Mesterovic v The Queen

[2016] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mesterovic v R [2016] NSWCCA 140
Hearing dates:	6 July 2016
Date of orders:	15 July 2016
Decision date:	15 July 2016
Before:	Bathurst CJ at [1]; Ward JA at [1]; Payne JA at [1]
Decision:	Leave to appeal is refused under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on all grounds.
Catchwords:	CRIMINAL LAW – appeal – conviction and sentence –applicant convicted of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the primary judge gave undue weight to the Crown case and failed properly to describe the applicant’s case in his summing up – whether evidence concerning the smell of cannabis plants should not have been admitted in circumstances where that evidence had not been foreshadowed prior to the trial – whether the applicant suffered a miscarriage of justice as a result of advice from his barrister that he not give evidence in his own defence – whether the primary judge erred in imposing a two-year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether to admit new evidence on the appeal
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10 Criminal Appeal Act 1912 (NSW), s 5 Criminal Appeal Rules, r 4 Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 43 Evidence Act 1995 (NSW), s 136
Cases Cited:	R v Birks (1990) 19 NSWLR 677 Rasic v R [2009] NSWCCA 202
Category:	Principal judgment
Parties:	Applicant: Andrija Mesterovic Respondent: Regina
Representation:	Counsel: Applicant: Self represented Respondent: N Noman SC   Solicitors: Applicant: Self represented Respondent: Solicitor for Public Prosecutions
File Number(s):	2014/6815
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 June 2015 Before: Frearson SC DCJ File Number(s): 2014/6815

Judgment

1. THE COURT: On 1 June 2015, the applicant Andrija Mesterovic was arraigned in the District Court on an indictment containing one count of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW).

2. On 4 June 2015, the applicant was found guilty after a three day trial. On the same day, Frearson SC DCJ recorded a conviction and imposed a two year good behaviour bond, with no conditions, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Relevant facts

3. On 8 January 2014, officers of the NSW police performed surveillance at an address in Kingsford. At about 3 pm on that day the applicant and Mr Milan Belopoljac approached the front of the premises. The applicant was carrying a plastic bag. The men were seen going through the front gate and moving towards the front door. The front door was out of sight and the men were not seen entering the premises.

4. Nine minutes later both men emerged from the front gate. The applicant was again carrying a plastic bag. They entered a Ford motor vehicle which was registered in the name of the applicant. The vehicle was later stopped by police. The applicant was driving and Mr Belopoljac was in the passenger seat. The car contained various items including a pump, a large quantity of potting mix, a product called “Pot Sox”, tubing, “air stones” and a bag of sausages.

5. A search of the premises at Kingsford revealed 23 cannabis plants and equipment associated with their hydroponic cultivation including irrigation lines, a fan, air filters, multi point electrical outlets, water pumps and fertiliser. Some of the cannabis plants were mature plants. The hydroponic equipment was located in every room except the kitchen and bathroom, such that unless a person entered the kitchen from the back of the house and remained only in that room, he or she would be in a room containing hydroponic equipment. There were cannabis leaves on a bed located in the living room. There were also cannabis leaves in a vacuum sealed bag in the hallway. The vacuum sealed bag was itself placed within another bag. The hallway also contained tubs of potting mix, a pump and a product called “Blossom Blaster”.

6. The search also revealed items linking Mr Belopoljac to the premises. There were medications and documents bearing his name. His fingerprint was on a bottle of whisky. The only piece of evidence found which directly linked the applicant to the premises was his fingerprint on a chin-up bar which was located at the end of the hallway leading into the living room.

7. The Crown called evidence from the police officers who conducted the surveillance and the search. The Crown also called evidence from Mr Robert Bowman, a senior inspector with the Department of Primary Industries and an authorised person under s 43 of the Drug Misuse and Trafficking Act. Mr Bowman gave evidence that there would have been a strong odour of cannabis in the house, particularly from the mature plants, that would have been noticeable in the hallway. The police evidence on this topic was not consistent. Senior Constable Dignan said he could not smell the cannabis in the vacuum sealed bag found in the hallway. Constable Jones gave evidence that she could smell cannabis when she opened the back door. Constable Schofield could not recall any smell. Detective Senior Constable Rodden did not mention odour at all. The trial judge referred to all of this evidence in his summing up.

8. His Honour summarised the Crown’s case as being that the applicant took part in the indoor cultivation of prohibited plants in two ways, either of which was sufficient to prove the offence:

1. by assisting Mr Belopoljac “by driving him to and from the premises in Sturt Street knowing that Belopoljac was there for a purpose connected with the cultivation”; and

2. by knowingly transporting items “knowing that Belopoljac had the items for a purpose connected with the enhanced indoor cultivation”.

