R v Garilli - [2009] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GARILLI
[2009] SASC 228
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
6 August 2009
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appeal against conviction - appellant charged with two counts of knowingly taking part in production of cannabis - whether Judge misdirected jury with respect to an element of the offence - whether Judge misdirected jury with respect to use of cross admissible evidence - whether verdicts unsafe and satisfactory - whether miscarriage of justice occurred.
Held: appeal dismissed - Judge misdirected jury with respect to element of knowledge - no misdirection the use of cross admissible evidence - no real risk of a miscarriage of justice arising as a result of Judge's misdirection - appropriate case for application of the proviso.
Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Weiss v The Queen (2005) 224 CLR 300; Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358, considered.

R v GARILLI
[2009] SASC 228
Court of Criminal Appeal: Gray, Vanstone and Kourakis JJ
GRAY J:

This is an appeal against conviction.
Maurice Garilli, the defendant and appellant, was charged on Information with two counts of taking part in the production of cannabis, contrary to section 32(1)(b) of the Controlled Substances Act 1984 (SA). The particulars with respect to both counts alleged that the defendant knowingly took part in the production of cannabis between 1 and 15 March 2007.
On 16 March 2009, following a trial in the District Court, the jury returned a majority verdict of guilty on both counts.
On appeal it was complained that the Judge misdirected the jury with respect to the elements of the offence and the use to be made of similar fact evidence. It was said that the guilty verdicts were unsafe and unsatisfactory and should be set aside.
The prosecution case
Both counts were the result of searches conducted by police on 14 May 2007. The cannabis the subject of the first count was found at a residential property at Brahma Lodge. Police discovered 37 cannabis plants growing hydroponically. There were no signs of anyone living at the property. Further, this was not the first cannabis crop grown at the property. Police officers gave evidence that root balls, stripped plants and remnants of cannabis were found. Electricity records arguably established that up to six crops had been grown at the property since 2004.
The cannabis the subject of the second count was found at another residential property at Wingfield. The circumstances were similar to those of the first count. Police found five plants growing hydroponically and a bag containing about 300 grams of cannabis plant material, and there were no signs of anyone living at the property. This was not the first crop grown at the property; stripped plants, remnants of cannabis and a bag containing cannabis were found at the premises, and electricity records arguably established that up to three crops had been grown at the property since early 2006.
The defendant’s fencing and security control business was run from commercial premises next to and behind the Wingfield property. There were nine vehicles parked at the Wingfield property, eight of which were owned by the defendant.
The defendant was the sole director of the company that owned both properties.
The prosecution case was that it could be inferred that the defendant at least had knowingly permitted both premises to be used for the purpose of the production or growing of cannabis. There was no direct evidence that the defendant had been involved in the production of cannabis at either property.
The defence case
The defendant gave evidence at trial. He did not dispute that he was the person responsible for both properties controlled through a corporate entity. The defendant claimed to be innocently associated with the cannabis production at the properties.
With respect to the first count, the defendant claimed that the premises had been rented to a Peter Marconi or Marcone. There was no written rental agreement. The defendant said he collected rent from the tenant at a gelati bar. The defendant provided the police with a mobile telephone number for the tenant. The number proved to have been disconnected. The defendant was unable to provide any further contact details. Police conducted searches for the tenant. No record could be found of such a person other than there being a P Marconi with a firearms licence in Queensland and a P Marconi appearing on the New South Wales electoral roll.
In relation to the second count, the defendant claimed that the Wingfield property was rented to a Joe Jesco. He claimed that Mr Jesco was a person to whom he had been introduced by the Brahma Lodge tenant at the gelati bar. He claimed that Mr Jesco paid rent. Again there was no written agreement. The defendant was unable to say how long he had rented the property to Mr Jesco. The defendant was unable to provide any contact details for Mr Jesco. Electricity records in the name of a Mr Jesco existed from late 2005 or very early 2006. During the course of the investigation, police discovered an electricity account in the name of a Mr Jesco in the letterbox at Wingfield. Police conducted searches for a Mr Jesco. No record of his existence could be located.
