R v Ashton - [1999] QCA 267

IN THE COURT OF APPEAL [1999] QCA 267
SUPREME COURT OF QUEENSLAND

C.A. No. 322 of 1998

Brisbane
[R v. Ashton]

THE QUEEN
v.

STEPHEN JAMES ASHTON
(Applicant) Appellant
McPherson JA
Pincus JA
Moynihan J

Judgment delivered 20 July 1999
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
APPEAL AGAINST CONVICTION DISMISSED
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - HOSTILE WITNESSES - application for declaration that witness be declared hostile - whether correct to refuse defence counsel opportunity to cross‑examine witness on voir dire - whether failure to allow cross-examination brought about a miscarriage of justice

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING-UP - inconsistency between witness evidence and earlier statements to police - whether judge's directions as to problems with witness adequate - whether jury should have been warned about the credit of the witness
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - summing-up - multiple bases for prosecution case - whether trial judge should have directed jury that it could convict upon evidence constituting first basis without having regard to second basis of Crown case
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - parity principle - whether discrepancy between sentences of applicant and co‑accused ground for complaint - whether applicant suffered increased punishment by reason of defending charge
Hadlow (1991) 56 A Crim R 11
Henderson (1984) 37 SASR 82
Morris (1987) 163 CLR 454
Price v Bevan (1974) 8 SASR 81
Siganto (1998) 73 ALJR 162

Counsel:Mr A J Kimmins for the applicant/appellant
Mr G Rice for the respondent

Solicitors:Price & Roobottom for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 28 April 1999

