R v Errigo

Case [2005] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ERRIGO

Judgment of The Court of Criminal Appeal

(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)

23 February 2005

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION

PERMITTING PROPERTY TO BE USED

EVIDENCE - DOCUMENTARY EVIDENCE - JUDICIAL DOCUMENTS AND PROCEDINGS - CONVICTIONS

CONVICTION OF CO-ACCUSED

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES

Appellant convicted of taking part in the production of cannabis - Evidence that appellant was owner of, and resident on, property on which cannabis grown - Appellant's mother pleaded guilty to producing the cannabis - Mother chose not to give evidence at appellant's trial, following medical advice - Whether documentary evidence of mother's conviction was admissible - Discussion of s 42, s 45A and s 45B of the Evidence Act - Discussion of whether court document a "business record" - Refusal of Trial Judge to admit evidence of mother's conviction did not result in miscarriage of justice - Prosecution not required to prove that appellant did not produce the cannabis himself - Reference in Judge's summing up to jurors' "daily lives" and "commonsense" did not weaken effect of directions as to standard of proof - Whether a Computer Title Certificate was evidence that the appellant was the owner of the land at the date of the offence - Appellant's ownership of the land was not in issue at trial - Direction of Trial Judge did not result in miscarriage of justice - Judge's direction regarding effect of appellant's failure to give evidence was sufficient - Verdict not unreasonable - Appeal dismissed.

Controlled Substances Act 1984 (SA) s 32; Evidence Act 1929 (SA) s 42, s 45A, s 45B, referred to.
R v Le [2003] SASC 2; (2003) 138 A Crim R 1; Bannon v The Queen (1995) 181 CLR 1; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Knight v The Queen (1992) 175 CLR 495, applied.
R v Zullo [1993] 2 Qd R 572; R v K; Ex parte Attorney-General (Q) [2002] QCA 260; (2002) 132 A Crim R 108; R v Martin [2002] QCA 443; (2002) 134 A Crim R 568, not followed.
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, discussed.
R v Frangos (1979) 21 SASR 331; R v Mason [2001] SASC 161; (2000) 77 SASR 105; R v Aziz [1982] 2 NSWLR 322; R v Carbone (No 2) (1976) 14 SASR 280; Thomas v The Queen (1960) 102 CLR 584; R v Assheton [2002] SASC 194; (2002) 82 SASR 589; In re Van Beelen (1974) 9 SASR 163; R v Martin (1983) 32 SASR 419; Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555;

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AGLC
R v Errigo [2005] SASC 62
Case
[2005] SASC 62
Decision Date

CaseChat Overview and Summary

In the case of R v Errigo, the appellant, Errigo, was convicted of cultivating cannabis on land he owned. The appeal centred on several issues, including the adequacy of the trial judge’s directions to the jury regarding Errigo’s decision not to give evidence, the requirement for the prosecution to prove the involvement of another person in the production of the cannabis, and the sufficiency of the evidence to support the jury’s verdict of guilt.

The court examined whether the trial judge’s directions to the jury about Errigo’s silence were sufficient, considering the High Court’s guidance in Azzopardi v The Queen. While the trial judge did not provide the full direction suggested by the High Court, the court concluded that the partial direction was sufficient as it informed the jury that Errigo’s silence could not be used against him and did not imply guilt. Additionally, the court considered whether the prosecution needed to prove the involvement of another person in the cultivation to establish Errigo's guilt. The court rejected this argument, finding that the prosecution only needed to prove Errigo’s involvement in the production process, which was adequately demonstrated by the evidence.

The court further assessed the sufficiency of the evidence presented at trial. It found that the evidence was sufficient for a reasonable jury to conclude beyond reasonable doubt that Errigo was involved in cultivating cannabis on his land. The court held that there was no miscarriage of justice in the jury’s verdict and that the appeal should be dismissed.

In conclusion, the appeal was dismissed as the court found the trial judge’s directions to the jury were sufficient, the prosecution did not need to prove the involvement of another person to establish Errigo’s guilt, and the evidence was adequate to support the jury’s verdict.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The passages which I have quoted show clearly that no issue at all was taken at the trial about the appellant’s ownership of the land. That being the common basis upon which the trial was conducted, it is not open now to the appellant to complain of the trial Judge’s direction with respect to ownership of the land by reference only to the Certificate tendered by the prosecution. In my opinion, there is no substance in this ground of appeal.Direction to Jury: Accused not Giving Evidence Finally, in relation to the directions to the jury, the appellant complained that the trial Judge had not given the jury the full direction suggested in Azzopardi v The Queen.[4] Gaudron, Gummow, Kirby and Hayne JJ said:“… if an accused does not give evidence at trial it will almost always be desirable for the Judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the Judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.”[4] [2001] HCA 25; (2001) 205 CLR 50 at 70 [51]. In this case, the trial Judge said:“An accused on trial is entitled to give evidence in his defence or refrain from giving evidence. Mr Waye told you yesterday that Mr Errigo elected not to give evidence. That choice was his. That is his legal right. No inference adverse to Mr Errigo can be drawn from the fact that he exercised his legal right. There may have been various reasons why he did not give evidence and you should not attempt to speculate on what those reasons might be in this case. As is the case in all prosecutions, it is for the Crown to prove its case beyond reasonable doubt, that is your inquiry: has the Crown proved its case beyond reasonable doubt?” It is true that in that passage the trial Judge’s direction was not as extensive as suggested in Azzopardi. However, the trial Judge’s direction did tell the jury that the appellant was exercising a legal entitlement and that no inference was to be drawn against him by reason of his exercise of that entitlement. Whilst it would have been appropriate for the trial Judge to instruct the jury in the manner suggested in Azzopardi, the absence of the complete direction in this case does not, in my opinion, taint the jury’s verdict.The Elements of the Offence: Involvement of Another The appellant submitted that it was necessarily implicit in the concept of a person suffering or permitting the taking of a step in the production of cannabis on land which he owns that there is a person, other than the accused person, who takes that step. A person cannot, sensibly, suffer or permit himself or herself to take that step. Hence, it was submitted that where the prosecution alleges that the offence of taking part in the production of cannabis is comprised of the accused person’s conduct in suffering or permitting a step in the production of cannabis to be taken on land which he or she owns, the prosecution must prove the “involvement” of someone other than the accused in the production of the crop. Absent such proof, it was submitted that the prosecution does not exclude a hypothesis consistent with innocence, viz., that the accused himself was the grower of the crop.

Decision

Reasons for decision

DEBELLE J
Furthermore, I am also satisfied that in addition to there being evidence upon which the jury could reasonably have found the appellant guilty beyond all reasonable doubt, there was no miscarriage of justice in the jury verdict.Conclusion For the reasons which have been given, in my opinion this appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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