Mile Rajic v R Nos. SCCRM 93/459 and SCCRM 93/460 Judgment No. 4577 Number of Pages 8 Appeal against Conviction

[1994] SASC 4577

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), MOHR(3) AND NYLAND(1) JJ

CWDS
Appeal against conviction and sentence producing cannabis - four counts - refusal to separate trials with respect to each count upheld - strong evidence that offences of same character and part of one scheme - case to answer correctly found regarding all counts - failure by trial judge to warn expressly against reasoning by way of propensity or bad character not such as to cause miscarriage of justice - sentence not excessive.

HRNG ADELAIDE, 20 April 1994 #DATE 9:6:1994

Counsel for appellant:     Mr W P Boucaut

Solicitors for appellant:    Mangan Ey and Associates

Counsel for respondent:     Mr J J Doyle QC with
   Mr P R Brebner

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 NYLAND J This is an appeal against convictions by verdicts of a jury in the District Criminal Court with respect to three crimes of taking part in the production of cannabis.

2. The appellant was charged on information jointly with Krizan Ercegovic with four counts of taking part in the production of cannabis.

3. An application by the appellant prior to the trial for separate trials with respect to each count was refused. At the commencement of the trial Ercegovic did not appear. The appellant pleaded guilty to count 1 on the information and his trial thereafter proceeded with respect to the remaining three counts.

4. The charges against the appellant related to four crops of cannabis which the police located growing in mallee country near Swan Reach between August and November 1990. On 2 August 1990 police officers from the Drug Task Force attended an area within dense mallee scrub wherein they located a crop of cannabis (Crop 1). In due course 191 seedlings were removed from this site. The police officers concealed themselves about 20 metres either side of the crop site and kept it under observation. They subsequently saw the appellant and Ercegovic enter the crop site. The appellant was carrying a rifle. Ercegovic and the appellant looked around the general scene. The appellant then placed his rifle against a tree and walked amongst the pots and felt the top of them. Ercegovic went straight to a pool which had been placed near the crop. He produced a green Hortico watering can with which he proceeded to water the various pots. The appellant continued to feel the pots. He then picked up a long-handled shovel and started digging a hole of a size comparable to that of one of the black plastic pots. The police then emerged and identified themselves to the two men. Detective Weeding had a brief conversation with the appellant as follows:
    "I said 'Are these your plants?' He said 'Yes'. I said
    'Have you come to finish setting the site up?' He said
    'No, just to water the plants'. I said 'You are under
    arrest for taking part in the production of cannabis, do
    you understand that?' He said 'Sure'."

5. The appellant told Detective Weeding that he and Ercegovic were staying at a camp in the area. The police then went with the two men to the campsite which was about 20 kilometres from where the crop was located. A search was conducted. Whilst at the campsite Detective Weeding had a further conversation with the appellant as follows:
    "I said 'We will be going to Berri soon, are you willing
    to talk to me about your involvement in the cannabis
    crop?' He said 'Yes, why not? I was growing them to
    smoke'. I said 'You do not have to answer my questions
    unless you wish to, you also have the right to have an
    interpreter. Do you require one?' He said 'No, I
    understand English all right I do not need one'. I said
    'That is up to you, you can have one if you wish?' He
    said 'No, I understand'. I said 'You also have the
    right to have a friend, relative or solicitor present.
    Do you want me to contact one?' He said 'No'. I said
    'Did you set up the pool and plants?' He said 'Yes, to
    grow for myself, I smoke it'. I said 'There is about
    200 plants there, are you telling me you would smoke all
    that cannabis?' He said 'I smoke a lot'."

6. They then returned to the Berri Police Station where Detective Weeding conducted a formal interview with the appellant, which was recorded on a typewriter. The appellant gave his occupation as opal miner and his address as Lot 4, Swan Reach, that being the campsite that had been searched on the way to the police station. The appellant then told Detective Weeding that he had been living on that property "on and off for about six or seven months".

7. Detective Weeding then had the following conversation with the appellant:
    "I said 'At about 9.10 this morning you were seen to
    walk to a car in the Swan Reach conservation park with
    another man to where there were numerous cannabis plants
    growing. What is your reason for being there?' He said
    'I don't think I am quite fit enough to answer these
    questions. I feel quite sick'. I said 'By that, do
    you mean you don't wish to answer any more of my
    questions?' He said 'Not at this stage. I really feel
    terrible'. I said 'Do you understand that you have been
    arrested for taking part in the production of cannabis?'
    He said 'Yes, I understand that'. I said 'Do you wish
    to read these notes of our conversations?' He said
    'No'. I said 'Do you wish to sign the notes of our
    conversations?' He said 'Yes'."