The Appeal
The primary submission advanced on appeal was that the jury were misdirected with respect to the first element of each offence. The Judge directed the jury in the following terms:
I now turn to the offence’s elements. I remind you that the information was handed to you at the beginning of the trial to which the accused pleaded not guilty. I have here a memorandum that summarises the ingredients of the two offences. I will let you have a look at that and then I will take you through that memorandum. I remind you that it is my oral directions that you should accept. It will not be any different to what is in the document. The document is only meant to assist you to understand my oral direction.
The two offences are of taking part of the production of cannabis and each offence is comprised of three ingredients. I remind you that each of them must be proved by the prosecution beyond reasonable doubt. The first ingredient is the taking part by the accused in the production of cannabis. Parliament has provided a broad definition of what is meant by ‘taking part in the production of a drug’. For the purpose of this case, a person takes part in the production of cannabis if he provides the premises on which any step in the process of that production is taken.
The memorandum provided to the jury was in the following terms:
The offence of taking part in the production of cannabis is comprised of three ingredients, each of which must be proved by the prosecution beyond reasonable doubt.
The first ingredient is the taking part by the accused in the production of cannabis. Parliament has provided a broad definition of what is meant by taking part in the production of a drug. For the purpose of this case a person takes part in the production of cannabis if he:
(a)     provides the premises in which any step in the process of that manufacture/production is taken;
The second ingredient requires proof that the accused took part in the production of cannabis knowing that the substance was cannabis, or at least that it was an illegal substance under the drug laws.
The third ingredient requires proof that cannabis is a prohibited substance within the meaning of the Controlled Substances Act. (There is no dispute about the third ingredient, and so you may accept it as proved without further inquiry.)
The defendant submitted that the Judge was in error in not directing the jury that the offence required the prosecution to prove that the defendant knowingly took part in the production of cannabis.
Section 32(1)(b) of the Controlled Substances Act provides:
A person must not knowingly—
(a)     manufacture or produce a drug of dependence or a prohibited substance; or
(b)     take part in the manufacture or production of such a drug or substance; or
(c)     sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
Section 32(4) relevantly provides:
Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person—
…
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
On appeal, counsel for the Director of Public Prosecution accepted that the Judge erred in that he did not direct that “knowingly taking part” formed part of the first element of each offence. It was acknowledged that a misdirection as to an element of an offence amounted to an error of law. However, it was submitted that the misdirection did not lead to a miscarriage of justice.
The Director submitted that it was relevant to consider the overall context and in particular the way in which the element of knowledge was dealt with by the Judge when he addressed the second element of the offence.
The Judge directed the jury with respect to the second element, as follows:
Turning now to the second ingredient, this requires proof that the accused took part in the production of cannabis knowing that the substance was cannabis, or at least that it was an illegal substance under the drug laws, and you may think that this was the element that was in dispute. The prosecution must prove beyond a reasonable doubt in relation to both counts that the accused knew that the substance being produced, or that at least what was being produced, was an illegal substance. He must not suspect. The Crown must prove that he knew that the cannabis was the substance being produced or that at least what was being produced was an illegal substance.
The time at which the Crown must prove knowledge, this requisite knowledge, is at the time of the alleged offending which, in relation to both charges, is between 1 March 2007 until 15 May 2007. That is the period of time the Crown must prove beyond a reasonable double that the accused had the relevant knowledge.
With respect to the second element of the offence the jury were directed that to find the defendant guilty they had to be satisfied that the defendant knew that what was being produced was cannabis or an illegal drug. The jury were also directed that all elements of the offence had to be proved before the defendant could be found guilty and were directed that the requisite knowledge had to exist between 1 and 15 March 2007. The fact that the jury found the second element proved suggested, it was said, that they would have found the first element established had they been properly directed.
At trial, both counsel addressed the jury on the basis that the defendant had to knowingly take part in the production of cannabis to be guilty of either offence. This was identified as a key issue for the jury. The Director submitted that it would have been plain to the jury that the prosecution carried the onus of proving beyond reasonable doubt that the defendant knowingly permitted what was taking place to occur.
The Director submitted that the verdict demonstrated that the jury found that the defendant knew that cannabis was the substance being produced. It was contended that for the jury to conclude that the defendant knew or was aware that cannabis was the substance being produced, the jury must necessarily have concluded beyond reasonable doubt that the defendant knew that the cannabis was being produced at the respective premises.
