R v Franco & Goodwin No. DCCRM-02-352

R v VITTORIO FRANCO & AARON ROBERT GOODWIN
[2003] SADC 23
Judge Lunn
Criminal
REASONS ON APPLICATION TO DISQUALIFY

Franco, Goodwin, Beuret, Murphy and Warburton were jointly charged in this Court with the offence of taking part in the manufacture of methylamphetamine in that between 9 and 17 August 2001 at Felixstow they took part in the manufacture of that drug. When the police raided a house at Felixstow in the early hours of 16 August 2001 the five accused were all sleeping in the house. There was clear evidence that some, but not all, steps in the manufacture of methylamphetamine had occurred within the house. Franco was the defacto tenant of the house. The other four accused were regular users of methylamphetamine. There was uncontested evidence that a number of other methylamphetamine users regularly frequented the house.
The trial of the five accused was listed to commence before me on 2 December 2002. At the outset on that day Goodwin pleaded guilty and nolles were entered against Murphy and Warburton. Goodwin was remanded to a date to be fixed for sentencing submissions after the conclusion of the trial. A thirteen day trial then proceeded against Franco and Beuret. Both those accused gave evidence. Franco called Goodwin and Warburton as witnesses in his case. Beuret called Murphy. On 18 December 2002 the jury convicted Franco and acquitted Beuret.
Sentencing submissions for Franco and Goodwin were listed before me for 28 January 2003. The following exchange then occurred between counsel for Goodwin and myself:
“MR CHARLES:        I am referring to the question of the basis upon which he is sentenced .........
HIS HONOUR:           I have heard a substantial sworn evidence including evidence from your client. .......... I don’t wish to express anything concluded about it simply to say that on the whole of the evidence that I have heard I have misgivings about accepting everything that your client told me about his involvement as to what went on in that house. I can’t find any authority on this issue of where one accused pleads guilty and he is not sentenced and there is a trial where the accused gives evidence as to whether ........... I am then entitled to use my conclusions (on the evidence) to override any contrary submissions by the accused who has pleaded guilty as to his involvement in the offence. ......... The first thing I .......... want to know is what the factual basis that you put forward as the basis upon which I should sentence him.
Mr CHARLES:           During the relevant period which is covered by the information my client was involved in the process of getting Sudafed tablets, taking the matter out of the blister packs, crushing them and then providing them to a manufacturer and that was the extent of his involvement. ...........
HIS HONOUR:           That’s not the evidence that I’ve heard in the trial from a number of witnesses. His involvement was somewhat greater than that. I don’t want to go into any details at the moment, but I think an interesting question has arisen as to whether firstly I can be required to sentence him on that basis irrespective of my views of the evidence which I heard or whether because I have heard other evidence I should disqualify myself from his sentencing and it should be done by some other Judge possibly on a disputed facts hearing involving him.”
The hearing was adjourned until 11 February 2003. On that date counsel for Goodwin applied that I should disqualify myself, but this was opposed by the prosecutor. It was submitted that I should disqualify myself because in the circumstances there might be an apprehension that I might have taken an adverse view of Goodwin and his role in the drug operations at the house from evidence given in a trial where he was only a witness and was not legally represented and on the evidence of other witnesses in that trial whom he had not been able to cross examine. The prosecutor did not accept that Goodwin’s role was as limited as he had stated in his evidence at the trial and as was submitted by his counsel. Goodwin’s argument, in effect, was that he was entitled to have the factual basis of his offending determined on a disputed facts hearing in which the prosecution would have to lead its evidence first, his counsel could cross examine the prosecution witnesses and after hearing the prosecution evidence on such a disputed facts hearing he could then elect whether to give evidence himself and, if so, to have it led to his best advantage through his own counsel. The submission was that it was unjust and unfair that any determination of a dispute about the degree of his involvement should be resolved on the evidence given at the trial of Franco and Beuret. An offer that Goodwin could now give supplementary evidence in the sentencing process on any matters where his case in his view had not been properly presented at the trial was rejected by his counsel as not remedying the alleged injustice to him.
It seemed to be implicit in the submissions of counsel for Goodwin that the evidence given at the trial was not admissible against Goodwin for the purposes of sentencing him. If it was admissible, in law, my having heard that evidence could not be a proper basis for any disqualification. The prosecutor submitted that the evidence at the trial was admissible by virtue of s6(b) of the Criminal Law (Sentencing) Act 1988, albeit with limitations on the weight to be given to some parts of it by reason of its sources. This involves a consideration of the operation of s6 on the determination of the admissible evidence about the role of an offender in the joint offence. There is no reported authority on it. I raised the possibility of stating a case to the Full Court on it, but both counsel opposed this course.
Section 6 provides:
“For the purposes of determining sentence, a court –
(a) is not bound by the rules of evidence; and
(b) may inform itself on matters relevant to the determination as it thinks fit.”
There is remarkably little reported authority on the effect of s6(b). As far as I am aware the only case in which the operation of s6(b) has been considered is the judgment of Olsson J, with whom the other members of the Full Court agreed, in Anderson v R (1992) 60 SASR 90 at 104-5 where as dicta dealing with the evidence of police officers about their knowledge of the prices of drugs it was said:
“Quite apart from the provisions of s6 of the Sentencing Act, the evidence given by Ford was ........... plainly admissible within the ordinary rules of evidence. ......... Even if I am incorrect in this, it seems to me that the reasoning expressed by the learned Chief Judge was impeccable. There can be no doubt that even given that he was engaged in the process of dealing with a disputed facts hearing – as to which the onus lay upon the Crown of proving that which it averred beyond reasonable doubt – the situation, nevertheless, clearly fell within the precise terms of s6 of the Sentencing Act.
