R v Gudgeon

[1995] QCA 506

IN THE COURT OF APPEAL	[1995] QCA 506
SUPREME COURT OF QUEENSLAND	C.A. No. 377 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Thomas J.

[R. v. Gudgeon]

T H E Q U E E N

v.

MAXWELL GUDGEON Appellant

FITZGERALD P. MCPHERSON J.A.

THOMAS J.

Judgment delivered 17/11/1995

JOINT REASONS FOR JUDGMENT OF MCPHERSON J.A. AND THOMAS J., SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P. CONCURRING AS TO THE ORDERS.

Appeal against conviction dismissed.

Application for leave to appeal against sentence refused.

CATCHWORDS:	CRIMINAL LAW - conspiracy to import prohibited drugs into Australia contrary to s. 233B Customs Act 1901 (Cth.)
DISCRETIONARY POWER - whether court should exercise public policy discretion to exclude prosecution evidence if such evidence was procured by unlawful conduct on the part of law enforcement officers - unfairness discretion - whether police or agents indirectly encouraged, permitted or facilitated the commission of the offence - whether offender entrapped - effect of absence of representation by counsel at trial
•  Ridgeway v. R. (1995) 69 A.L.J.R. 484
Counsel:	C.E. Holmes for the Appellant R.V. Hanson Q.C. with him D.C. Boyle for the Respondent
Solicitors:	P.R. Russo & Associates for the Appellant Commonwealth Director of Public Prosecutions for the Respondent
Date(s) of Hearing:	2 February 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 17/11/1995

The appellant, a former New South Wales police officer, was sentenced to imprisonment in New South Wales in 1986 for his involvement in a serious drug offence, and he was in prison there from April 1986 until he was released on parole in January 1991. The present appeal relates to his conviction in the Trial Division on 31 August 1994 of an offence which was stated in the indictment in the following terms:

“That between the Seventeenth day of February 1991 and the Sixth day of February 1992 at Buderim in the State of Queensland and at other places you, Raymond Edgar Steele, Jeffrey David Chitty, Sandra Lee Steele, Rupert George Allingham and divers other persons did conspire together to import into Australia prohibited imports to which section 233B of the Customs Act applies, namely narcotic good consisting of a quantity of cannabis being not less than the commercial quantity applicable to that narcotic substance.”

Although they might theoretically be included in the “divers persons” referred to in the indictment, two persons with whom the appellant was in prison at different times during his earlier sentence and who played important roles in relation to the conspiracy, McPherson and H, were not charged. Nor was A, a prisoner who shared a cell with McPherson during a critical period, who also played an essential role.

The appellant and McPherson became friends at Berrima Goal and, after McPherson left there in
1987, remained in contact.

In 1988, the appellant and H, while in the Witness Protection Unit at Long Bay Goal, discussed the possibility of an illegal important of cannabis. According to H, the appellant asked him if a container could be removed from the wharf in Brisbane, and H told him that he had a friend named Frank who owned a container yard and removal of a container from the wharf could be effected without “any problem”.

H was released from prison earlier than the appellant, but, before leaving, gave the appellant his address and telephone number. It seems that there was no further material contact between the appellant and H until after the appellant was released on parole.

Both H and the appellant gave evidence, and there was a dispute between them concerning who initiated the contact after the appellant was released from prison. That occurred about March/April 1991, and they met, by arrangement, at a Sydney club in about May 1991. H confirmed that the container could be removed from the wharf in Brisbane without any difficulty with the assistance of his friend, Frank.

By then, McPherson was back in prison, at the Metropolitan Reception Prison, where he shared a cell with A, a police informer and perhaps agent, who was not called to give evidence. McPherson gave evidence that, in conversations with A, he was informed that A had a brother, P, in Thailand, who “was wanted worldwide” for international drug activities. He said that A “asked me if I could assist him to set up a possible importation of cannabis from Thailand for two reasons: one, to arrest - to have his brother arrested, and two, so that he was able to do a deal with the Federal Police so that he was able to get out of goal at a much earlier period of time than the time he was already serving”.

It is necessary to set out two further passages from McPherson’s evidence-in-chief, when called as a defence witness by the appellant:

“Did you do something at the request of A in about May of 1991? -- I done
certain - yes, I think - yes, I did.
Can you remember what that was? -- I made efforts to assist him with ... .
His Honour: Did those efforts in some way involve Mr Gudgeon? --

Unfortunately, yes.”