The Director submitted that it could safely be concluded that a properly instructed jury would have reached the same verdicts. The defendant must have at least suffered or permitted the growing of cannabis at both properties.
The misdirection by the Judge as earlier noted was an error of law. As a consequence a consideration of the application of the proviso provided by section 353(1) of the Criminal Law Consolidation Act should be undertaken. However, before doing so, it is appropriate to address the further complaints advanced by the defendant on the appeal.
The defendant complained about the Judge’s direction with respect to the use that could be made of cross admissible evidence. There was no objection at trial to the joinder of the two counts nor to the joint trial as to both counts. In these circumstances, as accepted by counsel on appeal, the evidence of one count was cross admissible with respect to the other.
The Judge directed the jury as to the relevance of the cross admissible evidence:
In this case, although I have detailed the evidence that the Crown relies on separately to establish knowledge of the accused, there is cross-admissibility in this case between the counts. When considering the question of knowledge of the accused in relation to one count, you may take into account the fact that the accused owns both premises. You may take into account in relation to both charges that no bond in the letting of the premises has been located at the Residential Tenancies Tribunal. Also, the names of the person responsible for the electricity accounts at both properties cannot be located, with that minor exception in relation to Queensland and New South Wales, in the police searches described above.
You may also use the fact that the van of the accused was found at the Brahma Lodge property in relation to the other count and that it had in it cannabis. You may use that evidence, if you are satisfied that those matters have been proved, in assessing the likelihood of those matters occurring as simply a coincidence or that they are so similar or that they show an underlying system, that the only rational explanation for the evidence is that it tends to show knowledge of the accused.
The complaint rested on the use by the Judge of the phrase “an underlying system”. It was contended that the jury may well have been misled or confused by the use of this phrase and may have made improper use of the evidence as a consequence. It was accepted by the Director that neither counsel had used that phrase in the course of the trial, and that the Director had not suggested that there had been an underlying system.
The contrast between the defence and prosecution cases was stark. It was the defence case that the defendant knew nothing of the production of cannabis at either property, and the fact that his two rental properties were being so used was a matter of pure coincidence. The prosecution case was the converse – that the fact of cannabis being grown at both premises owned or controlled by the defendant could not be explained on the basis of mere coincidence. These matters were to be considered when determining whether the defendant knowingly took part in the production of cannabis. According to the Director, the similarities were such that the only rational explanation for the evidence was that it tended to show knowledge of the accused. Whether that similarity is described as “so similar” or whether it is such as to show “an underlying system”, are no more than different ways of expressing the same proposition. The Director contended the use of the phrase “underlying system” did not give rise to a risk of a miscarriage of justice.
The jury were entitled to consider the improbability of the defendant being responsible for two properties at which cannabis was being grown at the same time, without having knowledge of what was taking place. The evidence was relevant to negate the defence of innocent association advanced by the defendant.
The reference to an underlying system was made during the Judge’s discussion about the circumstantial evidence relied upon by the prosecution to establish knowledge. The substantive effect of the direction was that the jury were entitled to consider that the collection of circumstances was not explicable as a mere coincidence, and that those circumstances could not have occurred without the defendant having knowledge of what was taking place. The danger of the jury inappropriately reasoning from propensity was adequately guarded against by a separate direction.
On appeal counsel for the defendant further complained that a direction with respect to wilful blindness should have been given to the jury. In my view there is no substance to this complaint. I do not wish to add to the reasons of Vanstone J on this topic.
I now return to the defendant’s primary submission that the trial Judge’s misdirection as to the first element of the offence “amounted to a wrong decision on a question of law”. A consideration of the proviso is necessary.
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In Weiss,[1] the High Court considered the interpretation of the Victorian provision comparable to section 353(1). The Court concluded that the section cast on an intermediate appellate court the obligation to consider for itself whether a risk of a miscarriage of justice arose. It was not a question for the Court to consider the conclusion that a reasonable hypothetical jury would have reached if properly directed, or alternatively what verdict the jury in the subject trial would have reached if properly directed. The High Court pointed out that the wording of the section was explicit and that it was for the Court of Appeal to reach its own determination. The High Court further indicated that the Court should do so on the whole of the record, including the verdict of the jury.
