Nobes v The Queen
[2001] WASCA 14
•6 FEBRUARY 2001
NOBES -v- THE QUEEN [2001] WASCA 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 14 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:255/1999 | 10 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J IPP J | 6/02/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | To the extent that leave to appeal necessary, application for leave dismissedTo the extent that appeal lay as of right, appeal against convictions dismissed | ||
| PDF Version |
| Parties: | WILLIAM JAMES NOBES THE QUEEN |
Catchwords: | Criminal law and procedure Conspiracy to manufacture prohibited drug Attempt to manufacture prohibited drug Evidence Discretion to exclude Public policy Abuse of process Stay of proceedings No evidence of conduct of law enforcement officers to procure offences No evidence of unlawful or improper conduct on the part of law enforcement officers |
Legislation: | Nil |
Case References: | Ridgeway v The Queen (1995) 184 CLR 19 R v Apostilides (1984) 154 CLR 563 Green v The Queen, unreported; CCA SCt of WA; Library No 970052; 20 February 1997 Lawless v The Queen (1979) 142 CLR 659 Nobes v The Queen, unreported; CCA SCt of WA; Library No 990007; 15 January 1999 Quartermaine v The Queen (1980) 143 CLR 595 R v Albu (1996) 84 A Crim R 11 R v Coward (1985) 16 A Crim R 257 R v Frawley (1993) 69 A Crim R 208 R v Gudgeon (1995) 133 ALR 379 R v Martelli (1996) 83 A Crim R 550 R v Medina (1995) 84 A Crim R 316 R v Owen (1991) 56 A Crim R 279 R v Zorad (1990) 47 A Crim R 211 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NOBES -v- THE QUEEN [2001] WASCA 14 CORAM : KENNEDY J
- PIDGEON J
IPP J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Conspiracy to manufacture prohibited drug - Attempt to manufacture prohibited drug - Evidence - Discretion to exclude - Public policy - Abuse of process - Stay of proceedings - No evidence of conduct of law enforcement officers to procure offences - No evidence of unlawful or improper conduct on the part of law enforcement officers
Legislation:
Nil
(Page 2)
Result:
To the extent that leave to appeal necessary, application for leave dismissed
To the extent that appeal lay as of right, appeal against convictions dismissed
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ridgeway v The Queen (1995) 184 CLR 19
R v Apostilides (1984) 154 CLR 563
Case(s) also cited:
Green v The Queen, unreported; CCA SCt of WA; Library No 970052; 20 February 1997
Lawless v The Queen (1979) 142 CLR 659
Nobes v The Queen, unreported; CCA SCt of WA; Library No 990007; 15 January 1999
Quartermaine v The Queen (1980) 143 CLR 595
R v Albu (1996) 84 A Crim R 11
R v Coward (1985) 16 A Crim R 257
R v Frawley (1993) 69 A Crim R 208
R v Gudgeon (1995) 133 ALR 379
R v Martelli (1996) 83 A Crim R 550
R v Medina (1995) 84 A Crim R 316
R v Owen (1991) 56 A Crim R 279
R v Zorad (1990) 47 A Crim R 211
Wilde v The Queen (1988) 164 CLR 365
(Page 3)
1 KENNEDY J: The applicant was presented in the Supreme Court on 6 December 1999 on an indictment containing two counts as follows -
(1) Between 1 February 1994 and 28 April 1994, at Perth and other places, William James Nobes conspired with others to commit an offence, namely, to manufacture a prohibited drug, namely methylamphetamine.
(2) And further, between 1 April 1994 and 28 April 1994, at Gingin, William James Nobes attempted to manufacture a prohibited drug, namely, methylamphetamine.
The charges were laid under s 33(2) and s 6(1(b) of the Misuse of Drugs Act 1981 respectively.
2 The applicant pleaded not guilty to each count. After a five day trial, the jury found the applicant guilty on each count, and judgments of conviction were duly entered. It is against these convictions that the applicant now seeks leave to appeal.
