interrogate."
GAUDRON J:	What follows from it which would constitute a

miscarriage of justice in relation to the

cultivation count?

MR WAYE:	Your Honour, perhaps in some circumstances the
ordinary citizen has the right to interrogate but
the ordinary citizen is not prohibited by statute
from interrogating. It is a breach, in my submissio~ of a statutory embargo which has been
dealt with since IRELAND by the various authorities
and gives rise to the exercise of a discretion.
And I will come to the passage later but as the
Chief Justice said in IRELAND, "Breach of the
statutory enactment can give rise more readily
to the exercise of a discretion."

(Continued on page 12)

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GAUDRON J:  But, assume you are ri~ht. What evidence should

have been excluded in the exercise of discretion

relevant to the count on cultivation?

MR WAYE:	That - interrogation.
GAUDRON J:	Does it affect your client on that count?

MR WAYE:  Yes, it does. The interrogation was relied on -

I will take you to the passages - by the Crown

considerably as exhibiting a consciousness of

guilt and false denials and was referred to in

the summing up in a manner which would only effect a

jury in the consideration of implicating him in the

cultivation.

It is, as far as I know, the only legislative

provision prohibiting an interrogation of a suspect.

If I could, perhaps, take you to 12(4).

MASON CJ:  But, where is the provision that actually prohibits,

Mr Wade?

MR WAYE: Section 12(4), if Your Honour pleases.

McHUGH J:	But it does not. It just says it does not confer any pm.;er.
MR WAYE:	Well, if one goes to the top of section 12(4): nothing in this Act (other than section 28)

(a) shall be taken to confer on a member,
or on a member of the staff of the Authority

(other than a member of the Australian Federal

Police or a member of the Police Force of a
State), power to interview a person in relation

to an offence that the person is suspected of
of having committed, except in a case where

the person has been served, as prescribed, with

a summons to appear as a witness at a hearing

before the Authority and has not yet so

appeared; or

(b) shall be taken to confer on a member of

the Australian Federal Police or of the Police

the staff of the Authority who is a member of that the member of the staff of the Authority

does not have in his capacity as a member of·

the Australian Federal Police or of the Police
Force of that State, as the case may be.

McHUGH J: All that means is that if a State law says a

person cannot interview a juvenile, for example,
without a parent being present, nothing in_

this Act gives a member of the staff of the

authority any power to do so. It does not say

they cannot do it if they have independent power

under State or common law.

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MR WAYE:	But, if you read it, Your Honour, with subsection (5)
it says, "Yes, the staff of the authority have power to interview a suspected person but only about matters concerning of which he is not suspected". That is the
effect of subsection (5).  So, we have subsection (5)
saying, "Yes, we grant power to the authority to
interview Mr X, but only about matters not concerning
the  s u s p i c i on " , in o th er w or d s , i n t e 11 i gen c e - g a th er i n g
or reporting.

The effect of subsection (4) (a) is to -proscribe them

from interviewing a suspected person about a

suspected matter and the reason for that is that
this Act gives considerable powers, unusual powers,

to summons a suspect before the commission, where

he has fallen,	and he is obliged to answer
questions.unless .the answers will tend to incriminate him.	That
right is preserved in the Act.

Now, section 12(4), in my submission, must be

read -with the whole ambit of the Act and the ambit

of the Act is, really, intelligence-gathering on
prescribed matters. Really, it has been quoted as being
aimed at organized crime and a matter is particularly

referred - in this· case it was a South Australian

matter referred to the commission to investigate -

then the tenor of the Act is that any such

information obtained is reported to the appropriate

State or territorial police authorities. They have

no right to prosecute; they have no right to apprehend.

In this case they did apprehend and arrest. They were

acting entirely beyond the authority granted to them

and they w~re not in the prescribed people of

section 12(4)(a).

In my submission, that constitutes a serious

breach, that they have gone beyond the authority

conferred upon them. At the very least, in response

to Your Honour, they have no such authority and they

are not in the position of an ordinary citizen whose

right - that is the basis of the Court of Criminal
Appeal dismissing this ground.	There is no

proscription on an ordinary citizen in certain

circumstances questioning a person about a supposed

crime and the situation is that they were utilizing

their position. The two police officers apprehended

the applicant and the word "apprehend" has been

construed in the widest terms in relation to our

SUMMARY OFFENCES ACT. There is an authority where

Mr Justice White canvassed various authorities -

they have been canvassed in Victoria - that authority

is REG V LEECROFT, (1987) 46 SASR 250, Mr Justice White.

Apparently, it is No 12. I will not take the

Court to that now but, in my submission, accepting

the law as laid down by Mr Justice White and his

canvassing of the authorities, this applicant was

apprehended.

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Mr Small's evidence is at page 130. The

police went to the applicant's home and executed

the warrant and made a search. They were, then,
at the home of the co-accused, Pietro Sergi,

and perhaps it is not obvious to the Court what has

happened to Pietro Sergi. His Honour the trial

judge upheld on both counts, the product ion or the

cultivation and the taking part in the sale, that

there was no case to answer and directed the jury

to return a verdict of not guilty against him.