Earlier, the following had occurred:

“Did he inform you of - early in your meetings did he inform you that he was in
contact with any authorities at all ...
His Honour: Well, Mr Gudgeon, you can’t go into conversations between the
witness and A. That’s all hearsay evidence and not admissible.
Accused: Can I put it this way, then, your Honour? Did you learn something
about A and certain law authorities? -- Am I allowed to answer that question?
His Honour: Yes.,
Witness: Yes.”

Leaving aside the ruling made in the course of the exchange last quoted, two points may be made concerning the parts of McPherson’s evidence to which reference has been made, although neither emerges with clarity. According to McPherson, Gudgeon did not approach him with respect to a possible important of cannabis; McPherson approached Gudgeon at the instigation of A, who might have been “in contact with” “certain law authorities”. The judgment of the other members of the Court notes that “A began giving information to the police about the subject conspiracy from some time beginning in about May 1991".

H was also a police informer, and, when he was in prison in 1988, was “providing information ... in relation to another matter” to Detective Sergeant Conroy, an officer attached to the Organised Crime Branch of the Australian Federal Police. Conroy gave evidence that, in “approximately May - May or June 1991", he was informed of the discussions which had occurred between the appellant and H.

H’s evidence was that, after he spoke to the appellant at the Sydney club in about May 1991, “I spoke - I came back to - I am back to Brisbane and I report the matter to Senior Sergeant Pat Conroy at the Federal Police”. He placed that conversation with Conroy in about June 1991.

A second meeting between the appellant and H occurred on 31 July 1991; Conroy made the arrangements for H’s travel from Brisbane to Sydney, and travelled with him.

There is no doubt but that, prior to that time, the applicant had commenced to engage in the conspiracy of which he was convicted, or that thereafter he continued to participate in that conspiracy and that a very large quantity of cannabis was subsequently imported into Australia. By July 1991, the appellant had recruited Allingham, who ran messages to McPherson, thereby allowing the appellant to communicate with A, Steele, who played a major role in the planning of the importation, and probably Steele’s wife. He had also written to, and telephoned, P in Thailand. P, like H and perhaps A, was assisting the police, and the cannabis eventually imported was supplied to P by Thai police, acting in conjunction with the Australian Federal Police.

Further, although H gave evidence that his friend “Frank” did exist, he was never identified. An undercover police officer, W, played the role of “Frank Powell”, and arranged for the container carrying the cannabis to be cleared through Customs when it arrived in Brisbane on 2 February 1992, and delivered to a place designated by Steele. The appellant and various other members of the conspiracy were then arrested.

As the trial was conducted, the appellant’s conviction was inevitable. There was overwhelming prosecution evidence of his guilt, to which the appellant added admissions on oath in the course of giving evidence at his trial. However, he would not have done so but for the prosecution evidence; a perusal of the material portion of the trial record reveals that the appellant’s purpose in giving evidence was to demonstrate how his involvement was connected to the activities of law enforcement officials and their agents.

The proposition advanced in this Court that the prosecution evidence should not have been admitted, at least if objected to, is principally based on Ridgeway v. R. (1995) 69 A.L.J.R. 484; 129 A.L.R. 41. Shortly stated, Ridgeway supports the rejection of the prosecution evidence (or part of it) in the exercise of the court’s “public policy” discretion if the commission of the appellant’s crime (or an element of it) was procured by unlawful conduct on the part of law enforcement officers. An alternative ground for rejection might be found in the “unfairness” discretion even if the police and their agents had acted throughout without illegality or other impropriety beyond indirectly encouraging, permitting or facilitating the commission of the offence, at least if it was an offence which would not have otherwise occurred: R. v. Hsing (1991) 25 N.S.W.L.R. 685; Massey v. R. (No. 1) (S.A.C.C.A. No. SCCRM344 of 1994, S4787; unreported judgment 7 October 1994; special leave refused 23 August 1995: (1995) 13 Leg. Rep. at C14-15).