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 20 July 1999

I have read, and agree with, the reasons of Pincus JA for dismissing this appeal against conviction and for refusing the application for leave to appeal against sentence.
REASONS FOR JUDGMENT - PINCUS JA
Judgment delivered 20 July 1999
This is an appeal against conviction and an application for leave to appeal against sentence in a case concerning the importation of cannabis resin. The appellant was charged that he was knowingly concerned in the importation into Australia of a prohibited import, being cannabis resin and was, after a trial of substantial length, convicted. The notice of appeal challenges the conviction on three grounds, which are in substance that the trial judge misdirected the jury as to the nature of the evidence given by a witness, Jacob Vanderlelie, that the summing-up was unbalanced and the verdict unsafe. The appellant's counsel obtained leave to amend the grounds of appeal so as to raise two points concerning Vanderlelie's evidence, which are discussed below, and in addition to urge that the trial judge misdirected the jury in telling them that they could convict on what was described as the "first basis of the prosecution case". In oral argument Mr A Kimmins, for the appellant, concentrated on the grounds relating to Vanderlelie, while not abandoning the third ground.
Vanderlelie was called by the Crown prosecutor to give evidence of events relating to the unloading of a vessel called the "Highlander", in which the cannabis resin was imported. Vanderlelie had himself assisted in that enterprise. After questioning Vanderlelie for some time, the prosecutor asked for a declaration that he be declared "adverse", but following considerable discussion, the judge said that he was not prepared to declare Vanderlelie hostile. Examination of the witness in chief continued and in the course of that the prosecutor renewed his application. The judge decided to hold a voir dire and so Vanderlelie was called to give further evidence in the jury's absence. The prosecutor having concluded his examination-in-chief on the voir dire, counsel for the defence intimated that he wished to cross-examine Vanderlelie, but the judge declined to allow him to do so. His Honour then, having given an account of the course of events before him, concluded that:
". . . I have no doubt that Vanderlelie is a person who is not desirous of telling the Court the truth and bears a hostile animus to the party calling him, namely, the Crown and that he has not given his evidence before the jury with a desire to tell the truth to the Court".
The judge said he was well satisfied that Vanderlelie should be declared a hostile witness and then both the prosecutor and defence counsel cross-examined Vanderlelie in the jury's presence.
The first question is whether the judge was right to refuse defence counsel the opportunity to cross-examine Vanderlelie on the voir dire. Mr Kimmins referred us to Price v Bevan (1974) 8 SASR 81 at 92, and to Hadlow (1991) 56 A Crim R 11 at 20, which support his contention that there was a right to cross-examine. In Henderson (1984) 37 SASR 82, having referred to Price v. Bevan, King CJ remarked:
"Where a voir dire hearing is held in the absence of the jury to enable the judge to determine an issue upon which the admissibility of evidence depends, justice clearly requires that the party to be affected by the evidence be permitted to cross-examine and to elicit evidence on the point. It would be dangerous, however, to elevate that rule into a general rule that whenever evidence is given in the absence of the jury, there a right of cross-examination". (87)
Price v. Bevan was distinguished, on the ground that in Henderson the only purpose of hearing the witness in the absence of the jury was to find out what he was likely to say if called before the jury.
I am in respectful agreement with the view of King CJ that there is no absolute rule that a witness who is called in the absence of the jury must be subject to cross-examination; in Henderson's case the purpose of questioning the witness in the absence of the jury was one in relation to which the judge would, as King CJ explained, ordinarily be able to inform himself by other means. But where the course is taken - one which will not by any means always be necessary - of conducting examination of a witness on a voir dire to assist in determining whether the witness is hostile, the proper course is to allow cross-examination. It is unnecessary, in the present case, to discuss whether any narrow limits could in the circumstances be placed on the scope of such cross‑examination.
The question then becomes whether the learned primary judge's error in declining to allow cross-examination brought about a miscarriage of justice. In determining that point, the Court has the advantage that Vanderlelie was in fact cross-examined by defence counsel in a way which presumably would have been adopted had he been allowed to cross-examine on the voir dire and in particular with respect to a particular discrepancy relied on to show Vanderlelie's hostility. It seems desirable to explain that point, in some detail. Vanderlelie made a statement to the police which supported what was described below as the second basis of the Crown case, namely that the appellant was observed taking part in the unloading of cannabis resin from the "Highlander" at the relevant time. Vanderlelie told police about a camp which was set up, to house those who were to be engaged in the unloading process. He said in effect that when he got to the camp site other persons were there. On being asked who they were he said:
"Brian May and - I think his name is Steve - his name is Steve, but the last name I think is Cronin, and a lad by the name of - I only know his name as Stag. I do not know his first name or his last name, a young lad, and another person also by the name of Steve, and I don't know his last name either".