My learned friend, apparently, is going to say

to you, if he is called upon on this ground, that
this ground was not argued before the learned trial
judge but it was argued, exactly this ground, in

regard to Pietro Sergi before the learned trial

judge who rejected the argument. So, it was argued;

the matter was brought to the attention of

His Honour, the learned trial judge.

Having gone to the house of Pietro Sergi, the

warrant having been executed at the applicant's house and search being made, Pietro Sergi and the applicant

arrived.	At page 131, Mr Small said he did not make
notes of the conversation at Pietro Sergi's house	but, in effect, he said, 11We would like him to
come with us where there has been a search warrant executed."
They ~ook the applicant back to his house and, at
the house - page 133 - he cautioned him and then showed him the items, that is, the dried fragment stem of green vegetable matter and a packet of seeds:

'What can you tell me about these items?'

He said 'They are mine if you found them

here.'

He said 'I grow a few plants here, I just

I said 'Where did you get them from?'

smoke a few joints a week.'

I said 'Do you have any cannabis plants

growing-'

He said 'No, it is too cold -

Then, he was told - and told:

'I am going to ask you a number of questions

in relation to a cannabis plantation which was

located on Short Road, Penfield ..... '

Again, a caution.

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Answer - page 134:

'Yeah, but why do you want to talk to me

about?'

Then, for the first time, after being questioned

about the material found in the house, he was told

to contact a solicitor. If he had been apprehended

at Pietro Sergi's house and taken back to his house,
he was within the terms as set out in LEECROFT of

the SUMMARY OFFENCES ACT and he should have been

told of his rights earlier, to contact a solicitor.

That is a minor breach but, nevertheless, it

occurred, in my submission.

Then he was questioned in the terms of which

I have further outlined in my outline of the facts.

GAUDRON J:  Now, that is the evidence you say should have been

rejected in the exercise of discretion.

MR WAYE: 

Yes.

GAUDRON J: 

Where was it ever objected to?

MR WAYE: 

As I said, Your Honour, the evidence in regard

to Pietro Sergi was objected to on the ground of
the NATIONAL CRIME AUTHORITY ACT because the same
situation occurred with him. It was argued;

His Honour ruled that in the circumstances -

similarly, to the Court of Criminal Appeal - they

were only exercising their right - these

National Crime Authority gentlemen - from another

State that an ordinary citizen has and rejected

the argument under section 12.

GAUDRON J: 

And no separate objection was taken for Carbone?

MR WAYE: 

No but, as I said, the matter was brought to the

attention of the learned trial judge.

DEANE J: 

But all this depends, does it not, on reading:

nothing in this Act ..... shall be taken to
confer -

as involving a prohibition.

MR WAYE: 

Yes.  My submission must be, Your Honour, that

section 12(4) says that the whole effect of the persons.

DEANE J: 

I follow that but it comes down to reading "nothing
in tm.sAct •..... shall be taken to confer".

AlYS/4/SH	15	23/8/89
Carbone

MR WAYE:	Yes, it does and it specifically says "Nothing
in this Act" permits you to "interview suspected
persons" except subsection (5), if you want to interview them about a matter. under which that
person is not under suspicion.  That is the effect
of it.

Now, in the charge to the jury that is referred

to from pages 181 to 183, His Honour the learned

trial judge dealt with this interrogation and the

interpretation the jury could place upon it in

a way which was obviously detrimental to the defence.

He said, at page 181:

The search of Carbone's home brought to light some cannibis seeds and some old

dried cannabis plant. The evidence

indicates that the plant material was

too old to come from the Short Road crop -

That was not challenged by the Crown:

Carbone ..... grew a few plants ..... smoke

a few joints a week.

On the other hand -

he said, at line 33 -

it is a question of what you make of some

400 cannabis seeds and the likely source

from which they may have come when considered

in the light of his evidence as a whole.

Well, I have made my submission about that.

At page 182, about line 11:

Mr David says that some of these

statements were either evasive or patently

false and, in effect, reflect a patent

consciousness of guilt.

Down the bottom of the page, line 34, dealing with the submissions:

Well, these are all important contentions for your consideration -

So, taking into account the charge to the jury, his answers to the police interrogation were of

considerable importance in the outcome of the case

and it is also my submission, the fact that Small

introduced himself to the applicant and his

co-officer, Baltoski, both from the National Crime
Authority, as being from the National Crime Authority
in Sydney could have the effect of intimidating

the applicant.

AlTS/5/SH	16	23/8/89
Carbone

He said, "We are going to question you".	Not
only is the embargo in which I submit, in

section 12, he has no right ~o tell the applicant -

he certainly did not tell the applicant he had
no right to question him; he had no right to say,

"I am going to question you".

The passage in IRELAND which I referred to

is at page 334.

MASON CJ:  Yes.

MR WAYE: Sir Garfield Barwick said - and this passage has

been approved on more than one occasion by this Court:

Evidence of relevant facts or things

ascertained or procured by means of unlawful
or unfair acts is not, for that reason alone,

inadmissible. This is so, in my opinion,

whether the unlawfulness derives from the

common law or from statute. But it may be

that acts in breach of a statute would more

readily warrant the rejection of the evidence

as a matter of discretion: or the statute may
on its proper construction itself impliedly
forbid the use of facts or things obtained or

procured in breach of its terms.