The majority in this case find themselves able to reject the appellant’s argument in this Court because of the nature of the offence of conspiracy and the strong evidence of activities by the appellant, in making and furthering arrangements with some of his co-conspirators, in which law enforcement officials had no direct involvement; e.g., his arrangements with Steele and Allingham. The difficulty I find with this approach lies in the possible connection between those activities and possibly unlawful or improper conduct by law enforcement officials. For example, it is by no means clear to me that the prosecution evidence would properly have been admitted if law enforcement officials had become involved when no more had occurred than the initial discussion between H and the appellant after his release on parole, and that all that occurred thereafter, including the contact from A to McPherson and McPherson to the appellant, was instigated or encouraged by police who thereafter facilitated the planning and importation. Even the few parts of the evidence of H, McPherson and Conroy to which I have earlier referred give cause for concern in the context of the opinion of the other members of the Court that “the conspiracy ... was not completely formed until at earliest about June 1991 when the appellant began writing letters to P and planning the importation with Steele”. The case for the appellant would be even stronger if “Frank” was always fictitious, and part of a law enforcement scheme from the very beginning.

The point at which law enforcement officials became involved and the nature and extent of their involvement were never fully and clearly explored, despite the appellant’s attempts to do so. The majority in this Court say that the appellant bore the onus of establishing the basis for the exclusion of the prosecution evidence, and that he failed to do so. However, that directs attention to the appellant’s lack of legal representation and the conduct of the trial. Requests by the appellant for the adjournment of the trial to enable him to make further efforts to obtain legal representation were refused. Despite the force of the statements in the majority judgment on this issue, a perusal of the trial record creates a strong impression in my mind that, notwithstanding the trial judge’s assistance, the appellant was unable to defend himself adequately. That does not seem surprising, given the complexity of the issues; Ridgeway had not been decided by the High Court, which later overruled the South Australian Court of Criminal Appeal: R. v. Ridgeway (1993) 60 S.A.S.R. 207.

Before discussing this further, it is convenient to make reference to the appellants’ admissions, which fall into two categories. In addition to the admissions which he made under oath at the trial, the prosecution case against the appellant included evidence of alleged admissions to Australian Federal Police officers at the time of his arrest. The appellant contested the voluntariness of those admissions, and it cannot be assumed that the jury which convicted him placed any relevance on them. Further, the reception of evidence of those admissions after a voir dire cannot be separated from other aspects of the trial, including the appellant’s lack of legal representation.

The majority in this Court are of opinion that, other considerations aside, there would be no point in allowing the appeal and ordering a new trial of the appellant because his guilt would be sufficiently established at the further trial by evidence of his admissions at the trial at which he was convicted. However, in my opinion, at least if other prosecution evidence sufficient to convict the appellant was not admitted at a further trial, his admissions might properly be excluded under the “unfairness” discretion because of the circumstances in which they were made; their admissibility in evidence at a future trial cannot be separated from considerations related to the fairness of the trial at which they were made.

The question remains whether admissions made by the appellant in evidence, even if given in direct consequence of prosecution evidence which should have been excluded, can be used against the accused on this appeal to support the conviction. The majority thought not in R. v.O'Keefe (1893) XIV N.S.W.R.(L) 345; however, in Cornelius v. R. (1936) 55 C.L.R. 241, Starke J. thought that, in such circumstances, there was no "substantial or grave injustice" (p. 238), while Dixon, Evatt and McTiernan JJ., in agreeing that special leave to appeal to the High Court should be refused, said at p. 245 with reference to the decision in O'Keefe: "... Whatever may be said as to such a doctrine, it is not one that governs this Court's discretion in granting special leave to appeal."

In my opinion, the strength of the prosecution case, or for that matter the certainty of guilt, does not affect an accused person’s entitlement to a fair trial. In R. v. O’Neill (C.A. No. 435 of 1994, unreported, judgment delivered 4 August 1995). I analysed a number of recent decisions of the High Court in relation to the provisions, common throughout Australia, which permit an appeal court to dismiss an appeal, despite error at the trial, if there has been no substantial miscarriage of justice: cp. Criminal Code sub-s. 668E(1). I adhere to the opinion, which I expressed in O'Neill, that there has been a substantial miscarriage of justice if a guilty person has been convicted after an unfair trial. The question whether a person is guilty is not the same as the question whether that (guilty) person lost a fair chance of acquittal by reason of error or unfairness at the trial. Indeed, Ridgeway provides a specific example of the quashing of a guilty person’s conviction and an order for a permanent stay of proceedings in relation to offences which the convicted person had committed. Here, that would not be appropriate. The issue is whether the appeal should be allowed and a retrial ordered to determine whether the prosecution evidence, or sufficient to convict the appellant, should properly be admitted and, if so, whether that evidence satisfies the jury beyond reasonable doubt of the appellant’s guilt.

