Finn v The Queen; Finn v Director of Public Prosecutions
[2011] VSCA 273
•7 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0130 |
| STEVEN LESLIE FINN |
| v |
| THE QUEEN |
| and |
| S APCR 2009 0686 |
| STEVEN LESLIE FINN |
| v |
| DIRECTOR OF PUBLIC PROSECUTIONS |
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JUDGES: | BUCHANAN JA and COGHLAN and ALMOND AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 May 2011 | |
DATE OF JUDGMENT: | 7 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 273 | 1st Revision 4 May 2012 |
JUDGMENTS APPEALED FROM: | [2009] VSC 236 (Williams J) and DPP v Finn (Unreported County Court of Victoria, Judge Chettle, date of sentence 28 April 2010) | |
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CRIMINAL LAW – Conviction and sentence – Intentionally causing injury – Post offence conduct – Whether Edwards direction required – Crown concession – Application for leave to appeal granted and appeal allowed.
CRIMINAL LAW – Conviction and sentence – Trafficking in a commercial quantity of cannabis, theft of electricity and criminal damage – Confiscation Act 1997 – Whether sufficient propensity warning given to the jury – Whether sufficient direction given in relation to intention to traffic in a commercial quantity of cannabis on a Giretti basis – Crown concession – Whether there has been a substantial miscarriage of justice under s 276(1) of the Criminal Procedure Act 2009 – Application for leave to appeal granted and appeal allowed – Conviction on one count set aside – Offender re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Michael J Gleeson & Associates |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Almond AJA, for the reasons his Honour has stated, that the application for leave to appeal against the conviction on the charge of intentionally causing serious injury should be granted, the appeal allowed, the conviction quashed and a verdict of acquittal entered.
I also agree, for the reasons stated by his Honour, that the application for leave to appeal against the conviction on the count of trafficking in a commercial quantity of cannabis should be granted, the appeal allowed, the conviction quashed and there be a new trial. In my opinion, the error identified by Almond AJA led to a substantial miscarriage of justice.
I agree that the appellant should be re-sentenced as Almond AJA has proposed.
COGHLAN AJA:
I agree that leave to appeal against both the convictions of intentionally causing injury and trafficking in a commercial quantity of cannabis should be granted. I agree with the reasons as set out by Almond AJA and with orders proposed by his Honour.
I agree that application for leave to appeal against the convictions on the charges of theft of electricity and criminal damage should be refused for the reasons set out by Almond AJA.
ALMOND AJA:
These applications for leave to appeal follow trials in the Supreme Court and the County Court.
After the Supreme Court trial the applicant was found guilty of intentionally causing injury by jumping on the head of an apparently unconscious victim.
Following a plea in mitigation he was sentenced to three years and nine months’ imprisonment with a non-parole period of two years and nine months.
The applicant now seeks leave to appeal against this conviction and sentence.
After the County Court trial the applicant was found guilty of trafficking in a drug of dependence namely cannabis in a quantity not less than a commercial quantity (count 1) and one count of theft of electricity (count 4). Prior to the commencement of the trial the applicant pleaded guilty to one count of theft of electricity at another premises (count 5) and one count of criminal damage (count 6).
The applicant was sentenced on the count of trafficking a commercial quantity of cannabis (count 1) to eight years’ imprisonment and on the counts of theft of electricity (count 4 and count 5) to 15 months’ and 10 months’ imprisonment respectively and on the count of criminal damage (count 6) to 12 months’ imprisonment.
The judge ordered that three months of the sentence imposed on count 4 and count 6 be served cumulatively on the sentence imposed on count 1 making a total effective sentence of eight years and six months. His Honour set a non-parole period of five years and six months.
The applicant now seeks leave to appeal against conviction and sentence on count 1 (trafficking), counts 4 and 5 (thefts of electricity) and count 6 (criminal damage).
The circumstances in relation to intentionally causing injury[1]
[1]Taken substantially from the sentencing remarks of the trial judge.
On 24 October 2003 a couple returned home to find a male person, the victim, apparently burgling the house. The applicant, who lived nearby, was contacted. He drove around to the house and engaged in a physical altercation with the victim in the garden at the front of the house. When the victim began to get the better of the applicant, the male occupant of the house stepped in and hit the victim twice knocking him out with an upper cut to the chin. The victim’s head landed on a concrete path and he lay unconscious on the ground. The male occupant then sat astride the victim and hit him several more times in the face with a closed fist and then got off. Seconds later the applicant jumped on the apparently unconscious victim’s head with both feet about three times.
Soon afterwards the applicant asked the female occupant of the house to get him some clothes, a pair of shoes and a rubbish bag, which she did. The applicant then rang a person he knew from work and told him to come to the house. Upon his arrival the applicant gave this person a rubbish bag which contained clothes and instructed him to throw it into a bin. He subsequently did so.
As a result of the physical altercation the victim suffered very serious injuries some of which are permanent.
There were six grounds of appeal against conviction.
For reasons that follow, it is only necessary to refer to ground six, which is that the judge erred in failing to give a direction to the jury in respect of the evidence and argument of the Crown as to the post-offence conduct of the applicant in arranging for the disposal of clothing.
At the hearing of the appeal counsel for the Crown acknowledged that at trial the Crown had relied on this post-offence conduct as evidence capable of demonstrating a consciousness of guilt in the applicant and in the circumstances an Edwards direction was required but not given.[2] An Edwards direction would have warned the jury that there may be reasons for the post-offence conduct which did not involve consciousness of guilt. It was further conceded in submissions that the Crown could not successfully invoke the proviso to s 568(1) of the Crimes Act 1958 since the post-offence conduct was relied on by the Crown to corroborate the evidence of the Crown’s central witness whose evidence had to be accepted by the jury beyond reasonable doubt in order to find the applicant guilty. In my opinion these concessions were properly made.