[1] Weiss v The Queen (2005) 224 CLR 300.
Most recently in Cesan,[2] the High Court again gave consideration to the approach to be taken to the proviso. It was made clear that, in undertaking a reconsideration of the whole of the record, the Court is entitled to direct its attention to those aspects of the record drawn to its attention by counsel.
[2] Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358 at [128], citing Fox v Percy (2003) 214 CLR 118 at 125-126 [23].

This is an appropriate case for the application of the proviso. There is, in my view, no real risk of a miscarriage arising as a result of the error on the part of the trial Judge.
The circumstantial evidence in support of the verdicts was overwhelming. There was no dispute that the defendant was solely responsible for the two premises at which hydroponic crops of cannabis were grown.
The evidence established that, commonly, cannabis syndicates were formed and that a person’s role could be limited to the provision of premises for that purpose. It was also established that neither property had been occupied, and that cannabis had been grown for some time at both properties.
My review of the evidence confirms the strength of the prosecution case and the guilt of the defendant.
For reasons discussed earlier, the jury must have been aware that knowledge on the part of the defendant that his premises were being used for the production of cannabis had to be established beyond reasonable doubt. It is fanciful to suggest that if the defendant was aware that cannabis was the substance being produced, that he was unaware that his premises were being used to produce cannabis. The verdict of the jury demonstrates that the jury must have found beyond reasonable doubt that the defendant knew that the cannabis was being produced at his premises. It can also be concluded that a properly instructed jury would have returned the same verdicts.[3] The defendant must have at least suffered or permitted the growing of cannabis at the two properties at relevant times.
[3] Cesan v The Queen; Mas Rivadavia v The Queen (2008) 236 CLR 358 per French CJ at [97].
Conclusion
I would dismiss the appeal.
VANSTONE J: Maurice Garilli appeals against his convictions, by verdicts of a jury, for two counts of taking part in the production of cannabis. His principal argument is as to the trial judge’s directions to the jury on the elements of the offence, in particular the contentious element of knowledge. He also raises a complaint about the direction given on the permissible use of evidence of one count in respect of another. Finally, he argues that the convictions are unsafe and unsatisfactory. That last ground relies principally on the two asserted misdirections. Permission to appeal was granted by a judge of this court.
Background
Count 1 on the information alleged an offence occurring between 1 March and 15 May 2007 at Brahma Lodge. There was no dispute that police found 37 cannabis plants growing in a house at Park Terrace, Brahma Lodge, that house being the property of Garilla Investments Pty Ltd, a company of which the appellant was the sole director and a shareholder. Count 2 alleged an offence committed between the same dates, this one at Ninth Avenue, Wingfield, in a house which was similarly owned by Garilla Investments. There, police found five plants and loose material. No-one appeared to be living at either house.
The accused denied any knowledge of the growing of cannabis at either premises. In evidence before the jury, he asserted that both premises were let, the first to a person called Peter Marcone, and the Wingfield property to one Joe Jesco. The accused said he had met Marcone through a friend, Paulin Lusha, at the Glynde Gelati Bar. He claimed that Marcone had introduced him to Joe Jesco. He said that both tenants made cash payments of rental, fortnightly in advance.
It was the prosecution case that Marcone and Jesco were fictitious entities. Police inquiries failed to establish the existence of those persons. Moreover, police had seen Paulin Lusha (who was a defence witness) at the Brahma Lodge premises and had also seen there a van owned by the appellant. Later that van was found to have cannabis remnants in it. Neither of the asserted tenancies were recorded at the Residential Tenancies Tribunal.
There was no application for separate trials for the two counts, it evidently being conceded that evidence going to each was admissible in respect of the other. The prosecution case as to the accused having knowingly taken part in each production was based on his admitted connection with the two premises, the failure of the police inquiries to locate or identify the two suggested tenants, the use of the appellant’s van at one of the premises and the coincidence of the activity – and the appellant’s account for it – at both premises. The issue for the jury was whether the appellant was proved to be implicated in the acknowledged offences.
When the judge summed up on the elements of the offence, he directed in the following terms:
The first ingredient is the taking part by the accused in the production of cannabis. Parliament has provided a broad definition of what is meant by ‘taking part in the production of a drug’. For the purpose of this case, a person takes part in the production of cannabis if he provides the premises on which any step in the process of that production is taken.