The principles laid down by the High Court in Dietrich v. R. (1992) 177 C.L.R. 292 and subsequently discussed in N.S.W. v. Canellis (1994) 181 C.L.R. 309, were recently considered by the New South Wales Court of Appeal in Attorney-General (N.S.W.) v. Milat (N.S.W.C.C.A. 60453/95, unreported judgment delivered 22 September 1995) and, even more recently, by the High Court in Craig v. South Australia (1995) 17 Leg.Rep. 2 at 7-8. Broadly speaking, an indigent person who has been convicted of a serious offence after a trial at which he or she lost a fair chance of acquittal because he or she was unable to obtain legal representation is entitled to have the conviction quashed unless the substantial reason why legal representation was unavailable was unreasonable conduct on the part of the person convicted. The critical question for present purposes is whether the appellant was legally unrepresented at his trial because he was unable to obtain legal representation due to his poverty and the refusal of legal aid or because of his own unreasonable conduct.

The majority consider that the circumstances prior to trial support a conclusion that the appellant declined legal assistance which was available, essentially, I think, because of a preference for a senior barrister who was unable to represent him because of illness. In his report to the Court, the very experienced Judge who presided at the appellant’s trial referred us to transcript of the many occasions when the matter was mentioned before the Court prior to trial, on a number of which the appellant’s legal representation, and later lack of legal representation, were discussed. I think that the better view is that, ultimately, the position adopted by the Trial Division Judges involved was that the appellant was able to obtain legal representation, and that he could do so in time to prepare properly for his trial, but the particular barrister of his choice was unavailable. Despite my misgivings at the possibility that the appellant’s inability to pay contributed to his lack of legal representation, there is no sufficient reason to dissent from that view.

In the circumstances, the appellant’s trial was not unfair according to the Dietrich principles.
Since there is no other basis upon which the appellant could succeed, I agree that the appeal
should be dismissed.

I also agree, for the reasons given by the majority, that the application for leave to appeal against sentence should be refused.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & THOMAS J.

Judgment delivered the 17th day of November 1995

Maxwell Gudgeon was convicted after a trial in the Supreme court of one count of having, between 17 February 1991 and 6 February 1992 at Buderim in Queensland and at other places, conspired with Raymond Steele, Jeffrey Chitty, Sandra Steele, Rupert Allingham and others to import cannabis into Australia contrary to s.233B(1)(cb) of the Customs Act 1901 (Cth.). He was sentenced to imprisonment for 15 years, with a non- parole period at 7½ years. He now appeals against his conviction and seeks leave to appeal against sentence.

Sentence. It is convenient to begin with the matter of sentence partly because it helps to explain the genesis of the appellant's involvement in the offence of which he was convicted. Before this Court the application for leave to appeal against sentence was not pursued in argument but it was not formally abandoned. Ms. Holmes of counsel for the appellant candidly conceded that there were no submissions she could advance that the sentence was not within range. The amount of cannabis which in consequence of the conspiracy reached Australia from Thailand in February 1992 was 192 kgs. The appellant was 55 years old at the time of his trial. He had been working as a butcher and as a truck driver before his arrest, but had previously been a member of the New South Wales Police Service for some 20 years. He resigned from the Service in 1982, and after a three month trial in 1986 was convicted of conspiring to cultivate a large crop of cannabis claimed to be valued at about $750,000. He was said to be the "linchpin" of that cultivation plan, which he had initiated while still a serving police office. He was sentenced to imprisonment for 10 years, which was reduced on appeal. He served part of that term in prison from April 1986 before being released on parole in January 1991.

The offence the subject of this appeal was committed while he was on parole. The idea of committing it seems first to have occurred to him while he was still serving his sentence in Long Bay Gaol. His conduct since 1982 has been thoroughly discreditable and the subject offence plainly merited the sentence it attracted. There is no basis on which this Court could properly interfere with it.

