Cavanagh v The Queen
[2016] VSCA 305
•30 November 2016 (Orders), 8 December 2016 (Delivery of Reasons)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0097
S APCR 2016 0190
| WILLIAM CAVANAGH | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2016 0106 | |
| REYN REKHVIASHVILI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 November 2016 |
| DATE OF JUDGMENT: | 30 November 2016 (Orders), 8 December 2016 (Delivery of Reasons) |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 305 |
| JUDGMENT APPEALED FROM: | DPP v Cavanagh; DPP v Rekhviashvili (Unreported, County Court of Victoria, Judge Meredith, 9 February 2016 (Conviction), 22 April 2016 (Sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Applicants convicted by jury of trafficking by manufacture not less than a large commercial quantity methylamphetamine and possession of equipment and precursor chemicals for trafficking – Whether verdicts unsafe and unsatisfactory – Whether open to jury to find applicants parties to joint criminal enterprise to manufacture not less than a large commercial quantity methylamphetamine or aided and abetted principal offender – Whether open to jury to find applicants possessed equipment and precursor chemicals for trafficking – Whether open to jury to find applicants had intention to traffick in not less than a large commercial quantity methylamphetamine – Verdicts not unsafe and unsatisfactory – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Applicant Cavanagh convicted by jury of trafficking by manufacture not less than a large commercial quantity methylamphetamine and possession of equipment and precursor chemicals for trafficking – Sentenced to a total effective sentence of 7 years’ imprisonment with non-parole period of 3 years – New evidence that applicant suffering undiagnosed bowel cancer at the date of sentence – Applicant terminally ill – Sentencing discretion reopened – Appeal allowed – Total effective sentence confirmed – Non-parole period of 12 months’ imprisonment substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Cavanagh | Mr M D Stanton | Grigor Lawyers |
| For the Applicant Rekhviashvili | Mr D Grace QC | Theo Magazis & Associates |
| For the Respondent | Mr B F Kissane QC and Mr J Gullaci | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA
WHELAN JA
PRIEST JA:
Introduction
At the conclusion of oral argument in this Court on 30 November 2016, the Court made orders refusing both applicants leave to appeal against conviction.
With respect to William Cavanagh’s application for leave to appeal against sentence, the Court made orders granting leave to appeal and allowing the appeal. The appellant was resentenced as set out below.
The Court indicated that it would later publish reasons for those orders. These are those reasons.
Overview
At a trial in the County Court, the prosecution alleged that Gregory Rodin (‘Rodin’) and the two applicants, William Cavanagh (‘Cavanagh’) and Reyn Rekhviashvili (‘Rekhviashvili’), manufactured methylamphetamine at an apartment in Warleigh Grove, Brighton (‘Warleigh Grove’), that apartment having been leased by Rodin on 22 April 2014.
Rodin had also leased a storage unit at Kennards Self Storage, Huntingdale (‘Kennards’), on 18 December 2013. It was alleged that the three men manufactured the illicit drugs at Warleigh Grove using substances and equipment stored at Kennards. The prosecution alleged that the substances and equipment were removed from Kennards and transported to Warleigh Grove for the purposes of the manufacture, and, after the manufacture, were returned to Kennards.
There were five charges on the indictment. With respect to the first charge — trafficking in not less than a large commercial quantity of a drug of dependence, methylamphetamine — the prosecution case principally was that the applicants and Rodin were part of a joint criminal enterprise to traffick in methylamphetamine by manufacturing the drug.[1] In the alternative, the prosecution alleged that Cavanagh and Rekhviashvili aided and abetted Rodin’s trafficking. Importantly, the prosecutor made clear that ‘the prosecution does not put its case in relation to Charge 1 of trafficking of methylamphetamine by way of manufacture on a Giretti[[2]] basis … in other words, it doesn’t allege that [Cavanagh and Rekhviashvili] with Rodin engaged in a business of trafficking by way of manufacture’.
[1]Section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981, defines ‘traffick’ in relation to a drug of dependence to include ‘manufacture a drug of dependence’.
[2]R v Giretti (1986) 24 A Crim R 112.
The other four charges on the indictment — charge 2 (possession of substances, materials, or equipment for the purposes of trafficking) and charges 3, 4 and 5 (possession of precursor chemicals) — were put on the basis of joint possession of the relevant items by the applicants and Rodin.
Convictions and sentences
On 9 February 2016, Cavanagh and Rekhviashvili were convicted by a jury of trafficking in not less than a large commercial quantity of a drug of dependence,[3] methylamphetamine (charge 1); possession of substances, materials or equipment for the purposes of trafficking[4] (charge 2); and possession of precursor chemicals[5] (charges 3, 4 and 5).[6]
[3]Drugs, Poisons and Controlled Substances Act 1981, s 71. The maximum penalty is imprisonment for life.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 71A. The maximum penalty is ten years’ imprisonment.
[5]Drugs, Poisons and Controlled Substances Act 1981, s 71D. The maximum penalty is five years’ imprisonment.
[6]Indictment No C1409817.1.
Both Cavanagh and Rekhviashvili sought leave to appeal against conviction. Cavanagh also sought leave to appeal against sentence.
On 22 April 2016, on the offences for which he was convicted at trial, Cavanagh was sentenced according to the following table:[7]
[7]Cavanagh also pleaded guilty to a further charge of possession of a drug of dependence on a separate indictment, and was fined $200.
Charge Offence Sentence Cumulation 1 Trafficking in a drug of dependence (large commercial quantity) 7 years Base 2 Possession of substances, materials, or equipment for the purposes of trafficking 2 years — 3 Possession of a precursor chemical 1 year — 4 Possession of a precursor chemical 1 year — 5 Possession of a precursor chemical 1 year — Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 3 years[8] [8]Pre-sentence detention of 158 days was also declared.
Rekhviashvili was also sentenced on 22 April 2016, on the offences for which he was convicted at trial, according to the following table:
Charge Offence Sentence Cumulation 1 Trafficking in a drug of dependence (large commercial quantity) 7 years Base 2 Possession of substances, materials, or equipment for the purposes of trafficking 2 years — 3 Possession of a precursor chemical 1 year — 4 Possession of a precursor chemical 1 year — 5 Possession of a precursor chemical 1 year — Total Effective Sentence: 7 years’ imprisonment
Additionally, Rekhviashvili pleaded guilty to charges contained in a further indictment,[9] and was also sentenced on 22 April 2016 as follows:
[9]Indictment No C1409817.2.
Charge Offence Sentence Cumulation 1 Trafficking in a drug of dependence 2 years and 6 months Base 2 Trafficking in a drug of dependence 9 months 3 months 3 Possession of drug of dependence $200 fine — 4 Possession of drug of dependence $100 fine — 5 Possession of drug of dependence $100 fine — Total Effective Sentence: 2 years and 9 months’ imprisonment
The sentencing judge ordered that one year of the sentence on the second indictment be served cumulatively with the sentence on the first indictment. Thus, the total effective sentence in Rekhviashvili’s case was 8 years’ imprisonment, upon which the judge fixed a non-parole period of 5 years.
Rodin pleaded guilty on 18 January 2016 — the first day of the applicants’ trial — to a number of offences generally corresponding to those upon which Cavanagh and Rekhviashvili were convicted at trial,[10] and on 22 April 2016 was sentenced as follows:
[10]Rodin’s pleas, however, related to a commercial quantity of a drug of dependence, whereas the applicants were convicted of trafficking a large commercial quantity.
Charge Offence Sentence Cumulation 1 Trafficking in a drug of dependence (commercial quantity) 3 years and 6 months Base 2 Trafficking in a drug of dependence (commercial quantity) 2 years and 6 months 6 months 3 Possession of substances, materials, or equipment for the purposes of trafficking 4 months — 4 Possession of a precursor chemical 1 year 3 months 5 Possession of a precursor chemical 1 year 3 months 6 Possession of a precursor chemical 1 year 3 months Total Effective Sentence: 4 years and 9 months’ imprisonment
On a further indictment, Rodin pleaded guilty to a number of charges for which a sentence of 2 years and 10 months’ imprisonment was fixed. One year of that sentence was ordered to be served cumulatively upon the other sentence imposed upon him, leading to a total effective sentence of 5 years and 9 months’ imprisonment. The judge fixed a non-parole period of 3 years.[11]
[11]Pursuant to s 6AAA of the Sentencing Act 1991, the judge indicated that, but for Rodin’s pleas of guilty, he would have imposed a total effective sentence of 7 years and 6 months’ imprisonment, and fixed a non-parole period of 4 years and 6 months.
Grounds of appeal
With respect to conviction, Cavanagh sought leave to appeal on the following two grounds:
1. The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence, particularly having regard to the absence of direct evidence of manufacture, the weaknesses of the circumstantial case, and the evidence of Ms Lucy Newman.
2. There was a substantial miscarriage of justice due to the failure of the learned prosecutor to comply with the rule in Browne v Dunn (1893) 6 R 67, and the failure of the learned trial judge to direct the jury on that issue.
As to sentence, Cavanagh relied on a single ground:
1. In order to avoid a miscarriage of justice, the sentencing discretion should be re-exercised in light of new evidence that demonstrates the true significance of facts that were in existence at the time of sentence.
Rekhviashvili sought leave to appeal against conviction on one ground:
1. The verdict of guilty in relation to each of the charges was unreasonable and cannot be supported having regard to the evidence.
Particulars
(i)there was no direct evidence of manufacture of methylamphetamine by the Applicant either by way of joint criminal enterprise or through aiding and abetting Rodin and/or Cavanagh;
(ii)the circumstantial evidence was insufficient to allow a conclusion that the Applicant was involved in the manufacture of methylamphetamine either directly or by aiding and abetting Rodin and/or Cavanagh;
(iii)in relation to Charge 2, the absence of evidence that the Applicant possessed substances, materials or equipment for the purpose of trafficking methylamphetamine (by manufacture) including the absence of any evidence that the Applicant had knowledge of the purpose of any of the items or as to what items he had actually seen (other than the Pyrex dish upon which his fingerprint was found which had been placed there on an unknown date at an unknown location);
(iv)in relation to Charges 3, 4 & 5 an absence of evidence as to any knowledge on the part of the Applicant as to the substances being in the storage unit or that he was in possession otherwise of them;
(v)the absence of evidence that the Applicant intended to traffick by manufacture of a large commercial quantity of methylamphetamine as distinct from a commercial quantity or trafficking simpliciter.