[2]Edwards v R (1993) 178 CLR 193; R v Ciantar (2006) 16 VR 26, 52, [86].
The applicant has twice stood trial in the Supreme Court on charges arising out of these events, the jury having been discharged during the first trial. As at the date of the hearing of the appeal the applicant’s head sentence for this offence had expired.
In the circumstances the Crown submitted that rather than direct a new and third trial the Court should exercise its discretion to quash the applicant’s conviction and direct a judgment and verdict of acquittal to be entered. I consider that this is the appropriate disposition of this appeal and that orders should be made in those terms.
The circumstances in relation to trafficking in cannabis[3]
[3]Taken substantially from the sentencing remarks of the trial judge.
In early 2004 the applicant resided at premises he owned and also at premises owned by his father. In late 2004 the applicant leased other premises.
Between July 2004 and August 2006 the applicant conducted the business of cultivation and sale of cannabis. A series of cannabis crops were grown in sophisticated hydroponic setups with timers, lights, watering systems and partial electrical bypasses. These bypasses allowed power to be stolen for the purpose of cultivation but also allowed some electricity usage to be metered.
An accomplice of the applicant, Mr Anthony Grima, gave evidence at the trial to the effect described, and that every month or so during the period commencing early 2004 until August 2006 the applicant would deliver multiple pounds of cannabis for sale ranging between 4 pounds and 10 pounds at any one time. Mr Grima sold the cannabis at between $2 600 and $2 700 per pound and paid the applicant $2 500 per pound of cannabis sold. Mr Grima gave evidence of attending at premises occupied by the applicant and of observing cannabis being grown hydroponically at both places.
Mr Grima also gave evidence of the applicant selling 4 pounds of cannabis to a man in Hawthorn in 2004 and in April 2006 delivering in excess of 9 pounds of cannabis to one Mario Katsoulis in East Malvern. Telephone intercept material tendered by the Crown demonstrates that the applicant was selling cannabis in 2006 to a man named Smith. The telephone intercept material also recorded the applicant talking about the profits he was making from his activities. On 10 June 2006 the applicant told an associate that he had ‘just about made me million’ and that he was too scared to buy another house because ‘they make up a law and just take ’em’. Subsequently the applicant informed Mr Grima’s de facto wife and the applicant’s covert lover to ‘give me two years, we’ll have five or six hundred grand, two years, that’s all it will take me I’ve nearly made me million’. These conversations occurred at a time when the applicant’s sole source of income was cannabis dealing. In other recorded telephone calls the applicant advised Mr Smith in substance that the cannabis he had grown recently was ‘not ready’ meaning it was too green or wet.
On 30 August 2006 police executed search warrants at the premises of the applicant. No cannabis was located at one of the premises although one of the rooms in the house had been modified to enable cannabis to be grown. At another premises 14 plants were found growing hydroponically. These plants weighed in excess of 50 kilograms wet without roots.
In his sentencing remarks the judge said that the applicant was very clearly an experienced and competent cannabis cultivator. He had previously cultivated cannabis at one of the premises in 1997 and 1998. At that time police located six large bushy cannabis plants growing hydroponically. These plants weighed in excess of 34 kilograms wet. The applicant pleaded guilty before another judge in the County Court on 14 September 1999 to a charge of trafficking cannabis based in part upon cultivation of these plants. In the applicant’s evidence he explained how the plants, for which he was earlier sentenced, were grown with the use of carbon dioxide. The applicant said that carbon dioxide accelerated the growth rate of cannabis.
The evidence at trial revealed that the 50 kilograms of wet cannabis seized at the premises of the applicant at the time of the applicant’s arrest would yield between 8 and 9 kilograms of dry leaves and heads. According to one expert, Mr Azzopardi, who gave evidence on behalf of the Crown, the yield would be in excess of 6 kilograms of heads. According to another expert, Professor Drennan, who gave evidence on behalf of the applicant, a lower yield figure was suggested. The judge said he was satisfied beyond reasonable doubt that something in excess of 5 kilograms of dried female heads would have been obtained from the crop cultivated at the premises of the applicant and that this gave some indication of the yield the applicant had been obtaining from earlier crops. The applicant was sentenced on the trafficking count on the basis that he had sold in excess of 21 kilograms of dry cannabis as part of an ongoing commercial activity over nearly two years which involved the regular cultivation of cannabis crops at the premises of the applicant. Taken together, the cultivation and sales quantities exceeded a commercial quantity of 25 kilograms.
The counts of thefts of electricity related to the applicant bypassing the meters at the premises at which he grew cannabis in order to conceal the unusual quantity of electricity consumed by the lights and watering systems needed to cultivate the plants. The criminal damage count arose from modifications made by the applicant to the houses belonging to others, again for the purpose of facilitating the cultivation of cannabis.
Grounds of appeal
Initially there were seven grounds of appeal against conviction. At the hearing of the appeal the applicant pressed only three grounds, namely ground 2, ground 6 and ground 7, which all relate to the applicant’s conviction on count 1 for trafficking a commercial quantity of cannabis.
Ground 2 - Confiscation Act 1997 direction
The applicant submits that the judge erred in his direction to the jury as to the operation and relevance of the Confiscation Act 1997 (‘Confiscation Act’).
During the trial there was evidence of the 10 June 2006 intercepted telephone conversation between the applicant and an associate where the applicant had said he had just about made his million and that he was ‘too scared to buy another house… They just take ‘em. They make up a law and just take ‘em’. There was cross-examination by the Crown as follows:
Then you talk about “too scared to buy another house”. You know, don’t you, Mr Finn, that houses associated with hydroponic crops can be confiscated? --- I believe so.