3 The proposed grounds of appeal are as follows:
"1. The learned trial Judge erred in failing to make available to the applicant during the course of the trial the prosecution witness Gutta, when the applicant requested the witness to be made available.
Particulars
- (a) The applicant represented himself at trial;
(b) The applicant was not given the opportunity of questioning witness Gutta to raise a defence of entrapment;
(c) Witness Gutta had been called as a prosecution witness on previous trials against the applicant;
(d) Before the learned trial Judge the prosecution did not call witness Gutta;
(e) The applicant requested that witness Gutta be called and made available;
(f) On 22 October 1999, the prosecution informed the trial Judge that they were excluding the evidence of witness Gutta from the trial;
(Page 4)
- (g) The applicant made it clear that he wanted witness Gutta called;
(h) The trial Judge held that it was a matter for the prosecution to decide what witnesses they were calling and that the court should not interfere, as it was the province of the Director;
(i) The prosecution stated categorically that the Director would in the interests of justice make witness Gutta available to the court;
(j) The applicant made inquiries as to whether witness Gutta had been subpoenaed and was informed that the prosecution had served same;
(k) There was no attendance by witness Gutta at the first day of trial or indeed at any day of the trial;
(l) The evidence of witness Gutta was essential in determining whether the payment of moneys to Mr La Rosa showed any improper, or illegal conduct on behalf of the relevant authorities;
(m) At one stage the applicant informed the trial Judge that he did not require witness Gutta, but requested to see the day through and wished to speak to the trial Judge at the end thereof;
(n) It was alleged that witness Gutta was carrying out the orders of the authorities, and this evidence was central to determining whether or not the conduct of the authorities was of such a nature that in the interests of public policy the prosecution against the applicant should not have been allowed to proceed;
(o) The trial Judge raised with the applicant the fact that there was no evidence before the court as to what witness Gutta did with the relevant moneys, to which the applicant replied that he thought that witness Gutta was needed;
(Page 5)
- (p) Nothing more was done either by the prosecution or the learned trial Judge in making this essential witness available to the applicant;
(q) The trial Judge did not propose to direct that a warrant issue to bring witness Gutta to the court unless there was such an application and he considered that there was no application so no order was made;
(r) Even though the applicant chose to represent himself at the trial, he did not have the necessary expertise to raise the matters properly, and should have been assisted by the learned trial Judge through the providing of witness Gutta.
- 2. The applicant was not given a trial according to law in that he was not given the opportunity of questioning witness Gutta in order to raise the defence of entrapment.
Particulars
- (a) The evidence of witness Gutta was highly relevant as to the extent that the conduct of the authorities was to be examined by the learned trial Judge."
5 These proceedings have a long history. On 28 April 1994, the applicant was arrested and charged with the offences which later became the subject of the indictment. They related to what was claimed to be an attempt to manufacture methylamphetamine at the applicant's property in Gingin. Domenic Gutta, who was the person referred to in the applicant's proposed grounds of appeal, together with a number of other persons, was charged with the same offences. Gutta pleaded guilty and was sentenced to a term of imprisonment.
6 The applicant was tried before a jury in the District Court in March 1997. At that trial, Gutta was called by the Crown as one of its witnesses. His evidence, which was then regarded as important to the Crown case, was that the applicant had played an integral role in the conspiracy. In the course of his evidence, Gutta said that he did not know anything about the involvement of one Frank La Rosa.
