R v El-Azzi - [2004] NSWCCA 455

No judgment structure available for this case.

CITATION: R v El-Azzi [2004] NSWCCA 455

HEARING DATE(S): 1 June 2004, 2 June 2004

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Santow JA at 1; Simpson J at 70; Sperling J at 224

DECISION: (1) Appeal against conviction dismissed; (2) Leave to appeal against sentence granted ; (3) Appeal against sentence dismissed

CATCHWORDS: appeal against convictions - knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine - conspiracy to manufacture not less than large commercial quantity of methylamphetamine - proper characterisation of the object of the conspiracy - impossibility of achievement by use of materials available - whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered - whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine - whether separate trial of first count ought to have been ordered - admissibility of coincidence evidence - directions concerning evidence admissible on individual counts - the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts - directions concerning circumstantial evidence - evidence of deceased witness read - indemnified witnesses - cross-examination of appellant on matters relevant only to credibility - evidence of prior criminal conviction - evidence of disciplinary proceedings - discretion to grant leave to cross-examine appellant on credibility - unfairness - "substantial probative value" - unreasonable verdicts - corroboration - corroboration of evidence of accomplices - whether one accomplice can corroborate the evidence of another - directions concerning unreliability of witnesses - jury access to transcripts of counsels' addresses and summing up - leave to appeal against sentence - appeal dismissed - leave granted to appeal against sentence - appeal dismissed

LEGISLATION CITED: Crimes Act 1900 s186
Criminal Appeal Act 1912 s5F, s6
Criminal Procedure Act 1986 s29, s64
Drug Misuse and Trafficking Act 1985 s24(2), s26
Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192
Evidence Act 1977 (Qld) s15(2)

CASES CITED: Director of Public Prosecutions v Nock [1978] AC 979
Hoch v The Queen [1988] HCA 50; 165 CLR 292
House v The King [1936] HCA 40; 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51
Kevin William Phillips v The Queen [1985] HCA 79; 159 CLR 45
M v The Queen [1994] HCA 63; 181 CLR 487
Matusevich v The Queen [1977] HCA 30; 137 CLR 633
Pollitt v The Queen [1992] HCA 35; 174 CLR 558
R v "S" [2000] NSWCCA 13; 111 A Crim R 225
R v Barbouttis (1995) 37 NSWLR 256
R v Bartle [2003] NSWCCA 329; 181 FLR 1
R v Brown (1960) [1960] VR 382
R v Chan [2002] NSWCCA 217; 131 A Crim R 66; 128 A Crim R 119 (Related proceedings)
R v Chen & Ors [2002] NSWCCA 174; 130 A Crim R 300
R v Clough (1992) 28 NSWLR 396; 64 A Crim R 451
R v El Azzi (2001) 125 A Crim R 113
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1
R v Fowler [2003] NSWCCA 321
R v Gramanatz (1962) 57 QJPR 1; [1962] QWN No 41
R v Lumsden [2003] NSWCCA 83
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Mayberry [2000] NSWCCA 531
R v Ralph and George (1988) 37 A Crim R 202
R v RPS, unreported, NSWCCA, 13 August 1997
R v Sew Hoy [1994] 1 NZLR 257
R v Shivpuri (1986) [1987] AC 1
R v Smith (Roger) [1975] AC 476
R v Stewart [2001] NSWCCA 260; 52 NSWLR 301; 124 A Crim R 371
R v TJF [2001] NSWCCA 127; 120 A Crim R 209
Regina v Taousanis [1999] NSWSC 107
RPS v The Queen [2000] HCA 3; 199 CLR 620
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Stanoevski v The Queen [2001] HCA 4; 202 CLR 115

PARTIES :
Crown - Respondent
William El-Azzi - Appellant

FILE NUMBER(S): CCA 60476/03; (2003/311)

COUNSEL: D Howard - Crown
P Byrne SC/ C Waterstreet - Appellant

SOLICITORS: S Kavanagh - Crown
M King - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0728; 01/11/0667

LOWER COURT
JUDICIAL OFFICER : Armitage DCJ

CCA 60476/03
(2003/311)

SANTOW JA
SIMPSON J
SPERLING J
16 DECEMBER 2004

REGINA v William EL AZZI

Judgment

1 SANTOW JA

INTRODUCTION

2 On 8 October 2002 the appellant was indicted before Armitage DCJ at the Sydney District Court on the following charges:

Count 1 : That he between 1 December 1995 and 31 January 1996 at Sydney, in the State of New South Wales, did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity. (s.24(2) Drug Misuse and Trafficking Act 1985, maximum penalty: life imprisonment or 5,000 penalty unit fine or both)

Count 2 : Further that he between 1 January 1996 and 30 April 1996 at Dooralong and elsewhere, in the State of New South Wales, did conspire with Damien Drew, Richard Simpson, Kim Knight, Georgina Phillips and others to manufacture a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity. (s.26 Drug Misuse and Trafficking Act 1985, maximum penalty: life imprisonment or 5,000 penalty unit fine or both)

Count 3

(s.26 Drug Misuse and Trafficking Act 1985, maximum penalty: life imprisonment or 5,000 penalty unit fine or both)

3 The appellant pleaded not guilty and was tried before His Honour and a jury of twelve. The trial was a lengthy one, exceeding the original estimate of eight weeks. The proceedings commenced 8 October 2002 and concluded just before Christmas, on 20 December 2002 with the jury’s conviction on counts 2 and 3 and acquittal on count 1.

4 At the trial Mr B Purves appeared as Crown Prosecutor. Mr C Waterstreet appeared for the appellant.

5 On 19 May 2003 the appellant was sentenced, on each of counts 2 and 3, to imprisonment for a term of seven years to commence from 20 December 2002 and to expire on 19 December 2009 with a non-parole period of five years and three months to expire on 19 March 2008.

6 It is convenient to set out below the dramatis personae, as described uncontroversially by Mr Waterstreet for purposes of this appeal. As to the salient facts I gratefully adopt these from the judgment of Simpson J.

DRAMATIS PERSONAE

William EL AZZI	Alleged co-principal organiser of manufactures at Dooralong and Sylvania (counts 2 and 3). Engaged by SIMPSON to advise on Crown brief of evidence in Nexus trial. Later, becomes de facto spouse of Helen ADAM.
Richard SIMPSON	Principal manufacturer of amphetamine type drugs over many years. At time of alleged offences was married to Helen Simpson (nee ADAM). At time of trial was married to Kathleen INGALL (see also PROCTOR).
Craig HAEUSLER	Principal co-supplier with PARKER of chemicals and glassware in counts 2 and 3 in exchange for 50% of the final product. Was brother-in-law of BROWN.
David PARKER	Principal co-supplier of chemicals and glassware in counts 2 and 3 with HAEUSLER in exchange for 50% of the final product.
Trent BROWN	Supplied glassware on counts 2 and 3. Was brother-in-law of HAEUSLER.
Robert PROCTOR	Assisted in procuring the premises at Sylvania Waters (count 3). Was a friend of the owner – Rodney HEARNE. Acted as assistant at Sylvania Waters. Had been married to INGALL. Was best man at wedding of Helen ADAM to SIMPSON.
Robert McCOY	Took over from PROCTOR as assistant at Sylvania Waters. Brother of Michael McCOY (first husband of Helen ADAM).
Rodney HEARNE	Owner of premises at Sylvania Waters. Good friend of PROCTOR.
Kathleen INGALL	Present at Sylvania Waters and provided some assistance with processing of drugs. Had been married to PROCTOR. At time of trial was married to SIMPSON.
Helen ADAM	Said to be present at Dooralong and ‘in charge’ of distribution of anticipated final product on counts 2 and 3. Initially married to Michael MCCOY. Later married to Richard SIMPSON (at time of alleged offence). At time of charge in de facto relationship with EL AZZI.
Kim KNIGHT	Assisted with manufacture at Dooralong. At all times in relationship with Georgina PHILLIPS.
Georgina PHILLIPS	Assisted with manufacture at Dooralong. At all times in relationship with Kim KNIGHT.
Peter DINHAM	Allegedly provided premises at Dee Why (count 1) and transported chemicals to Dooralong and Sylvania Waters. Son of Pauline DINHAM.
Pauline DINHAM	Worked with EL AZZI at ‘Come Clean’ Laundry. Mother of Peter DINHAM and friend of Tony BRIZZI.
Arthur LAUNT	Supplier of precursor materials to PARKER and HAEUSLER, now deceased after giving evidence in two affidavits.
Tony BRIZZI	Allegedly supplied premised at Glenfield (from where chemicals were later alleged to be moved to Sylvania Waters).
Damian DREW	Supplied premises at Dooralong. Dentist of Richard SIMPSON.

The November – December 2000 trial time-line

7 Before referring specifically to the appeal grounds, it should be borne in mind that Mr King in an affidavit of 27 September 2004 at paras 12 to 14 and by reference to Appendix A with its transcript references described what was said to be “the pressure to complete”, before an apparent deadline of 20 December 2002. That had regard to the situation of individual members of the jury who had passed jury notes about their need to attend employment, in the context of Christmas approaching. At para 14, the following is said by Mr King by way of what his trial counsel was supposed to have said to him:

The jury is going out tomorrow and the Judge still hasn’t finished his summing up. I don’t think he has put the evidence on each count to the jury properly and I can’t see how he has put our case at all but at this late hour there is no chance he will give us a redirection, that would take at least another day and its pretty clear the jury are going to be gone tomorrow afternoon

8 To this, the Crown responds by referring to the extracted portion of the transcript of 17 December 2002 where at T, 2663.32 the trial judge said the following: ”Look Mr Waterstreet, there are no restrictions. You can go on for days if you want to. And I mean that seriously”.

9 The trial judge is then quoted as referring to the possibility of discharging the jury before they would have retired to consider their verdicts. That in fact did not happen since the trial was concluded on 20 December 2002 with the jury returning a verdict that day.

10 The relevance of this was said to go to the appeal ground 9 concerning the request by the jury for a transcript of the trial judge’s summing up. This the trial judge declined on the basis that he did not have power to provide it. The appeal ground relates to the trial judge failing to recognise that he was not bound to decline such a request but had a discretion to grant it and contends that he should have done so in the circumstances. I agree with Sperling J’s observations and conclusion concerning that ground (as I do with the rest of his judgment).

THE APPEAL GROUNDS

11 These grounds are described in the terms that they appear after a number of changes were made following the first day of the Appeal hearing by the appellant, that is to say from the appellant’s revised submissions of 20 June 2004.

Separation Of Counts
Ground 1(A) : His Honour erred in not ordering a separate trial of the first count on the indictment (see Judgment dated 26 September 2002).

Ground 1(B) : His Honour erred in ordering that the evidence in each count was admissible in respect of the other two counts pursuant to s98 Evidence Act as coincidence evidence (see Judgment dated 26 September 2002).

Ground 1(C) : Further, His Honour did not give sufficient instructions to the jury in the summing up when directing them to consider the three charges separately, and did not properly identify or segregate the admissible evidence in respect of each count.

The evidence of the late Mr Launt
Ground 2(A) : His Honour erred in failing to exclude the evidence of the late Arthur Launt pursuant to ss65, 135 or 137 Evidence Act .

Ground 2(B) : Alternatively, His Honour erred in failing to exclude parts of the evidence of the late Arthur Launt (see SU p142.9 18/12/02 V10 and following on especially at SU p152.5, further at 19/12/02 p1-17 and Reasons for Judgment 19/12/02 V11).