9. The applicant was found guilty. In sentencing, his Honour noted the maximum sentence for an offence under s 23(1A) of the Drug Misuse and Trafficking Act of 15 years imprisonment, but found that the present case was at the “very low end of the spectrum”. His Honour was satisfied that the applicant went inside the premises at Kingsford. He found that anyone who went inside would have been overcome by the stench of cannabis. His Honour made specific findings that:

1. the applicant had no criminal record;

2. he was a man of high intelligence;

3. his behaviour was not that of a responsible citizen;

4. he had not expressed remorse;

5. he had good prospects of rehabilitation; and

6. he was otherwise of good character.

10. The primary judge noted defence counsel’s submission that an order under s 10 of the Crimes (Sentencing Procedure) Act was appropriate. His Honour concluded:

[W]hen I look at the matter and look at the purposes of sentencing and look at the harm, the menace of drugs in the community, it seems to me that the purposes of sentencing will not be accommodated unless I record a conviction.

11. His Honour recorded a conviction and imposed a two year good behaviour bond, with no conditions, pursuant to s 9 of the Crimes (Sentencing Procedure) Act.

Grounds of appeal

12. The four grounds of appeal (the first three grounds relating to the conviction appeal and the fourth to the sentence appeal) may be summarised as follows:

1. the primary judge gave undue weight to the Crown case and failed properly to describe the applicant’s case in his summing up (Ground 1);

2. evidence concerning the smell of cannabis plants should not have been admitted in circumstances where that evidence had not been foreshadowed prior to the trial (Ground 2);

3. the applicant suffered a miscarriage of justice as a result of advice from his barrister that he not give evidence in his own defence (Ground 3); and

4. the primary judge erred in imposing a two year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act (Ground 4).

13. None of the grounds of appeal involves a question of law alone and the applicant must be treated as an applicant for leave to appeal against conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW): Rasic v R [2009] NSWCCA 202 at [12]. The Crown opposes leave being granted. Further, Rule 4 of the Criminal Appeal Rules imposes a further leave hurdle in relation to the first two grounds of appeal.

14. The Court will return to the question of leave under s 5(1)(b) of the Criminal Appeal Act and Rule 4 of the Criminal Appeal Rules at the conclusion of these reasons.

Statutory framework

15. Section 23 of the Drug Misuse and Trafficking Act relevantly provides:

23 Offences with respect to prohibited plants

(1) A person who:

(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,

...

is guilty of an offence.

(1A) A person who:

(a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is:

(i) not less than the small quantity applicable to the prohibited plants, and

(ii) less than the commercial quantity applicable to those prohibited plants, and

(b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose,

is guilty of an offence.

...

(6) In this section and section 23A, "cultivating a prohibited plant for a commercial purpose" includes cultivating the plant:

(a) with the intention of selling it or any of its products, or

(b) with the belief that another person intends to sell it or any of its products.

16. The applicant was charged in relation to 23 plants, being a number not less than the small quantity but less than the commercial quantity. Accordingly, he was charged under s 23(1A) of the Drug Misuse and Trafficking Act.

Consideration

Ground 1

17. The applicant submitted that the trial judge impermissibly favoured the Crown’s case during his summing up. The submission is based on a claim that his Honour used 2,543 words in summing up the Crown’s case, compared with 506 words summing up the defence case. He submitted this amounted to “brainwashing” the jury by “repeating one thing after another” to overwhelm the jury with information presented by the Crown.

18. The applicant next submitted that the primary judge failed effectively to sum up the defence case, which was, he submitted, that he did not go inside the premises. The applicant elaborated on this argument in his written submissions:

I was standing in front of the doors in the yard, I never entered the premise [sic] and I returned the sausage to the vehicle. Why I did not enter the house is for the following reason: Milan stopped me and told me to wait in front because when he unlocked the door he noticed that the place was robbed (fact); that the place was in a mess, and he realised that if I enter the house I would realise what he was doing. So he told me to wait outside, which I did. Milan came outside shortly after and we went into the vehicle.

19. The applicant also complained about the following statement of the primary judge during the summing up:

The Crown says that the accused knowingly took part in the enhanced indoor cultivation in two ways. The Crown says that the first way is that he assisted Milan Belopoljac by driving him to and from the premises.