(Page 6)
7 The applicant was convicted on both counts on his first trial. He then appealed to the Court of Criminal Appeal against his convictions. On the hearing of that appeal, the applicant tendered an affidavit sworn by La Rosa in which he deposed to the fact that he had received from police officers, who were then attached to the National Crime Authority, the sum of $20,000 which he had passed on to Gutta and that it had been used for starting up at Gingin, on the applicant's property, the manufacturing of methylamphetamine, and La Rosa also claimed that a trip overseas had been organised by the NCA to obtain necessary chemicals for this purpose. La Rosa's affidavit was provided to the Internal Investigations Branch of the Western Australian Police Force which investigated the allegation and established the veracity of his claim. Accordingly, at the commencement of the hearing of the applicant's application for leave to appeal against his convictions, the then Director of Public Prosecutions informed the court that, until La Rosa's affidavit had been filed in connection with the appeal, the involvement of the National Crime Authority and the payment of the sum of $20,000 had not been disclosed to the State prosecuting authority. It had not therefore been disclosed at the trial. This matter gave rise to the question of whether, having regard to the decision in Ridgeway v The Queen (1995) 184 CLR 19, at 35, had these facts been before the trial Judge, he would have had a discretion to exclude, on public policy grounds, evidence of an offence, or an element of an offence, in circumstances where its commission had been brought about by unlawful or improper conduct on the part of law enforcement officers. It was on this basis that the applicant's earlier convictions were quashed and a new trial ordered.
8 In my opinion, the first of the proposed grounds of appeal set out above is untenable. In R v Apostilides (1984) 154 CLR 563, at 575, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ, in their joint judgment, concluded that the following general propositions are applicable to the conduct of criminal trials in Australia:
"1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
(Page 7)
- 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. The decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
9 At 575 - 576, their Honours added:
"We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson [Richardson v The Queen (1974) 131 CLR 116 at 119] emphasizes that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial Judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one. The decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough
(Page 8)
- that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined."
- Their Honours then went on to expand on the formulation of their fifth and sixth propositions.
10 In this trial, Gutta's name did not appear in the list of names on the back of the indictment. Furthermore, at a directions hearing conducted on 22 October 1999, approximately one and a half months before the commencement of the trial, counsel for the prosecution indicated that the Crown did not intend to call Gutta as a witness. Counsel then undertook, however, to make inquiries to ascertain whether Mr Gutta would be available to appear as a witness. He indicated that he did not know whether Gutta had already been subpoenaed. After a somewhat protracted discussion on the matter, and following the applicant's having been carefully informed by the learned trial Judge that it was open to the applicant to subpoena Gutta, counsel for the prosecution undertook that the Crown would endeavour to serve a subpoena upon Gutta to appear on the first day of the trial and he also undertook to advise the applicant if there were to be any difficulty in effecting service on Gutta. We were informed that Gutta was in fact served with a subpoena to attend at the Supreme Court on the first day of the trial, 6 December 1999, but he failed to attend on that day.
11 The applicant was notified on the first day of his trial as to Gutta's failure to attend the court, just prior to the decision being taken to conduct a voir dire as to the admissibility of certain evidence in relation to the NCA and as to whether an order for a stay of proceedings would be justified having regard to Ridgeway v The Queen. The applicant at that time indicated that Gutta "isn't that important because La Rosa could speak actually basically for him" and that the evidence would be given by a former police officer as to La Rosa giving Gutta "the actual money".
12 On the following morning, 7 December 1999, the applicant acknowledged in court that he had decided on the previous day that Gutta's attendance was not necessary, at least on that day. The applicant then indicated to the learned trial Judge: "The only reason that I would need to speak to Gutta is my involvement in a conspiracy of meetings with him or with the other people". The trial Judge then said to the
(Page 9)
- applicant, "Unless either you or [the Crown prosecutor] on behalf of the Crown ask for an order that a bench warrant issue, I shan't direct that that be done". He then specifically asked the applicant whether he wanted a bench warrant issued to arrest Gutta and have him brought to the court. The applicant responded: "May we actually, your Honour, see today through and could I give you that decision this evening? I certainly don't want to make an enemy out of Gutta, that is for sure. He would be certainly a bad man to have as an enemy. …. If we can get the necessary information from my witnesses which are being called today then I wouldn't need to call Gutta unless either you or the Crown should imagine it would be necessary." His Honour then confirmed that he did not propose to do anything about the matter unless there were to be an application for that purpose from either the applicant or the Crown prosecutor. The applicant was told by his Honour once more that it was a matter for him.
