R v Casella

[1995] QCA 599

IN THE COURT OF APPEAL	[1995] QCA 599
SUPREME COURT OF QUEENSLAND

C.A. No. 397 of 1995.

Brisbane

[R v. Casella]

T H E Q U E E N

v.

MARCELLO NELLO CASELLA

Appellant

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Fitzgerald P.
Pincus J.A.

McPherson J.A.

___________________________________________________________________

Judgment delivered 20/12/1995

Joint reasons for judgment of Fitzgerald P and Pincus J.A.; separate concurring
reasons for judgment of McPherson J.A.

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS:	CRIMINAL LAW - CONVICTION - producing a dangerous drug and possession of things used in connection with the production - whether judge wrongly exercised discretion to allow trial to proceed with 11 jurors - whether judge wrongly disallowed: cross-examination of a police witness regarding his alleged mistaken identification of another person involved with the marijuana plantation and the outcome of a Magistrates Court prosecution in that case; alibi evidence to be called in respect of that person’s whereabouts - whether collateral issue - whether too remote - cogency - whether judge should have given a McKinney direction in respect of admissions said to have been made by the appellant; whether direction given was adequate - relevance of risk created by non-use of readily available recording facilities - whether jury should have been discharged on the basis that a dock identification did occur ; whether judge failed to give a proper direction.
McKinney (1991) 171 C.L.R. 468. Carr (1988) 165 C.L.R. 314 Piddington v. Bennett & Wood Pty Ltd (1940) 63 C.L.R. 533 Natta v. Canham (1991) 104 A.L.R. 143
Counsel:	Mr T Rafter for the appellant. Mr D Bullock for the respondent.
Solicitors:	McDonald & Leong for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	7 December 1995.

JOINT REASONS FOR JUDGMENT - FITZGERALD P AND PINCUS J.A.

Judgment delivered 20/12/1995

The appellant, having been convicted of producing a dangerous drug (cannabis sativa), the quantity exceeding 100 plants, and also of possession of things used in connection with the production of a dangerous drug, appeals against these two convictions. There was ample evidence of the existence of a large cannabis plantation on "Robinhood" station, which is located about 300 km west of Ingham in North Queensland; according to police evidence, 5729 plants were growing on the plantation. There was substantial evidence of the appellant’s involvement with operations at that plantation and no contention is advanced that the convictions were unsafe. Five points were, in varying degrees, pressed on behalf of the appellant; none of them necessitates a detailed analysis of the rather complex and voluminous evidence, which is helpfully summarized in the outlines supplied by counsel.

Two major components of the Crown case were as follows. Simon Terry, who was an owner of the station, gave evidence of arrangements he made for the establishment and operation of the plantation; secondly, there was a considerable amount of police evidence of their observations connecting various identified persons, including the appellant, with each other and with the activities at the plantation.

The first ground argued was that the judge, it was said, wrongly exercised his discretion in directing that the trial proceed with 11 jurors instead of 12. The jury was empanelled on 14 August 1995, but at the request of counsel for the applicant the trial was adjourned until the following day, when the judge was told that one of the jurors was ill. On that day, 15 August, there was no evidence given, but only argument and rulings from the judge in the absence of the jury. During the afternoon the judge announced that the juror who had been ill would, it was thought, be fit to attend the following day. But that proved not to be so; when the court resumed on 16 August there was another difficulty, in that a child of the same juror had become ill and she needed to stay home to attend to the child, her husband being away. Counsel for the appellant then submitted that, as no evidence had been taken, the case should be further adjourned so that "a fresh jury panel . . . could be resworn". The judge rejected that submission, pointing out that if he adopted it the result would be that "no evidence will be led until the fourth day of the trial which is estimated to last somewhere between two and three weeks". Accordingly, his Honour discharged the juror in question and directed that the trial proceed with the remaining jurors.

The issue which is raised on behalf of the appellant is whether the learned trial judge wrongly exercised his discretion under s. 628 of the Criminal Code, which reads as follows:

"(1) If at any time during the trial a juror-

(a)       dies; or

(b)       becomes in the opinion of the court incapable of continuing to act as a juror; or

(c)        becomes for any reason that in the opinion of the court is sufficient unavailable to continue to act as a juror;

the court may, in its discretion, discharge the jury under the provisions
hereinbefore contained, or may, if it thinks fit, direct that the trial shall
proceed with the remaining jurors and discharge the juror so becoming
incapable or unavailable.
(2) In any such case the verdict of the remaining jurors, not being less
than 10, shall have the same effect as if all the jurors had continued
present."