For the reasons that follow, we refused both applications for leave to appeal against conviction, but granted Cavanagh’s application for leave to appeal against sentence and allowed the appeal.
Summary of the case
As we have indicated, on 18 December 2013 Rodin leased a storage unit at Kennards, and on 22 April 2014 he leased Warleigh Grove.
On 3 May 2014, Rodin, Cavanagh and Rekhviashvili removed items and equipment in various containers from the Kennards storage unit — these items and equipment allegedly being used to manufacture methylamphetamine at Warleigh Grove — and returned them to the storage unit later that afternoon. Almost three weeks later, on 23 May 2014, Rodin, Cavanagh and Rekhviashvili again removed from the storage unit various containers holding items and equipment necessary for the manufacture of methylamphetamine. The items and equipment were returned on a later occasion by Rekhviashvili. During these three weeks or so, the prosecution alleged that the production of methylamphetamine occurred.
Police executed search warrants on the Kennards storage unit and Warleigh Grove on 5 and 6 June 2014.
When police executed the search warrant at Kennards during the evening on 5 June 2014 and the following day, they seized quantities of methylamphetamine and ephedrine; various substances, materials and pieces of equipment used for the manufacture of methylamphetamine; and various precursor chemicals used for the manufacture of methylamphetamine.
At Warleigh Grove on 5 June 2014, and during a further search on 6 June 2014, police seized a number of items, including methylamphetamine in various forms and in various purities, located in a variety of containers (including glass beakers, glass dishes and snap-lock bags). A total quantity of 3.188 kilograms of methylamphetamine in mixture form — the pure quantity being 407 grams — was seized at Warleigh Grove.[12]
[12]By virtue of s 70(1), and Schedule Eleven of the Drugs, Poisons and Controlled Substances Act 1981, a large commercial quantity of methylamphetamine in a mixture is one kilogram, or 750 grams pure. A commercial quantity is 500 grams in a mixture or 100 grams pure.
The prosecution’s evidence at trial
At the risk of repetition, the evidence was that, on 16 December 2013, Rodin applied to hire a storage unit at Kennards. On 18 December 2013, he completed a Hire Agreement in which he stated that the unit was to be used to store furniture. Rodin provided proof of identification, paid the first month’s rent in cash and gave credit card details by way of security. He was then issued with a personal identification number (‘PIN’) allowing him to gain access to the storage facility.
Later, on 8 April 2014, Rodin applied to rent Warleigh Grove. Rekhviashvili and Cavanagh were named on the application as referees (although there was no evidence that either of them knew that they had been nominated as referees or that they had been contacted in relation to the apartment). Rodin signed a Residential Tenancy Agreement on 10 April 2014, the lease commencing on 22 April 2014.
Police commenced an investigation into Rodin’s suspected drug trafficking on 12 May 2014, and, as we have indicated, executed search warrants at Warleigh Grove and Kennards on 5 and 6 June 2014.
At Warleigh Grove a mixed quantity of 3.188 kilograms of methylamphetamine was located, the pure quantity being approximately 407 grams. Relevant items located at Warleigh Grove included:[13]
[13]Exhibit G at trial comprehensively set out the items found at Warleigh Grove and Kennards, and contained a description of where each item was located; its exhibit number; the Victorian Forensic Science Centre number; weight; purity; and photograph number.
· a glass jug, Exhibit 7 and 7A,[14] located on the kitchen bench on top of a toaster, containing methylamphetamine in liquid form (40 grams of 20% purity);
[14]Commonly, single items had multiple exhibit numbers. Thus, a glass jug was labelled Exhibit 7 and 7A; a glass beaker was Exhibit 12, 12d 12B; and so on.
· a glass beaker — Exhibit 12, 12A and 12B — located in an overhead kitchen cupboard, containing methylamphetamine in liquid form (55.3 grams of 1.2% purity);
· a glass beaker, Exhibit 13 — situated adjacent to the larger beaker, Exhibit 12 — located in an overhead kitchen cupboard, containing methylamphetamine in both solid form (2.2 grams of 4% purity) and liquid form (60 grams of 2.5% purity);
· a glass dish containing methylamphetamine in liquid form (323.4 grams of 50% purity) and solid form (216 grams of 90% purity), Exhibit 14 and 14A, located in a kitchen cupboard above the pantry;
· several containers containing traces of methylamphetamine, including two glass dishes (0.9 grams of 1% purity) and a plastic container (0.1 grams of 90% purity), Exhibits 8 and 10, located in in a kitchen cupboard;
· snap-lock bags, Exhibit 17, found in the kitchen bin, containing traces of methylamphetamine (0.1 grams of 80% purity);
· a zip-lock bag, Exhibit 5, found in the lounge room coffee table drawer, containing methylamphetamine in crystal form (8.3 grams of less than 0.5% purity);
· a glass jar, Exhibit 26, located in the second bedroom on the floor next to a glass coffee table in a ‘Woolworths’ basket (0.3 grams of 90% purity);
· a glass 250 millilitre capacity glass beaker, Exhibit 27A, found in a ‘Woolworths’ basket in the second bedroom on the floor next to a glass coffee table, washings from which confirmed traces of methylamphetamine;
· a glass bottle, Exhibit 28, located in the second bedroom on the floor next to a glass coffee table in a ‘Woolworths’ basket, containing methylamphetamine in liquid form (466 grams of 1.6% purity); and
· a plastic container, Exhibit 29, also located in the second bedroom on the floor next to a glass coffee table in a ‘Woolworths’ basket, containing methylamphetamine in liquid form (2015.4 grams of 1.6% purity).
(As will become clear, Exhibit 27A — on which one of Cavanagh’s fingerprints was found — is of some importance to the resolution of his conviction application.)
A number of documents in the name of Rodin were located at Warleigh Grove. His fingerprint was found on a small glass Pyrex dish and on a four litre tin of Acetone. Rekhviashvili’s left middle fingerprint was found on a glass bottle containing liquid (although neither the bottle nor liquid was linked to drug manufacturing). Cavanagh’s fingerprints were located on two glass beakers and on two tins of Acetone.
At Kennards, police located precursor chemicals and scientific glassware consistent with use in the manufacture of methylamphetamine. Items seized included:
· a snap lock plastic bag, Exhibit 49, containing methylamphetamine (29 grams of 6% purity) and ephedrine (29 grams of 90%purity);
· a flask, Exhibits 34 and 34A, containing methylamphetamine in liquid form (2.4 grams of less than 0.02% purity);
· an electric blender, Exhibit 84, containing traces of pseudoephedrine (2.0 grams of 80% purity);
· washings from a metal boiler, Exhibit 8, containing methylamphetamine (0.9 grams of 1% purity);
· washings taken from a glass condenser, a plastic stand, a glass separating funnel, a glass measuring cup, plastic funnels and an electric vacuum pump — Exhibits 18, 64, 97, 99, 103 and 106 — containing methylamphetamine;
· a portable gas cooker, Exhibit 107, containing traces of methylamphetamine, pseudoephedrine and ephedrine;
· prescribed precursor chemicals used in the manufacture of methylamphetamine, including ephedrine; traces of pseudoephedrine on an electric blender, Exhibit 84; washings from an electric grinder containing pseudoephedrine and ephedrine, Exhibit 72; iodine in a glass bottle, Exhibit 92, and washings of iodine in a stained glass bottle, Exhibit 68; hypophosphorous acid found in a plastic bottle and in a glass bottle, Exhibits 93 and 94; and acetic anhydride found in a glass bottle and in a plastic bottle, Exhibits 95, 95A and 100;
· approximately 100 items of scientific glassware, including flasks, condensers, adaptors, funnels and dishes used in the manufacture of methylamphetamine; and two snap-lock bags containing approximately 100 grams of a cutting agent.
The glassware and other items located at Kennards founded the charge of possessing substances, materials, or equipment for the purposes of trafficking (charge 2); and the chemicals located founded the charges of possession of precursor chemicals (charge 3, 411 grams of iodine; charge 4, 621 millilitres of hypophosphorous acid; and charge 5, 129.5 millilitres of acetic anhydride).
We pause to note that, although a handful of items in the storage unit — bolt cutters, an angle grinder, pliers, a trolley and a suitcase — were not conspicuously suited to the production of illicit drugs, virtually all of the other equipment and substances located in the unit had an obvious connection with the manufacture of methylamphetamine.
Dane Talbot managed Kennards Self Storage in Huntingdale in December 2013. He gave evidence that on 16 December 2013, ‘Gregory Rodin’ made application for storage unit P12, and that Rodin attended at Kennards and finalised the agreement on 18 December 2013. Mr Talbot said that a unique PIN — 291089 — which allowed access to the facility was linked to storage unit P12, and that a central log recorded the various occasions that the PIN was used to gain access.[15] The facility was also equipped with CCTV. Footage from the CCTV system showed Rodin — whom Mr Talbot identified from the footage, having observed him at Kennards ‘walking past’ or ‘driving through the gate’ on five to six occasions — and others accessing the storage facility. Mr Talbot was taken to CCTV footage,[16] which depicted the following:
[15]Exhibit A at trial was a document that recorded ‘gate log events’ from 19 December 2013 to 5 June 2014 for the storage unit. Thus the customer name (Rodin, Gregory); the unit (P12); the gate keyed (291089); the date and time; and the ‘gate action’ (eg ‘Enter Area: Rodin, Gregory’; ‘Door Close’) were set out.
[16]A DVD containing the relevant footage, Exhibit D, was tendered during the evidence of Detective Phillip Wilkinson.
· First, at about 3.00pm on 19 December 2013 (that is, the day after the relevant agreement was finalised), Rodin and another man, Carl Hand, arrived at Kennards in a blue utility. They moved a number of containers and items — including a Stanley toolbox; several black tubs; several blue and white boxes; a blue ‘esky’; a blue box; and a brown box — from the utility to an area adjacent to storage unit P12 (and, it might be inferred, into storage unit P12).