13 At the conclusion of the evidence on the voir dire, there was a further interchange between the applicant and the trial Judge, in which the trial Judge made it abundantly clear that he could only deal with the evidence before the court. He told the applicant that there was no evidence before the court as to what Gutta did with the money. The applicant responded: "I think we need Mr Gutta, Sir. I mean, I can't - I can't get this evidence out of the air." But he took no further action, as he had already been invited to do, to request the trial Judge to issue a bench warrant.
14 In his ruling on the voir dire, the learned trial Judge declined either to exclude the evidence sought to be called by the Crown or to order a stay. He held that the evidence fell far short of showing that the $20,000 or any part of it was applied towards the manufacture of the intended substance, methylamphetamine. Furthermore, the manufacturing process had been planned and was well under way long before the payment of the money by La Rosa to Gutta.
15 On 8 December 1999, the Crown prosecutor informed the learned trial Judge that Gutta had still not obeyed the subpoena. The Crown prosecutor did, however, produce a letter, purporting to be signed by a medical practitioner, indicating that Mr Gutta had bumped his head on a wall in July and that he had not got any fractures since that time. There was still no indication from Gutta that he would comply with the subpoena. His Honour again indicated that he did not propose to direct that a warrant issue to bring Gutta to the court unless there was an application from someone for that to be done. He continued: "So far
(Page 10)
- there is no such application. All right, is there anything further to be said?" The applicant had nothing further to say.
16 The learned trial Judge gave the applicant every opportunity to have Gutta brought to the court to be examined by him if he required it. It is clear that the applicant chose not to request a bench warrant, although his Honour had, on a number of occasions, expressed his willingness to issue a warrant if requested by the applicant. His Honour was not required to do anything more than he did. The applicant must have been very well aware of his right to request a bench warrant, but he chose not to exercise that right. It is apparent from the decision in R v Apostilides that the Crown was not under any obligation to call Gutta in this case, and there was certainly no basis for his Honour himself calling Gutta to give evidence - see R v Apostilides, at 575, 576 - 577. There is therefore no substance in the first of the proposed grounds of appeal. It is to be observed that a number of the particulars provided in respect of the first ground are clearly inaccurate, as the foregoing summary indicates.
17 With the failure of the first of the proposed grounds of appeal, the second of the proposed grounds must also fail. As I have already indicated, the applicant was in fact given the opportunity of questioning Gutta, but he did not take that opportunity by requesting the trial Judge to issue a bench warrant. I should, however, comment upon the use of the expression "defence of entrapment" which is to be found in the second of the proposed grounds of appeal and in the judgment in the applicant's earlier appeal. It was loosely used. What the court was considering in that case was the applicability of the decision in Ridgeway v The Queen, which clearly established that there is no substantive defence of entrapment in Australia. The relevant issue which was to be dealt with by the trial Judge in this matter was whether to exercise a discretion to disallow any evidence arising from any improper conduct on the part of the law enforcement authorities or, alternatively, to grant a stay of the proceedings by reason of such conduct. As the Director of Public Prosecutions submitted, the evidence adduced by the Crown and, indeed, the admissions made by the applicant himself, established that he had entered into an agreement with Gutta and others to make his premises in Gingin available for the manufacture of methylamphetamine well before 8 March 1994, when the sum of $20,000 was paid to La Rosa. As Mr Cock pointed out, the conspiracy had already been entered into and the applicant could not have been induced to commit the offences of which he was convicted by any improper conduct on the part of law enforcement officers, of which, in any event, there was no evidence. This was the basis upon which the learned trial Judge correctly ruled that the evidence
(Page 11)
- challenged by the applicant was admissible and that no stay of proceedings should be granted.
18 To the extent that leave to appeal is necessary, I would dismiss the application for leave to appeal against the applicant's convictions. To the extent that leave was not necessary, I would dismiss the appeal.
19 PIDGEON J: I agree with the reasons of Kennedy J and with the orders proposed.
20 IPP J: I have read the reasons of the Hon Justice Kennedy. I am in agreement with those reasons and have nothing further to add.
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