Ground 2(C) : His Honour instructed the jury that the evidence of the late Arthur Launt had ‘some significance’ but failed to properly instruct them concerning his unreliability pursuant to s165 Evidence Act : SU 18/12/02, V10, p43.

Sufficiency of evidence on Counts 2 and 3
His Honour erred in finding that there was sufficient evidence to support counts 2 and 3.

Ground 3(A) : Counts 2 and 3 were each agreements to use ingredients that were incapable of producing methylamphetamine. The object of the conspiracy was in each case impossible.

Ground 3(B) : His Honour failed to properly direct in respect of the pleaded substance.

Prosecutorial irregularities
Ground 4 , not pressed.

Cross-examination of accused

Ground 5

(a) A police departmental charge of disobedience relating to a failure to make an occurrence pad entry.

(b) A police departmental charge of disobedience or a direction authorising a trip to Bali.

(c) Alleged threats made by the accused to Richard Simpson and Katie Ingall.

(d) A criminal conviction under s186 Crimes Act.
Lie as evidence of guilt
Ground 6 not pressed.
Unreliability of witnesses
Ground 7: The learned judge erred in the manner in which he dealt with questions of the potential unreliability of witnesses, particularly the witness Richard Simpson:
Failure to put the defence case and directions on the credibility of Richard Simpson
Ground 8 not pressed otherwise than under Ground 7.
Failure to provide the jury with transcript
Ground 9: His Honour erred in refusing the jury’s request for the transcripts of the closing addresses and summing up (SU 19/12/02 p70, V11).
Unreasonable Verdicts
Ground 10: The verdicts of guilty in relation to counts 2 and 3 are unreasonable.
Total unreliability of Richard Simpson
In relation to sentence:
Ground 11: The sentence imposed was manifestly excessive in the circumstances.
Ground 12: The sentence imposed on the applicant was so far greater than a number of his co-offenders such that he has a justifiable sense of grievance.
CONSIDERATION OF APPEAL GROUNDS

12 I have had the advantage of reading the judgments of Simpson J and Sperling J (as circulated in draft). I agree with their reasons and conclusions concerning each of the appeal grounds dealt with in their respective judgments and do not wish to add anything to their observations on the grounds with which they deal. It remains for me to deal with grounds 3(A) and 3(B) and the appeal against sentence. I note their respective concurrence both with each other and with what I have said on grounds 3(A) and 3(B) and on sentence. I deal at the conclusion of this judgment with the orders of the Court that follow in consequence.

GROUND 3(A) and 3(B):
Ground 3(A): Counts 2 and 3 were each agreements to use ingredients that were incapable of producing methylamphetamines. The object of the conspiracy was in each case impossible.

GROUND 3(B): His Honour failed to properly direct in respect of the pleaded substance.

13 Ground 3(A) in effect complains that Armitage DCJ erred in finding that there was a case to answer in relation to counts 2 and 3, on the basis that the object of the conspiracy in each case was impossible. Ground 3(B) is essentially that the trial judge erred in failing to properly instruct the jury that they must be satisfied beyond a reasonable doubt that the product of the conspiracy was methylamphetamine and not amphetamine.

Ground 3(A)

14 Counts 2 and 3 as earlier observed, concern conspiracy to drug manufacture, prohibited under s26 of the Drug Misuse and Trafficking Act 1985 which is in the following terms:

“A person who conspires with another person or other persons to commit an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as a person would be if the person had committed the first mentioned offence.”

15 This issue arose earlier upon an application for leave to appeal under s5F of the Criminal Appeal Act 1912. This was against an interlocutory judgment of Hock DCJ refusing to grant a permanent stay of two counts in an indictment upon which the present appellant and then applicant had been arraigned in the District Court. The counts were those the subject of the present appeal. That application gave rise to the judgment in William El Azzi (2001) 125 A Crim R 113 in which the stay sought was refused. Howie J gave the leading judgment concurred in by Mason P and Levine J.

16 The substantial issue as articulated by Howie J is essentially the same issue as underlies the present ground. At 117 [14] Howie J expressed that issue in these terms:

“The substantial issue raised before Judge Hock and before this Court is whether it is open to the Crown to charge the applicant with a conspiracy in relation to each of the two incomplete attempts to manufacture methylamphetamine in light of the uncontested evidence that the chemicals being used for the purpose in both cases could not produce that or any other drug.”

17 At 118 [19] Howie J elaborated in these terms:

DPP v Nock

R v Barbouttis

18 The appellant now contends that in El Azzi, this Court did accept the description of the agreement the object of the conspiracy as stated by the then trial judge, Judge Hock, as: “An agreement in general terms to manufacture methylamphetamine, that when it was made it was obviously not impossible to achieve an objective. In other words, the conspiracy alleged here was not a conspiracy to do something that was impossible.”

19 However, that is not an accurate description of the reasoning of Howie J in El Azzi. After reviewing the status of DPP(UK) v Nock [1978] AC 979 in light of the reasoning of Gleeson CJ and Dunford J in Barbouttis (1995) 37 NSWLR 256 he concluded that “it is clear that the majority of that Court (Gleeson CJ and Dunford J) were of the opinion that DPP(UK) v Nock was no longer persuasive authority...” concluding that “the arguments set forth by the Chief Justice in refusing to apply DPP(UK) v Nock are, in my view, compelling and should be followed by this Court” (at [122] 33). I shall return shortly to the reasoning of Gleeson CJ to which Howie J refers.

20 The appellant in the present proceedings contends that “by the time of trial and in a judgment given at the close of the Crown case the Crown alleged, and the trial judge accepted, that both conspiracies (counts 2 and 3) were specific agreements to use specific ingredients, but most particularly a cache of 100 kilos of ‘phenylacetic acid’ delivered by Launt to Parker and Haeusler”.

21 Thus the appellant would characterise the conspiracies in counts 2 and 3 in those terms contending:

“28. The first conspiracy (count 2) was the acceptance by the appellant and Simpson of Parker and Haeusler’s offer to use some of the 100 kilos, which was already in the possession of Haeusler and Parker, to commence a process of the manufacture of methylamphetamine. The second conspiracy (count 3) occurred when the appellant and the others agreed to use the remaining 50 kilos of identified items in the possession of Haeusler as the ingredients for a further process of manufacture.” Judgment 5/12/02 p7, V9

22 There are a number of difficulties in the way of that submission which I shall refer to first in summary form and then return by way of elaboration. The first is whether the reasoning of Gleeson CJ and Dunford J in Barbouttis, as adopted in El Azzi in the reasons of Howie J renders irrelevant the distinction made by the then trial judge Hock DCJ. That distinction was between an agreement “in general terms to manufacture methylamphetamine” rather than an agreement “to produce methylamphetamine by specific means”. Howie J concluded: “[H]owever I do not believe that the distinction sought to be made by the applicant is a valid one in light of Barbouttis” (at 122 [33]).

23 Howie J then at [35] stated: “Even if I were prepared to follow DPP(UK) v Nock, I would still refuse the application”. This was because “the issue before Her Honour was how each of the conspiracies alleged should be characterised” and so that “the answer to this question will largely depend upon the evidence heard at the trial”. Here, of course, the evidence led at the trial is known. The thrust of the appellant’s submission is that that evidence would lead to the agreement being characterised as “to produce methylamphetamine by specific means”.

24 The question then is whether the reasoning of Gleeson CJ, agreed in by Dunford J in Barbouttis, properly understood, would render that distinction irrelevant. If it be not irrelevant, the question of characterisation of a conspiracy then arises, by reference to the evidence at trial. It will be appreciated that Gleeson CJ, while dissenting in the result in Barbouttis, concluded, with the concurrence of Dunford J, but contrary to the reasoning of Smart J that Nock should not be followed in New South Wales. This is insofar as Nock excluded from the crime of conspiracy situations where an agreement if carried out could not have achieved its object, though that object was to commit a criminal offence.

25 It is convenient to start with the facts in Nock. They provide the springboard for the reasoning of Gleeson CJ in Barbouttis, though applied to a distinct alleged crime. The crime was receiving specific property believed to be stolen, as distinct from in Nock where the conspiracy related to producing cocaine. In Nock, the defendants agreed to produce cocaine by separating it from other substances in the powder which they believe to be a mixture of a certain kind. In fact the powder was a mixture of a different kind, and contained no cocaine. As a result, there were no circumstances in which cocaine could have been produced from it. The House of Lords held that a conviction of conspiracy could not stand. Lord Russell of Killowen said (at 993):

"The important point to note is that the agreement that is said to have been an unlawful conspiracy was not an agreement in general terms to produce cocaine, but an agreement in specific terms to produce cocaine from a particular powder which in fact, however treated, would never yield cocaine. In order to see whether there is a criminal conspiracy it is necessary to consider the whole agreement. The specific limits of the agreement cannot be discarded, leaving a general agreement to produce cocaine, for that would be to find an agreement other than that which was made: and that is not a permissible approach to any agreement, conspiracy or other."

26 Gleeson CJ explained in Barbouttis that central to the reasoning of at least Lord Scarman in Nock was the proposition that the then recent decision of the House of Lords in R v Smith(Roger) [1975] AC 476, a case concerning the crime of attempt, applied with equal force to the crime of conspiracy. Subsequent overruling of Smith (supra) in R v Shivpuri [1987] 1 AC 1 removed that underpinning to Nock.

27 In Barbouttis, the Crown case was that the respondents had entered into an agreement to purchase 50 boxes of cigarettes from those that an undercover police officer had in a truck, this being part of a large-scale police operation into persons dealing in stolen cigarettes. Thus the undercover police officer sought out persons who might have been interested in purchasing cheap cigarettes that he then represented as being stolen. The undercover officer made contact with the respondents and, after a number of meetings, they struck a deal as to the price to be paid for the cigarettes. The undercover officer had in his possession a truck with a large number of boxes of cigarettes and the respondents agreed to purchase 50 boxes after they had been inspected by one of the respondents. Contrary to the belief of the respondents, the cigarettes were not stolen but had been lent to the police for the purpose of the operation. Gleeson CJ dissented from the conclusion of the majority that the offence of conspiracy to commit a crime, by receiving specific property believed to be stolen, cannot be established where the property is not in fact stolen. However, there was no dissent on the part of Dunford J, in contrast to Smart J, to the reasoning which led to Gleeson CJ concluding that “subsequent events have discredited the reasoning in Director of Public Prosecutions v Nock” (at 263).

28 There is, however, an important passage in the reasoning of Gleeson CJ that indicates that he did not reject the relevance of the distinction to which earlier reference has been made in the context of conspiracy. That is clear from the following passage (at 265-6):

“In the context of conspiracy, the matter must depend upon the proper characterisation of the object of the agreement made by the conspirators, or what the Court of Appeal of New Zealand called "the common design". In the present case, as particularised by the Crown, was the obtaining of stolen goods part of the common design, or can the agreement, for the purposes of the criminal law, be characterised accurately and adequately as an agreement to acquire fifty particular boxes of cigarettes for a certain price, such agreement being accompanied by a merely incidental belief that the reason the cigarettes were so cheap was that they were stolen?

If the cigarettes had in truth been stolen, then such a characterisation would certainly not have been regarded as either accurate or adequate for the purposes of the criminal law. Far from being incidental, the belief that the cigarettes were stolen would have been of the essence of the agreement. How can that belief cease to be of the essence of the agreement because of an objective fact unknown to the parties to the agreement?