Houses that are in your name can be confiscated. Do you agree with that? --- They could be.
You knew that back in 2004 through to 2006, didn’t you? --- I would’ve, yeah.
That’s why you said, “Like too scared to buy another house”? --- No, that’s wrong.
That’s why you didn’t cultivate crops in houses that were in your name. Correct? --- No.
That’s why you rented [premises]? --- That’s incorrect.
Down the bottom of the page you say, “They make up a law and just take them.” See that? --- Yes.
That refers to the confiscation of houses associated with cultivation of cannabis crops, doesn’t it? Well, just any laws, tax laws or any laws that ---
Tax laws? --- It’s easy to lose a house, yeah.
At this point his Honour interposed with the following:
HIS HONOUR: Mr Beale, I’ll have to give the jury some instruction about the Confiscation Act, that as far as the law, in summary form, if you cultivate a commercial quantity as distinct from less than a commercial quantity, in property owned by you, you lose it. You can lose it.
MR BEALE: Yes.
HIS HONOUR: So the significance – I don’t want to make this more complicated than necessary but the act – commercial – the Confiscation Act, which is an act of parliament, says that if you do cultivate a commercial quantity of cannabis on land or premises owned by you, they can be forfeited.
MR BEALE: Yes.
HIS HONOUR: That’s a summary of the law, so I’ll tell you more about that later.
During his charge to the jury the judge again referred to the Confiscation Act and noted that it provided for the forfeiture of property in which certain offences have been committed. His Honour specifically referred to Schedule 2 of the Confiscation Act and informed the jury that if a person is convicted of a Schedule 2 offence under the Confiscation Act property can be forfeited. His Honour then instructed the jury as follows:
A Schedule 2 offence which is known as an automatic forfeiture or civil forfeiture provision relates to any person convicted of an offence [of] trafficking in a commercial quantity of cannabis, or a drug of dependence, or cultivation of a narcotic plant in a quantity of a drug of dependence being not less than a commercial quantity.
So if you traffic in a commercial quantity or cultivate in a commercial quantity you are liable to the automatic forfeiture provisions.
Now the Crown says two things: if you look at what Mr Finn is talking about the Crown submit, on track 4 that he is too scared to buy another house, they take them, they make up a law and just take them, that that is a reference to that very provision I have just talked to you about, that he was aware of the commercial realities of growing cannabis and that he had turned his mind to what constituted a commercial quantity.
As I say the Crown do not have to prove that he knew the 25 kilos was a commercial quantity, but certainly the Crown say he had some awareness of those provisions in what was being dealt with there, and the awareness of those provisions of course, goes, the Crown say to drawing an inference of what he was doing and what he was concerned about. (emphasis added)
Counsel for the applicant contends that there are a number of difficulties with the direction to the jury. First, counsel contended that it is not clear that the Crown was actually seeking to use the evidence in this way. It is true that the cross-examiner does not refer specifically to the automatic forfeiture provisions under the Confiscation Act which are applicable where a person is convicted of cultivating or trafficking in a commercial quantity. However, the line of cross-examination takes place squarely in the context of questions seeking to elicit admissions about cultivation and trafficking on a commercial scale. The cross-examiner asks ‘what you used to talk about was cultivating cannabis crops on a big scale.’ Answer: ‘No.’ Immediately after his Honour’s direction to the jury counsel for the Crown asked a question about the intercepted telephone call during which the applicant says ‘give me two years we’ll have 500, 600 grand’. Counsel for the Crown then suggested to the applicant ‘that’s a reference to commercial cultivation and trafficking isn’t it?’ Answer: ‘Not at all’.
The Crown did not take exception to the judge’s characterisation of the Crown’s position. Had the judge mis-characterised the Crown case or misunderstood the way the Crown was seeking to use the reference to confiscation of property, counsel for the Crown would presumably have taken issue with it.
Further, counsel for the applicant contended that the judge’s remark that during the intercepted telephone call the applicant was referring to the ‘very provision’ of the Confiscation Act referred to a line of reasoning which demonstrated the applicant’s intention to cultivate and traffic a commercial quantity.[4]
[4]Section 35 of the Confiscation Act 1997 (Vic) which provides for automatic forfeiture of restrained property if a person is convicted of a Schedule 2 offence of cultivating/trafficking in not less than a commercial quantity.
Counsel for the applicant submitted that there was no evidence that the applicant was aware of the somewhat intricate provisions of the Confiscation Act and the distinction between trafficking/cultivating a commercial quantity and trafficking/cultivating simpliciter under that Act. Arguably this is so, but it is clear that the applicant conceded that he was aware of the potential for confiscation of property generally and that this concession was made during cross-examination about cultivation of cannabis crops on a ’big scale’ and in the context of a suggestion by the Crown that the conversation was in reference to commercial cultivation and trafficking.
Furthermore, the judge’s remark must be seen in its context. The statement complained of was immediately tempered by the judge when he instructed the jury that:
the Crown say he had some awareness of those provisions in what was being dealt with there and the awareness of those provisions of course, goes, the Crown say to drawing an inference of what he was doing and what he was concerned about.
Subsequently in his redirection to the jury on the provisions of the Confiscation Act, the judge said:
the law says that if you grow a commercial quantity of cannabis or you traffic a commercial quantity of cannabis, the properties that you do it in get automatically forfeited to the Crown. I should point out to you, for completeness, that there are circumstances where growing less than a commercial quantity of cannabis can lead to an application for the forfeiture of property, but it is not automatic. … If you commit an indictable offence against the law of Victoria and cultivation of cannabis is one – property that is tainted by that, can be the subject of an application for forfeiture, but it’s not automatic forfeiture like it is if you grow a commercial quantity. So you will bear that in mind when you ask yourself “what was Mr Finn talking about on track 4 when he says ‘I’m too scared to buy another house, they take ‘em, they make up a law and just take ‘em”’.