The judge then discussed the evidence going to prove that element. In respect of what he called “the second element”, the judge said as follows:
Turning now to the second ingredient, this requires proof that the accused took part in the production of cannabis knowing that the substance was cannabis, or at least that it was an illegal substance under the drug laws, and you may think this was the element that was in dispute. The prosecution must prove beyond a reasonable doubt (sic) in relation to both counts that the accused knew that the substance being produced, or that at least what was being produced, was an illegal substance. He must not suspect. The Crown must prove that he knew that the cannabis was the substance being produced or that at least what was being produced was an illegal substance.
The time at which the Crown must prove knowledge, this requisite knowledge, is at the time of the alleged offending which, in relation to both charges, is between 1 March 2007 until 15 May 2007. That is the period of time the Crown must prove beyond a reasonable doubt (sic) that the accused had the relevant knowledge.
The appellant argues that in directing upon the first element of the charge, the judge wrongly omitted the requirement of knowledge; that is, the need for proof that when the accused provided the premises, he did so with the knowledge that they would be used for cannabis production. It is, of course, theoretically possible that the accused might have acquired such knowledge after the time of the provision of the premises and still within the dates alleged in the information, and, then, acquiesced in the use of them for that purpose. But the prosecution case throughout was that the accused had not let the premises at all, but rather, allowed those premises to be used for producing cannabis by one or more others, those others not including the persons he asserted were his tenants.
Analysis
I consider that the judge’s directions as to the first element were indeed deficient in the omission of reference to the requirement of knowledge. In the way in which the judge directed upon the elements of the offence, that first element should have included a requirement that the taking part in the production – in this case by providing premises for production – be done knowingly. The judge went on to instruct the jury that there was no dispute about the fact that cannabis was produced in both premises and that therefore the jury would have little difficulty in finding the first element proved. In the way in which the first element was given to the jury, that observation was, of course, correct, because the accused had provided premises, and they were so used. But it serves to underline the appellant’s complaint, that in terms of criminal responsibility, the appellant’s defence to the charges was lack of knowledge that the tenants planned to use the two premises for cannabis productions.
However, the matter does not rest there. As has been seen, the judge directed the jury as to the matter of knowledge when he dealt with the second element. He told the jury that it was here that the real dispute lay. It is true, as Mr Edwardson QC, for the appellant, argued, that the directions on the second element were not particularly apposite in terms of the facts before the jury. A direction in such terms is usually aimed at ensuring proof that when an accused contributed, in some way, to an illegal drug activity, he had a sufficient understanding of the nature of the activity to render him criminally responsible. That was not an issue in this case. However, I am confident that the jury would have drawn from the directions as to the second element, viewed against the way in which the respective cases were presented to the jury, that the prosecution was required to prove that at the time when the possession of each premises was passed to, or shared, with one or more other persons, the appellant knew that a cannabis production would occur within them. The jury could not otherwise have concluded (as it must have) that the appellant knew that “the substance being produced … was an illegal substance”.
A separate ground asserts that the judge erred in failing to direct the jury that wilful blindness was not sufficient to satisfy the requirement of knowledge. The concept of wilful blindness was not raised until late in the trial, and only then by the judge himself. In a discussion occurring in the absence of the jury the judge asked counsel whether any such direction was sought. Neither counsel said it was called for. Mr J Wickens, who then appeared for the appellant, submitted that directions on knowledge would render such a direction unnecessary.
I consider that, in so saying, counsel then acting was quite correct. On the facts of the case and the way in which it was argued to the jury, there was really no room for a finding that, though the appellant innocently let the premises, he found out in the course of the tenancy that cannabis was being produced and then acquiesced in the continuation of that enterprise. In another case, where the facts raised such a scenario, a direction might be appropriate. Here, the judge’s directions made it clear to the jury that actual knowledge that an illegal substance was being produced was required. Suspicion was said to be not enough. No direction on wilful blindness was needed.
The next complaint raises the direction given by the judge to the jury about use of the evidence going to one count in respect of the other. It asserts that the concept of similar fact evidence was wrongly introduced by the judge. The ground of appeal was in the following terms.