29 Gleeson CJ had indeed earlier (at 264) cited that very argument employing that distinction as pressed by the respondents:

Director of Public Prosecutions v Nock

30 Thus it is clear that not only was Gleeson CJ citing that distinction. It was central to his own reasoning.

31 When, however, one turns to the facts in the present case, contrary to the appellant’s submission, there is nothing in counts 2 and 3, or indeed in the particulars in the Statement of Facts which would lead to the characterisation of the agreement as one to produce methylamphetamine from specific chemicals supplied, as distinct from these being merely the incidental means to that end. Indeed the latter characterisation accords with s26 of the Drug Misuse and Trafficking Act earlier quoted. It refers to a person who “conspires with another person … to commit an offence under this division …”. The offence is therefore conspiring by way of an agreement whose common design is, in terms of s24(2) of that Act, the manufacturing or production of an amount of a prohibited drug, namely methylamphetamine. The critical distinction between s24(2) and s26 is that the latter fastens upon the agreement that the parties have made. In the words of Gleeson CJ in Barbouttis, the law relating to conspiracy punishes conspirators “because of the nature of the agreement they have made” in the belief that they will manufacture the prohibited drug. It is wholly irrelevant whether that belief is achievable or not in actual manufacture.

32 Indeed one might test that proposition by assuming that instead of the chemicals being incapable of producing the methylamphetamine, some other supervening event frustrated the completion of the common design, such as a police raid. There could be no doubt that the persons who have agreed in advance to the common design of producing methylamphetamine would not escape s26 merely by reason of the intervention of a supervening event that frustrated the achievement of their purpose. To draw a distinction between supervening events, and defective chemicals that preordain the failure of the common design to achieve its end must be artificial in the extreme.

33 Accordingly, the issue becomes whether, accepting the distinction applied, there were specific agreements to use specific ingredients, as distinct from specific agreements simply to produce the methylamphetamine, the means being incidental.

34 The appellants contend that “however by the time of trial and in the judgment given at the close of the Crown case the Crown alleged and the trial judge accepted that both conspiracies (counts 2 and 3) were specific agreements to use specific ingredients, but most particularly a case of 100 kilos of ‘phenylacetic acid’ delivered by Launt to Parker and Haeusler”.

35 To the contrary, the judgment of 5 December 2002, rejecting the application by Mr Waterstreet for a verdict of not guilty by direction in respect of all three counts, characterised the second and third counts in these terms: “… the counts which allege that the accused conspired with certain named persons, and others, to manufacture a prohibited drug, namely methylamphetamine” (at p5).

36 What follows is a description of Mr Waterstreet’s submission, namely that the agreement “was to use specific chemicals provided by Haeusler and Parker”. Reference is made to the particulars which are themselves set out in El Azzi at 121 [36] but which do not themselves do more than simply describe particular events alleged to have occurred (such as that the precursor chemicals used by the accused were provided by Launt).

37 The trial judge in his judgment of 5 December 2002 correctly accepted that “it is important to distinguish the terms of the specific conspiracy alleged by the Crown from any historical background and/or preliminary discussions between the conspirators”. He then accepted the Crown Prosecutor’s submissions that the conversation which took place between Simpson, Haeusler and Parker was preliminary negotiation, not an agreement (at 6-7). No error has been shown in that conclusion.

38 When reference is made to the so-called “second cook” following the police raid on Dooralong, while the trial judge appears to accept the Crown Prosecutor’s submission that “Simpson and the accused agreed with Haeusler to do this other ‘cook’ using ‘phenylacetic acid’, so that ‘this was a conspiracy to manufacture methylamphetamine using the key ingredients”, it is clear that the trial judge saw no merit in the “impossibility” argument raised by Mr Waterstreet in that context. The trial judge was not to be understood as accepting the Crown Prosecutor’s submissions in any other sense. Thus he concluded (at 7) “in my view there were two separate conspiracies, and they have been correctly charged in the present indictment” [emphasis added].

39 Moreover, Mr Simpson gave evidence that the agreement in relation to count 2 was to produce methylamphetamine (T, 640.10-.20) and likewise in relation to count 3 to produce methylamphetamine (T, 658.25-.44). (This evidence is relevant also to ground 3(B) as I later explain.)

40 A careful reading of Mr Simpson’s evidence indicates that he believed he was making methylamphetamine in both the Dooralong and Sylvania Waters’ cooks (see for example T, 1088.32) and the expert evidence of Mr Murtagh the chemist called by the Crown (T, 1203.10-.25). Thus insofar as he used the chemicals provided he did so believing that he was being provided with the necessary chemicals to do so (see T, 645.10-649.28). Thus Mr Simpson believed he had phenylacetic acid, methyl formamide (T, 1017.40) acetic hydrocholoride, sodium acetic solvents (all collected from Crown witness Vocisano’s garage, where he allowed Parker to store drums and bottles and other items (T, 1837.51 ff) and also acetic anhydride (T, 649.21). At T, 656.10 Simpson confirmed that he believed that the “cook” at Dooralong yielded at best 30 kilos of methylamphetamine.

41 This evidence is entirely consistent with the Crown submission that the purpose was to produce methylamphetamine and the chemicals supplied for this purpose were merely incidental to it, and the agreement should be characterised accordingly. I should add that, given this characterisation of the agreement, I do not need to consider whether a differently characterised agreement would fall outside the crime of conspiracy, namely one where it was essential, not incidental, to the parties’ agreement that they use the very chemicals provided. There is much to be said for the view, expressed in R v Sew Hoy [1994] 1 NZLR 257 That even in the latter case, it is irrelevant that it may not be possible to carry out the agreement, as the offence is complete when the agreement is made with its unlawful object. For that is the fundamental difference between conspiracy and attempt; the former focuses on an agreement to commit a crime, itself intrinsically criminal, irrespective of outcome.

42 On this basis ground 3(A) must fail.

Ground 3(B)

43 This ground is essentially that the trial judge erred in failing to properly instruct the jury that they must be satisfied beyond a reasonable doubt that the product of the conspiracy was methylamphetamine and not amphetamine.

44 There is no substance in this contention. It is clear that the trial judge gave correct directions to the jury about the elements of the conspiracy charges; see Summing Up 8.6-11.3 on 18 December 2002. There it was made quite clear that the jury had to be satisfied that the agreement in each case was for the production of methylamphetamine. This was further reinforced by the specific direction on this issue at Summing Up 29.7 10 December 2002. These last directions were given after discussion in the absence of the jury during a break in the Summing Up (T, 18 ff 19 December 2002) when the trial judge read to the defence counsel the directions he proposed to give about the matter. No objection of the kind now being taken was taken at that time.

45 Moreover, the evidence from Mr Simpson referred to above amply substantiates that the jury were entitled to come to the conclusion that the drug proposed to be manufactured was methylamphetamine. That aside, to put this matter in proper perspective, consistent with the expert evidence of Mr Judd (Exhibit 33) and of Mr Murtagh (Exhibit 34) and the dictionary meaning of “amphetamine”, the latter is simply a generic term for a family of synthetic drugs with similar chemical properties whose members fall into a class of drugs known as stimulants. Methylamphetamine is one member of that family. Thus while, for example, the expert Mr Judd said at T, 1145.48 “I saw labelled containers and solvents containing solvents which could be used in the manufacture of amphetamines” it is clear from the context Mr Judd does not expressly exclude the manufacture of methylamphetamine. Thus, it is not correct for the appellants to say that “the expert Judd gave evidence that the labels on the containers were consistent with amphetamine, not methylamphetamine” (see appellant’s written submissions at (34)).

46 Nor is it correct to say, as do the appellants in their written submissions at (35), that Mr Knight’s evidence at T, 1255 was to the effect that the presence of formic acid at Dooralong suggested amphetamine. In fact his evidence at T, 1255.25 confirmed that Simpson believed he had phenylacetic acid. Although Knight does say that Simpson said he was trying to make this into amphetamine, phenylacetic acid is a chemical that is included in the recipe for methylamphetamine (see Mr Murtagh’s recipe in exhibit 36).

47 In the appellant’s written submissions various other contentions are made. In particular is said that Simpson pleaded guilty to manufacturing amphetamine not methylamphetamine at Dooralong and Sylvania Waters and this was being relied on to substantiate a submission that the trial judge’s directions were inadequate in failing to give appropriate emphasis to that fact. To the contrary, the trial judge did remind the jury that Simpson had given evidence in Hearne’s trial that he had been attempting to make amphetamine (Summing Up 29.9-30.3 of 19 December 2002).

48 In any event, as explained above, the distinction between amphetamine and methylamphetamine is of no particular significance when their related properties are properly understood.

49 Finally, the appellant’s contention (at 39) that the expert Murtagh’s evidence depends upon advance evidence is not correct. It is clear that Mr Murtagh relied upon the analysis of analyst Judd at Dooralong; see Judd’s certificate Exhibit 33.

50 There is no substance in appeal ground 3(B).

Appeal Against Sentence

Grounds 11 and 12

51 The appellant contends that the sentence imposed was manifestly excessive in the circumstances. Further that the sentence imposed on the applicant was so far greater than a number of his co-offenders such that he has a justifiable sense of grievance.

52 For the reasons which follow, while I would grant leave to the appeal against sentence I would disallow that appeal.

53 The appellant was sentenced on 19 May 2003 to a term of imprisonment of seven years, with a non-parole period of five years and three months. The trial judge gave detailed reasons on 19 May 2003 in his Remarks on Sentence for the sentence he imposed.

54 The first contention by the appellant is that “the evidence at trial did not support His Honour’s finding ‘that Simpson and this present offender were in fact partners and that the degree of criminality of each was virtually identical’.” It is then said that evidence in relation to El Azzi from all witnesses including Simpson disclosed:

“(a) El-Azzi had no prior knowledge or experience of the manufacture of prohibited drugs.

(b) El-Azzi had no experience or knowledge in relation to chemical processing of any kind.

(c) El-Azzi did not have access to chemicals necessary for the production of amphetamines.

(d) Without El-Azzi, the manufacturers could have proceeded precisely as they did, in contrast, without Simpson the offences undoubtedly would not have occurred. His Honour’s findings in relation to El-Azzi’s involvement support this contention.

……

His Honour proceeded on the basis that Simpson was not a principal although the evidence at trial disclosed that he was. Clearly:

(a) Without Simpson, the offences with which this accused was charged could not have occurred.

(b) Simpson was the only participant with the requisite chemical knowledge to manufacture a prohibited drug.

(c) Simpson procured the chemicals from Brown and Heausler [sic].

(d) In his evidence Simpson claimed to have been pressured to manufacture on these occasions, however on Simpson’s own evidence the first arrangements towards the manufacture was the agreement with Heausler [sic] in relation to the chemicals supplied by Launt. In his own evidence of that meeting, Simpson did not disclose any reluctance to manufacture or any pressure by others. In fact Simpson met Heausler [sic] without El-Azzi.

(e) Simpson gave evidence as to his own extensive history in manufacturing prohibited drugs spanning over 15 years and on many occasions with the assistance of other co-accused’s including Proctor, Knight and Phillips, Ingall. Brown and Haeusler but not El Azzi.

(f) His Honour acknowledged that caution must be exercised in relation to Simpson’s evidence. In the circumstances there was no basis for believing that Simpson’s role was anything other than as principal.

55 In quoting the above contentions I put to one side for the moment the appellant’s further contention that “the appellant’s involvement was better described as being on a par with that of Knight, McCoy, Phillips, Proctor, Ingall and Hearne rather than Simpson”. I shall return to that contention later. It should be noted that the trial judge found no assistance to be derived from the judgments in those matters; RoS 19 May 2003 at 6.