Counsel for the applicant submitted that this redirection was not a sufficient remedy in the circumstances. I disagree. From the passage reproduced above it can be seen that the jury was instructed in relation to the forfeiture provisions of the Confiscation Act as they applied for commercial quantities and for less than commercial quantities. The jurors were then asked to ‘bear that in mind when you ask yourself “What was Mr Finn talking about… when he says ‘I’m too scared to buy another home, they take ‘em, they make up a law and just take ‘em’”’. In my opinion, the redirection on this issue was balanced and in neutral terms, which allowed the jury to make such use of the information as it thought fit. If and to the extent that a remedial direction was required, the redirection adequately redressed the position. I infer that counsel for the applicant below was satisfied with the adequacy of the redirection as no exception was taken to it.
Even if counsel for the applicant were correct in the submission that the redirection by the judge was inadequate to remedy the error, the point contended for is nuanced and relatively subtle. Section 276(1)(b) of the Criminal Procedure Act 2009 (Vic) requires the applicant to satisfy the Court that as a result of the error there has been a substantial miscarriage of justice. I am not satisfied that this is the case here.
Ground 6 - Insufficient ‘propensity’ warning
The applicant submits that the judge erred by failing to provide a sufficient warning as to the use that could be made of evidence relating to the applicant’s prior plea of guilty to cultivation of a commercial quantity of cannabis (34 kilograms) at premises he occupied in 1998.
In particular counsel submitted that:
(a) that there was a chance that the jury might reason that because the applicant had previously cultivated cannabis in 1998 it was likely that he had done so again (as alleged in count 2);
(b) that there was a danger the jury might reason that because he cultivated a commercial quantity in 1998 from six plants he must have intended to cultivate a commercial quantity (as alleged in count 2 and count 3);
(c) that because he cultivated 34 kilograms in 1998 he would have trafficked in a commercial quantity of cannabis (as alleged in count 1);
(d) that the applicant was the sort of person who would be involved in trafficking and cultivation of a commercial quantity of cannabis (as alleged in counts 1, 2 and 3).[5]
[5]In written submissions counsel also submitted that there was a danger that the jury might impermissibly use the evidence of the 1998 cultivation as tending to corroborate the evidence of an alleged accomplice, but during argument acknowledged that the judge had sufficiently directed the jury not to make impermissible use of the evidence of prior cultivation to corroborate the evidence of the alleged accomplice.
Counsel for the applicant argued that in these circumstances careful directions were needed to ensure this evidence was not misused by the jury.
It was submitted that the direction given by the judge did not adequately deal with these aspects and in particular did not sufficiently warn the jury about the risk of substituting the evidence relating to the 1998 cultivation when considering the issue of the applicant’s alleged intention to cultivate and traffic a commercial quantity of cannabis. Counsel for the applicant submitted whilst the jury were directed that they could use the evidence of the 1998 cultivation in relation to the issue of intention to cultivate and traffic in a commercial quantity of cannabis they were not adequately directed as to the ways in which this evidence could not be used.
Counsel for the respondent submitted that the judge did not err in his directions to the jury and that the initial direction and redirection were both appropriate and comprehensive.
I agree with the respondent’s submission. The initial direction to the jury was given by the judge immediately after dealing with the element of intention to traffic in a commercial quantity of cannabis and as to the inferences which the Crown argued were open on the evidence regarding this element. The direction was given in emphatic terms. The jury were instructed that the evidence was admitted ‘for one use and one use only’ and that it must only be used for the purpose of determining whether the Crown had proved that the applicant had an intention to traffic or cultivate in a commercial quantity and for no other reason.
In addition the judge said:
But what you must not do is infer or think just because [the applicant] grew cannabis [in 1998], he must have been growing cannabis [now]. The fact that he grew cannabis back in 1997 and 1998, does not mean that he grew cannabis in [premises] in 2004 to 2006.
You must not allow yourselves to think along the lines, “Well, he is the sort of person who would commit that sort of crime, therefore he did.” You can only use it to go to the issue of whether it helps you with the issue of intention and I suppose, similarly, when I am warning you about thinking, you must not think along the lines, he is the sort of person who would do it.
Following an exception taken by the prosecutor the direction was elaborated upon as follows:
And you should not, the other thing you have got to be careful of, it can be an easy trap to make, you might think it’s coincidental isn’t it, that the same premises are said to have been used on both occasions, in 1997/98 [a house] was used. You must not think just because [a house] was used in 1998, that therefore [the house’s] likely to be used in 2004/2006. That is improper logic and indeed, the defence rely upon the fact that there was a use of [the house] in 1997/98 to explain why some of the features that are there on that video were in fact there when it was found.
Counsel for the applicant relied on R v Grech in support of the proposition that the jury must be adequately warned of ways in which the evidence could not be used.[6] That case concerned the admission of evidence about earlier uncharged sexual misconduct which was extraneous to later sexual misconduct charges in the presentment. The trial judge had directed the jury that the evidence was admitted for limited purposes only. In Grech there was evidence of uncharged acts, in particular a highly prejudicial incident of sexual intercourse by the accused with his daughter which allegedly occurred in Sydney six years prior to any of the charged acts, when the complainant was only 15 years’ old. According to Callaway JA (with whom Phillips CJ and Smith AJA agreed):
The evidence of uncharged acts, and especially that relating to the incident in Sydney, was of real significance in the trial. There was more evidence about that incident than all the counts on the presentment put together. It was highly prejudicial and it was necessary for the jury to be expressly directed as to the ways in which it could not be used.[7]
[6][1997] 2 VR 609 (‘Grech’).