· Secondly, on 3 May 2014, at around 8.00am, Cavanagh arrived at Kennards in a white vehicle, and Rodin and Rekhviashvili arrived in a black vehicle. They moved various containers and items — apparently taken from storage unit P12 — into the two vehicles and left. The three returned to Kennards just before 5.00pm and appeared to return items that had been removed earlier in the day. Thus, it may be observed that Cavanagh and Rekhviashvili did not simply assist Rodin to move containers and items, but they took containers away and returned them.
· Thirdly, on 16 May 2014, Rekhviashvili and Rodin went to Kennards, but nothing appeared to be removed.
· Fourthly, the next day, 17 May 2014, Rekhviashvili and Cavanagh arrived at Kennards, but no items were apparently removed.
· Fifthly, at around 6.15pm on 23 May 2014, Cavanagh arrived at Kennards in the white vehicle, and Rodin and Rekhviashvili arrived in the dark vehicle. They took away various items and containers.
· Sixthly, less than a week later, at about 3.30pm on 29 May 2014, Rekhviashvili arrived at Kennards and returned the items and containers. (Prior to the execution of the search warrants, they were not again removed.)
· Seventhly, on 31 May 2014, Rekhviashvili went to Kennards in the morning alone, and Rodin went there in the afternoon. No items appear to have been removed on either occasion.
· Finally, on I June 2014, at about 5.18pm, Rekhviashvili arrived at Kennards in a grey car, but no items were apparently removed.
An analysis of the CCTV footage reveals the following. First, on 3 May 2014, when Cavanagh and Rekhviashvili first went to Kennards in the company of Rodin, they did not simply assist Rodin to move ‘some stuff’. Rather than merely assisting Rodin to move containers and items, they took containers away from the storage unit — later found to house the accoutrements of drug manufacturing — and returned them. Secondly, Cavanagh went to Kennards on four separate occasions, and on each occasion the relevant PIN was used to gain access. Thirdly, Rekhviashvili visited Kennards on eight separate occasions — three of those occasions alone — and on each occasion the relevant PIN was used to gain access. On one of the three occasions when he went to Kennards unaccompanied, 29 May 2014, Rekhviashvili was seen to return items and containers. Fourthly, on 17 May 2014, Cavanagh and Rekhviashvili went to Kennards together, without Rodin.
Trevor Blake was a sergeant of police attached to the State Forensic Science Centre. On 5 June 2014, he was the exhibit log-keeper and site safety officer for the search of Warleigh Grove. Also present at the premises were forensic chemists and members of the Clandestine Laboratory Squad of Victoria Police. He produced a booklet of photographs, Exhibit B, which, during his evidence, he cross-referenced to the exhibit log. Sergeant Blake identified various items seized during the search, including three containers (of four litres capacity) of ‘Diggers Acetone’ (Exhibit 16), and glass beakers and dishes containing liquids and solids. Under cross-examination by counsel for Rekhviashvili, Sergeant Blake agreed that he had been ‘to places where there’s an actual lab been [sic.] operating’, but at Warleigh Grove there ‘was not an active lab’.
Ben Jones, a leading senior constable of police attached to the Chemical Biological Radiological Disaster Victim Identification Unit of the Victorian Forensic Services Centre, participated in the search of Kennards storage unit P12 on 6 June 2014. He produced a booklet of photographs, Exhibit C, which, in the course of his evidence, was cross-referenced to the relevant exhibit log. A number of items were seized, including containers holding various forms of liquids and solids; glass condensers; glass flasks (some of which contained liquids and solids); and glass bowl pipettes. Also located in the storage unit was a toolbox (containing mercury thermometers; a syringe; a pH meter; plastic tubing; a battery operated fan; sets of scales; grinders; a heat gun; and various substances); a black tub and contents; a clear plastic tub and contents (including a plastic 100 millilitre bottle labelled ‘Cutex’ nail polish remover); and a sports bag and suitcase (containing various substances). Cross-examined by counsel for Rekhviashvili, Mr Jones agreed that there was ‘no ongoing chemical process [that was] happening in the unit’.
Matthew Knowles, an Acting Senior Sergeant attached to the State Forensic Science Centre, took the photographs at Warleigh Grove (Exhibit B) and at Kennards (Exhibit C). He was taken to a number of those photographs in the course of his evidence. The following passage in his cross-examination by counsel for Cavanagh — concerned with the three cans of ‘Diggers Acetone’, Item 16, located in a cupboard under the sink in the kitchen — is of some relevance:
If I take you to Photograph 5 of [Exhibit B], please, Acting Senior Sergeant?---Yes.
What we see there in that photograph is the island kitchen bench and various cupboards and sinks and dishwashers and what have you [at Warleigh Grove]?---Yes.
In this case, item 16 is said to be three metal tins labelled Diggers Acetone 4 litres containing liquid which you have photographed later?---Yes.
Out in the processing area?---M’hmm.
You understand that?---Yes.
All right. They are said, from the search log, to have been found in the kitchen under the sink in the cupboard?---Yes.
And we’re told by the previous witnesses that that is the cupboard under the sink that you see in photograph 5?---Okay.
You were never called back to open that cupboard and photograph the contents of it?---No. Otherwise we'd have a photograph of it.
That’s right?---Yes.
And so we can assume that you never photographed it because we don’t have it?---Yes.
Do you recall whether you might have opened that cupboard at all during your initial foray through the apartment?---I recall that I didn't because if I did, then I would have photographed it.
Michelle Sinclair is a fingerprint expert attached to the Victoria Police State Forensic Science Centre. The effect of her evidence was that Rodin’s fingerprints were found on a glass Pyrex dish, Item 8A, and on one of the four litre tins of acetone, Item 16, located at Warleigh Grove; and on a flask, Pyrex dish and portable gas cooker, Items 9A, 23B and 107A, located at Kennards. Rekhviashvili’s left middle fingerprint was located on a glass bottle containing liquid, located at Warleigh Grove, Item 6A;[17] and on a glass Pyrex dish, Item 23A, located in the Kennards storage unit. Cavanagh’s fingerprints were located on a glass beaker, Exhibit 12B, and on two of the three tins of Diggers Acetone, Item 16, located in the kitchen at Warleigh Grove; and, significantly, on a glass beaker, Exhibit 27A, found in the second bedroom at Warleigh Grove, washings from which confirmed traces of methylamphetamine.
[17]Under cross-examination by counsel for Cavanagh, Ms Sinclair testified that Item 6A also held the fingerprint of one Liam McKendrick.
Ms Sinclair also gave the following evidence under cross-examination by counsel for Rekhviashvili:
[I]t’s a fact of life that a fingerprint can be deposited upon an object. Correct?---Yes.
It’s also the situation, is it not, that it is not possible to age with precision a fingerprint?---That’s correct.
Once a fingerprint has been left on an object the nature and quality of the fingerprint itself will degrade over a period of time?---Most likely. That’s dependent on a number of factors.
It’s dependent upon, for example, its environment or what’s happened to it or where it is left, things of that nature?---Exactly.
The bottom line that follows from that is that you can’t date a fingerprint. True?---That’s correct.
You don’t know, you can’t say when in a chronological sense or a date sense a print was deposited?---That's correct.
Equally you can’t say whereabouts an object was when the print was left on it, can you?---No.
Ian Neely held a doctoral degree in chemistry. He was employed as a forensic officer with the State Forensic Science Centre, and had over 14 years’ experience in the analysis of clandestine laboratories. He went to Warleigh Grove, and was also provided with an exhibit log, and had seen photographs, relating to items seized at the premises. Dr Neely examined the various items seized. He gave evidence that methylamphetamine can be manufactured from either or both pseudoephedrine and ephedrine in combination with iodine and hypophosphorous acid. In his opinion, the items seized — including the scientific glassware, equipment, solvents and chemicals — would be sufficient for the manufacture of methylamphetamine. In relation to the receptacles containing methylamphetamine in liquid form, Dr Neely could not explain why those quantities of methylamphetamine were mixed in water (there being no suggestion that water formed part of the manufacturing process). Dr Neely was, however, unable to say when any of the seized methylamphetamine had been produced, and he was unable to say what process of manufacture was used to make any of the methylamphetamine. He could not say whether any of the various quantities of methylamphetamine were manufactured at the same time or by the same process. Further, he was incapable of saying when any of the washings located on the items in the storage unit were manufactured or how they got there. In relation to the containers in which iodine, hypophosphorous acid and acetic anhydride were located, Dr Neely agreed that one could not tell by visual observation what the contents of these containers were, since they all appeared to be clear liquids. The contents could thus only be determined by analysis. Dr Neely accepted that, given the absence of any evidence of an active clandestine laboratory at either Warleigh Grove or Kennards, he was unable to say where any manufacture occurred. He further accepted that methylamphetamine can be stored at various points in the manufacturing process for an extremely long period of time.
Phillip Wilkinson, a Detective Sergeant of Police, commenced an investigation into Rodin on 12 May 2014. At 11.20am on 5 June 2014, he and other police executed a search warrant at Warleigh Grove by using a key to gain entry. They searched quickly, but nobody was present. Police then exited the premises, until Sergeant Blake, Sergeant Knowles and other police attended at 12.55pm. Thereafter the premises were searched, during which an exhibit log was prepared and photographs were taken. A MacBook Pro computer was seized, and, among the photos extracted from it (Exhibit E), Image 26 — apparently a file created on 22 May 2014 and bearing the date stamp 19.59 hours and one second — was ‘an image of what appears to be a dish with some substances in it’. There were also photographs of Rekhviashvili taken at Warleigh Grove, and a photograph of two cheques payable to him. As a result of information discovered at Warleigh Grove, Sergeant Wilkinson obtained a search warrant for storage unit P12 at Kennards.
Sergeant Wilkinson and other police executed the search warrant at about 8.00pm on 5 June 2014. The search was suspended at 8.46pm, until members of the Clandestine Laboratory Squad resumed the search the next day. Sergeant Wilkinson was taken through the CCTV footage from Kennards, Exhibit D. He gave evidence that he had viewed additional footage — not played to the jury — which related to the days in the period between 20 December 2013 and 2 May 2014, and for 8 May, 9 May and 30 May 2014. Having viewed that footage, Sergeant Wilkinson was able to say that a Stanley tool box; a blue box; a black tub; a clear tub; a blue and white cardboard box labelled ‘Décor’; a blue esky; a sports bag; or ‘drug-related items taken from those boxes or containers’; had not been moved into or out of the Kennards storage unit on those days. (Those items were, it should be noted, found to be present in storage unit P12 when police executed the search warrant there on 5 June 2014.)