56 As to comparison with Simpson, the trial judge in his Remarks on Sentence first records the evidence summarised by the Crown Prosecutor in his written submissions on sentence. The Crown Prosecutor sets out what the evidence disclosed as to the specifics of the appellant’s involvement in the “cooks”, first at Dooralong and then at Sylvania Waters. Overall this can fairly be summarised as saying that the appellant “helped organise the premises, the transport of chemicals to the sites, and he was actively involved in supervising and setting up the process, and visiting the sites when the reaction was in progress”; RoS, 5.

57 While it was Simpson not the appellant that had the technical ability to carry out each “cook”, the trial judge understandably had no hesitation “in accepting the Crown Prosecutor’s submission that Simpson and this present offender were in fact partners and that the degree of criminality of each was virtually identical”; RoS, 6.

58 Earlier, the trial judge referred to Simpson’s sentence as dealt with in an appeal on sentence in the case of R v “S” [2000] NSWCCA 13. The trial judge (RoS, 5) quotes Hulme J at [18-19]:

“18 Had the Respondent been a principal, these factors would have led me to the conclusion that the Respondent's criminality was probably of, or close to that of a "worst case" category of manufacturing a commercial quantity, for which imprisonment of 20 years was appropriate.

59 The trial judge in his Remarks on Sentencing observed that had it not been for this guidance he would have come to the view that Mr Simpson was indeed a principal. He proceeded on the basis that he was not.

60 Thus consistently with Hulme J’s qualified proposition that “he seems not to have been a principal” though “very actively involved” the sentencing judge with his greater familiarity with the detailed circumstances was highly justified in describing the degree of criminality of each as “virtually identical”.

61 There were also significant differences in the circumstances of their pleas and willingness to give assistance as reflected in the discounts Simpson was given resulting in his lower sentence. The Court of Criminal Appeal had nonetheless allowed the sentencing appeal by the Director of Public Prosecutions, re-sentencing him for a minimum term of three years and an additional term of one year. The one offence with which he was charged was “knowingly take part in the manufacture of a prohibited drug”. That encompassed activities at both Dooralong and Sylvania Waters. Simpson shared with the appellant the need to spend his time in custody in strict protection, so justifying a sentence lighter than otherwise would be the case (Hulme J at [19]. But unlike the appellant Simpson pleaded guilty, receiving an appropriate discount for that. Moreover, he then was allowed a further discount of 50% by the original sentencing judge, Dodd DCJ, for assistance provided to the authorities. Hulme J accepted that. A further distinguishing factor was that in Simpson’s case but not the appellant, Hulme J recognised that the offence was committed under pressure. All of these factors adequately explain a substantially lower sentence for Simpson as against the appellant.

62 The trial judge was entitled on the evidence to reject the contention that the appellant was no more than an assistant to Simpson. The cases of Messrs Knight, McCoy, Phillips, Proctor, Ingall and Hearn, with their substantially lesser involvement, meant that, as the trial judge found, there could be no assistance from the judgments in those matters; RoS, 6. The Crown in its written submissions fairly summarised that substantially lesser involvement of each of those mentioned. So far as any parity argument is concerned, there could be no sense of grievance either in the case of Simpson, or in the case of those others mentioned, as would justify any reduction in the appellant’s sentence under the parity principle.

63 There was indeed ample reason for a substantial sentence in the case of the appellant. The maximum penalty fixed by the legislation for each of the two offences of which the appellant was found guilty was life imprisonment, or a fine of 5,000 penalty units or both.

64 The “large commercial quantity” the subject of the charge is only one kilogram or more. While it is true that the chemicals were incapable of producing any amphetamine, as the trial judge pointed out the appellant and his accomplices were expecting, or at least hoping, that the “cooks” would produce 30 kilograms of methylamphetamine. That is not altered by the fact that these expectations were unrealistic, given that the most that could have been expected was 12½ kilograms had the chemicals been efficacious; RoS, 7. The fact that the “cooks” were doomed to failure was pressed upon the trial judge at the time of sentence. He properly concluded that “this is not a feature of the case that is of any real significance from the offender’s point of view. Nevertheless I take it into account” (RoS, 8).

65 Insofar as the present challenge is based upon that feature it does not affect the intrinsic criminality of the enterprise insofar as the conspiracy charges were concerned. The trial judge’s approach in imposing a substantial sentence was fully justified.

66 In that regard, the trial judge was clearly aware of the consideration that serving a sentence in protection justifies a discount. That is clear from his Remarks on Sentence concerning Simpson. There is nothing to indicate that the appellant’s sentence failed to take that factor into account, insofar as the appellant’s custody would be onerous as a former police officer. The trial judge expressly regarded this as “a very important consideration”; (RoS, 9). It is likewise clear that the trial judge did take into account the appellant’s subjective features. The trial judge, properly, paid particular regard to the seriousness of the offences, the need for general and specific deterrence, delay in coming to trial, the prospects of rehabilitation of the appellant and the need to ensure adequate punishment (RoS, 11).

67 I would agree with the trial judge that “anything less than the sentences [imposed]… would not be adequate punishment” (RoS, 11).

68 I would grant leave to appeal against sentence and disallow the appeal.

ORDERS

69 I propose orders as follows:

(2) Leave to appeal against sentence granted.

(3) Appeal against sentence disallowed.

70 SIMPSON J: I have had the advantage of reading in draft the judgments of Santow JA and Sperling J. For the reasons given by Santow JA I agree that grounds 3(A) and 3(B) should be rejected. I agree also that grounds 11 and 12 (appeal against sentence) should be rejected and that leave to appeal against the sentences should be granted, and the appeal dismissed. I agree, for the reasons given by Sperling J that grounds 6, 7, 8 and 9 should be rejected. I also agree with his Honour’s conclusions in relation to ground 5, although, in respect only of the cross-examination concerning the appellant’s criminal conviction, I prefer to state my own reasons. I will come to those in due course.

background

71 On 8 October 2002 the appellant was presented for trial on an indictment containing three counts, each alleging an offence against the Drug Misuse and Trafficking Act 1985. The final count alleged an offence against s24(2) of that Act, of knowingly take part in the manufacture of not less than the large commercial quantity of methylamphetamine. The second and third counts, brought under s26 of the same Act, each alleged conspiracy to manufacture not less than the large commercial quantity of methylamphetamine.

72 The offence the subject of count 1 was alleged to have been committed between 1 December 1995 and 31 January 1996 at Dee Why in an apartment rented by Peter Dinham and Andrew Stenz, the rental of which had been arranged by the appellant. (On this count the appellant was acquitted.)

73 The offence the subject of the second count was alleged to have been committed between 1 January 1996 and 30 April 1996, at Dooralong, on the Central Coast, in premises arranged by Damien Drew, an acquaintance of the appellant. The appellant was convicted of this offence.

74 The offence the subject of count 3 was alleged to have been committed between 1 April 1996 and 30 June 1996, at Sylvania Waters, at premises occupied by Rodney Hearne, who was a friend of Robert Proctor, himself a friend of the appellant. The appellant was convicted on this count.

75 On each of the two convictions, the appellant was sentenced to imprisonment for seven years, to commence on 26 December 2002, with a non-parole period of five years and three months.

76 The appellant now appeals against the two convictions, and seeks leave to appeal against the sentences imposed.

77 Each count involved an allegation that the appellant in some way participated in an enterprise of manufacturing methylamphetamine. Also involved, on the Crown case, in each instance, was Richard James Simpson, who was, it seems, put forward as the lynchpin of the venture.

78 Evidence was given in the trial directly implicating the appellant in each venture. Simpson was the principal Crown witness. On the prosecution case, and on his own admission, Simpson had been involved in illegal drug manufacturing from the early 1980s until 1996. He was highly experienced in the techniques. He received supplies of chemicals from a man called Craig Haeusler. Simpson met the appellant late in 1995. This was in the context of a charge (of manufacturing amphetamines) that Simpson then faced. The appellant, a former police officer, was retained by Simpson to advise and assist him in defending that charge.

79 Before giving evidence Simpson received indemnity against prosecution from the Attorney-General of NSW. That indemnity does not appear to have gone into evidence, and the extent of the indemnity, its precise terms and the offences to which it related, are not clear on the evidence. In any event, Simpson gave evidence that, having pleaded guilty to an (unidentified) offence, his sentence was reduced by 20% as a consequence of his undertaking to give evidence against the appellant.

80 Simpson gave evidence of a developing friendship between himself and the appellant during the preparation for and the course of the trial in which the appellant assisted and advised him. Simpson said that the appellant had expressed interest in learning how to manufacture drugs and had offered a partnership in which his contribution would be an understanding of police and police surveillance techniques, and the provision of protection against exploitation. As a consequence they agreed to form a partnership in which they would divide the proceeds of manufacture, after allocating a share to Haeusler in return for his supplying the raw materials. Simpson’s trial began in about February 1996. The first task allocated to the appellant was to locate suitable venues for the manufacture.

81 Simpson gave evidence that the appellant secured the premises at Dee Why, located and purchased chemicals, artefacts and other items required for the manufacture, gave assistance in the manufacturing process itself, transported Simpson to and from the premises, and instructed Simpson in anti-surveillance techniques in order to avoid detection. He gave detailed evidence, which it is unnecessary here to recount, of the manufacturing enterprise at Dee Why. This included evidence of the appellant’s presence, on more than one occasion, at the Dee Why apartment, and of his participation in what was referred to as “the cook”.

82 Simpson also gave evidence concerning the Dooralong allegations. He said that he first went to the Dooralong address with the appellant in the beginning of 1996. From February 1996, while Simpson was on trial in the Downing Centre District Court on the charge mentioned above, and the appellant had been assisting him, the two men had regular contact for the dual purposes of Simpson’s defence and the pursuit of their then current manufacturing venture. During that time Simpson was given the opportunity of obtaining chemicals that would enable him to manufacture a batch of amphetamine. The appellant undertook to locate suitable premises for that purpose. He did so with the assistance of Damien Drew. This was a country house in Dooralong. Simpson gave evidence of the drug manufacturing process there, of the appellant’s presence there and of his involvement in the organisation.

83 Police raided the Dooralong premises on 15 April 1996. Neither the appellant nor Simpson was present at the time.

84 Simpson also gave evidence about the Sylvania Waters allegations. He said that he and appellant went to those premises, on the recommendation of a friend of his (Simpson’s), and discussed with the occupier (Hearne) the use of the premises for the processing of methylamphetamine. He gave evidence that the appellant arranged for raw materials and equipment to be delivered to Sylvania Waters.

85 Other witnesses gave evidence implicating the appellant in each of the manufactures. A number of these witnesses were, like Simpson, individuals who had themselves been involved in one or more of the three manufactures. For example, Ken Knight and Georgina Phillips, both of whom participated in the Dee Why manufacture, gave evidence of having seen the appellant at those premises, while manufacturing was in process. (Knight agreed, in cross-examination, that he had not seen the appellant do anything in relation to the processing. The evidence of his presence was, however, of added significance because the appellant denied ever having been to the Dee Why address.) These witnesses also gave evidence of having seen the appellant at Dooralong, Phillips of having observed the appellant with Simpson, setting up the process in a shower recess. (In cross-examination, Phillips agreed that she may have been mistaken in saying that the appellant was present when Simpson set up a reaction flask.) Kathleen Simpson gave evidence of the appellant’s presence at Dee Why and Sylvania, and of conversations between the appellant and Simpson about the organisation of the enterprise, and the manufacturing process.