[7]Ibid 614.
Relevantly Callaway JA also said:
There is no set form of words that has to be used. The direction must be tailored to the circumstances of the case and apparent differences between the formulations in different judgments are often explicable on that basis. An accused is not entitled to a series of directions, each direction reflecting the language of one or other of the authorities.[8]
[8]Ibid 613.
In my opinion the initial direction, together with the redirection, were sufficient to warn the jury how the evidence could be used and how the evidence could not be used.
Even if this were not so, the applicant has not satisfied me that as a result of the asserted error there has been a substantial miscarriage of justice. No argument was addressed to this issue in the applicant’s submissions.
Ground 7 - Failure to give a direction in relation to the intention to traffic in a commercial quantity of cannabis
The Crown case on the trafficking count (count 1) depended on establishing that the applicant engaged in the regular commercial activity of growing for sale, possession for sale and sale of cannabis throughout, or at least during, a period broadly corresponding with the period alleged in the presentment namely between 1 July 2004 and 30 August 2006.[9] The essence of a Giretti count is that 'trafficking' is not confined to single acts, but connotes a continuing offence which comprehends the carrying on of a trade or business in dealing drugs and may involve multiple dealings of small quantities which accumulate into a commercial quantity.[10] To prove that the amount trafficked during the period was a commercial quantity the Crown relied on the aggregation of quantities of cannabis totalling a quantity, which exceeded 25 kilograms.
[9]Giretti v The Queen (1986) 24 A Crim R 112, 140-141; R v Peter John Allen [1995] VSC 223, [22]-[28].
[10]Giretti v The Queen (1986) 24 A Crim R 112, 134; R v Mustica [2011] VSCA 79, [30]-[32].
The applicant submitted that the judge erred in failing to direct the jury that the intention to traffic in a commercial quantity of cannabis had to be present throughout the actus reus and from the commencement of the trafficking business relied upon by the Crown.
In substance, counsel for the applicant submitted that the Crown case on count 1 depended upon the accumulation of weight of small quantities of cannabis at different times and in different transactions during the period and that it was incumbent upon the judge to direct the jury that the relevant intention to traffic in a commercial quantity must have been present throughout the actus reus and from the commencement of the alleged trafficking business. It was submitted that in the absence of such a direction there was nothing to stop the jury from thinking it was sufficient for conviction if the applicant formed an intention to traffic a commercial quantity at some stage during the performance of the trafficking business (actus reus).
In R v McCulloch,[11] it was held that the offence of trafficking in not less than a commercial quantity of a prohibited drug could be established on a Giretti basis when some of the separate transactions exceeded the applicable designated commercial quantity. On the question of intention, in the context of a Giretti count of trafficking in a commercial quantity, the Court said as follows:
There is force in the Crown’s submission that, in the context of a single criminal enterprise, the ability to aggregate a number of separate transactions so as to support the offence of trafficking in a commercial quantity is consistent with the legislative policy underlying the relevant statutory provision to punish more severely those who engage in commercial drug trafficking. What is important is the nature of the business being conducted. It must involve the intentional trafficking, whether in single transactions or cumulatively, in amounts or an amount exceeding the designated quantity of the prohibited substances within the defined period. Accordingly, before a person can be convicted of trafficking in a commercial quantity on this basis, the individual must be found to have possessed the intention to traffic in at least the designated amount contemporaneously with his or her engagement in the conduct said to constitute the actus reus.
[11](2009) 21 VR 340, 345, [14].
In R v Mustica,[12] the trial judge had instructed the jury that it was sufficient if the intention to traffic in the relevant quantity was formed at some stage in the course of trafficking in that quantity. On appeal, Ashley JA said in the context of Giretti counts:
It is the essence of criminal offending that the act is accompanied by the relevant intention … The error addressed an element of the offence…which was potentially of very real importance. [13]
[12][2011] VSCA 79 (‘Mustica’) (citations omitted).
[13]Ibid 10, 14 - 5, [34], [47].
The need for contemporanity between the conduct said to constitute the actus reus and the relevant intention was considered by Ashley JA in Mustica in the following terms:
in the case of a person indicted on a count under ss 71 or 71AA, intention might be inferred from the accused being shown to have had, from the outset of the trafficking business, knowledge of the nature of the drug and of the quantity which would be trafficked. Alternatively, intention might be inferred if the Crown proved that the accused knew from the outset of the trafficking business that there was a significant or real chance that he or she would traffic quantities of the drug totalling not less than the threshold quantity.[14]
[14]Ibid 14, [46].
In this case, it was conceded by the Crown that the intention of the applicant was an issue at trial and that the judge should have directed the jury to the effect that to find the applicant guilty on the trafficking count the jury would have to be satisfied beyond reasonable doubt that the applicant had an intention to traffic in a commercial quantity of cannabis from the outset of the trafficking business alleged by the Crown.
The Crown submitted that the applicant had demonstrated there was an error but was still required to satisfy the Court that there had been a substantial miscarriage of justice in accordance with the provisions of s 276 of the Criminal Procedure Act 2009 (Vic), which recently replaced the common form criminal appeal proviso under s 568 Crimes Act 1958 (Vic) (‘Crimes Act’).
Accordingly, argument during the hearing of the appeal focussed on whether as a result of the error there had been a substantial miscarriage of justice.
Legislation
This application for leave to appeal against conviction is brought pursuant to s 274 of the Criminal Procedure Act 2009 (‘the Act’).
Section 274 provides:
A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal.
This Court must allow the appeal against conviction if the appellant satisfies one of a statutory bases set out in s 276(1) of the Act.
Section 276 provides:
(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that-
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.