8. Detective Weeding then went through a similar procedure with the notes of the earlier conversations and said:
    "A. I said 'Do you wish to read these notes, they are
    notes of our conversations at your camp and at the
    cannabis crop?' He said 'Yes'. I then handed him the
    three pages of handwritten notes.
    Q. Did he then appear to read those.
    A. That is correct.
    Q. What happened then.
    A. I said 'Are they a true and accurate record of our
    conversations?' He said 'No, I would say there are 140
    plants'. I said 'What, instead of my estimate of 200?'
    He said 'Yes, I would say there would only be about
    140'. I said 'Apart from our differing estimate of the
    number of plants, is the record of our conversation true
    and accurate?' He said 'Yes'.
    Q. And just so we are clear about this, when you say
    'is the record of our conversation true and accurate?'
    are you referring to the initial conversation you had
    with him at the crop when he was arrested and lying on
    the ground.
    A. Yes.
    Q. And did that document also incorporate the
    conversation you had with him following that when he was
    standing up.
    A. Yes.
    Q. Does that document also incorporate the conversation
    you had with him later at the campsite.
    A. That is correct.
    Q. Did Mr Rajic then sign the bottom of each page of
    those notes.
    A. Yes, he did."

9. On or about 17 August 1990 a further crop of cannabis was located by a grazier looking for some missing sheep.

10. This site (Crop 2) was about 18 kilometres from the camp. Police located 179 cannabis plants growing in pots similar to Crop 1.

11. On or about 22 September 1990 a further crop was located. This site was about 3 kilometres east of the camp. At this site (Crop 3) 196 plants were located. The pots and bags located on site were identical to those of Crop 1 and Crop 2.

12. On 1 October 1990 Detective Weeding had a further conversation with the appellant concerning the second and third crops. The appellant once again gave his address as Lot 4, Swan Reach. He said that he had been living there on and off for about two years. When asked where he had been living since his arrest on 2 August he said: "At the given address. Some of the time at Coober Pedy and also at my girl-friend's house". He denied any involvement in Crops 2 and 3 and declined to answer any questions.

13. The police subsequently decided to conduct an aerial search of the area by helicopter, as a result of which on 18 November 1990 a fourth crop was found (Crop 4). At this site there were 112 plants. They were growing in similar pots to the previous three but the plants were larger and there appeared to have been some culling.

14. The prosecution case was that the location, timing and management of the four crops indicated that they were a part of a single enterprise and that the similarities in management in particular indicated that the same people were involved in all. The prosecution relied on a large number of similarities between the crops as indicating that the same person or persons were involved with all four. The similarities included the general area in which the crops were located and their proximity to the campsite, the manner in which they were camouflaged and the fact that each crop was away from vehicular tracks. There was a similar method of marking the path through the bush to each crop and each site was of a similar size. Crops 1, 2 and 4 had similar piles of manure or compost material. Each site had a similar number of plants. Although only 112 plants were located at the fourth site they were all female plants which suggested that there had been some culling. Black plastic bags from Crops 1, 2 and 4 were identical and the evidence of Detective Ford, an experienced Drug Squad officer, was that he had never seen pots of that type used in arid or remote areas involving numbers of 100 plants or more. The plants in each case had been grown from jiffy pots. Crops 2, 3 and 4 were all dug into the ground to about 1 or 3 inches. Most of the plants at each site had two plants per pot. The tops of the plastic bags from Crops 1, 3 and 4 were folded identically. The evidence of Mr Carroll, the forensic scientist, suggested that the planting time of all crops was similar although, notwithstanding that, he was least precise with respect to Crop 4 as the longer growing time and different environmental conditions tended to broaden the estimate of time.

15. Crop 1 was unfenced but undergrowth and debris had been removed from the periphery of the crop and piled up on itself. Crops 2, 3 and 4 had a fence around the perimeter of wire or netting of the same type, gauge and diameter. An identical coil of wire was located on the ground at Crop 1 and Crop 4. The watering system employed at Crops 1, 2 and 4 consisted of Clark aboveground swimming pools which were identical in size and dimension. At Crop 3 there was a galvanised iron rainwater tank. In each case, however, there was no on-site or running water for any of the crops. The Crown case was that the tank at Crop 3 was used for the same purpose as each of the pools, that is, to store water so that it could be conveyed to the plants which were gathered around the pool. At each site the plants were located at close proximity to the water. The pools and the tank were each set out with a catchment area over the top. The roof was a canopy set up over the pool to attract the water and the water would then run down the catchment area to the pool where it could be stored for later use. At Crop 1 the canopy was made up of 10 foot lengths of galvanised iron, suspended from the sides of the pool by wire and roped to adjoining trees hanging down to the centre of the pool. At Crops 2 and 4 large tarpaulins were arranged above the pool in a similar manner. They were suspended from the sides by wire and rope tied to surrounding trees hanging down into the centre. The tarpaulins located at Crops 2 and 4 were identical and in 8 each case had "K and S Lakeside Freighters" written on the side of the canvas. The rope and the wire with which each of the canopies was suspended was of similar type and secured in a similar way. In addition to these matters, the prosecution also relied on a number of other similarities such as the watering cans, tools, gloves and drums located at the various sites.