It is not contended that, in holding as he did that the circumstances were such as to give rise to the discretion mentioned in the section, the judge erred; the argument is simply that another jury should have been empanelled because the Crown had not opened its case and there would have been no practical difficulty in empanelling another jury.

These were, no doubt, matters which the primary judge took into account. The similar jurisdiction exercisable under s. 44 of the Juries Act 1967 (Vic) is, it has been held, not to be interfered with on appeal unless the judge’s view of the matter is clearly wrong: Sumner (1985) 19 A.Crim.R. 210. But even on the conventional tests set out in House v. The King (1936) 55 C.L.R. 499, we can see no justification for upsetting the verdicts on the ground put forward; it is not suggested that the primary judge erred in principle or mistook the facts, nor is it submitted that the order which his Honour made was so plainly wrong that there must have been some error. One would expect that in matters of this sort the primary judge’s view as to what is the just and proper course would ordinarily be upheld - cf. Hyde (Court of Criminal Appeal, C.A. No. 229 of 1990, 15/10/1990, unreported).

In our view there is no reason to doubt the soundness of the judge’s conclusion on the point and this ground of appeal must fail.

Grounds 2 and 3 are related and have to do with an allegation that a police witness mistakenly identified one Peterson as having been involved with the marijuana plantation in question. The complaints made are that the judge should have, but did not, permit cross-examination of a police witness, one Stalling, on the matter; nor would his Honour permit alibi evidence to be called in respect of Peterson, to show that he could not have been present when and where Stalling had alleged.

With respect to the cross-examination of Stalling, it appears to us that the judge made two observations which might be described as rulings and are relevant to these grounds. First, the judge commented upon a question asked of Stalling by counsel who appeared for the appellant below, suggesting that Peterson had a "watertight" alibi. The judge expressed the view that the question was "about a matter of opinion which is presumably based on hearsay" and counsel then said that he would go about the matter another way.

The question the subject of this observation asked for an opinion as to the weight of evidence against that which Stalling had given. We appreciate that it is common in criminal cases to allow considerable latitude in cross-examination on behalf of the accused, but it is clear that the judge’s view of the matter was correct; Stalling’s opinion with respect to the strength of the evidence opposed to his identification of Peterson was not a point which counsel for the appellant was entitled to investigate.

It appears from the outline of argument placed before us that the appellant also challenges the judge’s refusal to permit cross-examination of Stalling to show what had happened to the prosecution against Peterson in the Magistrates Court. It is enough to say that, assuming that a magistrate was dissatisfied with Stalling’s identification of Peterson, that was not a matter which was relevant either to any issue in the case, or to Stalling’s credit.

A more substantial point raised under this heading was whether the judge was in error in holding that evidence was inadmissible in this trial, in which Peterson was not an accused, to show that Peterson could not have been present at the times and places sworn to by Stalling. In fact, as is pointed out on behalf of the respondent, there were two witnesses who purported to identify Peterson as being present at relevant times and places, one being Stalling and the other a detective named Flynn; the point raised on appeal relates only to the former. The judge was asked to permit evidence to be called, providing an alibi for Peterson; his Honour held the evidence to be inadmissible as being relevant only to a collateral issue.

The contention on behalf of the appellant was to the effect that the evidence of Peterson’s alibi should have been admitted to discredit Stalling. In a number of respects, evidence which Stalling gave was relevant to the case against the appellant, but the respondent contends that the judge had a discretion to exercise in the matter and that if the evidence showed that Stalling had made a mistake about Peterson, that was too remote from the issue before the jury to be admissible.

In Natta v. Canham (1991) 104 A.L.R. 143, the Full Court of the Federal Court had to consider a somewhat similar question. There, the plaintiff in a personal injury case was cross-examined about statements allegedly made by her to a friend to the effect that a fake accident should be staged so that the plaintiff and the friend could earn some money. The suggestions put in cross-examination were denied and the judge let in evidence to contradict the denials; it was held that he was right to do so. The most pertinent observations for present purposes are to be found at p. 159:

"While judges will be astute to confine or prevent exploration of secondary issues affecting credibility, the exercise of the judicial function in that regard should not be encumbered by over-nice distinctions between ‘collateral’ and other matters and the application of enumerated exceptions with a flavour of statutory proviso about them. And even where one of the exceptions can be invoked, as for example where there is an allegation of bias which is denied, ‘a court would only permit such a diversion from the material issues if it were satisfied that the interests of justice, namely the proper investigation of the material issues, demanded it’: Bakopoulos v. General Motors Holden’s Ltd [1972] VR 732 at 733 (Lush J)."