That was approved in BUNNING V CROSS, (1977) 141 CLR 54.

At page 72--His Honours Mr Justice Stephen and

Mr Justice Aickin:

That statement represents the law in Australia;

it was concurred in by all other members of the

Court in REG V IRELAND and has since been

applied in a number of Australian cases -

and then dealt with the application of the judicial

discretion. The application of the judicial

discretion - and I will not read the passages - have

been recently considered by this Court on a number

of occasions. In CLELAND's case, (1982) 151 CLR 1,

at pages 7 and 8, His Honour the Chief Justice

Sir Harry Gibbs; Mr Justice Deane, pages 18 to 20

and by Your Honour Mr Justice Dawson, page 34.

Mr Justice Brennan recently in a case of DUKE,

(1989) 83 ALR 650, again dealt with the

interpretation of IRELAND, BUNNING V CROSS and

CLELAND at pages 652 and 654.

The argument in respect to the charge to the jury on the onus of proof is set out at pages 225

and 227 of the transcript. It is conceded that in
a number of instances in the summing up the trial judge

properly directed the jury as to the onus of proof. It is submitted that merely because an accused does

not give evidence, it is wrong to direct a jury

they should not regard possibilities which are,

AlT5/6/SH	17	23/8/89
Carbone

in truth, fantastic or completely unreal as

a reason of doubt. The Court of Criminal Appeal

in South Australia had recently warned judges for
failing to follow GREEN's case as to the direction

of proof bevond reasonable doubt, the case of PAHUJA,

(1986) 30 Aust Crim R, 118; DA/:1 THI Kil1 CHI, 23 Aust Crim R 38; the

case of WILSON, TSCHORZ AND YOUNG, (1986) 42 SASR 283,

where the Court of Criminal Appeal of South Australia

said the trial judges in those cases fell into error.

What His Honour did say at page 159 of the

transcript - this is the learned trial judge:

It is your duty, therefore, to use your ovm

commonsense and to disregard what might appear

to you to be any implausible excuses or

explanations which might be put forward by

or on behalf of an accused person. I am

not saying that is what has happened here -

well, why mention it when there is an imprimatur

about using that phrase? He does not claim that

counsel for the applicant put forward

implausible excuses or explanations.

I am just talking about the general approach.

The public interest requires that just as an

innocent person should not be found guilty,
guilty persons should not be allowed to

escape the consequences of their acts by

false evidence -

well, he did not give evidence -

or explanations or implausible excuses if they

have given any.

It is my submission that he fell into error.

GREEN V RRG, (1971) 126 CLR 28, at. page 33 said

this:

If during the course of a trial,

particularly in his address to the jury, counsel for the accused has laboured the

emphasis on the onus of proof to such a

degree as to suggest to the minds of the

jury that possibilities which are in truth

fantastic or completely unreal ought by

them to be regarded as affording a reason

for doubt, it would be proper and indeed
necessary for the presiding judge to restore,
but to do no more than restore, the balance.

In such a case -

and that, of course, was not the case here and the

learned trial judge conceded it.	Then, the balance
may be restored.

AlTS/7/SH	18	23/8/89
Carbone

There were the other matters referred to in the

Court of Criminal Appeal's judgment as to "finding where the truth lies", et cetera, which are subject

to criticism and my submission is that the learned trial judge misdirected the jury as to the onus of

proof. I will not go into the South Australian

decisions which have, in effect, warned the judges,

criticized them and allowed appeals for misdirection

of a similar nature in the onus of proof. I have

just dealt with those three authorities - PAHUJA;

DAM THI KIM CHI; WILSON, TSCHORZ AND YOUNG.

Now, I come to the last ground, that the verdict

was unsafe and unsatisfactory. As Sir Garfield Barwick

said at page 331 in IRELAND, where the Crown had

argued that a number of defects in the conduct of the

trial would not, by themselves, have justified an

order for a new trial. The learned Chief Justice

said at page 331:

In my opinion, there is no substance in

this submission. The basis of an order for a

new trial is that the tial which has been had

has not been a fair and proper trial. Quite

clearly, in my opinion, an aggregate of faults,

none of which if it were the only fault, would

afford a justification for making an order for

a new trial, may properly lead to the

conclusion that the trial, as a whole, had

miscarried so that there should be an order

for a new trial.

It is my submission there was insufficient

evidence to justify a conviction and appeal should

be allow and the conviction quashed. In his charge

to the jury, the learned trial judge said, at

page 168 line 6:

The detailed nature and the actual degree

of physical participation of the accused in

carrying that enterprise -

into effect is not of primary importance so

long as there was, in fact, some level of

actual participation in the overall common
enterprise if you find there to have been

one.

this is the production -

But he has not suggested in any way to the jury

what possible participation could be inferred that

this accused was a particeps criminis to the

production. It is left.

His Honour the Chief Justice in the Court

of Criminal Appeal said, at page 228:

AlTS/8/SH	19	23/8/89
Carbone

It was open to a reasonable jury to draw

from the proved facts the inference of guilt

beyond reasonable doubt.