16. The Crown Prosecutor, having suggested to the jury that these matters cumulatively indicated that the same person or persons had been involved in all four crops, put to the jury a number of further matters which he contended implicated the appellant in all four crops. He referred to the appellant's admitted involvement with Crop 1; the fact that his car had been observed close by a day or so earlier; the activities of the appellant at the crop site as observed by the police; and his admission that the plants were his. The prosecutor also referred to the fact that the appellant had admitted living at the campsite on and off for about two years and that he had also been there since his arrest which suggested that his attendance on the day of his arrest was more than accidental. Of particular significance was the appellant's admission to Detective Weeding that he had been involved with setting up the pool.

17. Mr Boucaut, who appeared for the appellant, argued that there should have been an order for separate trials of each count because of the prejudice to the appellant in the absence of Ercegovic. Mr Boucaut argued that the preponderance of the evidence pointed to Ercegovic being the person involved and that the evidence upon which the Crown sought to rely connecting each of the crops was more readily linked to Ercegovic than to the appellant. He submitted that as there was no evidence that the appellant had been physically present at the Crop Sites 2, 3 and 4 or the campsite or general area following his arrest in respect of count 1, that a joinder of the counts was unduly prejudicial to him. I have, however, considerable difficulty in accepting this argument. It overlooks the statement made by the appellant to Detective Weeding on 2/10/90 in which he gave the campsite as one of his addresses subsequent to his arrest. The offences were a series of offences of the same character. There was very strong evidence produced by the Crown which indicated that the crops were all part of one scheme and that the same person or persons were involved. In my view the whole of the evidence was admissible in proof of each count. That being the case it was appropriate for the charges to be heard together and there was nothing prejudicial to the appellant in the manner in which the evidence was led.

18. Mr Boucaut further argued that the learned trial judge had erred in failing to exercise his discretion in favour of the appellant by declining to exclude the question by Mr Weeding "Did you set up the pool and plants?" and the appellant's answer "Yes, to grow for myself, I smoke it".

19. Mr Boucaut argued that the answer clearly indicated that the appellant failed adequately to comprehend the question asked of him and that the answer was nonsensical and ambiguous. He further submitted that, having declined to exclude the evidence, the learned trial judge ought to have directed the jury that the conversation was not capable of being interpreted or used as an admission that the appellant set up the pools in respect of counts 2 and 4 or the tank in respect of count 3. In my view, however, the answer was unambiguous. The appellant appeared to have a good command of English. When advised of his rights pursuant to s.79a of the Summary Offences Act 1953 immediately prior to being asked the contentious question, he indicated that he understood English and did not need an interpreter. He read the notes later that day after the formal interview at the police station had been completed. He was asked whether they were a true and accurate record of the conversation. He appeared to read and understand the content of that statement as he corrected the number of plants appearing in the record of interview from 200 to 140. He otherwise adopted the statement as a true and accurate record of the conversation which had occurred. He did not make any comment about the pool or endeavour to disassociate himself from that answer. This was a clear admission of having set up the pool. Having made that admission the jury were entitled to use that evidence to draw an inference that he had also established the pools of identical type at Crops 2 and 4. The answer was not unfairly prejudicial and there was no need for the learned trial judge to give the direction sought by the appellant.

20. Mr Boucaut further submitted that there was no evidence to suggest that the appellant had been present at Crops 2, 3 and 4 and that in the absence of some direct evidence linking the appellant to the subsequently discovered crops, the learned trial judge should have upheld the submission of no case to answer. There is no merit in this ground of appeal. The prosecution case was clearly capable of supporting convictions upon the basis of an inference drawn from the proven facts. The learned trial judge quite correctly found that there was a case to answer.

21. Mr Boucaut further argued that the learned trial judge failed adequately to direct the jury as to the application of the law to the facts and that he failed to direct the jury as to the basis upon which they could conclude that the offences were strikingly similar and failed to direct as to the meaning of "strikingly similar". The direction on the relationship between the law and the facts was, in this case, rather brief. The issues were, however, relatively straightforward. First, the jury had to be satisfied that the circumstances, including the similarities, pointed at all four crops being the work of the same person or persons and, secondly, if they were so satisfied, whether the appellant's involvement extended beyond Crop 1. These issues were made clear to the jury throughout the trial and were stressed by counsel at some length in the course of their addresses. Whilst it may well have been helpful for the learned trial judge to have once again restated these matters to the jury, when the conduct of the trial is considered as a whole there was no risk that the jury failed to understand the factual issues which they had to decide. In the context of this case an explanation of "strikingly similar" was not necessary. The issue here was whether the similarities pointed to a single enterprise under a single management.