It seems to us difficult to resist the conclusion here implied, that questions of degree rather than of kind arise. To take an example, suppose that the Crown relied as against this appellant on evidence that he had been seen at the plantation with three other persons whom the Crown witnesses purported to identify; if cogent evidence were available that none of the other three persons could have been present on the relevant occasion, that would surely be admissible in the appellant’s trial as at least raising a question as to whether the alleged observations occurred at all.

But that is not this case; here, the extensive evidence of the results of police surveillance did not include any evidence that Peterson and the appellant were in each other’s company at relevant times. If evidence to show that Stalling was wrong about Peterson being present at relevant times and places was admissible in favour of the appellant, that could only have been on the basis that it tended to show that Stalling might have been in error insofar as he claimed to have made other observations, supporting the Crown case against the appellant. Evidence of such an error would, as it seems to us, have no more to do with the case against the appellant than evidence of any other error of observation by Stalling, about the relevant time - even an observation having nothing to do with this case. Pursuit of matters of that sort would be a more attractive course if "we lived for a thousand years instead of about sixty or seventy", as Rolfe B. pointed out in Attorney-General v. Hitchcock [1847] 1 Exch. 91 at 105. It seems right to assume that in some circumstances the Court may be obliged to entertain, at whatever expense of time, a dispute as to whether or not an identification sworn to by a witness in a case was correct, even when the question whether the identification was or was not correct is relevant only to credit. But it is by no means every such point which may be made the subject of evidence in chief. Our system has been served well, in our opinion, by a judicial disinclination to allow evidence about collateral matters. This is exemplified and its limits discussed, in ways relevant to the present case, in Piddington v. Bennett and Wood Pty Ltd (1940) 63 C.L.R. 533, Ready v. Brown (1968) 118 C.L.R. 165 and Urban Transport Authority of N.S.W. v. Nweiser (1992) 28 N.S.W.L.R. 471 at 477, 478.

The transcript shows that the approach of counsel for the appellant below was that it was clear beyond the possibility of dispute that Stalling was wrong in his purported identification of Peterson, but the basis upon which counsel asserted this appeared to be no more than that Peterson’s employer had given evidence on the point inconsistent with Stalling’s. There is no reason to doubt that it would have been an error on the part of the primary judge to permit witnesses to be called on the question whether Stalling had correctly identified Peterson as a person present at times and places which suggested an involvement with the plantation in question. That would, logically, have let in any evidence supporting the observation by Stalling, even evidence of alleged admissions by Peterson. It is plain enough, as it seems to us, that the potential width of an enquiry about Peterson’s whereabouts, and its marginal bearing on the case against the appellant, compelled a conclusion adverse to the appellant on this point.

Our conclusion, then, is that the trial judge was correct in his treatment of the Stalling issue, both as to the mode of cross-examination and the permissible content of evidence in chief.

The next ground requiring consideration is that, so it was said, the judge
inadequately warned the jury with respect to uncorroborated confessional statements.

After the judge had completed his summing-up, counsel for the appellant asked for a warning in accordance with McKinney (1991) 171 C.L.R. 468 in respect of admissions or implied admissions said to have been made by the appellant. He was interviewed at Griffith CIB by two New South Wales police in November 1993; they were acting under a Queensland warrant for his arrest. The conversation was at least potentially incriminating, in parts. It is enough to quote three questions and answers :

"Fehon:	Do you understand the allegations?
Casella:	Yes. Have they been watching me?
Fehon:	The fax states that you were surveilled in the process of supplying food and equipment to others who were tending to the crop.
Casella:	What more can I say?
Fehon:	Do you want to tell me anything about your involvement?
Casella:	I think you could tell me. "

After discussing the matter with counsel the judge brought the jury back and gave them a further direction about the evidence of the conversation at the Griffith CIB:

" I just want to say this about that: you should be very careful when considering that evidence and, in particular, you should consider what has been said about it, the fact that the statements are alleged to have been made whilst the accused was at the police station and it is not independently corroborated. So you should give careful consideration to the dangers involved in acting on that evidence alone as a basis for conviction or substantially alone when you are considering your verdict". (1111-1112)

It appears to us that the direction the judge gave was adequate. The case was plainly not one in which a McKinney direction was obligatory; McKinney requires a direction that the jury -

" . . . should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated". (171 C.L.R. 468 at 476)

Here, the conversation to which we have referred was neither the only nor substantially the only basis for finding the appellant guilty; the Crown case rested principally upon the evidence of police surveillance of the appellant and others with whom, the Crown set out to prove, he was associated in the establishment and management of the plantation.