86 Besides Simpson, six witnesses were in receipt of indemnities against prosecution from the Attorney-General of NSW in respect of their involvement in drug manufacturing. As with Simpson, neither the full extent of, nor the terms of the indemnities was disclosed on the appeal.

87 There was also evidence from another man, Arthur Launt. Launt had given evidence in committal proceedings, but had died before the trial. Two statements were (in part) read to the jury, as was part of the transcript of his cross-examination at the committal proceedings. The most significant aspect of Launt’s evidence was that he had been a supplier of chemicals for illegal drug manufacture, but that he had adulterated the chemicals, either by adding water or by substituting one chemical for another. The consequence of the adulteration was that any attempt to manufacture methylamphetamine from raw materials supplied by Launt would fail. The materials were not capable of producing the drug. In an interview with Detective Inspector Willingham, Launt identified chemicals seized at the Sylvania Waters premises as having originated from his property in Queensland.

88 There was also evidence of police officers who had, for some time, maintained surveillance of Simpson and the appellant. This related only to the Sylvania Waters charge. On 13 June 1996 police entered the Sylvania Waters premises. Simpson and the appellant were present. They were arrested. There was evidence of some conversation overheard between the appellant and others prior to their arrest. This conversation was incriminatory. There was also evidence of police having observed the appellant actively involved in the manufacturing process.

89 The appellant gave and called evidence. The defence case was, essentially, a denial of complicity in any of the manufactures. He confirmed his association with Simpson in the context of Simpson’s trial and his providing assistance from the vantage point of being a former police officer. He denied any discussion of drug manufacture at any location. He denied having been either to the Dee Why or the Dooralong premises. He claimed that 13 June 1996, when he was arrested at Sylvania Waters, was the first time he had been at those premises and that he had been there only for twenty minutes or half an hour. He said he had agreed to drive Simpson there so he could collect some materials Simpson needed for the trial which was still proceeding.

90 It is unnecessary here to refer further to the evidence of the witnesses called in the appellant’s case.

ground 1: separation of counts

91 Ground 1 consists of three components. As finally presented, the ground was framed as follows:

“Ground 1(A)
His Honour erred in not ordering a separate trial of the first count on the indictment.

Ground 1(B)
His Honour erred in ordering that the evidence in each count was admissible in respect of the other two counts pursuant to s98 Evidence Act as coincidence evidence.

92 Initially it was contended that each count ought to have been the subject of a separate indictment and separate trial. That position was abandoned. What was ultimately pressed on appeal was that there ought to have been two trials, the first a trial of the first count alone, and the second a joint trial of counts 2 and 3.

93 The Crown proposed to present an indictment charging the appellant with all three counts. On or about 26 September 2002 counsel for the appellant sought an order that each count be tried separately from the others – that is, for an order that three trials take place. On the same day Armitage DCJ rejected the application. It seems that an earlier application in similar terms had been made to and rejected by Stewart ADCJ in 2001 and early 2002. In giving reasons for rejecting the application before him Armitage DCJ noted that the evidence before him was, by consent, the evidence given in the application before Stewart ADCJ. That evidence was not put before this Court.

94 Armitage DCJ gave reasons for his decision to refuse the application. He recorded the submissions by the parties to him. It seems that the Crown proposed to proceed on a joint trial of the three counts on the basis that it proposed to rely upon evidence specifically relevant to any individual count in support of each other count. In doing so, the Crown relied upon s98 of the Evidence Act 1995. S98 is relevantly in the following terms:

(a) ...

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(a) they are substantially and relevantly similar, and

(b) the circumstances in which they occurred are substantially similar.

95 Counsel then appearing for the appellant argued that the events the subject of the charges were not “related events” in that they were not substantially and relevantly similar, and the circumstances in which they occurred were not substantially similar. His Honour rejected that submission and held that the events were plainly “related events”. He accepted that the evidence to be led by the Crown did amount to coincidence evidence within the terms of s98, and that the probative value of the evidence substantially outweighed any prejudicial effect it may have had upon the appellant. In doing this he reminded himself of s101 of the Evidence Act which relevantly provides as follows:

“101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) ... coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) ....

Evidence Act

96 His Honour referred to an argument put to him concerning the possibility of collusion between the various witnesses. He referred to the decision of the High Court in Hoch v The Queen [1988] HCA 50; 165 CLR 292.

97 He rejected the proposition that the evidence challenged should be seen as the product of collusion. He then held that “the other matters” relied upon by the Crown in support of joint trials were sufficient to entitle the Crown to a joint trial of all three counts.

98 As I have indicated above, the ground of appeal finally advanced challenged the decision to refuse the application for a separate trial of count 1. In my opinion that ground is properly construed as asserting error in the decision at the time at, and in the circumstances in, which it was made. It is for that reason that I have commented on the absence of the evidentiary material that was before Armitage DCJ. It is impossible to assess the correctness of the decision without that evidence. However, the appellant’s submissions on this ground were directed to, and drew support from, what took place in the trial. I will return to this.

99 Notwithstanding his Honour’s stated view on 26 September that the evidence tendered by the Crown could be used as coincidence evidence within the meaning of s98, at the conclusion of the trial (which continued over a more than two month period) when he came to summing up to the jury, he declined to give any directions in accordance with that earlier conclusion.

100 This gave rise to a factual dispute on the appeal. The transcript records:

“As far as I am concerned Mr Crown, I don’t know whether you intend leading coincidence evidence for the jury ...”

101 Counsel for the appellant submits that this represents a transcription error, and the transcript should read:

“As far as I am concerned Mr Crown, I won’t allow you to lead/argue coincidence evidence for the jury ...”

102 In the course of the discussion with counsel about circumstantial evidence, his Honour said:

“For example, I formed the view in relation to coincidence evidence, and you, Mr Waterstreet [trial counsel for the appellant], want me to direct on matters which are to be looked at completely independently ...”

103 To the extent that it is necessary to do so, I think this issue must be resolved, in favour of the appellant’s proposed version, by reference to an affidavit sworn by the solicitor, Mr King, who represented the appellant both at trial and on appeal. Mr King deposed that he was present in the court during most days of the trial, including 16 December when the disputed remark was made. He deposed to a specific recollection of hearing Armitage DCJ saying to the Crown Prosecutor:

“I won’t be letting you put coincidence evidence to the jury”

104 Mr King supported this recollection by reference to other circumstances, including the fact that use of coincidence evidence had been the subject of competing submissions made by the Crown and defence counsel. On balance, I think Mr King’s recollection should be accepted as accurate. He was not required for cross-examination, and the accuracy of his recollections was not challenged.

105 In any event, neither the Crown, in his closing address, nor the trial judge in his summing up, adverted to coincidence evidence and I would infer from this that, whatever was said in that part of the discussion as to which the transcript is disputed, Armitage DCJ had, by the end of the trial, taken a different view of the availability of evidence to be used as permitted by s98. In taking this course he acceded to the submission of counsel for the appellant, who strenuously opposed any direction on coincidence evidence being given to the jury.

* * *

106 In the judgment of 26 September, Armitage DCJ identified six features of the evidence on which the Crown relied as coincidence evidence. These were:

“1. In each case there was an agreement that Haeusler supply Simpson with the raw materials.

2. In each case Simpson was to use his expertise to produce methylamphetamine and Haeusler was to take a share of the product; the balance was to be shared between Simpson and others who were accomplices.

3. In each case the premises used for ‘the cook’ were bathrooms in residential premises and in each case those premises were leased or occupied by a friend or acquaintance of the accused or Simpson.

4. In each case Simpson was the cook.

5. In each case the accused assisted the enterprise by arranging the premises to be used, by helping to transport chemicals and equipment, by being present and helping to supervise ‘the cook’ on site and by advising Simpson on anti-surveillance techniques.

6. In each case the method of manufacture was a heating process and in each case it was substantially the same.”

107 His Honour also noted that the Crown relied upon other matters in support of his contention that all three counts should be tried together. These were:

(i) “the obvious similarity of circumstances alleged”;

(ii) “the time span over which the offences were alleged to have been committed, that is of a period of six or seven months”;

108 His Honour then referred to a number of witnesses who would give evidence in relation to all counts (such as Simpson) or to two of the three counts.

109 On appeal, counsel for the appellant has taken issue with certain of the factual matters upon which Armitage DCJ relied. I do not find it necessary to resolve the question of any factual error in his Honour’s approach to the question of separate trials. Although, as is common ground, the availability of coincidence evidence was a significant basis for his Honour’s rejection of the appellant’s separate trials application, at the close of the evidence he determined that he would not permit coincidence reasoning to be put to the jury. Coincidence evidence was not, ultimately, an issue.

110 No complaint was made in this Court that his Honour did not direct the jury against coincidence reasoning: nor could it, counsel for the appellant at the trial having strenuously resisted any such direction being given to the jury. Of course, it was open to counsel to seek an explicit direction cautioning against coincidence reasoning. This counsel did not do, no doubt for considered reasons.

111 At the time of the trial s64 of the Criminal Procedure Act provided as follows:

“64 Orders for amendment of indictment, separate trial and postponement of trial

...

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

...”

112 S29 of the Criminal Procedure Act now provides further for an order for separate trials, but it was not in force at the time Armitage DCJ made his decision. I see no error in the approach taken by Armitage DCJ at the time the application was made and decided. No real argument was directed to the correctness or otherwise of the decision at the time it was made.

113 As I have mentioned above, the argument on this ground proceeded on the basis, not of the evidence that was before his Honour at the time he made the decision, but of the evidence as it emerged in the trial. The ground was advanced, not as one focussing upon error in the decision at the time it was made, but as one to the effect that the trial subsequently miscarried by reason of the refusal to order separate trials.

114 In support of this ground counsel argued, in written submissions, that no common factual origin in the three counts existed. This they sought to support by noting that the first count represented a statutory offence, and the second and third counts separate and distinct conspiracies with different participants, premises and methods.

115 I would reject the argument. The Crown allegations were that the appellant became involved in the drug manufacturing business as a result of his association with Simpson. That alone is sufficient common factual origin. That count 1 represented a statutory offence and the other counts conspiracies makes not the slightest difference. There were many additional common elements.

116 There was a great deal of evidence common to two or more counts in the indictment. The jury was properly directed of the need to consider each count separately. In my opinion no miscarriage of justice has been seen to arise as a result of the trial judge’s decision to refuse the separate trials application. If further support for this conclusion were needed, it is to be found in the acquittal of the appellant on the first count. This demonstrates, to my mind conclusively, that the jury properly approached the task committed to them.

ground 1(B)

117 There is little more to be said about this ground, the issue of coincidence evidence having evaporated by the end of the trial. I should, however, mention one argument that was advanced on behalf of the appellant. This arose out of the decision of the High Court in Hoch. Hoch was relied upon as authority for the proposition that the possibility of concoction among witnesses constituted a basis for the separation of trials; on that basis, it was argued, separate trials should have been ordered because of the opportunity that plainly existed for the indemnified witnesses to collaborate and produce a consistent story. What this submission overlooks is that the possibility of concoction referred to in Hoch was the possibility of concoction among complainants – that is, the initiators of the charges faced by the accused person. To my knowledge it has never been the case that the possibility of concoction amongst other witnesses is a potential basis for an order for separate trials. The possibility of concoction, where it exists, remains present whether the evidence is given in separate trials or a joint trial.