22. Mr Boucaut further complained that there was no adequate direction as to the use the jury could make of the evidence adduced in relation to the first count to assist in the proof of any other count on the information and there was no explicit direction as to what use may be made of evidence supporting each charge in relation to the other charges. Whilst it is true that the learned trial judge did not give separate directions as to the evidence relating to each count of the way in which the case was presented to the jury, such a direction was unnecessary and may well have been confusing. The case was properly fought and left to the jury on a global basis.

23. The appellant further complained that the learned trial judge failed to direct the jury adequately as to what use they could make of the appellant's plea of guilty to count 1 on the information. He also complained that the trial judge had not given the jury clear and adequate direction that it was impermissible to use the applicant's plea of guilty with respect to count 1 on the information as evidence of propensity. The manner in which the jury were to deal with the appellant's plea to count 1 was important as the jury had to be warned against reasoning that, simply because the appellant had pleaded guilty to count 1 and they were satisfied that it was all one scheme, the appellant was automatically guilty of all the offences. They were obliged to satisfy themselves that his involvement in Crop 1 was an involvement indicative of an involvement in the total scheme. The learned trial judge did, however, warn them against the misuse of the plea by saying:
    "Sometimes, like here, a person will plead guilty to one
    charge and not guilty to the remaining charges. Because
    a person does that, it's very easy to unconsciously
    think, oh well, he's in for one, he's in for the lot,
    but that's not reasonable. You have to separately

    consider the elements of each charge quite separately
    and quite distinctly and because he's pleaded guilty to
    the first count that really doesn't come into your
    considerations of the elements of considering each other
    charge."

24. He returned to this matter later in the summing-up and said:
    "... what that means is when a person has been found
    guilty of one offence, as to how that is used in other
    offences. I think it comes down to this. You have to
    look and see the involvement of that person in that
    offence and the nature of that involvement. I think you
    look at that first. There are some times then when you
    consider other matters, if they are so strikingly
    similar, a jury is satisfied beyond reasonable doubt the
    person, because of those strikingly similar factual
    matters, really cannot come to any other conclusion than
    the person has been involved because of those similar
    factual matters. In effect, the accused has put some
    stamp upon his offending and it has flowed through the
    others. And inevitably leads you, because of those
    factual findings, to find the accused, of course, guilty
    of the other offending. But it always gets back to how
    you view the circumstances of the initial offending."

25. It would have been preferable for the learned trial judge to have directed the jury that they should ask themselves first the nature of the appellant's involvement in count 1, and having satisfied themselves as to that matter, then ask themselves whether the nature of that involvement was such that they could be satisfied beyond reasonable doubt that the appellant was involved in the other counts. However, when considering the summing up as a whole, the jury could not have been left in any doubt that this was the process of reasoning which they were obliged to apply. They had to be satisfied that the involvement of the appellant with respect to Crop 1 was sufficiently great to implicate him in respect to the other counts.

26. Although the learned trial judge failed expressly to warn the jury that they should not reason by way of propensity or bad character, in the context of this case I do not consider this omission to be sufficient to cause a miscarriage of justice. This was a strong Crown case. The appellant's car had been located near Crop 1 shortly before the police made their observations at that site. The police saw the appellant at the site with Ercegovic. He was carrying a rifle, he tended the plants and was digging a hole. He admitted they were his plants and there was the admission as to the setting up of the pool, which was identical to the pool situated at Crops 2 and 4. The appellant admitted that he had been living at the campsite on and off for about two years. All of the evidence indicated a substantial involvement by the appellant with respect to Crop 1. The similarity between the crops and the various items located at the various sites was such that the jury, having been satisfied as to the nature of the involvement of appellant in count 1, could well be satisfied beyond a reasonable doubt that he was involved with respect to the other crops. The jurors came to a decision which was open to them after a fair and reasonable trial.

27. All the grounds of appeal relating to the convictions, in my opinion, therefore should fail.

28. The appellant was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years 9 months. Mr Boucaut submitted that the sentence was manifestly excessive. He referred to the appellant's poor health, the assistance he had given to the police in respect to providing information and his lack of relevant previous convictions. The penalty prescribed for each of these offences was imprisonment for a maximum of 25 years. The crop size in each case was reasonably large. It would 15 appear to have been a reasonably sophisticated operation. The learned trial judge sentenced the appellant on the basis that the appellant was actively involved in the crops and that the crops were grown for financial gain. There was no real basis for leniency. The learned trial judge appears to have taken all relevant matters into account. The sentence imposed would appear to be within the range for such a series of offences. I would dismiss the appeal against sentence.

JUDGE2 KING CJ In my opinion this appeal should be dismissed for the reasons given by Justice Nyland.

JUDGE3 MOHR J I agree.