Under cross-examination by Rekhviashvili’s counsel, Sergeant Wilkinson said that although DNA sampling was conducted no evidence of relevance was obtained. Further, in relation to various images on the computer, Mr Wilkinson agreed that the file creation date for a photo does not necessarily correspond to the date on which the image was taken. He also said that, with respect to some of the photos, it was not clear where the photos were taken. Further, he said that he became aware in the course of the investigation that Rodin and Rekhviashvili were related. Cross‑examined by Cavanagh’s counsel, Sergeant Wilkinson agreed that he could not say ‘where the cooking was done’; ‘using what process’; or ‘who the cook themselves was’. He agreed that he was unable to say what the blue box taken into the storage unit on 19 December 2013 contained.
Paul Funnell, a Detective Senior Constable of Police, executed a search warrant on Cavanagh’s address in Black Rock on 18 September 2014. He conducted a record of interview with Cavanagh (Exhibit F). Detective Funnell also said that an iPhone was seized, on which a text message from Rodin of 27 March 2014 was found. The text message said: ‘Yeah, can you grab me some nail polish remover for Lucy?’. In cross-examination, Detective Funnell indicated that he did not know who ‘Lucy’ was, and he said that there were over 11,000 messages on the phone.
In his record of interview, Cavanagh told police the following:
· he has no connection to the unit at Warleigh Grove other than that was a place where a friend of his lived;
· he knew nothing about the rental application for that property in which he was named as referee, although he agreed that the mobile telephone number on the application was one he had used for a number of years;
· he recalled that he had attended at the self-storage unit on two occasions to help a friend of his move some boxes because he has a four wheel drive;
· his fingerprints were on glassware and a can of acetone because he was a friend of Rodin’s and was inside his premises quite often, and must have touched or moved the items at some stage;
· he understood the allegations and ‘completely’ denied the manufacture of drugs, saying that all he ever did was move ‘some stuff’ for a friend.
Defence cases
Rekhviashvili called no evidence. Cavanagh called one witness, Lucy Newman.
Lucy Newman, a hairdresser, had been in a romantic relationship with Rodin when she was 19 or 20 years of age (she now being 23). She got to know Rodin’s family, and became aware that Rekhviashvili is Rodin’s first cousin. In about February 2012, she met Cavanagh.
Rodin moved into Warleigh Grove in about April 2014. Ms Newman said that she would go there ‘maybe once a week’. Cavanagh was sometimes there. Ms Newman said that she had never seen the manufacture of drugs at Rodin’s premises and he had never discussed the manufacture of drugs with her. With respect to the text message of 27 March 2014, located on Cavanagh’s iPhone, she gave the following evidence:
There’s been evidence in this case that a text message, one of 11,200, was located on [Cavanagh’s] phone dated 27 March 2014?---Yes.
Talking about grabbing some nail polish remover for Lucy?---Yep.
Do you know anything about that?---I asked Greg [Rodin] to send that text message.
You asked Greg [Rodin] to send that text message?---M’mm.
Did you want four litre drums of acetone?---Just a little bit, just to take my nail polish off. I had work that night, so I ---
You had work that night?---Yes.
Where were you working at the time?---In Beaumaris at a restaurant, so I was taking orders and everything and ---
Waitressing?---Yeah, waitressing, so cracked nails and stuff isn’t a very good look and my boss didn’t appreciate it.
So the suggestion that that was a coded message, that message firstly was sent at your behest?---Yeah. At the time I didn’t have a phone as well, but — so I had to get it from Greg’s.
Ms Newman gave evidence that Rodin’s sister was seriously ill with cancer. On Sunday, 1 June 2014, she, Rodin and Cavanagh were at Warleigh Grove, when Rodin got a telephone call that his sister’s death was imminent. Rodin left to go to his sister’s bedside at hospital. Ms Newman and Cavanagh decided to tidy up for Rodin. Shown the photographs of Warleigh Grove, Exhibit B, she said that after she and Cavanagh had cleaned up, the kitchen, lounge room and bedrooms were tidier than shown in the photos.
Cross-examined by the prosecutor, Ms Newman gave evidence that her romantic relationship with Rodin commenced around December 2012. It ended when she travelled overseas in August 2013, but resumed upon her return in October 2013 (albeit it was ‘on and off’ and ‘was a complicated relationship’). Ms Newman said that she would stay at Warleigh Grove ‘maybe once a week’, and she would see Rodin ‘maybe once or twice a week’. On the night that Rodin rushed off to hospital, she ‘just cleaned his bedroom’ but ‘didn’t do the kitchen’. Cavanagh cleaned the kitchen because she had dermatitis on her hands. Ms Newman did not know what Cavanagh tidied in the kitchen while she cleaned the bedroom, but the kitchen was tidy when she came out of the bedroom.
Significantly, the prosecutor did not at any stage suggest to Ms Newman that she was lying or mistaken in her evidence. Whilst he explored the issue as to whether she could have obtained nail polish remover from other sources (such as a pharmacy), her evidence was never directly challenged. Importantly, he did not — as was the prosecution case — ever confront Ms Newman with the suggestion that the text message to Cavanagh on 27 March 2014 was a coded message, or that the ‘cleaning’ was an invention.
Rekhviashvili’s conviction application — Is the verdict unsafe and unsatisfactory?
The applicant’s submissions
Rekhviashvili’s counsel submitted that the prosecution case was entirely circumstantial. There was no direct evidence as to when and where the methylamphetamine was manufactured and on how many occasions, and no evidence as to the method of manufacture.
Counsel submitted that Rekhviashvili’s association with Rodin (they being cousins), and his several visits to Kennards, were insufficient to found guilt. The fingerprint on the bottle found at Warleigh Grove could not, it was argued, assist in proving Rekhviashvili’s involvement in the manufacture of methylamphetamine (or in proof of the other charges).
It was not disputed that Rekhviashvili had attended Warleigh Grove and Kennards. The finding of his fingerprint on the Pyrex dish in a box in the storage unit was insufficient — either alone or in combination with the other evidence — to prove his involvement in any of the offences. It was submitted that evidence was absent that the Pyrex dish had been used in the manufacture of methylamphetamine. Rekhviashvili’s fingerprint, it was argued, could have been placed by him on the dish at Warleigh Grove prior to its removal to Kennards. The expert evidence concerning fingerprints established that fingerprints could not be dated, so that it could not be concluded when a fingerprint was deposited on a particular item. Moreover, it was not possible to determine where an item was located at the time when a particular fingerprint was deposited.
Other than the fact that quantity of more than three kilograms of methylamphetamine was found at two places, the evidence was insufficient, so it was submitted, for the jury to conclude beyond reasonable doubt that Rekhviashvili intended to traffick (by manufacture) a large commercial quantity of methylamphetamine, or that he had the requisite knowledge, or performed the necessary acts, as a possessor of the drug trafficking equipment and the precursor chemicals.
It was submitted that Rekhviashvili’s presence at Warleigh Grove, the taking of his photograph there by an unknown person and the finding of a photograph of two cheques payable to him on Rodin’s computer, admit of an innocent association that cannot be reasonably excluded beyond reasonable doubt. Rekhviashvili and Rodin are cousins and this clearly provides a plausible reason for association. His fingerprint on a glass bottle — that did not contain any illicit substance — at Warleigh Grove, merely indicated Rekhviashvili’s presence in Rodin’s premises (a matter which was not disputed), in circumstances where such presence could not be proven to have been for a criminal motive. Other than his association with Rodin, so it was submitted, there was no other evidence to link Rekhviashvili to any manufacture.
Moreover, it was submitted that, for the purposes of the first charge, the prosecution was required to establish beyond reasonable doubt that Rekhviashvili intended that a large commercial quantity of methylamphetamine would be manufactured at the time that he entered the alleged joint criminal enterprise (or at the time he aided and abetted Rodin), prior to engaging in any of the acts that was said to form part of the commission of the offence. In developing this submission, counsel pointed to the very low purity of about 2.5 kilograms of the methylamphetamine found by police (1.6%) and lack of any evidence as to when or how or in how many lots the relevant methylamphetamine was manufactured; and the lack of any evidence as to Rekhviashvili’s role in any manufacturing process. Even if satisfied Rekhviashvili had some role in the process, the jury could not properly be satisfied that he intended to traffick in a large commercial quantity of methylamphetamine. The evidence was simply insufficient to allow a jury to be satisfied beyond reasonable doubt that Rekhviashvili intended to traffick by manufacture in a large commercial quantity as distinct from a commercial quantity or trafficking simpliciter.
Ultimately, it was submitted that the weaknesses in the evidence obliged the jury to come to a different conclusion in relation to each charge.
The respondent’s submissions
Counsel for the respondent submitted that the verdict of the jury was not unreasonable and was supported by the evidence, the cumulative effect of which allowed the jury to return guilty verdicts on all charges. The prosecutor’s primary submission at trial had been that Rodin, Cavanagh and Rekhviashvili were acting pursuant to a joint criminal enterprise to commit each of the offences on the indictment. In the alternative, it was argued that Rodin was the principal offender in relation to each charge and that Rekhviashvili was complicit by aiding and abetting Rodin. Although there was no direct evidence of manufacturing occurring at Warleigh Grove, it was argued that the jury could infer a process of manufacturing had occurred there in the charged period, using the equipment, substances and material found at Kennards.
In summary, the respondent argued that the evidence of association between Rodin, Cavanagh and Rekhviashvili; Rekhviashvili’s fingerprints on a bottle at Warleigh Grove and a Pyrex dish at Kennards; his presence at Warleigh Grove (evidenced by photos on the computer); and his multiple visits — sometimes alone — to Kennards (which required use of a PIN to access the storage unit); were all sufficient to establish Rekhviashvili’s complicity in the charged offences. Moreover, the combined effect of the evidence — the finding of in excess of three kilograms of methylamphetamine; the quantity of materials that could be used in the manufacturing process; and the quantities of pseudoephedrine, iodine and solvents found (and their potential yield) — permitted a reasonable inference to be drawn that Rekhviashvili intended to traffick a large commercial quantity of methylamphetamine.