Conviction. Apart from the matter of sentence, the original notice of appeal contains three grounds as follows:

1.         That the verdict of the jury was unsafe and unsatisfactory in all of the circumstances.

2.         That the learned trial judge erred in not granting the appellant an adjournment of his trial in order to obtain legal representation for the serious offence.

3.         That the appellant was severely prejudiced in being forced to conduct his defence without the assistance of counsel.

The first ground was abandoned at the hearing, but the appellant added the following further grounds:

6.         That the learned Trial Judge in considering whether to exclude evidence on the grounds of entrapment erred in:

(i) failing to refer to -

(a)       the extent of H’s role in furthering the conspiracy beyond his initial representations to the appellant while in jail;

(b)       the use by police of agents other than H, and in particular W and P;

(ii)        failing in considering the issue of entrapment to have regard to the illegality of police actions in arranging the acquisition and importation of cannabis.

7.         That the learned Trial Judge erred in failing to consider whether the indictment ought to be stayed by reason of unlawfulness and/or entrapment in the actions of the police.

8.         That the Learned Trial Judge failed to consider whether evidence as to the importation of the cannabis should be excluded on the ground that it was obtained by illegal conduct on the part of the investigating police.

The facts. Before attempting to consider these grounds, it is useful to begin by briefly reviewing the evidence adduced at the trial, which occupied a total of some 16 sitting days. The prosecution evidence began with a man named H. He was a thief who in 1988 was lodged in the Witness Protection Section, where the appellant was also housed, of Long Bay Gaol. One day he had a conversation with the appellant in his cell, in which, according to H, the appellant said words to the effect "Only need one big one and set for life". He asked H if a container could be removed from the wharf in Brisbane. H told him he had a friend called Frank and "it won't be any problem". Much later, after their release in 1991, H received a letter from the appellant in which he was asked to telephone him. They arranged to meet at the Five Dock RSL club in Sydney, where he was asked if he still had the contact in Brisbane capable of removing the container "because Sydney is too hot". H said that he could see no problem. That was in May 1991.

From there the matter developed over the ensuing months. In June or July 1991 the appellant recruited Steele, who played a major role in the planning. Steele's wife Sandra assisted him. The appellant also enlisted Allingham, who was a visitor to a man named David McPherson also in Long Bay Gaol. McPherson, who was a drug addict, shared a cell with A, whose brother P in Thailand was the proposed supplier of the cannabis. Using the pseudonym Leon Goldberg, the appellant wrote to P a letter dated 25 June 1991 (ex. 19) in which he made arrangements for the importation of "navy uniforms", which was acknowledged at the trial to be the code-name for the drugs. It was followed by one or more telephone calls and other letters from the appellant to P in July (ex. 20) and August 1991 (ex. 22). In August the appellant despatched Steele to Thailand to make arrangements with P for the drugs. By this time the police were secretly recording or listening in on telephone and other conversations and were photographing and filming meetings of the conspirators. The information so obtained formed a major part of the evidence from the Crown at the trial.

There was a meeting of conspirators at Steele's residence at Buderim on 21 August 1991, which was monitored by police using a listening device. On 27 August 1991 another meeting took place at Buderim Tavern between H, Steele, and one W, who passed under the name Frank Powell. W, who was in fact an undercover police officer, was the person who in the end arranged for the container with the drugs coming from Thailand to be cleared through customs when it arrived in Brisbane on 2 February 1992. He went on to deliver it to a place designated by Steele, after which the police arrested the appellant and various other members of the conspiracy.

The decision in Ridgeway (1995). It is convenient to begin with the additional grounds of appeal numbered 6, 7 and 8. All of them complain in one way or another that the trial judge ought to have excluded evidence on the ground that the appellant was "entrapped" into committing the offence by the actions of the police, or that the police acted illegally in arranging the acquisition of cannabis in Thailand and its importation into Australia; and that accordingly the trial judge ought either to have excluded evidence of the importation of the cannabis or stayed the indictment because of illegal police action.