6.The Learned Trial Judge erred in introducing the concept of reasoning by similar fact evidence or underlying unity as a means to proof of knowledge that cannabis was being grown at both properties.
Particulars
6.1. there was no evidential basis for the application of that type of reasoning;
6.2 in the context of inviting the jury to reason from the basis of similar fact or underlying unity his Honour failed to warn the jury not to utilise propensity reasoning.
In his charge to the jury, the judge introduced the expression “underlying system”. But he did not use the term “similar fact evidence” at any stage. In argument before this court, Mr Edwardson QC conceded that the only complaint arising from the direction was the use of “underlying system”. The directions given by the judge were as follows.
In this case, although I have detailed the evidence that the Crown relies on separately to establish knowledge of the accused, there is cross-admissibility in this case between the counts. When considering the question of knowledge of the accused in relation to one count, you may take into account the fact that the accused owns both premises. You may take into account in relation to both charges that no bond in the letting of the premises has been located at the Residential Tenancies Tribunal. Also, the names of the person responsible for the electricity accounts at both properties cannot be located, with that minor exception in relation to Queensland and New South Wales, in the police searches described above.
You may also use the fact that the van of the accused was found at the Brahma Lodge property in relation to the other count and that it had in it cannabis. You may use that evidence, if you are satisfied that those matters have been proved, in assessing the likelihood of those matters occurring as simply a coincidence or that they are so similar or that they show an underlying system, that the only rational explanation for the evidence is that it tends to show knowledge of the accused.
It cannot be explained, if you accept the Crown, by mere coincidence. The only rational explanation for the evidence alleged is that it shows knowledge. I remind you it is not just a rational inference but it must be the only rational inference as to whether the Crown has established beyond reasonable doubt that the accused knew the cannabis was being grown in the house, the subject of the each charge, or that he at least knew in relation to each charge that what was being produced was an illegal substance.
In my view the ground of appeal does not bear scrutiny. As I mentioned earlier, the fact that there was no application for separate trials in relation to each count indicated an acceptance by counsel then acting that the evidence of each count was admissible in respect of the other count. That acceptance was well-founded. Plainly, the jury was entitled to evaluate the appellant’s denials of knowledge of either cannabis production in light of the claimed coincidence of two tenants, neither of whom was able to be located by police, using the appellant’s rental premises for the same, unlawful purpose. The judge, in effect, put to the jury that the events could be explained, on the one hand, as mere coincidence or, on the other, as indicating an “underlying system”. If the latter, that would go directly to the appellant’s knowledge of the unlawful activity. In my view, the expression used was only meant to convey, and would have been understood by the jury as conveying, the contrast between unrelated happenings which bear similarities, and events which are similar by design, intention, or system. No error is disclosed by its use.
Assessing events which are sought to be explained as mere coincidence is peculiarly a jury task. Particularly where circumstantial evidence is the primary means by which a case is proved, juries are commonly required to assess the significance of events, including events which are of a similar nature. Contrary to the particulars of the ground of appeal, there was no occasion to warn the jury against propensity reasoning. Such a direction would have been nonsensical in this case. It was in practical terms inevitable that the appellant would either be found guilty of both counts, or acquitted of both.
The further complaint is that the verdicts are unsafe and unsatisfactory. In part this ground relies upon the complaints already examined. In addition, it is put that the prosecution evidence, which was mainly circumstantial, was such that the relevant inferences could not safely be drawn from it.
The issue is whether the verdict is “unreasonable”: s 353(1) Criminal Law Consolidation Act 1935. In my mind the ground is unsustainable. It has not been necessary in the course of these reasons to set out the entirety of the circumstantial evidence making up the present case. The jury also had good opportunity to observe the appellant’s evidence touching all the matters put against him. An independent assessment of the whole of the evidence demonstrates to me that the prosecution case was not a weak one. I have no misgivings about the verdicts.
Conclusion
Although I have found that there was some irregularity in the way in which the elements of the offence were explained to the jury, in my view the jury could not have reached verdicts of guilty without having found proved the contested element of knowledge. The other complaint about the judge’s directions is not made good. I do not consider that the verdicts are otherwise open to attack.
I would dismiss the appeal.
KOURAKIS J: I would dismiss the appeal for the reasons given by Vanstone J.