For present purposes it is necessary to address s 276(1)(b) of the Act. The Crown conceded there was ‘an error … in, or in relation to, the trial’. Accordingly, the question arises whether, as ‘the result of’ the error, there has been a substantial miscarriage of justice.
Section 276(1) requires the applicant to satisfy the Court that this is so. This is in contrast to the position which formerly applied under s 568(1) of the Crimes Act in the proviso, which provided that the Court of Appeal ‘may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’
The Explanatory Memorandum to the Act contains explanatory material dealing with the replacement of the proviso under s 568 of the Crimes Act and s 276 of the Act relevantly as follows:
Clause 276 simplifies the appeal grounds without departing from the overall “substantial miscarriage of justice” test. It does so by reflecting the following approach-
·the current first ground of appeal is fundamentally sound;
·there is duplication (and linguistic difficulty) in requiring initial consideration of whether there has been a miscarriage and then separate consideration of whether there has been a substantial miscarriage;
·A single-tiered test removes much of the complexity of the current provision and is preferred over a two-tiered grounds of appeal and proviso structure;
·the phrase “substantial miscarriage of justice” should remain the ultimate test for determining whether an appeal should be allowed or dismissed;
·there is a presumption that, until the contrary is shown, a trial before a judge and jury was fair and in accordance with law. It follows that the onus to persuade the court of the matters required for a successful appeal should be on the appellant;
·errors or irregularities in the trial should result in appeals being allowed when the problem could have reasonably made a difference to the trial outcome; or if the error or irregularity is of a fundamental kind depriving the appellant of a fair trial or amounting to an abuse of process (regardless of whether it could have made a difference to the trial outcome). [15]
[15]Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic) 101.
Consideration of the proviso under s 568(1) of the Crimes Act 1958 (Vic)
Under s 568(1), the appellant needed to persuade the Court of Appeal relevantly that there was a wrong decision on a question of law or that on any ground there was a miscarriage of justice. If the appellant was able to do so, the section required the Court of Appeal to allow the appeal unless the proviso applied. The proviso applied so as to enable the Court to dismiss the appeal ‘if it considers that no substantial miscarriage of justice has actually occurred’.
The High Court has considered whether there has been a ‘substantial miscarriage of justice’ (in the context of the proviso) in cases which include Weiss v The Queen,[16] Gassy v The Queen[17] and Cesan v The Queen[18].
[16](2005) 224 CLR 300 (‘Weiss’).
[17](2008) 236 CLR 293 (‘Gassy’).
[18](2008) 236 CLR 358 (‘Cesan’).
In Weiss, irrelevant but prejudicial evidence was erroneously admitted at a trial and the accused was convicted of murder.
The High Court held that insofar as the task of deciding the appeal requires consideration of the proviso ‘it is not to be undertaken by attempting to predict what a jury…would or might do. Rather in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred”’.[19]
[19](2005) 224 CLR 300, 314 [35].
In undertaking that task, the Court said:
The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of not guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.)[20] (citations omitted.)
[20](2005) 224 CLR 300, 316 [41]-[42].
In Gassy, Gummow, Kirby and Hayne JJ, held that a judge had erred in refusing to permit an accused to be represented by counsel only for the purposes of a voir dire and erred in giving a further direction to the jury and that the proviso was not engaged.
In their joint judgment, Gummow and Hayne JJ reiterated some earlier observations of the Court as follows:
As this Court pointed out in Weiss v The Queen, judicial expressions describing the task presented by the proviso to the common form criminal appeal statute must not be taken as substitutes for the statutory language. It is the relevant language of the applicable criminal appeal provision that must be considered and applied.
The Court also pointed out in Weiss that the use of the word “substantial” in the proviso to the common form appeal provision (no substantial miscarriage of justice) was more than mere ornamentation. The expression “substantial miscarriage” was adopted to make plain that the common form appeal provision did away with the old Exchequer rule by which any departure from trial according to law, regardless of its nature or importance, entitled the accused to a new trial. But whether there has been a “substantial miscarriage” at any trial will depend, as was pointed out in Weiss, upon the particular facts and circumstances and “[n]o single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given”. [21]
[21](2008) 236 CLR 293, 300 [16]-[17] (citations omitted).
In separate reasons, Kirby J said:
The important instruction for Australian decision-making on such issues contained in this Court's decision in Weiss was:
(1) The reminder to the appellate court to conform closely to the statutory language in which the duty of judges participating in criminal appeals is expressed by Parliament;
(2) The affirmation of the need to avoid substituting for the statutory language various “absolute rules or singular tests” that have developed in a century of judicial decision-making explaining and applying the statutory provisions;
(3) The instruction to avoid, in particular, judicial formulations that involved the legal fiction of speculating on or predicting what the original or a future hypothesised “jury of reasonable men, properly instructed and on such of the material as should properly be before them” did, would do, or would have done without the legal error or miscarriage demonstrated; and
(4) The insistence upon the obligation of the appellate court to “make its own independent assessment of the evidence” in deciding whether “no substantial miscarriage of justice has actually occurred”. In this, the appellate court must make due allowance for the “natural limitations” that exist: it is obliged to act on the record, but ordinarily does not hear or see witnesses, and typically decides appeals based substantially on selected extracts of the record emphasised by the parties or their representatives.[22]
[22](2008) 236 CLR 293, 314, [60] (citations omitted).
In Cesan, a judge suffering from severe obstructive sleep apnoea fell asleep on a number of occasions during a trial causing some members of the jury to be distracted. The accused was convicted of conspiring to import a prohibited substance into Australia.
On the question of the application of the proviso, in their joint judgment Hayne, Crennan and Kiefel JJ said:
In Weiss v The Queen, the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, that task is an objective task which is not materially different from other appellate tasks. Third, the standard of proof is the criminal standard. The Court rejected the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language. Rather, the Court held that no single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.