The appellant's submissions now rely on the decision of the High Court in Ridgeway v. The Queen (1995) 69 A.L.J.R. 484. The appellant in that instance was charged with and convicted of having possession of heroin imported into Australia contrary to s.233B(c) of the Customs Act. The evidence showed he was in possession of heroin which had been imported into Australia through the agency of one Lee, who at the time was a registered informer for the Royal Malaysian Police Force. The appellant had had dealings with Lee in the course of visits to Singapore at a time when Lee was acting under instructions from Asst. Supt. Chong of that Police Force. Chong was in turn keeping in touch with Supt. Butler of the Australian Federal Police in Kuala Lumpur.

Lee bought the heroin in Malaysia using money which it seems was provided by the appellant. He then travelled to Australia in company with Asst. Supt. Chong and delivered it to the appellant in Adelaide. The two travellers were cleared through airport customs under an arrangement between the Australian Federal Police and Australian Customs Services pursuant to the terms of a Ministerial Agreement, which purported to permit what is described as a "controlled importation" of the heroin.

The High Court held (McHugh J. dissenting) that, although the law of Australia did not recognise a "defence" of entrapment, there was nevertheless a discretion, based on public policy, to exclude evidence procured by unlawful conduct on the part of law enforcement officers. In their joint judgment Mason C.J., Deane and Dawson JJ. said (69 A.L.J.R. 484, 489 col.2D-E):

"Nonetheless, the existence of the discretion to exclude evidence procured by unlawful conduct on the part of law enforcement officers provides strong support, by way of analogy, for the recognition of a discretion to exclude evidence of the accused's guilt either of an alleged crime or of an element of it in circumstances where the actual commission of the crime was procured by such unlawful conduct."

There are statements to similar effect in the reasons for judgment of Brennan J. (69 A.L.J.R. 484, 502), and of Toohey J. (at 508-509). What was said by Gaudron J. (at 517 col.2) perhaps, on one view of it, proceeds on a principle that may be slightly different from that adopted by other members of the Court. Her Honour spoke of the police having taken advantage of the criminal intent of the appellant, "whose offences ... can readily be seen as resulting from their criminal acts". On that basis, she also held that the conviction should be quashed.

The appeal in Ridgeway succeeded because a critical element in the charge against him was that he was in possession of heroin that had been illegally imported and illegally delivered to him through the intervention of the police. The "controlled" importation was not authorised by or under the Ministerial Agreement, because it had no foundation in law capable of overriding the prohibition in s.233B(b) of the Customs Act against importing heroin. "The illegality of that importation", said Mason C.J., Dean and Dawson JJ. at 496 col.1F):

"was not only calculated. It was necessary to procure the commission of the appellant's offence ... The illegal police conduct itself provided and constituted that element".

Brennan J.,(69 A.L.J.R. 484, 502 col.2 F-G), said that, if all evidence of illegal importation had been excluded, the prosecution could not have succeeded. According to Toohey J. (69 A.L.J.R. 484, 509 col.1 F-G), the discretion to exclude should have been exercised because the evidence of importation of the heroin, "which was an essential element of the charge against the appellant", was of an importation arranged by police officers in contravention of the Customs Act. Their actions, his Honour said, were "designed to produce that element".

Exclusion of evidence of illegal police action. Applying that reasoning does not bring about the same result in the present case. The appellant was not charged with importing cannabis contrary to s.233B(b) of the Customs Act, or having possession, contrary to s.233B(c), of cannabis imported in contravention of that Act. What he was charged with was conspiring with others, contrary to s.86(1)(a) of the Crimes Act 1914 (Cth.), to import cannabis in contravention of s.233B(1)(cb) of the Customs Act. The essence of the offence of conspiracy rests in "the agreement of minds": R. v. Darby (1982) 148 C.L.R. 668, 671. It is said to consist "not in the intention of two or more but in the agreement of two or more": Mulcahy v. R. (1868) L.R. 3 H.L. 306, 317, per Willes J. Performance of the agreement is not a requisite of the offence: R. v. Aspinall (1876) 2 Q.B.D. 48, 58-59; Director of Public Prosecutions v. Doot [1973] A.C. 807, 827. Evidence of acts following the agreement may be, and often is, the only available proof that the agreement was made; but it is the agreement and not the evidence that constitutes the offence.