It will be noted that, according to this answer, there were two people called Steve, the last name of one of them being thought to be Cronin; the appellant's name is Stephen James Ashton. In addition to the two "Steves" there was said to be a person known as "Stag". In a later answer given to police Vanderlelie again referred to Steve Cronin, "the other Steve" and "Stag" as being occupants of the camp site.
When Vanderlelie was called and was asked by the prosecutor about the people at the camp site he initially mentioned only one Steve, Steven Cronin; but he did put the appellant at the camp site. When taxed with this he said, in effect, that the Steve other than Steve Cronin was identical with "Stag". He took the same line when cross-examined by counsel for the defence. Mr Rice submitted for the Crown, before us, that Vanderlelie had lied about this matter. The suggestion was that Vanderlelie was keen not to connect the appellant with the unloading operation. Among the matters which the judge took into account when deciding that Vanderlelie should be declared a hostile witness was that, his Honour thought, "it was with some reluctance that [Vanderlelie] identified the accused man as having been present at this camp site". It seems at least highly likely that Vanderlelie decided to merge a person called Steve who was, as he well knew, the appellant, with another person who was involved, one Stagoll, whose name is not Steve or Stephen. If the merger attempt had been made in a cross-examination on the voir dire by defence counsel, as it was in fact made in the defence cross-examination of Vanderlelie before the jury, that could only have strengthened the trial judge's adverse view of Vanderlelie.
In cross-examination by defence counsel before the jury, Vanderlelie made other statements intended to exculpate the appellant; there is no reason to think that these could have assisted the defence on the question of the declaration of hostility, if brought out on the voir dire examination. It was the judge's impression that Vanderlelie was attempting to exculpate the appellant, in a way which his Honour could not reconcile with the content of the police interview with Vanderlelie, and that contributed to the formation of the conclusion that Vanderlelie was hostile.
I therefore accept the Crown contention that the absence of cross-examination of Vanderlelie by defence counsel could not have affected the outcome and there was no miscarriage of justice caused by this irregularity.
The second ground relating to Vanderlelie has to do with the summing-up and in particular the question of the way in which the jury should approach the apparent inconsistencies in the versions given by Vanderlelie. It was not, I confess, perfectly clear what, according to the appellant's contention, the judge should have said; at one stage it was submitted that the jury should have been told to disregard Vanderlelie's evidence. Generalising that proposition, it would presumably follow that if a witness gives a statement to the police which incriminates the accused, but his evidence given at the trial is exculpatory, the whole of that evidence must be disregarded. This, it was said, follows from discussion in the High Court in Morris (1987) 163 CLR 454 at 469; nothing to support the submission is to be found there. In Morris the judge directed the jury that the witness in question, who gave evidence inconsistent with what he had told the police, had obvious problems of credibility, that the Crown was not relying on his evidence, that the jury was not free to ignore it but was required to look at it and, in effect, to decide whether it should be relied on. These directions survived scrutiny.
Defence counsel below, in asking for redirections about Vanderlelie, suggested that if the jury thought there was no previous inconsistent account, his evidence supported the defence case. As I understand the submissions made below, the defence did not then urge the judge to tell the jury to disregard Vanderlelie's evidence - that being the present contention - but asked for a direction that reliance might be placed on his account, as favouring the defence. The course the judge had taken was to set out what his Honour regarded as particularly relevant passages from Vanderlelie's evidence and then to summarise what counsel for the defence said about it. No complaint is made of that summary, which was to the effect that the defence said the jury should have doubts about the accuracy of Vanderlelie's evidence - presumably meaning that evidence which inculpated the appellant. The judge did not tell the jury that they should do so or not do so, but left it to them to assess Vanderlelie's credibility, adding a direction to the effect that they were entitled to accept part of his evidence and reject part of it.
It is true that the judge might have added a warning that Vanderlelie's credit was doubtful; but that was surely evident enough from the fact that the prosecutor cross‑examined Vanderlelie on the basis that what he had said to the police prior to the trial did not square with the account given at the trial. Of course, it is a matter for a jury whether they are prepared to act on the basis of a person whose credit is clearly suspect. In my opinion, considering the judge's directions with respect to Vanderlelie as a whole, they adequately placed before the jury the problem which Vanderlelie's evidence posed for them and did not unduly encourage acceptance of what Vanderlelie had told the police in preference to what was said at the trial.
The second ground of appeal therefore fails.
The third ground of appeal was that the judge should not have told the jury that they could convict upon the evidence constituting the first basis of the prosecution case. That basis was that the appellant made himself available to a person called May, from November 1996, to assist with the drug smuggling exercise, that the appellant knew about the exercise and that in furtherance of an agreement to assist in it he went to May's property on 10 December 1996 and then to the camp site at Poona with other persons including May. The judge gave the jury a direction which left it open to them to convict on that basis without having regard to the second basis of the Crown case, which was the direct evidence that the appellant assisted in unloading the cannabis resin.