Well, I do not want to labour what the proved facts

are; I have put them in my outline; I have dealt

with them before the Court. It was, in my submission,

a circumstantial case. There was a direction as

to circumstantial evidence. The reasonable

possibilities or hypothesis were not put to the

jury by the learned trial judge. This Court has

recently dealt with its obligation to assess the

evidence for itself in REG V MORRIS and I adopt the judgment of Sir Harry Gibbs and Your Honour

the Chief Justice in REG V CHAMBERLAIN - which was

also adopted in REG V MORRIS -	page 531 of
CHAMBERLAIN's case, where you said:

In RASPOR V THE QUEEN and PLOMP V THE QUEEN,

it was recognized that a court of criminal appeal

may interfere with a verdict which is unsafe or

unsatisfactory even if there is sufficient evidence

to support it as a matter of law, and even though

there has been no misdirection, erroneous

reception or rejection of evidence, and no

other complaint as to the course of the trial.

In other words, even if there is some evidence

on which a reasonable jury might be entitled

to convict, a Court of Criminal Appeal has the

responsibility to consider whether "none the
less it would be dangerous in all the

circumstances to allow the verdict of guilty

to stand".

Although the law does not absolutely require the

direction in a circumstantial case, as set out in

CHAMBERLAIN, the direction was not given and that

is the direction that there are two chances of error

in a circumstantial case and I quote from CHAMBERLAIN -

I think it is page 536:  11

·first from the chances of error in each fact

or consideration forming the steps and

second from the chance of error in reasoning

to the conclusion"

His Honour never spelt out to the jury what could

be a reasonable hypothesis really consistent with
guilt. He said, c3;s .I quote: "The detailed nature and

actual degree of physical participation is

not known.	That is not of primary importance if
there was some participation".	But what, other

than his presence on 15 May at the actual crop site

after he had been under surveillance from 22 April

and after 15 May because they were not aware until

19 May and the harvesting, at least, was taking

place on 15 May. They were followed, of course,

24-hour surveillance I think the evidence was from

AlT5/9/SH	20	23/8/89
Carbone

15 May to 19 May and had been under surveillance

before and again, there was no return to the crop

site. In fact, the crop site was under 24-hour

surveillance from 15 to 19 May.

There is just one authority I wish to refer to.

It is REG V CLARKE & JOHNSTONE, (1986) VR 643, a

decision of the Court of Criminal Appeal in Victoria.

The principle in that case is that - one principle

I rely upon that mere knowledge of the existence of

the crop or even presence is not enough unless the

applicant was particeps criminis in the production.

It is a well known authority often cited in Victoria.

I come to the application in regard ·to sentence.

Now, I am afraid there are some further matters raised

in MALVASO's application yesterday of considerable importance of which I was apprised about a quarter to eight this morning for the first time. Some of
this Court apparently were not sitting in MALVASO's

application. All I can do is adopt Mr Abbott's

argument in regard to the jurisdictional matter.

My learned friend has been good enough to bring

application for appeal against sentence was merely

copies of the endorsement of Mr Justice Matheson in

referred to the Full Court.

GAUDRON J:	What about your client's appeal against sentence?
MR WAYE:	That was referred as well.

GAUDRON J: There was no leave granted in that?

MR WAYE:	Leave was granted - - -
MASON CJ:	Have we got the document?
MR WAYE:	My learned friend has it.

MR JENNINGS:	We have certainly got - it is here.
MR WAYE:	Could you hand those up to the Judge, Mr - - - ?

MASON CJ: Perhaps Mr Jennings can inform us. He has the

document, apparently. Yes, Mr -

TS MR WAYE: No. My note on CARBONE's appeal against sentence, again, was a referral.

MASON CJ:	Do you agree with that, Mr Jennings?
MR JENNINGS:	Yes, the endorsement on the Crown's appeal

reads, as I read: "I referred to Court of Criminal

Appeal more particularly because of trial judge's

remarks in his report and also", it is hard to read,

"because leave to appeal has already been

A1T6/1/SH	21	23/8/89
Carbone

granted in the case of SERGI'.' SERGI was one of

the co-offenders sentenced by a different judge.

MASON CJ:  Yes. You might hand that document in, I think.

MR JENNINGS:	Yes, certainly.
MR WAYE:	The operative word, as I understand Mr Abbott's
argument - he told me on the telephone this morning -
is "referred".

MASON CJ:  Yes. Mr Waye, Justice Dawson was the member of

this Court now sitting who did not sit on MALVASO's

case but, of course, the transcript of MALVASO's

case involving the submissions presented by

Mr Abbott and the Solicitor-General's rejoinder

will be available to him and he can read those

submissions.

MR WAYE:	I am thrilled to hear that, Your Honour, particularly
as I am not very cognizant of this argument. It
never occurred to me, I must confess.
DEANE J:	We have not p,ot the notation on your client's appeal, it seems.
MR WAYE:	Again, I have left my glasses in my car. Could I
ask my friend to read my notation.  I think that
is the one he just read, actually.
MR JENNINGS:	That is the one - - -
DEANE J:	What about the Crown's appeal?
MR WAYE:	The Crown is - again, the word "referred", I can
read the first word which is, I understand, the
operative word.  I thought my friend handed up
the Crown notice of appeal?
MR JENNINGS:	Yes, I did.
MR WAYE:	You have the Crown notice of appeal, Your Honour.
MASON CJ:	No, these are only enough copies of the one for

the Court, I think.