20. The applicant submitted that this “increases my potential level [of] involvement” because there is no evidence of him driving Mr Belopoljac to the premises, only away from the premises.

21. The applicant’s submissions on Ground 1 should be rejected.

22. First, this Court has carefully considered the summing up as a whole. It is clear that the trial judge’s summing up did not unfairly favour the Crown. It is difficult to accept that a simple word count comparison of the number of words used in addressing the Crown and defence cases could ever demonstrate error. Such a comparison certainly does not demonstrate error in the present case. It is completely unremarkable that a word count would show that a greater number of words was needed to summarise the Crown contentions in this case where the defence led no evidence. The essence of the applicant’s case at trial was that the Crown had not discharged its onus. In that context, his Honour’s summing up was fair. His Honour repeatedly reminded the jury that the onus was upon the Crown and that the applicant did not have to prove anything.

23. Second, the submission that the applicant “was standing in front of the doors in the yard” and “never entered the premises” was not reflected in the evidence at trial. Nor was such a suggestion made during defence counsel’s closing address to the jury. In effect, under this ground the applicant seeks to put new evidence before this Court through submissions. That approach should be rejected. No application was made to lead this further evidence. Even if an application were made, that application would be rejected. The assertions made at paragraph [18] above bear no relationship to the evidence at trial. The applicant is bound by the forensic choices made at the trial and it is not permissible to advance this very different case on appeal.

24. Third, the trial judge’s statement that the Crown case was that the applicant “assisted Milan Belopoljac by driving him to and from the premises” accurately summarised the Crown’s case. The Crown submitted in closing address that the applicant assisted Mr Belopoljac by “driving him to [the premises at Kingsford]”. Having accepted that he drove Mr Belopoljac from the premises after the visit of nine minutes, and that the Ford motor vehicle in which they were stopped was registered to the applicant, an obvious inference from the available facts, including the surveillance evidence, was that the applicant also drove Mr Belopoljac to the premises. The trial judge’s statement about the content of the Crown case was accurate and occasioned no unfairness to the applicant.

25. Fourth, no complaint was made to the trial judge by counsel appearing for the applicant about any of these matters. Even if the Court were minded to grant leave under s 5(1)(b) of the Criminal Appeal Act, it would refuse leave to appeal on Ground 1 under Rule 4 of the Criminal Appeal Rules.

Ground 2

26. The applicant submits that he suffered prejudice because the Crown introduced crucial new evidence against him during the trial which was not foreshadowed, and that he was not able to meet that evidence.

27. The “new” evidence concerned the strong smell of cannabis plants. Detective Senior Constable Rodden gave evidence concerning the execution of the search warrant on 8 January 2014. She did not mention anything about the smell of cannabis at the premises. Later in the trial, evidence was given by Mr Bowman, a senior inspector with the Department of Primary Industries and an authorised person under s 43 of the Drug Misuse and Trafficking Act. He gave evidence that the odour of cannabis plants is “very, very strong” and that in his experience it emanates from houses after doors are opened.

28. The applicant complains that after Mr Bowman gave this evidence the Crown sought to recall DSC Rodden to give evidence that she did smell cannabis while at the premises. This evidence was described as “very dodgy testimony”. The applicant submits that this was a “fabrication of evidence”.

29. In fact, the trial judge refused to allow DSC Rodden to give this further evidence and upheld the objection by the applicant’s counsel. There is no substance in this aspect of the applicant’s submission.

30. For completeness it is necessary to record that before Mr Bowman had given evidence the Crown had called Senior Constable Dignan, who was also present at the premises on 8 January 2014. When asked whether he could smell the cannabis in the vacuum sealed bag in the hallway he replied, “I could not smell it”. After Mr Bowman gave evidence, the Crown called Constable Jones, who gave evidence that she could smell cannabis when the back door was first opened, and noticed a stronger smell when the bedroom doors were opened. The Crown also called Constable Schofield, who said she could not recall whether she could smell anything at the premises.

31. The applicant submitted that evidence about the smell of cannabis was “crucial” evidence against him. It was referred to a number of times by the Crown and the primary judge during summing up. However, he submitted that the “brief presented by the DPP did not mention anything about the smell”.

32. He submitted that, had the issue been foreshadowed earlier, he could have obtained medical evidence showing that his sense of smell was “affected” more than a decade ago. However, since the issue was first raised at trial, he could not prove this matter in court as he had no medical certificates at the time. The applicant sought to lead further evidence on the appeal on this ground, comprising a medical certificate obtained after the trial which states, in full, that the applicant “has a long history of Chronic Sinusitis which has affected his sense for smelling”. Given the fact that the applicant was self-represented, and the helpful submissions by Ms Noman SC on behalf of the Crown who accepted that the Court should have regard to this material, the Court will permit the tender of the new medical evidence.