The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty. But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice.[23]
[23](2008) 236 CLR 358, 393-394, [123]-[124] (citations omitted).
Application of principle
Some guiding principles can be extracted from the approach taken in these cases for the purpose of applying s 276(1)(b) of the Act.
It is important to conform closely to the statutory language, avoiding substituting for that language other rules or tests that may have been developed to explain and apply (comparable language in other) statutory provisions. In particular, it is important to avoid speculating or predicting what a jury would do or would have done without the error. Equally applicable in the present context is that no single universally applicable description of what constitutes a substantial miscarriage of justice can be given.
It is clear from the Explanatory Memorandum that the purpose of the new test is to simplify the complexities inherent in the application of the proviso whilst retaining the ‘substantial miscarriage of justice’ test for determining whether an appeal should be allowed or dismissed.[24]
[24]Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic) 311.
Counsel for the applicant submitted that the failure to give the direction was a fundamental error and was particularly important where:
· there is a Giretti count in terms which involve the cultivation of crops for sale, possession for sale and a series of sale transactions;
· the evidence of quantities did not greatly exceed the threshold weight of 25 kilograms;
· the issue of intention arose in the case, particularly in the area of cultivation and possession for sale; and
· the defence case was that the applicant was partly involved in the business of trafficking (cultivation for sale) but had not turned his mind or had an intention to cultivate a commercial quantity of cannabis.
In essence it was argued that there was a substantial miscarriage of justice because the applicant lost a chance of acquittal on count 1 that may have been open had the jury applied a proper direction in its analysis of the evidence.
Counsel for the Crown submitted that:
· there was evidence of multiple crops in two premises, of an earlier crop in 1998 in which the applicant had used carbon dioxide to accelerate the rate of growth and although this was outside the period it was relevant to intent within the period;
· there was a sophisticated hydroponic setup at one of the premises;
· there was evidence that two crops were grown at the one of the premises including the crop that was seized;
· there was evidence of the accomplice, Anthony Grima, as to the regularity of supply of pounds of cannabis over the period and of seeing crops growing;
· there were other individuals such as Smith and Katsoulis with whom the applicant was dealing in addition to the dealings with Grima during the period;
· there were admissions by the applicant in intercepted telephone conversations to the effect that he had made a million dollars and mention of large sums of money which it was submitted showed clearly that there was a large undertaking during the period.
In summary the Crown’s position was that the way the applicant ‘had gone about it’, the magnitude of the enterprise and what the applicant had said about his intention in combination was enough to find that he had the requisite intention at the outset.
In my opinion there is abundant evidence from which it could be inferred that the applicant had intended to engage and did engage in a trade or business of trafficking in cannabis. There were houses in which crops were grown, there were sophisticated hydroponic setups in those houses, there were dealers, principally Grima, who were supplied with dry cannabis for sale and there were admissions made in intercepted telephone conversations which suggested that the applicant was engaging in a commercial enterprise.
But the evidentiary overview should not distract from the elements required to prove a Giretti count. The Crown must establish that the applicant trafficked in not less than a commercial quantity and that the applicant intended from the outset to traffic in amounts that would total not less than a commercial quantity.[25]
[25]R v Mustica [2011] VSCA 79, 10 – 14, [32]-[46].
Prior knowledge of yields
The jury had before it evidence of prior cultivation of six plants in 1998, which yielded 34 kilograms of cannabis (wet weight). This evidence was relied upon by the Crown to establish that the applicant had a working knowledge from his own experience of the yields that are able to be obtained from growing cannabis. The jury were instructed that this evidence of prior involvement must only be used for the purpose of determining whether the Crown had proved that the applicant intended to traffic or cultivate a commercial quantity and for no other reason.
Had the jury been required to consider whether the applicant’s awareness of yields could be used to infer an intention to traffic a commercial quantity from the outset when the applicant cultivated his first crop for sale in 2004, the jury may have had no difficulty inferring that such an intention was present at the outset. However, the jury may have considered, notwithstanding the applicant’s knowledge, that it was not possible to infer an intention to cultivate or traffic in a commercial quantity from the outset. It may have considered that the intention was formed later during the period alleged. A question would then arise whether a commercial quantity had been trafficked during the relevant period after the formation of that intention.
The intercepted telephone conversations
The intercepted telephone conversations recorded on 10 June 2006 during which the applicant said ‘give me two years, we’ll have five or six hundred grand, two years, that’s all it will take me I’ve nearly made me million’ and ‘just about made me million’ do not provide a proper basis for inferring intention at the outset.
The prospective statement ‘give me two years, we’ll have five or six hundred grand, two years, that’s all it will take me’ might be used to infer that the applicant had an intention to traffic in a commercial quantity from 10 June 2006 but, in my opinion, not from an earlier date.
The retrospective statements ‘nearly made me million’ and ‘just about made me million’ have no starting date and could relate to any period including a period outside the relevant period. In my opinion, no inference could be drawn from this evidence that the applicant had earned so much money during the relevant period that he must have intended to traffic in a commercial quantity of cannabis from the outset of the relevant period. In any event, counsel for the appellant noted that this evidence was left to the jury on the very limited basis that it was supportive of the evidence that the accused conducted a business but not on the basis that was supportive of the scale of the business.
Aggregation of quantities
Proof of quantities trafficked during the early part of the relevant period depended heavily on Grima’s evidence of having received regular deliveries from the applicant of small quantities of between 4 pounds (1.8 kg) and 10 pounds (4.5 kg) per delivery, which over the relevant period totalled between 40 pounds (18.1 kg) and 50 pounds (22.7 kg).