MR JENNINGS: 

I do not think we have copies but I have here

the endorsement on, or a copy of Carbone's application
for leave to appeal against sentence and that - - -

DEANE J: Is that in the appeal book we have?

MR JENNINGS:	Yes, I think it is
MASON CJ:	Can you give us a reference to the page?

MR JENNINGS:  Yes, I wi 11. It will be 214 and 216. That does not

include the endorsement.

AlT6/2/SH	22	23/8/89
Carbone

MR WAYE:	No, it does not include the endorsement. The
endorsement is - again I find it difficult to
read - 'referred to"- - -
MR JENNINGS:	"Referred to Court of Criminal Appeal more

particularly as leave to appeal has already been

granted in S::::RGI 's case".

MR WAYE:	Mr Justice Matheson, 1 February 1989.
MASON CJ:	Now, you are reading from what page?

MR JENNINGS: It is not in the appeal book, Your Honour.

MASON CJ:  I see.

DEANE J: Well, it is not what you have handed us, either.

MR JENNINGS:  No, it is not. No, the one that I handed the

Court was the Crown's - endorsement on the Crown

appeal - - -

MASON CJ:	Crown appeal, yes.
MR JENNINGS:	- - - I have i us t read to the Court and I can let

the Court have it.

MASON CJ:  Yes, I think you ought to let us have copies of

that document, if you would, Mr Jennings.

MR JENNINGS:	Yes.
DEANE J:	Does that mean that it is common ground that leave
to appeal was granted in respect of neither of the
appealsagainst sentence?
MR WAYE:	Yes.

MR JENNINGS:	That is so.	Both matters were referred.
MR WAYE:	Well, in that case, I will not deal with that argument

any further. I have read Mr Abbott's outline of

argument with regard to sentence and all the

principles of double jeopardy and the other principles,

all of which I respectfully adopt.

There are one or two other old authorities of

double jeopardy which are quite familiar to this

Court.

GAUDRON J:  The double jeopardy considerations do not affect

your client in the way they affected Mr Abbott's

client. That was quite a discrete issue, was it

not?

MR WAYE:	I agree, Your Honour, probably it was but I do not
want to deal with the matter any further except to

A1T6/3/SH	23	23/8/89
Carbone

say that GRIFFITHS V REG and WHITTAKER v R,

VALENTINE AND GARV!, RV TAIT AND BARTLEY, in

the list of authorities, all deal with double

jeopardy situations. But, I adopt the approach

in the case of REG V NOLAN, (1987) 34 Aust Crim R 19

at 24 and 25 that proves the principle in HOLDER &

JOHNSTON, (1983) 3 NSWLR 245, where

Mr Justice Yeldham delivering the judgment to

court said this - and I submit it is a proper

principle -

McHUGH J: HOLDER was referred to us yesterday. It was

referred to us.

MR WAYE:	Yesterday.	I will not read the pages in that case,
Your Honour.

There is also, if one looks at the application

for leave and the notices of appeal and the grounds

upon which the sentence was increased in the case

of MALVASO - that His Honour the Chief Justice

said, "In exercising my discretion to increase,

it is on the basis where co-offenders are before

the Court. The proportionality of the treatment

was the overriding consideration". Proportionality,

disparity, whatever you call it, as I understand it,

has been the principle where appellants have been

complaining about excessive sentences and they have

been met with the answer, "Well, because A , your

co-offende~ got too little, you cannot complain

because you got the right amount".

His Honour remarks in the Court of Criminal

Appeal at pages 241 to 242. Another complaint about

the increasing of the sentence is that I adopt

Mr Abbott's argument under the SENTENCING ACT,

that he did not take into account - or, the

Court of Criminal Appeal - did not take into acco..nt tre criteria in

sentencing in sections lO(j), (k), and (b) of

our SENTENCING ACT.	In other words, no convictions,
good work record, young children - the learned	trial judge did, he took them into account but
the Court of Criminal Appeal did not.

His Honour went on to say:

Carbone's role is uncertain.

Of course, that is my complaint about the unsafe and dangerous verdict.

He was found guilty by a jury on circumstantial

evidence linking him with the crop and with its

disposal by sale. The extent of his participation

is not otherwise known.

And that is so and if it is not known, again, that

supports my application it is an unsafe verdict.

AlT6/4/SH	24	23/8/89
Carbone

He must be sentenced therefore on the basis

of being a participant in the criminal scheme

with an undeterminable role.

If it cannot be determined, certainly, he must go

to the bottom of the scale, if he is guilty, in

imposing of the sentence. That is a fundamental

sentencing principle, in my submission.

It was not proved that he was aware of the

on the same basis as that of Sergi, except

element of police protection or corruption.

that he is not entitled to credit which

Sergi receives for his plea of guilty. The crime of taking part in the sale of cannabis of which Carbone was also convicted -

by his plea - they are my words - was part of the transaction which involved

the production of the cannabis and should

be reflected in the sentence imposed for

that crime.