Analysis
In our opinion, the applicant’s contention that the verdicts are unsafe and unsatisfactory cannot be accepted. Having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Rekhviashvili was complicit in the trafficking alleged in the first charge on the indictment, and jointly possessed the equipment and chemicals the subject of charges 2 to 5.
It was not disputed by Rekhviashvili at trial that Rodin was involved in the manufacture of drugs. Indeed, towards the beginning of his final address to the jury, counsel said:
Tell you what, if I was standing here acting for Mr Rodin I’d be tapping the mat. Absolutely tapping the mat. There’s no doubt Mr Rodin is a drug manufacturer. The evidence clearly establishes that. …
Beyond the concession that Rodin was a ‘drug manufacturer’, the preponderance of evidence established that Rekhviashvili enjoyed a close relationship with both Rodin and Cavanagh (albeit that he was Rodin’s cousin), and that he had a substantial connection to both Warleigh Grove and Kennards. His photograph — apparently taken at Warleigh Grove — was on a computer found at the premises, and his fingerprints were found on a bottle located at the premises.
Perhaps more significantly, Rekhviashvili made eight separate visits — three of them alone — to Kennards, where paraphernalia and substances necessary for the production of methylamphetamine were found. Thus, on 3 May 2014, at around 8.00am, Rekhviashvili and Rodin arrived at Kennards in a black vehicle, and Cavanagh arrived in a white vehicle. They moved various containers and items — apparently taken from storage unit P12 — into the two vehicles and left. They returned just before 5.00pm and appeared to return the items that had been removed earlier in the day. Almost two weeks later, on 16 May 2014, Rekhviashvili and Rodin went to Kennards; and the next day Rekhviashvili and Cavanagh went there (although nothing appeared to be moved on either day). A week later, on 23 May 2014, Rekhviashvili and Rodin in one vehicle, and Cavanagh in another, went to Kennards and took away various items and containers, Rekhviashvili apparently returning the items and containers — alone — a few days afterwards, on 29 May 2014. Thereafter, Rekhviashvili visited Kennards on two further occasions, on 31 May and 1 June 2014. Given that access to the storage unit could only be gained by use of a PIN, it was open to the jury to infer that Rekhviashvili had knowledge of what the unit contained. He had, after all, moved containers and items into and out of the storage unit, and had visited Kennards unaccompanied on three separate occasions; and he was also the last person to move the containers prior to their discovery by police when the search warrant was executed on the storage unit.
Importantly, Rekhviashvili’s fingerprint was found at Kennards on a glass Pyrex dish (Item 23A) — which, it might readily be inferred, was used in the production of methylamphetamine — the Pyrex dish being stored amongst other drug manufacturing paraphernalia and substances at Kennards.
Given that quantities of methylamphetamine, precursor chemicals and scientific glassware were stored at Kennards, and further given Rekhviashvili’s activities connected to storage unit P12, it was, we think, properly open to the jury to conclude that Rekhviashvili was complicit with Rodin and Cavanagh in the manufacture of methylamphetamine. Moreover, given the nature and quantities of methylamphetamine found at Warleigh Grove, and the receptacles in which the illicit drugs were found, a jury would have been justified in concluding on the criminal standard that the manufacturing process occurred at Warleigh Grove, notwithstanding Dr Neely’s evidence that he was unable to say where any manufacture occurred, and the evidence of Sergeant Blake that there was no active drug laboratory at Warleigh Grove at the time that the search warrant was executed. A jury might readily have inferred that containers and items were removed from storage unit P12 by Rekhviashvili (and Rodin and Cavanagh) so as to be utilised in the manufacture of methylamphetamine, and were returned once they had been put to that use.
Furthermore, in our view it was open to the jury to be satisfied beyond reasonable doubt that Rekhviashvili had the intention to traffick in not less than a large commercial quantity of methylamphetamine. The finding of in excess of three kilograms of methylamphetamine (in a mixture) at Warleigh Grove, taken together with the quantities of pseudoephedrine, iodine, solvents and other materials found at Kennards, amply supported that inference.[18]
[18]We note that, before the judge had completed delivering his charge, the jury asked the question, ‘When calculating the quantity of methylamphetamine, how do we treat Exhibits 28 and 29 when most of the contents was water with very low purity of methylamphetamine?’ (It will be remembered that Exhibits 28 and 29 were found together with a beaker with Cavanagh’s fingerprints on it, Exhibit 27A, in a Woolworths basket in the second bedroom at Warleigh Grove.) Exhibit 28, a bottle, contained methylamphetamine in liquid form (466 grams of 1.6% purity); and Exhibit 29, a plastic container, contained methylamphetamine in liquid form (2015.4 grams of 1.6% purity). No complaint was made about the judge’s directions, which made clear that, for the purposes of the first charge, an intention to traffick in a large commercial quantity of methylamphetamine was necessary for conviction.
In oral argument, counsel sought to make much of the fact that almost 2.5 kilograms of the methylamphetamine found at Warleigh Grove was very low in purity. Thus, Exhibit 28, a glass bottle found in a Woolworths basket in the second bedroom, contained 466 grams of methylamphetamine in liquid form, but the purity was a mere 1.6 per cent; and Exhibit 29, found in the same place, was a plastic container which held 2015.4 grams of methylamphetamine in liquid form, also with a purity of 1.6 per cent. It must be recognised, however, that the intention required for the first charge on the indictment was an intention to traffick by manufacture in a large commercial quantity as defined by the Drugs, Poisons and Controlled Substances Act 1981. Hence, an intention to manufacture either 750 grams of pure methylamphetamine, or to manufacture one kilogram of methylamphetamine in a mixture,[19] is sufficient to found a conviction for trafficking in not less than a large commercial quantity of the drug. The Act does not prescribe the percentage of methylamphetamine (or other drug of dependence) that must be found in any mixture of methylamphetamine and another substance, so that there is no legislatively prescribed threshold of percentage or quantity of any drug of dependence that must be found in a relevant mixture. In this case, the quantity of methylamphetamine in the relevant mixtures — although relatively low — was more than a minute quantity.[20] Taking the evidence of the total quantity of the mixtures of methylamphetamine and other (liquid) substance together with the other circumstantial evidence, we are of the view that it was open to the jury to be satisfied beyond reasonable doubt that Rekhviashvili intended to traffick in no less than a large commercial quantity of methylamphetamine.
[19]Drugs, Poisons and Controlled Substances Act 1981, Schedule Eleven, Part 3, Columns 1A and 1B.
[20]Cvetanovski v The Queen (2015) 250 A Crim R 191, 203 [69] (Priest JA). See also Williams v The Queen (1978) 140 CLR 591; R v Bourke (1993) 67 A Crim R 518; Paul v Collins [2003] WASCA 238; R v Singh [2005] QCA 403; R v Khajehnoori (2005) 156 A Crim R 197.
We are also of the view that the evidence overwhelmingly established that Rekhviashvili had joint possession of the equipment and chemicals which were the subject of charges 2 to 5 on the indictment. The evidence of his visits to, and his transportation of items to and from, the storage unit, amply demonstrated that he exercised, and intended to exercise, physical dominion and control over the relevant equipment and precursor chemicals.
In considering whether the verdicts are unsafe and unsatisfactory, we are required to carry out our own independent assessment of the evidence. Having done so, we are in no doubt that it was open to the jury to convict Rekhviashvili of the offences with which he was charged.[21] When the various items of circumstantial evidence are considered as a whole, in our view they paint a compelling picture of guilt. For the reasons we have endeavoured to explain, we entertain no doubt as to his guilt.[22]
[21]M v The Queen (1994) 181 CLR 487, 493 (‘M’). See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’); SKA v The Queen (2011) 243 CLR 400, 408 [20]–[21]; R v Klamo (2008) 18 VR 644, 653-4 [38]–[40]; Greensill v The Queen (2012) 37 VR 257, 276–7 [81]–[83]. See also R v Baden-Clay [2016] HCA 35, especially at [65]–[66].
[22]M (1994) 181 CLR 487, 494–5.
Rekhviashvili’s application for leave to appeal against conviction should be refused.
Cavanagh’s conviction ground 1 — Is the verdict unsafe and unsatisfactory?
The applicant’s submissions
Counsel for Cavanagh submitted that the prosecution case was entirely circumstantial, there being no direct evidence as to when or where the methylamphetamine was manufactured, and in how many batches.
It was not in issue that Cavanagh knew Rodin and assisted him to move items to and from the storage unit on two of the nineteen occasions that Rodin attended at Kennards in the relevant period. Nor was it in issue that Cavanagh was named as a referee on Rodin’s tenancy application for Warleigh Grove. (In cross-examination, the informant accepted that Cavanagh’s account in his record of interview that he was unaware of being named as a referee, was consistent with information provided from the real estate agent.) Counsel submitted that the mere fact of an association between Cavanagh and Rodin, and his visits to the storage unit on two days, cannot have been sufficient for the jury to find the applicant guilty. Hence, the prosecution was constrained to place significant reliance upon Cavanagh’s fingerprints being on two items of glassware and on two tins of acetone, and also upon the allegedly coded text message (notwithstanding that it was the only supposedly coded message among more than 11,000 messages). That evidence, it was submitted, was insufficient for the jury to conclude beyond reasonable doubt that Cavanagh intended to manufacture a large commercial quantity of methylamphetamine or that he possessed the drug trafficking equipment and precursor chemicals.
Furthermore, the evidence of Ms Newman, so it was argued, provided a reasonable hypothesis consistent with Cavanagh’s innocence that was never the subject of challenge. Her evidence, it was submitted, plainly refuted the prosecution’s reliance on the text message as code relevant to the manufacture of methylamphetamine. It also provided a reasonable hypothesis consistent with Cavanagh’s innocence as to how his fingerprints could have come to have been located on the relevant items. In light of that evidence, it was argued, there was simply no safe basis upon which the jury could be satisfied beyond reasonable doubt of Cavanagh’s guilt.