118 It is of some importance to focus upon what emerged as the real factual issues in this trial. A great deal was not in dispute. It was not in dispute, for example, that Simpson was involved in the manufacture, or attempted manufacture, of amphetamines at the three laboratories. It was not in dispute that Knight and Phillips assisted in the process at Dee Why and at Dooralong. The significant factual matter that was in dispute was simply whether the appellant was involved in any one or more of the manufacturing enterprises. Resolution of that factual dispute did not depend upon coincidence evidence, but upon the direct evidence of Simpson and the other indemnified witnesses. Some further evidence (“circumstantial evidence”) was called in which it was suggested the jury might draw inferences supportive of the direct evidence.

119 The decision in Hoch was, fundamentally, a decision about the admissibility of what was then called similar fact evidence. The possibility of concoction there considered went to the probative value, as assessed by the trial judge, of that evidence. In this case, the possibility of concoction was relevant, but it was possible concoction amongst direct evidence witnesses, not “similar fact” (or coincidence) evidence witnesses.

120 As I have said earlier, it is unnecessary to consider further whether Armitage DCJ was in error at the outset of the trial in refusing the application on the basis that the evidence in each count would be admissible in respect of each other count as coincidence evidence, since he acceded to the submission by counsel for the appellant that no coincidence reasoning direction should be given. The question for determination is whether any miscarriage of justice has been shown to have resulted from the refusal. In my opinion it has not.

ground 1(C)

121 By ground 1(C) complaint is made of the directions given to the jury; specifically, it is asserted that the directions did not sufficiently identify the evidence relative to each individual count. At the outset – p1 – of the summing up his Honour said:

“I emphasise that there are three separate charges and that it is your duty to weigh up the evidence in respect of each of those charges quite separately. In effect, those three charges are being dealt with together as a matter of convenience. They are completely and utterly separate charges and you must weigh up the evidence in respect of the charges. Obviously, in due course, you will be required to return a separate verdict in respect of each of those charges.”

122 Later – much later – in the context of reminding the jury of the arguments that had been put to them by the Crown Prosecutor, his Honour made detailed reference to what had been said by him in relation to the evidence going to each count.

123 His Honour gave a careful direction to the jury about the caution with which they should treat Simpson’s evidence. This was done particularly in the context of count 1 as to which, his Honour said, Simpson was the only witness who could depose to the identity of the substance being manufactured.

124 A little later his Honour said:

“In this case the Crown seeks to prove the participation of the accused by the direct evidence of Mr Simpson and Gina Phillips, that is in relation to Dooralong. I will remind you later of what that evidence is. In relation to Sylvania Waters, the Crown relies on the direct evidence of Mr Simpson, Kathleen Simpson, formerly Ingall, and the police evidence as to the events of the evening of 13 June 1996. In relation to both conspiracy charges, the Crown relies on inferences to be drawn from the surveillance evidence and the telephone intercepts ...”

125 As I have noted, Armitage DCJ concisely summed up the Crown submissions as to the evidence relevant to each count. The Crown’s address, which has been transcribed, was in fact very detailed as to this, and extends, on this issue, over a number of pages of transcript. In this case, it was sufficient, in my view, for his Honour to endorse, as he did, the manner in which the Crown had identified the evidence relevant to each count. This is not one of those aspects of a summing up, such as a direction of law or a matter of caution, in which the authority of the court is required to be put behind the proposition stated, and it is insufficient for a judge merely to restate arguments that have been put by one counsel or the other. What the jury needed was to be reminded of the evidence relevant to each count. This jury was so reminded.

290 The summing up continued throughout 18 December 2002. Before the Court adjourned, there was a further discussion with counsel, relevantly as follows (18 December 2002, p138 – 140).

WATERSTREET: Your Honour I’ll just get that page reference or some reference to that effect. Your Honour in giving the warning gave the warning as a block about the six witnesses. Your Honour in our submission they perhaps should have been named.

HIS HONOUR: I did name them. I went through every one of the six witnesses and said what their positions were, at length which I thought was perhaps not quite necessary but I wanted to do everything that I thought I should do. I think the Crown would have been pulling their hair out.

WATERSTREET: Well my notes are obviously--

HIS HONOUR: I explained the position of every one of them. You must have gone to sleep at that point.

WATERSTREET: With respect we all thought - it’s a funny thing we should sell relaxation tapes, it doesn’t matter how interesting the trial is there’s something about that. Your Honour did not use the words and I’m conscious of some authority but I say your Honour did not use the words corroboration, that is your Honour shied away from that principle--

HIS HONOUR: Have you got the new bench book?

WATERSTREET: I’ve got the old case your Honour and--

HIS HONOUR: It seems clear, I mean I stuck to the corroboration thing for quite a while after the act came in but it became clearer and clearer with the authorities that it’s simply not acceptable. I found that I was the odd man out so I thought I’d better fall into line and it probably is better to fall into line. Made abundantly plain it seems to me that it’s just not appropriate to use that terminology any more.

WATERSTREET: Bearing in mind 164 which says no corroboration is required. Your Honour has not said anything about bias and motive of Richard Simpson and Katie Ingall but your Honour may say it in summing up my submissions in relation to the unreliability.

HIS HONOUR: About bias and what else?

WATERSTREET: Bias and motive to lie, your Honour it applies with the others but your Honour in particular in relation to the domestic activities of those two.

HIS HONOUR: Of what two?

WATERSTREET: Simpson and Ingall. In other words, all what your Honour said yes because they’re all criminally involved, but furthermore looking at 165 for other heads of aggravation--

HIS HONOUR: I didn’t bring my book down but what’s the head that you’re referring to, s 165 what?

WATERSTREET: Yes your Honour, 165 the one you’ve done is obviously the one on criminally involved. That’s (d) your Honour. And your Honour’s got a discretion in other matters I was looking at - they’re tantamount to a prison informer but your Honour’s already dealt with that. Your Honour under the heading evidence of a kind that may be unreliable in Odgers, and your Honour they’re the words at the beginning, five of a kind. A kind is like torts, the categories of torts are never closed. The categories of evidence of a kind that may be unreliable. What I’ve teased out is the bias and motive to lie above and beyond accomplice type of criminal.

HIS HONOUR: Could you just read to me exactly what (d) says?

WATERSTREET: (d) says “evidence given in a criminal proceeding by a witness being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”--

HIS HONOUR: But what does (d) say?

WATERSTREET: That’s (d).

HIS HONOUR: That’s (d).

WATERSTREET: Your Honour the one I’m relying on is your Honour the head - subs (1) leading into (a) (b) (c) and (c) that says “this section applies to evidence of a kind that may be unreliable including the following kinds of evidence”. And your Honour what Odgers and some cases says the categories (a) to (g) are not closed. I’m saying that in the domestic situation.

HIS HONOUR: So you say it’s a category not specifically referred to in s 165.

WATERSTREET: Yes your Honour.

HIS HONOUR: I didn’t have the section before me I though there must have been something there.

291 This was not a complaint about the way the trial judge had dealt with possible unreliability of the named Crown witnesses on the grounds that they were accomplices and / or had been granted immunity from prosecution and / or had received a discount on their sentences. The complaint was that the judge had failed to direct the jury that the evidence of Mr Simpson and Ms Ingall might be unreliable because they had a motive to give biased evidence against the appellant for quite different reasons to do with the domestic history of these people. Counsel for the appellant was arguing that this brought the evidence of Mr Simpson and Ms Ingall within the ambit of s165 as being “evidence of a kind that may be unreliable” – notwithstanding that it was not in a category specified in s165(1) – and that a warning as to possible unreliability was accordingly required in that regard.

292 The summing up continued on 19 December 2002. His Honour said, in the course of his summing up on that day (19 December 2002, p43):

(Ms Phillips) said she has had no contact with Richard Simpson or Helen Simpson or the accused since her arrest. Well it is a question for you whether you accept the evidence of course of any of these witnesses, but you know there is a very strong suggestion made by Mr Waterstreet that these witnesses all got together, collaborated, colluded and arranged their stories and so on; so that is the importance, at least, of the evidence; whether you accept it or not of course is entirely a matter for you.

293 The summing up concluded on 20 December 2002. There was further dialogue with the bench before the proceedings were adjourned on 19 December 2002, when they resumed on 20 December 2002 and towards the conclusion of the summing up on that day. However, there was no further complaint or request for a further or other direction in relation to s165.

294 The appellant’s written argument in support of ground 7(a) – Revised submissions, 20 June 2004 – may be paraphrased as follows.

(a) Failing to instruct the jury in the manner required by s165 (2). [There is a reference to the passage in the summing up on 18 December 2002, p20 and following, which I have quoted above.]

(b) Failing to inform the jury of matters affecting the unreliability as to each identification witness. He failed to put any of the cross-examination of Duckworth and Marsh where significant matters of credibility were sustained. He only dealt with Keirs. [There is a reference to the passage in the summing up on 18 December 2002, 28 – 35.]

(c) Failing to specify each matter of unreliability in respect of each witness pursuant to s165(2)(b). Mr Simpson and Mr Proctor, it is said, both admitted lying on oath but his Honour said only “sometimes lies on oath”. [There is a reference to the part of the summing up on 18 December 2002, p27, which I have quoted where his Honour mentioned aspects of the evidence of each named Crown witness.]

(d) Failing to inform the jury that some Crown witnesses may have contaminated each other’s statements and evidence, and that the direction concerning collusion was insufficient without reference to the evidence. [There is a reference to the part of the summing up on 19 December 2002, p43, which I have quoted, where his Honour referred to Ms Phillips denying contact with other witnesses.]

(e) Failing to inform the jury that each of the named Crown witnesses may have been under pressure to adhere to their statements rather than tell the truth, having undertaken to give evidence in accordance with their statements in exchange for indemnities or promises not to proceed with outstanding charges; each witness having an incentive to assist the authorities and to adhere to their statements. [These matters were said not to have been addressed at all in the summing up.]

(f) Failing to inform the jury that certain Crown witnesses, including Mr Simpson and Ms Ingall, had a motive to lie and to give biased evidence against the appellant, arising from the domestic history involving such witnesses and the appellant. [There is a reference to the transcript of discussion with the bench on 18 December 2002, pp 139 – 140 which I have quoted.]

(g) Failing to instruct the jury that the evidence of Ms Sullivan and Ms Johnson, if accepted, was relevant to Mr Simpson’s credit, as having lied on oath and / or having a motive to lie and to inculpate the appellant. [There is a reference to the summing up on 19 December, p128. On p 127 and 128 his Honour referred to the evidence of Ms Johnson.]

295 I deal first with paragraphs (a), (c) and (e) above. These paragraphs – paragraph (c) inferentially – assert non-compliance with s165(2). They relate to possible unreliability based on involvement as an accomplice, the grant of immunity and reduction in sentence. Assuming s165 applies to all those classes of evidence, the directions and warnings of the trial judge given on 18 December, 20 – 27, quoted above, have only to be read to be seen to be an adequate – I would say a more than adequate – compliance with s165(2).

296 Paragraphs (b), (d), (f), (g) and (h) above relate to other aspects of the evidence of Crown witnesses. Paragraph (b) relates to identification evidence. Paragraph (d) relates to contamination of evidence. Paragraphs (f) and (g) relate to motive to lie or to give biased evidence. Paragraph (h) relates to those matters concerning Mr Simpson in particular, but with specific reference to counsel’s request for further directions on 18 December 2002 which was confined to Mr Simpson’s asserted motive to lie or to give biased evidence arising from the domestic history in which he was involved.