In my submission, there should be a distinction

between production and also the two and a half
years imposed for taking part and selling of
cannabis which was later found and the sentencing

of Staltari to be worth $2,500. It was an excessive

sentence for a man of no convictions and his work

record, et cetera.

I think the appropriate sentence for Carbone

is seven years imprisonment for producing

cannabis. The sentence of two and a half

years for the other crime should stand and

should remain concurrent. An appropriate

non-parole period would be four years and

nine months. It follows from what I have said that

I would dismiss Carbone's appeal against

his sentence. It remains to consider

whether it is appropriate to allow the

Attorney-General's appeal for the purpose

of substituting the sentence which I

consider to be appropriate for that

imposed by the sentencing judge.

This is where I submit the court fell into error.

If Carbone's case stood alone, there might be

a question as to whether the sentence could
be regarded as manifestly inadequate and

whether the circumstances justified

interference by this Court on a prosecution

appeal.

A1T6/5/SH	25	23/8/89
Carbone

I think, however, that where co-offenders are all before the Court, proportionality

of treatment becomes the overriding

consideration.

I submit that is putting it in reverse. That

disparity question arises in the situation which

I earlier postulated to the Court.

It is important that Carbone's sentence

bear a proper relation to that of Sergi

and to that of Malvaso, reflecting their

respective degrees of criminality and all

other relevant factors.

Well, he has already said that, really, our degree

of criminality if we are guilty, is unknown. If

one goes to the - also, the question of

proportionality was not raised by the Crown in

its application for leave to appeal to the Court

of Criminal Appeal. You have a copy, I

think, of the Crown notice of appeal. Without

going to - - -

DEANE J:	But nothing was raised by the Crown in its
application for leave to appeal to the Court of Criminal Appeal because it thought it had leave.
MR WAYE:	Exactly.  I withdraw what I said. In its, so-called
appeal against sentence, the question of
proportionality is not a ground and yet the
Court of Criminal Appeal increased the sentence because of the proportionality issue, although it
is not a ground as set out in the grounds of appeal
and I understand the Court now has a copy of the
Crown notice of appeal against sentence.

Then, the last matter, of course, is the

section 302 argument which was taken into account

and the passage read by Mr Abbott to this Court

yesterday - it is the same judgment where Carbone's	sentence was increased, as where Malvaso's sentence
was increased and taking into account that section 302 in increasing the sentence.

MASON CJ: Well, we are familiar with that. We heard that at

length yesterday.

MR WAYE:	Yes, and, of course, the recent decisions of this Court in HOARE and the other case. I do not wish to put anything further to the Court then, on the
question of the application in regard to sentence,
if the Court pleases.

MASON CJ:  Thank you, Mr Waye. The Court will take a short

adjournment in order to consider the course it will

take in this matter.

AT 12.02 PM SHORT ADJOURNMENT

AlT6/6/SH	26	23/8/89
Carbone
UPON RESUMING AT 12.09 PM:

MASON CJ:  Mr Jennings, the Court does not need to trouble

you on the application for special leave to appeal

against the conviction. Ground 1, in the applicant's

outline of argument was disposed of during the course

of argument. With respect to the matter raised by

ground 2, the Court is of opinion that that does

not raise a matter of general principle which would

warrant the grant of special leave to appeal.

With respect to the matters raised in grounds 3,

4 and 5, the Court is of opinion that the decision
of the Court of Criminal Appeal was not attended

with sufficient doubt to justify the grant of special

leave to appeal. The application for special leave

to appeal against the conviction is, therefore,

refused.

Now, Mr Jennings, it remains for you to deal

with the application for special leave to appeal

against sentence.

MR JENNINGS:  If the Court pleases. I hand up an outline of

argument.

MASON CJ:	Yes.
MR JENNINGS:	If the Court pleases, with respect to ~e points

which arise out of the special leave point, if I
can put it that way, I adopt the arguments of
the Solicitor-General that were put yesterday in

MALVASO and do not think that I can take those any further.

MASON CJ:	Yes.
DEANE J:	Do you oppose the suggestion that the sentence
cannot stand in any event because of the mistake
as to the effect of section 302?
MR JENNINGS:	I think that must be so, yes.
DEANE J:	Yes, and if that were all that was involved, what
would you say was the appropriate course?

MR JENNINGS: If that were all that were involved, then I

would think that, in accordance with what happened

in HOARE and EASTON, this Court would send back to

the Court of Criminal Appeal the matter to be dealt

with in accordance with the Court's judgment in HOARE

and EASTON.

DEANE J: There is a slight problem in that, though, is there

not, in us sending it back?	I mean, what remains if
we were to quash the sentence?

A1T6/7/SH	27	23/8/89
Carbone

MR JENNINGS:  Quash the sentence outright?

DEANE J: Well, because of section 302.

McHUGH J:  And because of 352(2). The sentence was made

without jurisdiction so that all that is on foot

is a referral for leave to appeal.

MR JENNINGS:	Yes. Well, if that be so then, of course, there is nothing for this Court to send back, I
appreciate that and, presumably, the Court will
do the same with Carbone's sentence as it does
with Malvaso' s. I presume the same principles
apply with respect to each.  I do not see any
cause for distinguishing between them.