In the alternative, it was submitted that the prosecution was required to establish that Cavanagh intended that a large commercial quantity of methylamphetamine would be manufactured at the time of entering into the joint criminal enterprise, or at the time of aiding and abetting Rodin, and from the outset of engaging in any actus reus of the offence. Given the very low purity (1.6%) of about 2.5 kilograms of the methylamphetamine, the absence of any evidence as to when or how the methylamphetamine was manufactured (including in how many batches), and the absence of any evidence as to how Cavanagh might have been involved in any manufacturing process, even if satisfied he had some role, the jury could not be satisfied to the criminal standard that Cavanagh intended to traffick in a large commercial quantity of methylamphetamine.
Finally, it was submitted that there was insufficient evidence from which it could be concluded that Cavanagh possessed, or intended to possess, the drug trafficking equipment and precursor chemicals. There were none of Cavanagh’s fingerprints at the storage unit where those items were located, and it could not be concluded that he had effective custody and control of those items.
The respondent’s submissions
The respondent submitted that it was well open to the jury to conclude the purpose of the storage unit was to store materials, substances and equipment to be used in the production of methylamphetamine. Indeed, within the storage unit a number of items which can be used in manufacturing methylamphetamine were found to contain traces of methylamphetamine, ephedrine and pseudoephedrine, and quantities of precursor chemicals (iodine, hypophosphorous acid and acetic anhydride) were also found. Cavanagh did not deny that he attended Kennards (although he provided an innocent explanation for his attendances in his record of interview). Further, the respondent submitted that although the CCTV footage did not show people actually entering the storage unit leased by Rodin — but rather showed them entering the complex and attending in the vicinity of that unit — at any time that either Rodin, Rekhviashvili or Cavanagh attended at Kennards, the evidence showed that the PIN for the individual unit leased by Rodin, P12, had been entered. Thus the jury could safely conclude that any attendance at the site, by any of the three men, was for the purpose of accessing the unit leased by Rodin.
Although none of Cavanagh’s fingerprints were found on items in the storage unit, they were found on four items at Warleigh Grove, being:
· a glass beaker which held 55.3 grams of liquid containing methylamphetamine with a purity of 1.2% (Exhibit 12);
· two four litre cans of acetone (Exhibit 16); and
· a glass beaker found in the second bedroom, washings from which confirmed traces of methylamphetamine (Exhibit 27A).
Counsel submitted that the beaker found in the second bedroom was particularly significant when assessing the potentially exculpatory evidence of Ms Newman. She did not give evidence that the second bedroom was the subject of the clean-up on 1 June 2014 (which otherwise might have explained Cavanagh’s fingerprints on Exhibit 27A). The jury therefore had a basis upon which to exclude the potentially exculpatory evidence of Newman as to how Cavanagh’s fingerprints found their way onto items at Warleigh Grove. Ms Newman’s evidence, it was submitted, could not explain how Cavanagh’s fingerprints got onto the beaker in the bedroom that held traces of methylamphetamine.
The respondent also relied on the proven association between Rodin and Cavanagh, including Cavanagh’s attendance at the storage unit, and his assisting Rodin in moving items into and out of that storage unit over a one month period shortly before the search warrants were executed; Cavanagh’s attendances at Warleigh Grove; and the text message of 27 March 2014.
Finally, as in the case of Rekhviashvili, the respondent submitted that the combined effect of the evidence — the finding of in excess of three kilograms of methylamphetamine; the quantity of materials that could be used in the manufacturing process; and the quantities of pseudoephedrine, iodine and solvents found (and their potential yield) — permitted a reasonable inference to be drawn that Cavanagh intended to traffick a large commercial quantity of methylamphetamine.
Analysis
We need not repeat the evidence concerning Cavanagh’s four visits to Kennards, or of the paraphernalia and substances located there. In light of the nature of the equipment and materials stored at Kennards, and Cavanagh’s observed activities in relation to the storage unit — which, as we have said, included taking the apparent trappings of drug manufacturing away from the storage unit and subsequently returning them — in our view it was open to the jury to reject Cavanagh’s assertion to police in his record of interview that all he ever did was move ‘some stuff’ for a friend. Cavanagh’s proven association with Rodin and Rekhviashvili, including his attendances at the storage unit, and the circumstances in which he assisted Rodin in moving items into and out of that storage unit over the period of a month or so, provided an ample basis upon which his explanation to police might be rejected.
Further — and significantly — although none of Cavanagh’s fingerprints were found on any items in the storage unit, they were found on several items at Warleigh Grove. Thus, his fingerprints were found on two of the three four litre cans of Diggers Acetone located in a kitchen cupboard, and on a glass beaker (Exhibit 12) located in an overhead kitchen cupboard, which contained 55.3 grams of liquid containing methylamphetamine (with a purity of 1.2%). His fingerprints were also found on a glass beaker (Exhibit 27A) located in the second bedroom, washings from which confirmed traces of methylamphetamine. That beaker was found in a Woolworths basket, together with Exhibit 28 — a bottle containing methylamphetamine in liquid form (466 grams of 1.6% purity) — and Exhibit 29 — a plastic container, containing methylamphetamine in liquid form (2015.4 grams of 1.6% purity). The plastic container holding over two kilograms of methylamphetamine in liquid form — that is, more than twice the legislatively prescribed large commercial quantity of mixed substance — was also inscribed with the warning ‘DO NOT TOUCH’, which is highly suggestive of a deliberate attempt to ensure that the container’s contents not be interfered with. It seems to us that the beaker’s location, in close proximity to the bottle and container, strongly point to Cavanagh’s involvement in the manufacture of methylamphetamine.
In our opinion, it was open to the jury to accept — or, for that matter, reject — the suggestion that the text message of 27 March 2014 was a coded message. The circumstances in which Ms Newman said that she made the request for nail polish are odd. Why she would convey the request through Rodin rather than directly, and why she would not obtain some herself without the need for an intermediary, is not readily apparent. But, in any event, the evidence concerning the text message strikes us as being of little moment. Even if the jury had been bound to accept Ms Newman’s evidence about the text message — which we do not consider that they were — plainly it would still have been open to the jury to convict.
On a related matter, we were informed during oral argument that trial counsel’s questions apparently linking the text message and the tins of Acetone[23] — in particular, ‘Did you want four litre drums of acetone?’ — were facetious. Insofar as it might have been insinuated, however, that the procuring of three four litre tins of Acetone was to satisfy Ms Newman’s request for nail polish — and fully recognising the absurdity of such a proposition — in our view it plainly was open to the jury to reject that insinuation. A jury would readily have inferred that, had MsNewman had a genuine need for nail polish, it would have been procured in a more modest quantity than twelve litres. In our opinion, the jury would have been justified in concluding that the quantity of Acetone found — Acetone being a substance used in the manufacture of methylamphetamine — was possessed for the production of illicit drugs.
[23]See [48] above.
Moreover, it was open to the jury to reject the notion that Cavanagh’s fingerprints were found on the glass beaker in the kitchen as a result of tidying up the kitchen. The finding of his fingerprints on another glass beaker in the second bedroom — washings from which disclosed the presence of methylamphetamine — could not readily be explained by his tidying activities. Nor do we find the suggestion that Cavanagh’s fingerprints may have been deposited on the tins of Acetone during cleaning activities to be compelling. We note in this regard that Cavanagh did not distinctly advance such an explanation to the police in his record of interview when he otherwise endeavoured to explain the presence of his fingerprints on articles at Warleigh Grove.
Taking all of the circumstances together, it was in our view open to the jury to conclude beyond reasonable doubt that Cavanagh was complicit with Rodin and Rekhviashvili in the manufacture of methylamphetamine (and in the possession of the items founding charges 2 to 5).
Finally, we agree with the respondent’s submissions that, as in the case of Rekhviashvili, from the combined effect of the evidence — the finding of in excess of three kilograms of methylamphetamine; the quantity of materials that could be used in the manufacturing process; and the quantities of pseudoephedrine, iodine and solvents found (and their potential yield) — a reasonable inference was capable of being drawn that Cavanagh intended to traffick not less than a large commercial quantity of methylamphetamine.
Ground 1 of Cavanagh’s application for leave to appeal against conviction cannot be sustained.
Cavanagh’s conviction ground 2 — Breach of the rule in Browne v Dunn
In the respondent’s written case, counsel conceded that the prosecutor had breached the rule in Browne v Dunn.[24] That was a realistic concession, particularly given the prosecutor’s apparent concession to that effect at trial. In oral argument, however, senior counsel for the respondent partially resiled from the concession, although he did accept that with respect to at least one matter, there had been a ‘technical breach’ of the rule.
[24](1893) 6 R 67.
The prosecution case against Cavanagh relied (amongst other things), first, on a text message sent from Rodin’s mobile phone to Cavanagh’s mobile phone on 27 March 2014, asking that Cavanagh obtain ‘some nail polish remover for Lucy’ (the prosecution case being that this was a coded reference to obtaining acetone to assist in the manufacture of methylamphetamine); and, secondly, Cavanagh’s fingerprints being found on two glass beakers and two tins of acetone found at Warleigh Grove. In her evidence, Ms Newman provided a possible innocent explanation for both the text message and for the fingerprints located at Warleigh Grove. Despite this, however, when cross-examining Ms Newman, the prosecutor did not directly challenge her account by suggesting that she was lying; and in his closing address submitted to the jury that Ms Newman was not a credible or truthful witness, that she was obviously biased and that her evidence should be rejected.
Notwithstanding that the respondent conceded at least a ‘technical’ breach of the rule in Browne v Dunn, however, it was submitted that no substantial miscarriage of justice had resulted. It was pointed out that, when challenged by the judge, the prosecutor immediately withdrew his submissions and explained to the jury why he could not maintain them. Thus, the respondent submitted, both the failures of the prosecutor in cross-examination, and the reasons for his submissions being inappropriate, were highlighted in clear and unambiguous terms. Counsel for Cavanagh neither applied for the jury to be discharged, nor sought a specific direction from the trial judge concerning the prosecutor’s breach. Instead, so it was argued, a decision was made by Cavanagh’s counsel that, rather than seek a discharge or any specific direction, he would take tactical advantage of the prosecutor’s error and highlight it to effect in his closing address.