297 I will deal first with paragraph (b) above.

298 Several police officers gave evidence of observing the appellant at and near the respective premises and, in one instance at least, involved actively in the operations. The complaint is that the summing up in relation to identification evidence was deficient.

299 Section 165 applies explicitly to identification evidence: see s165(1)(b). The trial judge gave the conventional instructions and warnings concerning the danger that identification evidence may be unreliable (summing up 18 December 2002, p28 – 36). This direction included the necessary warnings and information required by s165(2). The present complaint is that his Honour failed to mention factual issues in relation to the evidence of observations of the appellant given by the police officers.

300 As his Honour made clear to the jury, the main challenge to this body of evidence was that it was fabricated by police officers who were “out to get” the appellant. There were, then, subsidiary issues of fact such as the appellant’s alibi evidence which included the timing of telephone calls to his home and driving records related to a rented car.

301 It is true that such factual issues were not all mentioned by his Honour in the summing up. But they were canvassed fully in address and there is no necessity for a trial judge to mention every subsidiary factual issue in the case.

302 I come then to paragraphs (d), (f), (g) and (h) above. Does s165 apply to evidence of the kind mentioned in those paragraphs, being evidence which may be contaminated by the evidence of other witnesses and the evidence of persons with a motive to lie or to give biased evidence?

303 The ambit of s165 has been the subject of debate in the authorities, running through Mayberry [2000] NSWCCA 531, TJF [2001] NSWCCA 127, Stewart [2001] NSWCCA 260 and Chan [2002] NSWCCA 217. It has never been held, however, that evidence of the kind now under consideration is within the ambit of s165.

304 In Stewart, Hulme J held that the evidence of persons who had received a reduction in sentence in return for giving evidence in the proceedings came within the ambit of s165. Howie J held that it did not. Spigelman CJ found it unnecessary to decide that question because the evidence of the witness was caught by the accomplice category specifically mentioned in s165(1)(d) and the only question was then whether s165(2) had been complied with. The case is useful, however, concerning the ambit of s165.

305 Spigelman CJ held at [16] that the phrase “evidence of a kind that may be unreliable” had to be read down but he found it unnecessary to be more definitive for the purpose of the case.

306 Hulme J and Howie J supported the approach proposed by Sperling J in TJF at [75 – 81] that s165 applies to evidence which could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge.

307 Howie J said, at [98 – 99]:

Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not “of a kind that may be unreliable” and the section does not apply. Consistently with the common law, the Commission’s proposals, and the decision in Baartman , matters of a general nature that might affect the reliability of any kind of evidence adduced in a trial do not of themselves bring the evidence within the scope of the section.

308 Hulme J agreed with that part of Howie J’s judgment. He added at [38]:

The ease with which the language used in s165 can be applied to circumstances which, if “of a kind” has the significance Howie J and I would afford to it, Parliament cannot have intended to be within that language means that some test of what is and what is not evidence to which the section applies is necessary. For the reasons given by Howie J, whether the evidence is such as could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge is an, if not the, appropriate test. The fact that some of the specific examples included in s165(1) of evidence of a kind that may be unreliable, e.g. that which may be affected by age or mental ill health, are of evidence which a jury could be expected to regard as suspect in accordance with their general knowledge, does not invalidate this conclusion.

309 As I have mentioned, Spigelman CJ found that s165(2) applied because s165(1)(d) was satisfied. When it came to whether the summing up was adequate, his Honour held, at [22], that it was necessary for the trial judge to inform the jury that the witness could lose the benefit of a reduction in sentence if he failed to give evidence as expected because “(t)hat is not a matter which would necessarily be known to the jury.” That is the same concept as underlies the opinion of Hulme J and Howie J concerning the meaning of “evidence of a kind that may be unreliable” in s165(1) to which I have referred.

310 A similar view of s165 was adopted in Chan. The question there was whether evidence of a witness’s “bad character” or of a motive to give evidence which would ingratiate the witness with a prosecuting authority was caught by s165.

311 Hodgson JA (with whom Levine J and Smart AJ agreed) held that s165 was not attracted by those features of the evidence. He said, at [37 – 38]:

First, the evidence of persons of significant "bad character". It is to be noted that s.165 does not specifically refer to evidence by a person with prior convictions or evidence by a person of bad character as being evidence of a kind which may be unreliable. This I think is to some extent because those categories could cover a very broad and variable range of cases, including many cases where a warning would be quite inappropriate. If it was attempted to narrow the range by use of some such word as "serious" in relation convictions, or "substantial" in relation to bad character, this would introduce a very subjective element into the identification of the "kind". Furthermore, I do not think this is evidence of a kind where the courts have any particular experience not equally available to the community generally.

The other category suggested by the appellant is the category of persons with a personal interest to give evidence in a particular way, in particular, persons with a motive to ingratiate themselves with prosecution authorities such as the National Crime Authority. Again, no such category is expressly referred to, and again such a category would cover an enormous range of persons, in relation to many of whom a s.165 direction would be quite inappropriate and potentially misleading. Where, as in this case, the person in question is under close supervision of the relevant authorities, that person has a very strong motive not to be caught out in telling anything other than the truth, because that would be a devastating blow to his value to the NCA and to his chances of favourable treatment. The case is quite unlike that of an accomplice who has undertaken to give evidence against alleged co-offenders, who not only has a motive to exculpate himself or herself and inculpate others, and the knowledge required for effective invention, but also in some cases a liability to be re-sentenced if the evidence is not up to proof.

312 There is nothing about a motive to lie or to give biased evidence which a jury needs to be told in order to appreciate relevance to the credibility of the witness. The same can be said of contamination of a witness’s evidence. These are not instances of evidence of a kind that may be unreliable within the meaning of s165.

313 To similar effect, I cite the following passage from the judgment of the court (Tobias JA, James and Howie JJ) in Fowler [2003] NSWCCA 321 at [188]:

Where the issue raised concerns the honesty of the witness’s evidence, a warning will not normally be required unless the witness falls within a category mentioned in s 165(1). As a general rule, the court has no particular advantage over a lay jury in determining whether a witness is telling the truth. General matters used by a tribunal of fact to assess a witness’s credibility, such as demeanour, consistency, recent invention, and the presence of a motive to lie are readily appreciated by members of a jury as part of their normal life experiences. In such a case, if anything needs to be said by the trial judge about the evidence, it would normally be sufficient for the judge to comment on the evidence by reminding the jury of criticisms of it made by counsel during addresses.

314 It follows that evidence of the kind mentioned in paragraphs (c), (d), (f), (g) and (h) above is not evidence of a kind which may be unreliable within the meaning of s165. The section has no application to those aspects of the evidence in the present case.

315 In any event, the only point taken by counsel at the trial concerning a deficiency in the summing up in these respects related to the judge’s asserted failure to direct the jury that the evidence of Mr Simpson and Ms Ingall might be unreliable because they had a motive to give biased evidence against the appellant arising from the domestic history in which they were involved. In his summing up, his Honour covered the allegation of bias on the part of Mr Simpson and Ms Ingall. It was a prominent feature of the proceedings and of counsel’s address. Although his Honour’s treatment of that aspect of the evidence did not include an explicit warning that Mr Simpson’s and Ms Ingall’s evidence might be unreliable on this account, there can have been no serious possibility of a miscarriage of justice for lack of such a warning in these circumstances. That is because there was nothing the jury needed to be told in order to appreciate the appellant’s argument in relation to this aspect of the evidence.

316 It is then necessary to recognise that the appellant’s complaint in paragraphs (d), (f), (g) and (h) is not limited to a failure to comply with s165. I have dealt with paragraph (e) in the context of s165, but the complaint in that paragraph is not limited to s165. Are there other grounds for complaint in relation to paragraphs (c), (d), (e), (f), (g) and (h)?

317 As to (c), evidence that witnesses have admitted lying on oath does not need to be specially mentioned by the trial judge. A jury requires no assistance to perceive the relevance of such an admission as to credit.

318 As to paragraph (d), the question of collusion between witnesses was the subject of cross-examination and address. It was sufficient for the trial judge to have drawn attention to the issue as he did in the passage of the summing up on 19 December 2002, p43, which I have quoted.

319 As to paragraph (e), the trial judge, in the passages of the summing up I have quoted, sufficiently brought to the jury’s attention the issue as to whether witnesses may have agreed to give an untruthful or biased account of events implicating the appellant in order to secure immunity or a reduction in sentence, and the issue as to whether such witnesses may have been induced to give evidence in accordance with their statements because of the risk of the reductions in sentence being reviewed.

320 As to paragraph (f), it was sufficient for the trial judge to bring to the attention of the jury, as he did, the question of whether Crown witnesses, and in particular Mr Simpson and Ms Ingall, had a motive to give biased evidence. His Honour reviewed the evidence in that regard. This was an aspect of the case thoroughly debated in address. The jury needed no further assistance to appreciate the appellant’s case in this regard.

321 As the paragraph (g), the evidence of Ms Sullivan was that Mr Simpson had sexually abused her when she was a child. Ms Johnson’s evidence was corroborative of that. Counsel addressed extensively on the implications of that evidence and on the implications of Mr Simpson’s denial that he had abused Ms Sullivan. His Honour summarised the evidence of Ms Sullivan, Ms Johnson and Mr Simpson on this matter very fully. He summarised counsel’s address on that evidence very fully. No complaint was made by counsel at the trial that the summing up was inadequate to convey to the jury the way in which that evidence should or could be used. A trial judge is not bound to mention every way in which every piece of evidence might bear on the issues in the trial. The summing up was not deficient. The criticism now made is unsustainable. Nor would I grant leave to argue this complaint pursuant to Rule 4.

322 The complaint in paragraph (h) concerning Mr Simpson’s credibility is also unsustainable. Again, the evidence and counsel’s address on this matter were summarised very fully. The only complaint at the trial was that an instruction was required pursuant to s165. For the reasons I have given, no such instruction was required by s165 in relation to unreliability, motive to lie, bias or tendency to lie under oath (as is now claimed) otherwise than by reason of criminal involvement in the events (an instruction which his Honour gave). Once the limited requirements of s165 are recognised in relation to this witness, there is no valid ground for complaint. And, again, I would not grant leave pursuant to Rule 4 to argue this complaint except in relation to the s165 point, which I have dealt with and reject.

323 I conclude that there are no grounds for complaint in relation to these aspects of the evidence.

324 The battle lines were clearly drawn on the issues in questions. I am not satisfied that the trial judge erred in failing to say more than he did about these matters. I am also satisfied that there can have been no miscarriage of justice arising from any deficiency in the summing up in this respect.

325 For these reasons, ground 7 is not made out.

Ground 9: His Honour erred in refusing the jury’s request for the transcripts of the closing addresses and summing up

326 The trial commenced before the jury on 8 October 2002. The Crown prosecutor opened the case to the jury on that day. Following the evidence, the Crown prosecutor addressed the jury for part of one day on 16 December 2002. Counsel for the appellant commenced his address to the jury on that day and completed his address on 17 December 2002. The trial judge commenced his summing up on that day and, with some time occupied in discussion with counsel, completed the summing up on 20 December 2002. The jury retired at 10:24 am on that day and returned their verdict at 3:42 pm on that day.

327 Part way through the summing up, at a stage when his Honour was summarising the evidence and before his Honour came to the way in which the case was put to the jury by the Crown Prosecution and by counsel for the appellant in final address, a note was received from the jury in the following terms:

We would like the transcripts of summation from the Crown, Defence, Judge when available.