Proof of quantities trafficked or cultivated in the later part of the relevant period included the quantity delivered to Katsoulis of 4.11 kilograms in April 2006, the quantity of the seized crop (of approximately 6 kilograms of heads or 9 kilograms of usable material) and from admissions made in intercepted telephone conversations of deliveries of a couple of pounds (0.9 kg) from the applicant to a Mr Sepper. The evidence relating to the later period may have provided a strong foundation for inferring an intention to traffic a commercial quantity of cannabis at that time or during the later period. However, the jury would not necessarily have inferred that the evidence of sales from April 2006 or cultivation of the crop seized in August 2006 demonstrated an intention that the applicant had the intention at the outset to engage in the business of trafficking in a commercial quantity.
In this case the aggregate quantities shown to have been cultivated and sold during the relevant period do not greatly exceed the threshold quantity of not less than 25 kg required to make out the offence of trafficking in a commercial quantity as distinct from trafficking simpliciter. The time of formation of the requisite intention in these circumstances assumes critical importance. In this case it is a matter which a jury would necessarily have had to consider in order to determine that the applicant was guilty of the offence. Clearly it is not possible to know whether in its reasoning process the jury paid any or particular regard to (a) the time of formation of intention during the relevant period or (b) whether a commercial quantity had been trafficked after the formation of that intention. Intention was dealt with in the charge in terms which did not tease out these issues.
In BRS v R,[26] which concerned an omission to give a proper direction in relation to similar fact evidence, McHugh J said:
Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. It is no answer that the directions which were given or not given gave the accused a better chance of acquittal than the direction that the law required. A person is entitled to be tried according to law. If the failure to give a required direction may have brought about the accused’s conviction, there is a miscarriage of justice.
[26]BRS v R (1997) 191 CLR 275, 306; Domican v R (1992) 173 CLR 555, 560.
In my opinion, the failure to give the required direction in this case meant that the trial was not conducted according to law. This may have affected the outcome of the trial on count 1. In the circumstances, I am satisfied that as the result of the error there has been a substantial miscarriage of justice.
Accordingly, leave to appeal should be given with respect to the conviction on count 1, the appeal should be allowed, the conviction on count 1 should be quashed and the sentence set aside. There should be a direction for a new trial on that count.
Leave to appeal should be refused with respect to the application for leave to appeal the convictions on counts 4 and 5 (thefts of electricity) and count 6 (criminal damage). Though not formally abandoned, no argument was addressed to these counts. I am not satisfied that any of the statutory bases set out in s 276(1) of the Act are made out with respect to counts 4, 5 and 6.
Sentence
As the conviction on count 1 has been set aside, it is necessary to re-sentence the applicant in respect of counts 4, 5 and 6.
The applicant is now 45 years’ old.
The applicant had 43 prior convictions from 20 court appearances, including convictions for offences of dishonesty, street offences and sex offences.[27] More importantly, the applicant had a number of prior convictions for drug trafficking offences. On 21 March 1988 a community based order was imposed on the applicant in respect of two charges of trafficking in methylamphetamine. On 31 May 1988 the applicant was fined in respect of charges of trafficking in heroin, possession of heroin and using heroin. On 13 October 1994 a suspended term of imprisonment was imposed upon the applicant in respect of the offence of trafficking in heroin. On 22 October 1999, the applicant was sentenced to be imprisoned after he was convicted in respect of the offence of trafficking in cannabis.
[27]Excluding the conviction for intentionally causing injury referred to in paragraphs [8]–[15].
The applicant had a troubled upbringing. His mother left when he was very young and he was raised by his father and grandparents. He left home at the age of 15 years and began using alcohol, amphetamines and heroin. The applicant’s principal work has been as a tattooist. He has also traded in antiques and motorcycle parts.
In 1992 the applicant sustained head injuries in a motor car accident. It appears that the intellectual functioning of the applicant was impaired.
A report by a psychologist was tendered in the course of a plea before the judge who sentenced the applicant for the offences of drug trafficking, theft of electricity and criminal damage. The psychologist concluded:
Taken together, Mr Finn’s presentation is complex and complicated by overlapping factors. Although he does not appear to currently meet the criteria for an acute mental illness, he does present with some symptoms which may indicate the presence of a psychotic process. It is possible that these symptoms are accounted by the significant disturbance of personality, functioning, cognitive deficits or may indicate an underlying mental illness. In addition, Mr Finn demonstrates a dependence on and an ongoing motivation to use drugs with little interest shown in interventions that could address his substance use issues. … [I]t would appear that given Mr Finn’s current clinical picture, he presents with at least moderate to high risk of future violence and substance misuse if no further intervention is provided.
The applicant is now separated from a woman with whom he had a longstanding relationship. Four children were born of the relationship. They continued to support their father.
The judge who sentenced the applicant said that he saw little prospect of the applicant’s rehabilitation. The conclusion would appear to have been based upon the absence of remorse and the applicant’s numerous prior convictions.
Counsel for the applicant relied upon mitigating factors of some significance: the pleas of guilty to one count of theft and one count of criminal damage; the applicant’s difficulties in the early part of his life; the applicant’s addition to drugs; and the delay in bringing the charges to trial. On the other hand, the offences were serious, the applicant’s criminal record displayed scant regard for the law and his prospects of rehabilitation were poor.
I would re-sentence the applicant to be imprisoned for a term of 12 months on count 4, for a term of eight months on count 5 and for a term of ten months on count 6. I would cumulate three months of each of the sentences imposed on counts 5 and 6 on each other and on the sentence imposed on count 4. The total effective sentence is 18 months’ imprisonment. I would fix a period of 12 months’ imprisonment before the applicant is to be eligible for parole.
But for the plea of guilty to the counts of theft of electricity and criminal damage, I would have sentenced the applicant to be imprisoned for a term of 15 months on the count of theft and for a term of 18 months on the count of criminal damage.
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