33. Ground 2 should be rejected.

34. First, it was clear from a time early in the trial that the Crown was advancing a case that there was a strong smell of cannabis present at the house. If the applicant’s sense of smell was so affected that he would not have noticed the smell of cannabis, this is a matter which would have been relatively easy to prove, via medical evidence or otherwise. As a general principle, parties are bound by the manner in which their cases are presented at trial. The new medical evidence that the applicant seeks to adduce, although dated after the trial, was “available”, in the sense of easily obtainable, at the time of the hearing. Given that the odour issue was squarely raised no later than the second day of the three day trial, it was open to the applicant to have obtained and led evidence about any olfactory incapacity.

35. Second, counsel for the applicant referred to the applicant being aware of the strong smell of the cannabis in the house in his final address to the jury. He said:

So how is it that in eight minutes Mesterovic knows that Belopoljac is involved in marijuana in there. He says, yes, he went in there and he smelt it. He’s not charged with failing to report a bad smell. He’s charged with knowingly take part in the cultivation of cannabis, and I say there’s no evidence on the criminal standard of proof beyond reasonable doubt [italics added].

36. Third, the new evidence which the applicant tendered on this appeal does not directly address the question of whether the applicant was likely to have smelled cannabis when entering the house. Simply to conclude that the applicant has suffered a long history of chronic sinusitis which has “affected his sense for smelling” is insufficient to address the relevant question of whether the applicant was able to and did smell cannabis at the house.

37. Fourth, there was no complaint made by counsel for the applicant about this issue being raised late at the trial. To the contrary, the issue was squarely addressed by counsel in his address to the jury. Even if the Court were minded to grant leave under s 5(1)(b) of the Criminal Appeal Act, it would refuse leave to appeal on Ground 2 under Rule 4 of the Criminal Appeal Rules.

Ground 3

38. The applicant submits that on the third day of the trial his counsel advised him not to give evidence. The applicant submits that prior to that date and for about a year or “maybe a bit more” he had been advised by his counsel that he would be giving evidence in his trial.

38. The applicant submits that he suffered prejudice as a result of following the advice of his counsel.

39. Affidavits were read on this issue from Mr Archie Hallas, the applicant’s trial counsel, affirmed 21 June 2016 and Mr Zaki Hajjar, the applicant’s solicitor at trial, sworn 23 June 2016. Each deponent was cross-examined by the applicant in this Court. About the critical issue of the applicant giving evidence at his trial Mr Hallas said in his affidavit:

I advised the appellant that if [the conversations that occurred between the police and the appellant when the police stopped his car] were not excluded it may have been necessary for him to give evidence to explain the purpose of the items being in his car.

Given that the conversations were excluded the necessity to give oral evidence diminished. However I advised the appellant of the pros and cons of giving evidence. My solicitor obtained firm instructions that the appellant did not wish to give evidence.

...

Whilst I left the decision to the appellant to give evidence or not, I felt comfortable that he had made the right decision not to give evidence. In my opinion the Crown could not point to any evidence which satisfied the definition of cultivation. Another reason was that I had made an assessment of his demeanour. I had a genuine concern that him giving evidence would advance the Crown case through the manner he may give his evidence.

41. In cross-examination Mr Hallas largely repeated these matters, although he accepted, perhaps more clearly than appears from the affidavit, that he had advised the applicant for the first time during the trial not to give evidence. In effect, Mr Hallas said that his success in having conversations between the applicant and the police excluded from evidence was the key to the advice. After that ruling, Mr Hallas “didn’t feel it was relevant and necessary for [the applicant] to give evidence”. The evidence of Mr Hajjar took the matter no further.

42. In this Court, the applicant also handed up a statement from Ms Teodora Lazic dated 6 July 2016, which was admitted into evidence as Exhibit 1 on the appeal. In Exhibit 1 she sets out her understanding that she was supposed to be a witness at the trial, but was informed at the last minute that Mr Hallas had decided not to call her. This statement is not directly relevant to the ground of appeal, which concerns Mr Hallas’ advice that the applicant should not himself give evidence. However, Exhibit 1 does support the inference that the applicant seeks the Court to draw that Mr Hallas’ strong advice, given late in the trial, was that the applicant not give evidence in his own defence.