This ground of appeal was not elaborately argued by Mr Kimmins; it appears to me not to have any real substance. Evidence was led of conversations between May, just mentioned, and the man in charge of the operation at the Australian end of it, one Roy, and also of conversations between May and the appellant. It was open to the jury to conclude from that evidence that May passed on to the appellant information he had obtained from Roy that the smuggling operation had been delayed. The May/Ashton conversations also indicated that the appellant was to be kept informed of the expected date of the "Highlander's" eventual arrival and that he undertook to be part of a group of people assisting at May's property when the vessel arrived. There was also evidence called that the appellant and others arrived at that property where the cannabis resin was to be unloaded, on 10 December 1996. The appellant had admitted that on 12 and 13 December the cannabis resin was landed, the plan to import it having included as parties to it Roy and May. Members of the landing party were apprehended at the camp site on 13 December, but they did not include the appellant. The Crown case was that the appellant had run off, evading capture, and there was evidence, the details of which need not be recounted, supporting that inference.
In the circumstances, it was open to the jury to convict the appellant of the offence charged, even if they took no account of the direct evidence that the appellant took part in the unloading.
The third ground of appeal also fails.
Sentence
The sentencing judge declared himself satisfied that the appellant ran away when the police apprehended other members of the party, as mentioned above. His Honour referred to the fact that the appellant was involved in a 10 day committal proceeding and an 11 day trial and that he had given evidence exculpating himself; therefore, the judge explained, the appellant had lost the opportunity to have the benefit he might have gained from a timely plea of guilty. His Honour sentenced the appellant to imprisonment for 9 years with a non‑parole period of 4 ½ years.
The appellant was born in January 1958 and so was 40 years old when sentenced. He had no prior convictions. Mr Kimmins, for the appellant, argued that the sentence should have been 8 years, not 9. The basis of this argument was that the appellant's role in the venture was similar to that of four other persons who had also been sentenced and had been given 8 year sentences with a recommendation for parole after 3 years. Most of the people involved in this crime were sentenced by Williams J on 4 February 1998 and it was those sentences on which Mr Kimmins relied to support his parity argument. The persons who were sentenced by Williams J to 8 years imprisonment with a non-parole period of 3 years were Hillier, Cronin, Mills and Hughes. None of these people had relevant or significant previous convictions and all had indicated an early plea of guilty. The judge made some favourable comments about each of them. He was satisfied that Hillier was genuinely remorseful and took into account in his favour that he is a New Zealander who committed the offence while on holidays and that he would be deprived of family visits during his period in prison in Queensland. The judge was satisfied that Cronin had shown remorse and that he had good prospects of future rehabilitation and that financial problems Cronin had encountered were the reason for his involvement; the judge thought that Cronin's involvement was somewhat less than that of a number of others. The judge thought that there was real hope for Mills' rehabilitation and made a similar remark about Hughes.
By comparison with these four people, just discussed, the appellant has been deprived of two benefits, in that their head sentence is a year shorter than the appellant's and their non‑parole period 18 months shorter - or, to look at it another way, they had the benefit, denied to him, of a one-year reduction in the standard non-parole period. The question, on this aspect of the matter, is whether those differences are such as to enable one to impute to the appellant a justifiable sense of grievance. One way of approaching the problem is to inquire whether, if all the five relevant people had been sentenced together, the awarding to the four other than the appellant of a one year discount from the head sentence, as well as a one year discount from the non‑parole period which would ordinarily have been appropriate to the discounted head sentence, would have given the appellant grounds for complaint. Although there would, in the situation I have postulated, be room for argument that the other four would have been a little generously treated by comparison with the appellant, there is not such a discrepancy between the sentences as to bring the parity principle into operation.
A separate complaint made by Mr Kimmins was based on the utterance by the sentencing judge of the following words in the context of a comparison between the appellant's position and that of other persons involved in the importation:
"The Crown made full preparation for his trial and he did, I guess, save some cost by his plea of guilty on the first day and it is apparent to me that in fairness to Stagoll I have to impose a sentence on you that's greater than the one I imposed on him".
Stagoll, another person involved in the importation, was sentenced by the same judge to 8 years imprisonment with a non-parole period of 4 years. Mr Kimmins pointed out that in Siganto (1998) 73 ALJR 162, the High Court held that if it is shown that, on the ground of an offender's plea of not guilty, the sentencing judge has -
". . . treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the [offender] defended himself against the charge"
that is a serious error (para 21). But in the same case the court said:
". . . a plea of guilty is ordinarily a matter to be taken into account in mitigation". (para 22)