Even given the admonition of Evatt J in (R v War Pensions Entitlements Tribunal; Ex Parte Bott (1933) 50 CLR 228 at 256 that all the rules of evidence may not be ignored as of no account and, although the rules of evidence do not bind, every attempt must be made to administer ‘substantial justice’) it cannot be ignored that the section speaks in unqualified terms. The learned Chief Judge plainly had a discretion to admit the evidentiary material in question, regardless of its technical status. What was really in issue was not its formal admissibility, but rather the weight which could appropriately attached to it.
It could scarcely be argued that the probative weight was ephemeral and that it had significant prejudicial effect in the sense averted to in Moore v Guardianship and Administration Board (quoted below)). On the contrary there was, in the circumstances, every reason to believe that, given the qualifications expressed and obviously applied by the learned Chief Judge as to the limitations which necessarily had to be placed upon what Ford said, it was nonetheless information stemming from an experienced and reliable source which was worthy of due consideration.
It cannot be stressed too strongly that the learned Chief Judge placed no more weight upon it, nor did he resort to it for his ultimate conclusions, to an extent beyond that which the probative value inherently attaching to it justified.”
(This point was not dealt with in the subsequent appeal to the High Court: Anderson v R (1993) 177 CLR 520.) The prosecutor referred to R v Corbett (1999) 206 LSJS 125 particularly at 132 but I doubt that any weight can be placed on that case as s6 was not expressly referred to there.
There are a number of equivalents to s6(b) in other legislation, and in particular, in statutes governing administrative tribunals. These generally antedate s6 and so Parliament must have appreciated the effect which had been given to them in other contexts. In Moore v Guardianship and Administration Board [1990] VR 902, which was referred to by Olsson J in Anderson v R (above), it was said that a similar provision was to be read subject to the requirements of the rules of natural justice, and it would not ordinarily entitle the Board to act on material of little or no probative weight especially where it had significant prejudicial effect. In Yelds v Nurses Tribunal (2000) 49 NSWLR 491 at 503 it was stated in respect of a similar provision, and quoting an English decision, that the Tribunal could take into account any material which as a matter of reason had some probative value and where it was not procedurally unfair to do so. Lynch v Medicare Participation Review Committee (1995) 132 ALR 627 also supports a wide view being taken of such a provision in the context of administrative tribunals. In Re Letts (1984) 7 ALD 1 such a provision was held to entitle a tribunal to use as evidence the transcript of a criminal trial where the applicant had been the defendant.
There are interstate authorities to the effect that a sentencing Judge should not act on evidence heard in another case and statements in a record of interview from a co-accused: R v Jobson [1989] 2 Qd R 464; Edwards noted in “Sentencing Manual: Law Principles and Practice in NSW” by Potas at 252. However, these decisions are distinguishable on there being no equivalent of s6 in those States.
I consider that s6(b) does make the evidence which I heard at the trial admissible before me on the sentencing of Goodwin insofar as it contains matters relevant to Goodwin. Parliament in enacting s6(b) could not have intended that the basis of the admissibility of evidence on sentencing would be the equivalent of that admissible at a criminal trial. I do not consider that there is any denial of natural justice or procedural unfairness to Goodwin in that evidence not being presented to me as the sentencing Judge in the context of a conventional disputed facts hearing. Nevertheless, I accept that while the evidence is admissible the weight which I am to give to it as against Goodwin will be subject to considerations of how it was obtained and Goodwin’s ability in the circumstances in which it was obtained to refute it or challenge its reliability. It is not appropriate to comment further on this aspect of the matter at this stage as I expect there will be further submissions from Goodwin’s counsel and the prosecutor, and possibly further evidence from Goodwin and any other witness he may wish to call, before I make my factual findings on the basis upon which he is to be sentenced. I reiterate that I have done no more to date than indicate that there is an issue on the evidence about the extent of Goodwin’s role: I have not as yet reached any final conclusion, or made any pronouncement, upon it.
There is undisputed evidence that Goodwin gave his evidence at the trial without the knowledge of the lawyer acting for him. The circumstances of this may need to be the subject of further evidence. Its significance is one of the matters to be taken into account on the weight, if any, to be given to his evidence at the trial.
It was submitted that I should disqualify myself because of something which I said in the summing up to the jury which it was contended amounted to some pronouncement about the credibility of Goodwin. The relevant passage was as follows:
“I suggest there is no doubt that some of the defence witnesses, being the occupants of the house, have told you substantial lies about what occurred, or did not occur, in that Felixstow house. The differences in their stories were not merely matters of detail, so that the variations could all be accounted for by faulty, but honest, recollections of what occurred. You must also consider the possibility that they have all lied to you and no one has told you the whole truth. It may be that some of the occupants of the house told you to the truth about what others did in the house, but not about their own activities. It may be that some of them invented or exaggerated their evidence of what others did to deflect blame from themselves or their friends.
The prosecutor suggested in his closing address that if you find that any of the occupants of the house on 16 August had lied to you, you should be very careful in accepting anything else which that witness said to you whether it was in favour or against the prosecution case. While that is entirely up to you what you accept or do not accept on the facts, on the evidence it may well be prudent for you not to accept anything else an established liar has said to you unless that evidence is supported by some other evidence which you do accept.”
When I referred in that passage to “defence witnesses” I was not referring specifically to Goodwin but collectively to Franco and all the witnesses whom he called and Beuret and the witness whom he called. I was merely pointing out to the jury that the inconsistencies between the accounts of various defence witnesses was such that one or more of them must have been lying. Which of them were lying was a matter for the jury, and I did not express any view of my own to the jury about which of them it might have been. I did not suggest to the jury that Goodwin was one who had lied.
Accordingly, I decline to disqualify myself and I will proceed to hear the sentencing submissions.

[2003] SADC 23

7 March 2003