43. In R v Birks (1990) 19 NSWLR 677 at 685 Gleeson CJ said:

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

44. In the present case, accepting everything that the applicant says about the timing and content of Mr Hallas’ advice, there was no flagrant or demonstrable incompetence or any other matter involving, or causing, a miscarriage of justice.

45. There was an obvious balance of possible risks and rewards in the decision by the applicant whether to give evidence in his trial. His counsel may reasonably have thought that the applicant’s case before the jury would have been advanced by him making the positive assertions he made in this Court. Counsel could also reasonably have had regard to the likely outcome of cross-examination by the Crown, and the risk that the applicant’s chances of acquittal would have been harmed. No doubt, counsel was entitled to take into account his assessment of the applicant’s demeanour in giving advice to the applicant about giving evidence. We can discern no error involving, or causing, a miscarriage of justice in the advice Mr Hallas gave, which the applicant followed.

46. At the trial the applicant signed a document saying:

I acknowledge, confirm & understand what my legal representatives are saying would be the pros & cons of me not giving evidence however, despite what has been said to me by my legal representatives, my instructions are clear in that I do not want to give evidence in my trial.

47. No doubt that document was signed after counsel had given the applicant advice, which we accept may have been understood by the applicant as “strong” advice, not to give evidence. The applicant has not shown that he suffered a miscarriage of justice by the decision taken not to give evidence at his trial, even assuming that decision was taken after the “strong” advice of his counsel.

48. Ground 3 should be rejected.

Ground 4

49. In relation to his sentence, the applicant submits that an order under s 10 of the Crimes (Sentencing Procedure) Act “would be more appropriate”. He submits that the s 9 good behaviour bond has been “terrible” and that his “life has come to an end” as a result. In particular he submits that the conviction has prevented him from working, since he was previously employed in the casino industry in which “a person simply cannot have a criminal record”.

50. In order to succeed the applicant must identify either error on the part of the sentencing judge or show that the sentence was manifestly excessive.

51. The charge on which the applicant was convicted carries a maximum penalty of 15 years imprisonment.

52. His Honour’s remarks on sentence disclose no error and the sentence cannot be described as unreasonable or plainly unjust. The trial judge properly had regard to various factors required by the Crimes (Sentencing Procedure) Act and concluded that, in the circumstances, the purposes of sentencing demanded that a conviction be recorded.

53. The applicant annexed to his submissions various documents which he submitted were relevant to his sentence appeal, being a report from a forensic psychiatrist, a reference letter and various certificates of qualification.

54. Given the acceptance by the Crown that the Court should have regard to the new evidence, it will be admitted in evidence on the appeal, subject to an order under s 136 of the Evidence Act 1995 (NSW) regarding the report of the forensic psychiatrist Dr Milorad Sokolovic, that the material in that report be admitted as evidence of what the applicant told the doctor and not the truth of those assertions.

55. Having carefully examined all of the fresh evidence on sentence, none of the documents warrant a different sentence to that which was imposed.

1. The psychiatric report of Dr Milorad Sokolovic establishes that the applicant suffered reactive anxiety and depression following his conviction. This report does not disclose error on the part of the sentencing judge.

2. The certificates relate to courses undertaken in 2010 by the applicant. None of these documents, either alone or together with the rest of the new material, establishes error on the part of the sentencing judge. They simply establish that the applicant has the following qualifications:

1. Master of Business Administration in Casino Management (European University);

2. Certificate in Casino Management (University of Massachusetts Amherst);

3. Gaming Management Certificate Program (G2E Asia);

4. Certificate in Casino Game Dealing (Asia Pacific Gaming Management Institute); and

5. Casino Pit Management Program (Asia Pacific Gaming Management Institute).

3. The reference letter is an undated reference from a business associate commending the applicant as a candidate for a PhD program at an unidentified university. It does not establish error on the part of the sentencing judge.

56. The fresh evidence does not establish a basis for intervention by this Court on sentence.

57. Ground 4 should be dismissed.

Orders

58. Each of the grounds advanced on this application does not raise a question of law alone. As noted at the outset, leave is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

59. There is no issue of principle raised by any of the applicant’s grounds of appeal. We have nevertheless considered all of the fresh evidence which was tendered and addressed the substance of each of the applicant’s grounds of appeal. Even if leave were to be granted, the Court would reject each of the grounds of the Notice of Appeal. In all the circumstances, it is appropriate that leave to appeal should be refused on all grounds.

60. The order of the Court is:

1. Leave to appeal is refused under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on all grounds.

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Decision last updated: 15 July 2016