In order to gauge whether — despite the acknowledged breach of the rule — the submission that there has been no substantial miscarriage of justice can be upheld, it is necessary to review briefly the manner in which the matter unfolded at trial.
In the course of his final address, when dealing with the evidence of Lucy Newman — which we need not repeat — the prosecutor said (among other things):[25]
I now turn to the evidence given yesterday by the witness Lucy Newman. The prosecution says in relation to her that she is not a credible or truthful witness and accordingly you should reject her evidence.
She was not an objective witness. She’s obviously biased. She was the girlfriend and certainly a friend of one of the principle participants in the manufacture of methylamphetamine, namely Gregory Rodin. She also knew each of the accused. She regarded the accused man William Cavanagh and his partner as a friend.
So first, the prosecution says that she’s not an objective or unbiased witness.
…
She was obviously a witness that was put forward to provide some sort of alibi for the fact that there couldn’t have been a process of manufacturing at the Warleigh Grove apartment in the relevant period. …
[25]Emphasis added.
Shortly after the prosecutor had made these remarks, the judge called for a break. He then said to the prosecutor:
HIS HONOUR: Yes, Mr [Prosecutor], I just raise this. I don’t know if defence counsel are intending to raise the matter but I am a little concerned with some of the comments that you've just made in relation to the witness Lucy Newman because I don’t recollect you cross-examining her and putting to her that she was lying, that she was deliberately telling untruths and things of that nature and it seems to me that some of the comments that you’ve made in your address may come very close to that so out of an abundance of caution first and out of fairness to you, I’ve sent the jury out. Now, I don’t know if defence counsel are going to take issue with that or not. If they are, perhaps now is an appropriate time. I don’t know. It’s a matter for you. I just raise it. It is something that does concern me.
Having then heard defence counsel — who suggested that the prosecutor should withdraw the remarks — there was a detailed exchange between the judge and prosecutor, part of which included the following:
[PROSECUTOR]: Well look, I agree, I did not specifically put to her that she was lying but I thought I sufficiently tested her evidence including putting to her that she was a friend of the Rekhviashvili, sorry, of Cavanagh and her partner and also put to her specifically, well, I asked her a lot of questions about her relationship with Rodin. Although I didn’t specifically put to her that she was lying, it’s obviously [sic.] from the cross-examination that I did – that I was challenging her in relation to every aspect of her story.
HIS HONOUR: That wasn’t apparent to me. It seems to me that you’ve gone beyond that. It’s one thing to cross-examine her so that potential comment can be made about inconsistencies that she might raise, the vagueness of her evidence and criticise her about those factors. It seems to me it’s different to portray her as in effect being deliberately dishonest. Now, I've raised the matter at this stage. That’s my preliminary view.
[PROSECUTOR]: Yes.
HIS HONOUR: I'll give you the opportunity, if you wish, to deal with it in your address.
…
HIS HONOUR: I think you’ve said that she was called, there’s a convenient story to explain why the prints weren’t on an item. Now that’s imputing deliberate dishonesty on her behalf. None of that was covered in the cross-examination. … And she’s got to be given the opportunity to deal with it.
[PROSECUTOR]: Yes.
HIS HONOUR: Browne v Dunn applies to both sides of the Bar table. I mean, if it was one of your witnesses and an address like this was made I imagine you'd be screaming. Think about it.
[PROSECUTOR]: I'm going to withdraw my remarks about it but one of the reasons I didn’t specifically put to her that she was lying was that, well, I can’t say that she was lying.
Not long after the prosecutor’s address resumed, he told the jury the following:[26]
Mr Foreman, members of the jury, I was making submissions to you about the witness who was called yesterday by the defence on behalf of Mr Cavanagh, Lucy Newman.
I was going over some of the submissions that I made to you before I moved on to the next topic. I think having reviewed what I said to you, I think I went far too far in some of the submissions that I made to you. All those submissions that I made to you about her being an untruthful witness and that she was called specifically to explain away how fingerprints got on certain items.
I went too far because I didn’t specifically put to Ms Newman in fairness to her, that she in fact was making the story up in relation to the clean-up and also in relation to the Lucy SMS text message on 27 March 2014. I just went too far, given that I didn’t go so far as to put to her specifically. As a matter of fairness, I should have done [sic.] yesterday that she was in fact lying or made the story up or was giving evidence to assist people with whom she was friendly.
So all those submissions I withdraw but in relation to her evidence, I say this. You should closely scrutinise her evidence, closely scrutinise the nature of her relationship with key players in the manufacturing process; Greg Rodin and the accused William Cavanagh. Consider critically any vagueness in her account of important events and inconsistencies in her evidence to determine whether you accept any or all of her evidence. So that's what I want to say about the witness Lucy Newman.
[26]Emphasis added.
As we have mentioned, counsel for Cavanagh made no application to discharge the jury based on any supposed breach of the rule in Browne v Dunn. Moreover, the judge gave no direction about the prosecutor’s breach of the rule in his charge to the jury,[27] and, indeed, no direction was sought by counsel.
[27]The judge did, however, give the conventional direction that the jury could accept or reject the comments and arguments of counsel.
In his own final address, counsel for Cavanagh did, however, seek to take forensic advantage of how the prosecutor had approached the matter. By way of example, counsel advanced the following in his address:[28]
[28]Emphasis added.
Lucy Newman is so important in this case, perhaps that’s why the learned prosecutor so thoroughly over cooked and then retracted his dismissal of her. Lucy Newman is young. She’s perhaps not terribly clever. She may have appeared — and you might think it’d be difficult to be put into that witness box, knowing that your evidence is central, she might have been very nervous and she had that mannerism of giggling a bit when she got confused.
…
There is no confusion in Lucy Newman’s mind about dates when you give her something to work with — not in the abstract. She was golden in that regard, and you might think it was a bit of mismatch. I knew about it, I’m calling this sort of ditsy [sic.] girl in her early 20s to give evidence. She’ll be cross-examined by a prosecutor with decades of experience, for whom this is his war and his show. Bit of a mismatch. It’s like sending Mother Theresa out to face Mike Tyson.
She got into the witness box and she gave a compelling story, I submit, one Mike Tyson didn’t lay a single glove on. She was cross-examined at length.
...
Never — never once — was she challenged about her honesty or truthfulness in giving her evidence. That’s what he had to back away from at a million miles an hour yesterday. It was never suggested she was imaging [sic.] things, making up, lying and what-have-you. She gave unchallenged evidence that Greg Rodin had never discussed manufacturing of drugs in her presence, and he didn’t do so, didn’t have such discussions in the presence of Will Cavanagh when he was there. Never challenged about that. …
It was suggested in the learned prosecutor’s closing address to you that she wasn’t independent because she’d been in a relationship with Greg Rodin and remained his friend ...
Ask yourself this question. On the Sunday afternoon at your house, are you going to find totally independent strangers there? If something happens in your house this Sunday afternoon, is it going to be packed with totally independent strangers? Of course not.
The reality of life is that in your house you have your friends and your families and sometimes acquaintances.
It seems plain that, rather than seek a discharge of the jury, counsel for Cavanagh was content to have the prosecutor suffer the ignominy of having to withdraw his remarks, and to seek to take forensic advantage of that forced retraction. Generally speaking, a person in Cavanagh’s position is bound by the forensic decisions made on his behalf by counsel.[29] Thus, where counsel at trial has made what appears to be a rational forensic decision, it is difficult for this Court to conclude that ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.[30]
[29]TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 225 ALR 161; Patel v The Queen (2012) 247 CLR 531. See also R v Arundell [1999] 2 VR 228, 249–50 [53]–[54] (Callaway JA); R v Mateiasevici [1999] 3 VR 185, 196 [37] (Chernov JA); MB v The Queen [2012] VSCA 248, [45] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 271 [55] (Redlich, Osborn and Priest JJA); Parsons (a Pseudonym) v The Queen [2016] VSCA 17, [78] (Maxwell P, Redlich and Priest JJA). Compare Allen (a pseudonym) v The Queen [2016] VSCA 59, [61]–[86].
[30]Criminal Procedure Act 2009, s 276(1)(b).
Moreover, counsel sought no direction to the jury modelled on Browne v Dunn, and took no exception when no such direction was forthcoming in the judge’s charge. Given the prominence that the matter had attained, it is unlikely that counsel simply overlooked the topic. Indeed, it seems to us to be likely that counsel was satisfied with the following direction that was given in the course of the charge:
No one can tell you how to approach any particular witness’ evidence in this regard. Obviously, if a witness is not challenged then you might be more willing to accept what that witness has said. It is for you to judge whether the witnesses have told the truth and whether they correctly recalled the facts about which they have given evidence. This is something you do all the time in your daily life. There is no special skill involved in this, you just need to use your common sense.
In this Court, counsel for Cavanagh submitted that what had occurred had been an ‘irregularity’,[31] requiring the Court to set aside the conviction unless satisfied that conviction was inevitable.[32] We reject that submission. Upon the assumption that there had indeed been ‘an irregularity in, or in relation to, the trial’, in our view it is not open to the applicant to contend that ‘there has been a substantial miscarriage of justice’[33] in circumstances where — as here — the applicant’s trial counsel has adopted a deliberate forensic strategy calculated to take advantage of the irregularity.
[31]Ibid.
[32]See Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659.
[33]Criminal Procedure Act 2009, s 276(1)(b).
Finally, we also reject the submission of Cavanagh’s counsel that there were ‘substantial and compelling reasons’ for giving the jury a direction modelled on Browne v Dunn despite trial counsel’s failure to request such a direction.[34] In an ordinary case, where a prosecutor has breached Browne v Dunn in the course of his or her cross-examination of a defence witness, the trial judge would be obliged to direct the jury that they should take into account that the prosecutor had failed to raise matters with the witness during the course of his or her evidence and that the jury might take that into account when considering whether or not they should accept the prosecutor’s arguments as to the facts to which those matters relate.[35] In this case, the prosecutor unequivocally acknowledged the shortcomings of his cross-examination to the jury; and the judge directed the jury that ‘obviously, if a witness is not challenged then [the jury] might be more willing to accept what that witness has said’. It would have been plain to the jury that they might take the prosecutor’s failures into account when assessing Ms Newman’s evidence and when considering the prosecutor’s arguments concerning her evidence.