In Queensland the subject is governed by s. 13 of the Penalties and Sentences Act 1992, which requires a court to take the offender's guilty plea into account and entitles, but does not oblige, the court to reduce the sentence for that reason. If, as in this case, two offenders A and B are being sentenced by the same judge and the judge says "I give A a lesser sentence than B, because A did and B did not plead guilty" the consequence is necessarily that the judge gives B a greater sentence than A. To say that A's sentence is less than B's means the same, logically, as to say that B's is more than A's. If these expressions have different meanings, I am unable to discern the difference.
In my opinion the application for leave to appeal against sentence should be refused.
Orders
I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
REASONS FOR JUDGMENT - MOYNIHAN J.
Judgment delivered 20 July 1999
This is an appeal against conviction for being knowingly concerned in the importation of a commercial quantity of cannabis resin and an application for leave to appeal against the consequent sentence of nine years with a non-parole period of four and a half years.
The relevant issues and associated circumstances are canvassed in the reasons of Pincus JA which I have read and it is therefore unnecessary for me to elaborate them here.
It may be accepted that the trial judge erred in not allowing the appellant’s counsel to cross-examine the witness Vanderlelie on a voir dire to determine whether he should be declared adverse - indeed the respondent conceded the irregularity. Vanderlelie was, however, cross-examined before the jury. The cross examination elicited answers capable of being regarded as exculpatory of the appellant but provides no basis for concluding that the answers given in cross-examination, if given on a voir dire, would have militated against a declaration of hostility. As to another aspect, the cross examination supported a conclusion that Vanderlelie, having placed the appellant at the camp site associated with the unlawful importation in a statement to police, sought to confuse the issue and suggest the appellant was not there. This he did essentially by manipulation of the two names of Steves (the appellant and a Steve Cronin) and a man Stagoll (Stag) designed to given an impression that there was a Steve at the site and that that was Steve Cronin. There was clearly inconsistency between the statement to the police and this evidence. This supports a conclusion that the appellant was not willing to tell the truth rather than to the contrary. It follows that in my view the fact that the appellant’s counsel was not permitted to cross-examine Vanderlelie on the voir dire could not have affected the outcome that he was declared hostile.
It seems to have been a subsidiary argument that the trial judge had a discretion but failed to exercise it. That the argument arises is dubious. The trial judge declared himself satisfied that he had “no doubt” that Vanderlelie was a person who was not desirous of telling the court the truth, bore hostile animus to the respondent and that he was not giving his evidence before the jury with a desire to tell the truth to the court. Those conclusions were open and in the circumstances fairly compelling of a declaration of hostility in the absence of any countervailing considerations and there do not seem to have been any. It may be that a trial judge has a discretion under s.130 of the Evidence Act 1977 in the case of hostile witnesses to consider whether evidence should be excluded; R v. Hall (1985) 18 A Crim R 239; Morris v. R (1987) 163 CLR 468. The trial judge was not asked to exercise the discretion, in circumstances which were far from compelling in relation to causing the discretion to arise.
The second ground argued related to the way in which the trial judge treated Vanderlelie’s evidence in summing up. There is no doubt that the trial judge left an assessment of Vanderlelie’s credibility squarely to the jury, including that they were entitled to accept part and reject part of his evidence. As a consequence of a request for redirections in relation to that aspect of Vanderlelie’s evidence capable of favouring the appellant, the trial judge put the relevant passages and the appellant’s counsel’s submissions based on them before the jury. In my view, it has not been demonstrated that the jury was other than adequately seized of the defence contentions as to the exculpatory implications of Vanderlelie’s evidence in the context of an appreciation of the overall issue of his credibility.
It was argued that the trial judge misdirected the jury in telling them that they could convict on the “first basis” of the prosecution case. This basis was effectively that the appellant involved himself with earlier efforts of unlawful importation by a man named May and later went to May’s property and was there together with others when the importation the subject of the conviction occurred. This basis was founded on taped conversations between the appellant and May. It was open to the jury to conclude that May passed to the appellant information that the importation had been delayed, that the appellant would be kept informed of the expected date of the eventual arrival, that he was to be one of a group enlisted in the enterprise when the vessel did arrive and that he arrived at the property where the resin was to be unloaded as it undoubtedly was. There was evidence capable of supporting the inference for which the Crown contended that the appellant fled the scene and evaded capture. The judge directed the jury that it was open to them to convict on the basis of the evidence just identified without having regard to the direct evidence supporting the second basis of the Crown case that the appellant assisted in the unloading. It was open to the jury to convict even if they took no account of the direct evidence that he was involved in the unloading.
The appellant’s argument on his application for leave to appeal against sentence is on the basis that his sentence is not in parity with the sentences of others for their involvement in the enterprise; particularly four other persons who were sentenced to eight years imprisonment with a non-parole period of three years. Assuming for the moment that their involvement was on a par with that of the appellant, each of them had entered timely pleas of guilty and there were other mitigating features of their circumstances which commended them to the judge who sentenced them. There is no doubt that the sentencing judge was entitled to take their pleas of guilty into account in reducing sentence; s.13 of the Penalties and Sentences Act 1992.
The appellant was involved in a ten day committal proceeding and an eleven day trial in which he gave evidence, plainly rejected by the jury, exculpating himself. The timely pleas and other considerations applying to the four persons who pleaded guilty and reflected in their sentences do not mean that in sentencing the appellant the judge treated as an aggravating circumstance the appellant defending himself against the charge and increased the punishment on that account. It is inevitable that all else being equal a party given the benefit of mitigating factors and an early plea will receive a lesser sentence than a party who is not.
I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.