But the fact that a McKinney direction was not required does not mean that no direction at all was required. The risks of acting upon incriminating statements allegedly made to the police, but not electronically recorded, are evident; we do not find it necessary to repeat our discussion of the authorities in Zullo (Court of Appeal, C.A. No. 343 of 1991, 10 August 1992, unreported) at pp. 12-20. Even where the unrecorded confession is not the only, nor substantially the only, evidence of guilt, a warning about the dangers of acting upon such a confession may well be necessary. In Carr (1988) 165 C.L.R. 314 the Crown relied upon a confession which was, the police said, recorded in writing but not otherwise. Brennan J (as his Honour then was), after referring (p. 324) to the desirability of proper recording of confessions, held that the trial judge should have given a warning about the confessional evidence (p. 330). Deane J would have required such a direction as was later held, in McKinney, to be necessary and Gaudron J held (343) that a warning was necessary, forming a majority in favour of such a requirement. Carr is thus an example, before McKinney, of the application of a principle, broader than that adopted in McKinney, that a warning must be given "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case": Longman (1989) 168 C.L.R. 79 at 86.

One of the New South Wales police officers, J A Kain, gave evidence (954) that the conversation in question took place in what was described as an "interview room" equipped with tape-recorders, but said in effect that the tape-recorders were not used because the conversation never got to an "interview stage". The implication appeared to be that under New South Wales police practice tape-recording was not necessary. That appears to us to be irrelevant to the question whether the practice adopted involved a significant risk, to the appellant, that this important conversation would not be faithfully recounted in court. It seems that, quite apart from any question of fabrication, there was a risk that errors in recollection of the language used might arise, of such a kind as to be adverse to the appellant.

It would, in our respectful opinion, have been appropriate in the present case for the judge to have pointed out the ready availability of recording facilities, that the decision of the New South Wales police not to use them created a risk that an inaccurate version of the conversation would be given to the court and that accordingly the jury should not too readily conclude that anything incriminating was said by the appellant during this conversation. The direction which the judge in fact gave was not as specific as that which we have just postulated, but it was, as we have said, adequate.

We would merely add that years after McKinney, it still seems common for police (particularly when not at a police station) to engage suspects in discussion about serious allegations like those against the appellant without troubling to use a tape- recorder. This practice can produce injustice to accused persons; in our view it is desirable that trial judges ordinarily point out to juries the risks associated with this undesirable practice, and that the police could easily tape record such conversations. But the appellant’s ground based on McKinney (which was not strongly pressed) must be rejected.

The last of the grounds which was not abandoned was that the judge did not discharge the jury or else give a proper direction relating to what was said to be a dock identification; the basis of the ground is a contention that a dock identification did in fact occur. The direction given was to the effect that a police officer, Mr Eggins, had been asked whether he claimed that he could recognise the man in the dock and, the judge went on -

"He said something - if the person is present, he could stand up and he might be able to recognise him, but you recall that did not occur and he did not, as the evidence is recorded, say that that is the man that he saw that day". (1073)

That is, the judge told the jury that the appellant did not stand up and that the evidence as recorded did not include a statement by Eggins identifying the man in the dock as a person Eggins saw. The record is unclear on this point.

When the matter was first raised by counsel for the appellant, the judge stated that his understanding of what Eggins had said was that -

" . . . he thought it was possible he could identify the accused if he stood up in the dock, but that that was where the matter was left and he made no identification of him". (804)

A little later, counsel for the appellant said he had been concerned that there was a dock identification, but, to put it summarily, counsel did not then contend that the judge’s recollection of what had occurred was incorrect and we should in our view proceed on the footing of the judge’s statement on the subject. The ground must therefore be rejected.

We would add only that circumstances can occur in which a dock identification may be proper: some of the authorities are mentioned in Chatters (C.A. No. 428 of 1994, 15 March 1995, unreported).

The appeal is dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 20th day of December 1995

I agree with what Fitzgerald P. and Pincus J.A. have written in this matter. The appeal should be dismissed.