328 Neither the Crown Prosecutor nor counsel for the appellant raised any objection to this course. However, his Honour was of the opinion that he was precluded from acceding to the jury’s request. The jury was recalled and his Honour made the following statement, so far as is material.

There are certain rules in relation to what I’m entitled to give you in printed form and I don’t think that I’m entitled to give you what your asking for. We’re checking that; it’s possible that perhaps some of what you’re asking for may be able to be given to you. I rather doubt it but we’re checking on that right now but I would like to say this. So far as my summing up is concerned, if you have any specific query about any particular part of it there’s no problem in asking me to repeat what I’ve said and I’m quite happy to do that. The other thing is this. So far as the addresses of both barristers is concerned I at least will be endeavouring to summarise what they put. Now that may not be of much assistance to you. They were very lengthy addresses. Nothing wrong with that, it’s been a very lengthy case so you’d expect very lengthy addresses. Obviously I can’t spend a lot of time on that and it will be a true summary, what I put to you is what I think is important. Now really what I think is important doesn’t matter. It’s what you think is important that matters, but I would think it would be perfectly proper when you go out, if you’re interested or concerned about some particular matter that was put in the course of either address, to ask a question about it. The plain fact is, for once I in fact do have a transcript of both barrister’s addresses. That’s not usual. Usually the addresses of counsel are not transcribed. They’re not recorded, but I had them recorded and I’ve had them transcribed because I thought it might assist me, but, as I say, I think there’s a problem. I don’t think I’m entitled to actually hand them over to you, but certainly if you have any query as to any submission that was put to you, if you ask a question about it, it can be looked up and you can be told exactly what was said. So that I think is probably about the best I can do, but we’ll leave it and it may well be that we can do a little bit better, but to be quite honest I doubt it.

329 His Honour continued to summarise the evidence. He then summarised the addresses to the jury by the Crown Prosecutor and counsel for the appellant. At the conclusion of his summing up, his Honour said to the jury:

If you want any information about the directions I have given you about what counsel have told you or about the case at all, you have only to get in touch with the court officer and give him your requests in writing. He will bring it to me, I will discuss the matter with counsel and between us I hope we will be able to answer any queries that you may have.

330 Following his Honour’s response to the request from the jury on 19 December 2002, nothing further was heard from the jury in relation to that matter.

331 The appellant’s complaint on appeal relates to the failure of the trial judge to provide the jury with copies of the addresses by the Crown Prosecutor and counsel for the appellant (particularly the latter). As appears from what his Honour said, these were, in this case, available to be provided.

332 It was common ground on the hearing of the appeal that his Honour erred in holding that he had no power to provide the jury with those transcripts: Taousanis [1999] NSWSC 107, Bartle [2003] NSWCCA 329. It was also common ground that the only question which arose in relation to this ground of appeal was whether there was a miscarriage of justice in consequence.

333 The appeal in Bartle followed a trial which occupied nearly eight months, which was plagued by continual interruptions and which involved seven accused with seven separate cases falling for consideration. The Crown Prosecutor’s address occupied 13 sitting days. There were several defence closing addresses. A request for transcripts of some of the addresses was made by the jury after completion of the summing up and some time after they had retired to deliberate.

334 The following passage appears in the judgment of Smart AJ, in which Mason P and Barr J concurred in their joint judgment:

[687] The address of Fox’ counsel was detailed and quite complex in part. It was not the sort of material which was easy to retain. A mastery of the detail was of some importance. As mentioned the address of Fox’ counsel concluded on 21 August 2001 and the jury sought the transcript of the address on 11 September 2001. In the meantime they had heard addresses from counsel for other accused, a lengthy summing-up and spent a week considering the cases of six other accused A compelling case existed for making the transcript of the address available to the jury when they had requested it. They were in the best position to know what they needed. Acknowledging and applying the restraint which this Court exercises when considering intervening in a discretionary judgment, nevertheless the judge erred in holding that he had no power to make a copy of the transcript of the address of Fox’ counsel available to the jury and in not making it available.

335 There are obvious distinctions between the relevant facts of Bartle and the present case. It is submitted on behalf of the appellant that the present case was also complex, involving a multiplicity of issues and witnesses, but there is no real comparison.

336 Counsel for the appellant says there was a special need for the jury to have the transcript of addresses in the present case because the trial judge took the course of summarising the evidence of the witnesses in the order in which it was given and did not relate the evidence to the three charges respectively in an organised way. That was done to some extent in the address by counsel for the appellant.

337 I think there is little weight in this point. The charges related to distinct and separate locations and, to a substantial extent, involved different people. I do not think the jury would have had any difficulty in relating the evidence to the particular charges with confidence.

338 It is true that there were a substantial number of witnesses and a substantial number of factual issues for the jury to resolve. However, at the end of the day, the primary question was whether there was a reasonable possibility that the appellant’s denial of involvement might be true as against the body of evidence adduced by the Crown, such as it was, with all its faults. This fundamental issue turned on impression as much as detail.

339 The critical consideration to my mind – and the one which resolves this ground of appeal to my satisfaction – is that the jury was told that transcripts of the addresses existed and that, if they wished to be reminded of any part of those addresses, they needed only to ask. They did not do so and, more particularly, did not do so after they had the benefit of his Honour’s summary of the balance of the evidence and of the addresses of the Crown Prosecutor and counsel for the appellant.

340 It is submitted on behalf of the appellant that there were a number of deficiencies in the trial judge’s summary of the addresses, particularly that of counsel for the appellant. The asserted deficiencies relate to factual issues traversed by counsel for the appellant during his address. In the broad view, these were not significant matters.

341 The trial finished with return of verdicts on 20 December 2002. There had been a good deal of pressure to finish the trial by that date. Two of the jurors had booked to fly out of Sydney on 20 and 21 December respectively. Other pressures had also built up to finish the trial quickly.

342 There is no ground of appeal arising from those circumstances. I do not suggest that there should or could be. The situation is relied upon as the context in which the transcript of addresses was sought and refused. The point is then, as best I understand it, that, in circumstances where the jury were under pressure to reach a decision quickly, they might have come to a different conclusion with the assistance of the transcript of addresses.

343 I do not see that the pressure to finish the trial quickly is a relevant consideration. It does not detract from the fact that, if the jury had felt the need to be reminded of any part of counsel’s address after the trial judge had completed his summary of the evidence and had summarised the addresses, they would have asked for the relevant part of the addresses to be read. It would have taken no longer to do that in court than for one of the jurors to read the relevant passage or passages to the others from a copy of the transcript provided to them. Time was not a material factor. It did not bear on this aspect of the appeal.

344 This is not a case, such as Bartle, where, because of the complexity of the trial, a request for passages to be read would have been no substitute for an opportunity to peruse a copy of the addresses.

345 I conclude that there was no miscarriage of justice in consequence of the failure of the trial judge to provide the jury with the transcript of counsel for the appellant’s address. The proviso should be applied. The appeal should not be allowed on this ground.

Result

346 The appeal against conviction should be dismissed.

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Last Modified: 12/23/2004

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R v El-Azzi [2004] NSWCCA 455

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Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32

Cases Citing This Decision

26

R v Ronald Edward Medich (No. 16) [2017] NSWSC 104

R v Rogerson; R v McNamara (No 28) [2016] NSWSC 160

R v Abdollahi (No 6) [2013] NSWSC 479

Cases Cited

23

Statutory Material Cited

6

R v McCoy [2001] NSWCCA 255

R v S [2000] NSWCCA 13

Hoch v the Queen [1988] HCA 50

CITATION:	R v El-Azzi [2004] NSWCCA 455
HEARING DATE(S):	1 June 2004, 2 June 2004
JUDGMENT DATE:	16 December 2004
JUDGMENT OF:	Santow JA at 1; Simpson J at 70; Sperling J at 224
DECISION:	(1) Appeal against conviction dismissed; (2) Leave to appeal against sentence granted ; (3) Appeal against sentence dismissed
CATCHWORDS:	appeal against convictions - knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine - conspiracy to manufacture not less than large commercial quantity of methylamphetamine - proper characterisation of the object of the conspiracy - impossibility of achievement by use of materials available - whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered - whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine - whether separate trial of first count ought to have been ordered - admissibility of coincidence evidence - directions concerning evidence admissible on individual counts - the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts - directions concerning circumstantial evidence - evidence of deceased witness read - indemnified witnesses - cross-examination of appellant on matters relevant only to credibility - evidence of prior criminal conviction - evidence of disciplinary proceedings - discretion to grant leave to cross-examine appellant on credibility - unfairness - "substantial probative value" - unreasonable verdicts - corroboration - corroboration of evidence of accomplices - whether one accomplice can corroborate the evidence of another - directions concerning unreliability of witnesses - jury access to transcripts of counsels' addresses and summing up - leave to appeal against sentence - appeal dismissed - leave granted to appeal against sentence - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 s186 Criminal Appeal Act 1912 s5F, s6 Criminal Procedure Act 1986 s29, s64 Drug Misuse and Trafficking Act 1985 s24(2), s26 Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192 Evidence Act 1977 (Qld) s15(2)
CASES CITED:	Director of Public Prosecutions v Nock [1978] AC 979 Hoch v The Queen [1988] HCA 50; 165 CLR 292 House v The King [1936] HCA 40; 55 CLR 499 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 Kevin William Phillips v The Queen [1985] HCA 79; 159 CLR 45 M v The Queen [1994] HCA 63; 181 CLR 487 Matusevich v The Queen [1977] HCA 30; 137 CLR 633 Pollitt v The Queen [1992] HCA 35; 174 CLR 558 R v "S" [2000] NSWCCA 13; 111 A Crim R 225 R v Barbouttis (1995) 37 NSWLR 256 R v Bartle [2003] NSWCCA 329; 181 FLR 1 R v Brown (1960) [1960] VR 382 R v Chan [2002] NSWCCA 217; 131 A Crim R 66; 128 A Crim R 119 (Related proceedings) R v Chen & Ors [2002] NSWCCA 174; 130 A Crim R 300 R v Clough (1992) 28 NSWLR 396; 64 A Crim R 451 R v El Azzi (2001) 125 A Crim R 113 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700; 144 A Crim R 1 R v Fowler [2003] NSWCCA 321 R v Gramanatz (1962) 57 QJPR 1; [1962] QWN No 41 R v Lumsden [2003] NSWCCA 83 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Mayberry [2000] NSWCCA 531 R v Ralph and George (1988) 37 A Crim R 202 R v RPS, unreported, NSWCCA, 13 August 1997 R v Sew Hoy [1994] 1 NZLR 257 R v Shivpuri (1986) [1987] AC 1 R v Smith (Roger) [1975] AC 476 R v Stewart [2001] NSWCCA 260; 52 NSWLR 301; 124 A Crim R 371 R v TJF [2001] NSWCCA 127; 120 A Crim R 209 Regina v Taousanis [1999] NSWSC 107 RPS v The Queen [2000] HCA 3; 199 CLR 620 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Stanoevski v The Queen [2001] HCA 4; 202 CLR 115
PARTIES :	Crown - Respondent William El-Azzi - Appellant
FILE NUMBER(S):	CCA 60476/03; (2003/311)
COUNSEL:	D Howard - Crown P Byrne SC/ C Waterstreet - Appellant
SOLICITORS:	S Kavanagh - Crown M King - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0728; 01/11/0667
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