[34]Counsel referred to s16(1) of the Jury Directions Act 2015.
[35]Smith v The Queen [2012] VSCA 187, [53].
Ground 2 is without substance.
Cavanagh’s sentence application
In the circumstances set out above, Cavanagh was sentenced to a total effective sentence of 7 years’ imprisonment with a non-parole period of 3 years.
The trial judge formed the view that the charge of trafficking a large commercial quantity of methamphetamine (charge 1) captured the essence of the applicant’s criminality and no cumulation was necessary beyond the sentence imposed on this charge.
At the date of sentence, the applicant was 32 years old. He had been a heavy drug user since his time as a university student and had relevant prior convictions including, in particular, a conviction in 2009 for trafficking methamphetamine and a conviction in 2011 for possession of methamphetamine for sale.
The sentencing judge nevertheless formed the view that the applicant’s prospects of rehabilitation were good,[36] and accordingly, fixed a non-parole period which would facilitate a lengthy period of supervised reintegration into the community. The respondent submits and we accept that the sentence imposed could be described as ‘moderate’. Indeed, it might be regarded as merciful.
[36]DPP v Rodin (Unreported, County Court of Victoria, Judge Meredith, 22 April 2016) [87].
The application for leave to appeal against sentence is made on the basis of new evidence which has come to light since the applicant was sentenced. That evidence demonstrates that the applicant was suffering from undiagnosed bowel cancer at the date of sentence and that he is now terminally ill.
In these circumstances, the time for appeal should be extended and the applicant should be granted leave to appeal. The evidence of the applicant’s medical history, his diagnosis and prognosis are admissible under the principles stated in R v Eliasen:
this Court may, if it considers the case an appropriate one so to do, permit evidence of matter or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence. … if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.[37]
[37](1991) 53 A Crim R 391, 394 (Crockett J with whom McGarvie and Phillips JJ agreed). Applied in R v Williams [(Unreported, Supreme Court of Victoria, Court of Appeal, Chernov JA, Crockett and Southwell AJJA, 18 September 1995); R v Morgan (1996) 87 A Crim R 104; R v Mitchell (2000) 112 A Crim R 315; R v Nguyen [2006] VSCA 184, [36]–[37]; R v Schmidt [2010] VSCA 5, [22].
The evidence demonstrates that:
(a) the applicant commenced suffering from bowel and stomach pain together with diarrhoea in late 2015. He first attended Sandringham Hospital where he was treated for stomach cramps. He then attended a general practitioner who diagnosed an infected bowel and prescribed antibiotics;
(b) after his imprisonment, the applicant was initially diagnosed by a prison doctor at Fulham Correctional Centre in mid-April 2016 with irritable bowel syndrome;
(c) after the sentence on 22 April 2016, the applicant continued to suffer from cramping in his stomach and diarrhoea;
(d) in early August 2016, he was diagnosed with Crohn’s disease and prescribed steroids. Nevertheless the stomach cramping and diarrhoea continued. On 16 August 2016, he was taken first to Sale Hospital and then to St Vincent’s Hospital, Melbourne where he was found to have a perforated bowel and sepsis;
(e) on 19 August 2016, he was diagnosed with colorectal cancer and underwent a colectomy for the purpose of removing a large tumour from his bowel. This required the removal of a 60 centimetre portion of the large bowel;
(f) subsequent treatment has involved chemotherapy which has required him to move between prison and the secure ward at St Vincent’s Hospital on a recurrent basis. The treatment has a number of side effects including lethargy, aching in the upper limbs, mouth ulcers and sleep disruption;
(g) on 7 September 2016, Dr James McCracken of the Oncology Department at St Vincent’s Hospital reported:
William’s prognosis is poor. Genetic testing performed upon his tumour for extended RAS-sequencing has shown his colorectal cancer to have a BRAF V6003 mutation, which is associated with a very aggressive clinical course and insensitivity to various chemotherapy agents. If William’s disease is truly stage 3c disease, this gives him a 5 year survival of approximately 28%. If this is metastatic bowel cancer, his chances of being alive at 5 years are 6%. The median survival for someone with metastatic colorectal cancer is approximately 2 years, though I think given Williams’ [sic.] aggressive disease, this would likely overestimate his prognosis.
(h) a subsequent scan has confirmed that the applicant has metastatic colorectal cancer:
The Nuclear Medicine Whole Body Bone Scan with SPECT/CT (Bone Scan) shows William to have a metastasis on his coccygeal bone. This scan was performed due to recent complaints of pain in the lower back. This scan confirms that he has metastatic colorectal cancer.
The role of chemotherapy in the setting of metastatic cancer is to alleviate the symptoms associated with cancer, and to prolong life. The chemotherapy will not cure William’s cancer. William is aware that this is the intent of our treatment.
William’s prognosis is approximately 11 months. This figure is obtained from a clinical trial that included a group of patients with colorectal cancer with a mutation that William’s cancer harbours, a BRAF mutation. The median survival in this group, in the CRYSTAL trial was 11 months. William is aware of this. William will die of his cancer at some point. He is also aware of this.
William could participate in the EVICT trial, a trial run through a number of tertiary hospitals (not St Vincent’s) around Melbourne. There may also be other clinical trials William could participate in that are not run through St Vincent’s. These would offer him more lines of treatment that would inevitably extend his survival. By how long, this would be impossible to say.
In our view, this evidence justifies a modification of sentence for the following reasons:
(1) This is a case in which relevant facts in existence at the date of sentence have only become apparent subsequent to the imposition of that sentence. Diagnosis of a pre-existing terminal cancer in similar cases has led to appellate intervention on a number of occasions.[38]
[38]For example, R v Schmidt [2010] VSCA 5; Cardona v The Queen [2011] VSCA 58; Do v The Queen [2013] VSCA 189.
(2) It is apparent that the applicant’s medical condition has rendered, and will render, the physical experience of imprisonment considerably more onerous than it would be for a healthy person.
(3) The applicant has a wife and two young children and the psychological burden of separation from them upon the applicant is greatly increased by his illness and terminal prognosis.
(4) The burden upon the applicant’s wife, children and mother of separation from the applicant as a result of imprisonment during his terminal illness is exceptional. They are presently limited to two one-hour visits per week, and these are not fixed by reference to the applicant’s physical state.
(5) The applicant is a relatively young man, who must currently contemplate death in prison.
(6) The applicant’s treatment options will be maximised if he is able to pursue the opportunities identified in Dr McCracken’s most recent report.
The general principles governing the relevance of illness to the sentencing process were stated by King CJ in R v Smith:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[39]
[39](1987) 44 SASR 587, 589. See also, R v Boyes (2004) 8 VR 230, 236 [17] (Chernov JA) and the cases there referred to.
Although previous sentences are not to be regarded as precedents, there are two previous decisions of this Court which deal with analogous circumstances and support the view that the Court should intervene in a merciful manner in the present case.
In R v Schmidt,[40] the applicant was sentenced to a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and nine months, after pleas of guilty to one count of trafficking in methamphetamine, and one count of breaching a Commonwealth recognisance order. The offending was committed during the operative period of a total effective suspended sentence of two years nine months previously imposed in respect of other drug offences.
[40][2010] VSCA 5.
Subsequent to the sentence in issue, the applicant was diagnosed with metastatic oesophageal cancer and undifferentiated adenocarcinoma consistent with liver metastases, for which the only treatment was palliative. His life expectancy had reduced to something less than 12 months. The Court[41] found that the circumstances of the appellant’s health were exceptional and that, in the circumstances, he should be re-sentenced to three years’ imprisonment, suspended save for time served for a period of two years.
[41]Nettle JA, with whom Neave JA agreed.
In Cardona v The Queen,[42] the applicant was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years following pleas of guilty to one count of trafficking in pseudoephedrine in not less than a commercial quantity, one count of trafficking in methylamphetamine and one count of cultivation of a narcotic plant.
[42][2011] VSCA 58.
The sentences were moderated when first imposed because of the diagnosis of Chronic Obstructive Airways Disease affecting the applicant. Subsequent fresh evidence showed that the applicant had rectal cancer and metastases in his liver and lungs. The condition was incurable and his life expectancy was estimated to be between three to six months.
The Court[43] reduced the applicant’s non-parole period to two years and six months. The applicant had already served in excess of this period in prison and thus became eligible to apply for immediate release.
[43]Redlich JA, with whom Nettle JA and Kyrou AJA agreed.
In the present case, the burden of the applicant’s imprisonment has been and, if it continues, will be very materially affected by his cancer for the reasons we have explained. Further, his ongoing imprisonment affects his prospects of obtaining optimal medical treatment.
Moreover, as we have said, the applicant’s circumstances bring his case within the exceptional category in terms of the effects of his ongoing imprisonment upon his immediate family.
In addition, the applicant’s prognosis effectively removes the need to address the long-term risk of future offending by way of specific deterrence and renders him an inappropriate vehicle for general deterrence insofar as his non-parole period is concerned.
The admission of the new evidence re-opens the sentencing discretion because it is in the interests of justice that there be a re-sentencing in light of the new facts.
In all the circumstances, we would take a similar course to that taken in Cardona v The Queen.[44] We will vary the non-parole period by setting aside the period fixed by the judge and fixing a non-parole period of 12 months’ imprisonment. In light of the time he has already served under the sentence, Cavanagh should thus be eligible to apply for immediate release on parole.
[44][2011] VSCA 58.
We have not varied the applicant’s individual sentences of imprisonment nor the total effective sentence imposed upon him. In our view, they remain entirely justified by the need for general deterrence and denunciation of the applicant’s offending. They also constitute an ongoing specific deterrent in the event the applicant is released on parole.
Conclusion
Each application for leave to appeal against conviction should be refused.
Cavanagh’s application for leave to appeal against sentence should be granted and the appeal allowed. We would confirm the sentences imposed in the County Court, save that in lieu of the non-parole period fixed, we would substitute a non-parole period of 12 months’ imprisonment.
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