DEANE J: Well, there may be different considerations in terms

of the particular cases.

MR JENNINGS:	Yes, in particular, in MALVASO's case, the fact that he was given a suspended sentence but I do
not see any significant difference other than that.

May it please the Court, in my submission,

it is a fundamental element of sentencing, as the

outline suggests, that there be consistency in

punishment of co-offenders. I do not think I

need to take the Court to what was said in LOWE's

case by I think virtually all members of the Bench,

including Your Honour the Chief Justice.

Your Honour the Chief Justice saw it as a fundamental

matter of importance, not only, of course, to those

sentenced but to the community at large and to, I

think as Your Honour called him, the impassive

observer who observed the Court's processes.

If it be such a fundamental element in

sentencing, then it must be something which is

taken into account, must guide the Court both at

the sentencing stage where the Court is dealing

with co-offenders and also at the appellate stage.

The words of the Chief Justice in this case, "It
is important that Carbone's sentence bear a proper

relation to that of Sergi and to that of MALVASO

reflecting their respective degrees of criminality

and a 11 other r e 1 e van t fa c tor s 11, r ea 11 y enc a p s u 1 a t es

the consistency principle and it would be, with

respect, odd if a sentencing judge was obliged

to abide by those rules which are, after all,

only rules of fairness and if the Court of
Criminal Appeal could not take them into
account in dealing with appeals where co-offenders
are before the Court, whether they be appeals by
those sentenced or Crown appeals or both as the

case may be in a givencase.

28

A1T6/8/SH	23/8/89
Carbone
GAUDRON J:	The trouble with your arguments about consistency

in punishment is that there is a two year disparity

between Sergi and Carbone on the Court of Criminal

Appeal's result, Sergi being known to have grown,

gardened and, by that I presume, also tended

the crop - - -

MR JENNINGS:	Yes, he was there at the crop site.
GAUDRON J:	- - - Carbone not known to have done anything in

oarticular other than be there on one occasion

~nd to have his gun there.

MR JENNINGS:  And to have is gun there, yes. The judge was

entitled to take the view that his role was a

significant role. I mean, it could not be

determined precisely, I appreciate that.

GAUDRON J:	The Court of Criminal Appeal must have taken the view that his role was more significant than
that of Sergi.
MR JENNINGS:	With respect, the view that the Court of Criminal

Appeal took and the Chief Justice said this at

page 241 of the appeal book:

I think that his sentence should be fixed

on the same basis as that of Sergi -

so he did not treat him as more seriously. The

fact that he got two years more was a consequence (a) of the fact that Sergi had pleaded guilty and derived credit from that plea and, (b) the fact

that this appellant was also convicted of the

offence of being involved in the sale of those

bags of cannabis which sentence was made concurrent

with the sentence in question.

Of course, there was not only the question of parity with Sergi, but perhaps more importantly,

in this case the question of parity with M

Now, of course, at the end of the day, that appears

to give or to end up with a peculiar result but

the reason for that, of course, is that although

Malvaso was involved far more significantly than

this applicant in the cultivation of the crop and

in the general overseeing of the crop, Malvaso,
of course, had to get credit not only for his

plea of guilty but for the very significant

assistance which he gave the police and, of

course, what happened in this case was that the

Court of Criminal Appeal said with respect to

Malvaso, a sentence of - had he n9t pleaded guilty -

something in the order of 10 to 12 years, given

his plea, something in the order of nine to ten,

at the end of the day, given everything including

especially, I suppose, his co-operation, five is

A1T6/9/SH	29	23/8/89
Carbone

as low as we can go. So, although you appear to

have that discrepancy between Malvaso and Carbone -
indeed you have because Carbone has got seven and

MPlvaso has got five - that discrepancy arises from the very sort of balancing which the court has to do and, in a given case, of course, depending on

circumstances, an offender more involved may get

less if, for instance, as here he has given
co-operation or he has pleaded guilty or he has

got very pressing personal circumstances and so

on. So, you have to look, with respect, beyond

the actual sentence. You have to look at the

factors which are personal to the offender and,

of course, it goes without saying, their respective

involvements.

In my submission, when a court of criminal

appeal comes to deal with co-offenders on appeal,

assuming that is what happened here, then - and

it does not matter whether they are Crown appeals

or offender appeals - the court is entitled to

intervene on the basis of consistency or parity

giving effect to those principles. Now, there is

no question that they can do that with respect to

offenders' appeals. This case, I suppose, throws

up the real question of whether they can do that

on Crown appeals.

In my submission, if the question of consistency

in punishment is as was said in LOWE's case, to be
so fundamental to the integrity of the sentencing

system, then it will be a proper consideration in

a given case for the Court of Criminal Appeal when

it is dealing with sentences by the Crown and/or
co-offenders. Whether it interferes in a given
case on a Crown appeal as it did here, will be,

in my submission, or must ultimately be a question

for the judgment of that court. There will be cases,

in my submission, where the court sees the

consideration of consistency, the consideration

of maintaining consistent punishment in the eyes

of the community as a proper factor which influences

the question of whether it is justified in interfering

and increasing a sentence.

Of course, there is no question that the court

can interfere where error is found. There is no

question that the court can interfere where the

sentence is manifestly inadequate.	The question
is:	can it interfere on this additional basis of

disparity? My submission is that there is no

principle which says that it cannot and the question
will be whether in a given case it considers that

an appropriate consideration; perhaps, if it is to

do it, an overwhelming consideration which calls

for appropriate intervention at that level. It is

not something that will happen as a matter of course

with respect because generally there will only be

A1T6/10/SH	30	23/8/89
Carbone

call for the increasing of a sentence if somehow

or other the sentencing process has gone wrong

and, of course, that is what happened here we say

because, first of all, the Court of Criminal

Appeal, if it be accepted with respect to MALVASO -

the Crown's argument be accepted there - erred with

respect to Malvaso's sentencing. I do not say as

to the suspension but as to the head sentence. And

it erred by pitching the level at which it started,

if you like, too low. The Court of Criminal Appeal

said Justice Olsson started from too low a base.

Now, I do not say that that is an error which

necessarily carries over to Carbone. It may do; it

may not. In this case, I do not put my argument on

the basis that that alone would justify the

intervention of the Court. It would have, had the

court found that but the court did not specifically

find that that error, if it be error with respect

to MALVASO, as it were, infected Carbone's sentence.

The court did not find here that Carbone's sentence

was, if it were to be looked at alone, manifestly

inadequate. What it did find, of course, was that

it was a low sentence. It was a low sentence because

he got five years when the Court of Criminal Appeal

said a sentence of seven years would be appropriate.

McHUGH J:  But it is all very odd, is it not? I mean, it is

just an accident that they were being heard together.

There was no Crown appeal against Sergi. Sergi appealed against his sentence and it was reduced to six, to five. It is a separate proceeding.

They may have been heard together but they were

separate proceedings.

MR JENNINGS:  That was a separate proceeding, I agree with

that but, with respect, an appropriate separate

proceeding so that the Court of Criminal Appeal

could look at all three. I mean, just as it is

said that it is inappropriate for different judges

to sentence different co-offenders - - -

McHUGH J: Well, that is what happened in the first instance

in this case because Justice Matheson sentenced

Sergi.

MR JENNINGS:	That is right, but to have had two Court of Criminal Appeals deal with the matter would have,
with respect, compounded that error, if it be an
error.

McHUGH J: But, then you get the added situation where the

Court of Criminal Appeal said that if CARBONE's
case stood alone, there might be a question as
to whether the sentence could be regarded as

inadequate.

A1T6/11/SH	3 1	23/8/89
Carbone

MR JENNINGS:  That is right, but the point is - I mean,

my point, with respect, is that it did not stand

alone. It stood with others; all three had to be

considered and consistency of punishment, principles
of parity, justified the court's intervention,

especially in the context of this case where it

was proceeding in an appeal where there was error
with respect to MALVASO so his sentence required

upping and, moreover, where it specifically found

that, although it did not say - perhaps did not

decide whether the sentence was manifestly inadequate,

none the less, Carbone should have got more.

McHUGH J: But, if Sergi had not appealed against the

excessiveness of his sentence, there is a strong

argument for saying that the Crown's appeal against

Carbone would have not succeeded. It seems very odd

be increased".

that, because Sergi happens to appeal and succeeds sentence ought to

in his appeal, that is a reason, then, for the

MR JENNINGS:  Well, with respect, that is not what happened

Sergi", they might have said, "He should

because if Sergi's sentence had stood and the with

have got six and been upped to eight", with.

respect. In my submission, the important question

is rather with respect to Malvaso than with respect

to Sergi. Of course, all three were considered by

the court but, I think that the consideration which

justified intervention here on this - it is conceded -

unusual basis, was (a) the error with respect to

Malvaso and, (b) the court's consideration that

the sentence was low. That, plus as I say, the

seriousness of the offending, in my submission,

justified the approach which the court took in

this case.

At the end of the day, in my submission,

Carbone cannot complain if he has been given a

sentence which, in the eyes of the Court of

Criminal Appeal of this State is an appropriate

sentence, if the Court pleases.

MASON CJ:  Yes, thank you, Mr Jennings. Do you wish to

reply, Mr Waye?

MR WAYE:	May I just say two small matters on the question
of principle in reply: in regard to the effective head sentence, the taking part in the sale of the cannabis on the Crown argument was an extension of
and evidence in proof or assisting the proof of the
production. The second principle is this: it is
an error to increase a sentence when the extent of
participation of the offender is not known.

AlT6/12/SH	32	23/8/89
Carbone

The Chief Justice recognized that at page 241

of the transcript:

Carbone's role is uncertain ..... The

extent of his participation is not otherwise

known.

The learned sentencing judge said the same at

page 2O6H:

Your precise part in the overall enterprise

is not entirely clear.

If the Court pleases.

MASON CJ:  Thank you, Mr Waye. The Court will consider

its decision in this matter.

AT 12.30 PM THE MATTER WAS ADJOURNED SINE DIE

A1T6/13/SH	33	23/8/89
Carbone