This is not to say that the principle in Ridgeway can have no application to the offence of conspiracy to import, as distinct from the offences if importing or having possession of illegally imported narcotics considered in that decision. If the only evidence of the conspiracy in the present case, or the appellant's part in it, was to be found in the actions of the police in arranging to have the container passed through customs and delivered by W (Frank Powell), it is not easy to see how it could be distinguished from Ridgeway. But that is not the case here. There was substantial evidence (including tape-recorded evidence) of the appellant's involvement in the conspiracy. In addition the appellant elected to give evidence at his trial. Not once, but on several occasions, he was asked and admitted under oath that he was involved in a plan to import marijuana or cannabis into Australia. As an example, it is enough to quote the following passage, with which his evidence under cross-examination came to an end:

"Do you agree that there was an agreement between you, Steele and some other people to arrange an importation of cannabis into Australia? -- - Yes.

That involved an importation of several tonnes? --- No.

That the meetings and letters and telephone calls in which you were involved were done in furtherance of that importation? --- Yes.

And that, in fact, although it probably doesn't matter, 190 kilograms of cannabis was, in fact, imported into Australia as a result of those arrangements and agreements? --- I think it goes a little further than that.

Do you at least agree with that? --- Well, there was a container arrived here and according to the evidence that has been revealed here there was 190 kilos.

You don't contest that? Do you accept that? --- That there was a container arrived here?

With 190 kilograms in it? --- Yes.

You accept that evidence? --- Yes, I do.

And that was the container that was obviously sent by P? --- I couldn't say. According to the evidence it probably was.

But you don't contest that? --- No, I don't."
One cannot look for stronger evidence of guilt. It is a full admission of the

elements of the charge of conspiracy to import given on oath before the jury at the appellant's trial on indictment for the offence. Besides, it was very far from being the only proof of the appellant's guilt. The oral evidence of witnesses and the documentary material (including tape and video recordings) and other information obtained by electronic surveillance of the conspirators was overwhelming. Little or none it depended for its existence on illegal police action, if that is what it was, in purchasing cannabis in Thailand, or in bringing it through customs in Brisbane.

Even if the evidence of those activities is or had been excluded from consideration, the prosecution case against the appellant was so compelling that the proviso to s.668E(1) of the Criminal Code would inevitably operate in favour of the prosecution on this appeal. There would be no point in allowing the appeal and ordering a new trial of the appellant. At any such re-trial of the indictment, the charge would be sufficiently established by adducing evidence of the appellant's admissions at the trial from which this appeal is brought. The purpose of allowing appeals against conviction for criminal offences is to prevent miscarriages of justice.

The evidence of "procurement". To say this is not to overlook the appellant's testimony that he was encouraged to commit the offence. He persisted in asserting that somehow, somewhere, he had been "set up" for it. It was perhaps natural that he should harbour such a suspicion. Having previously been convicted of the offence of cultivation initiated while he was a serving police officer, it would perhaps not have been surprising if he were to chance his luck again at an enterprise of a similar kind, or at least that he should be suspected of doing so. It is another question whether there was evidence showing that he had become "entrapped" in the importation plan or conspiracy, or that he had been procured to commit it, because of illegal police action. In that regard, the burden of proof rested on the appellant, although it fell to be discharged on the balance of probabilities: Sloane (1990) 49 A.Crim.R. 270; R. v. Hsing (1991) 25 N.S.W.L.R. 685.

At the trial the appellant's suspicions appeared to focus primarily on H. It was he who had first approached the appellant in Long Bay Gaol in 1988. There is no doubt that H was a frequent visitor to the appellant's cell. He admitted to having become a registered police informant in 1984, although he denied receiving cash, as distinct from some other benefits, for information supplied. Some time later in 1991 after his release he became an agent of the police in the transactions leading to the importation. It was he who introduced the undercover police officer W as his friend Frank Powell who could arrange for the transit of the container through customs at Brisbane.

The appellant's contention was that from the beginning H was a police agent who set out to encourage the appellant to arrange the conspiracy to import. There was a conflict of testimony between the appellant and H, the former asserting that it was H who in 1988 had first mentioned that his friend Frank owned a container yard and had on occasions brought in containers. According to the appellant, he told H that he wanted "nothing to do with that sort of thing and had no knowledge of it anyway". In fact, the appellant said H was so persistent in raising the subject that the appellant asked to be moved away from him. This suggests that H had no influence on the appellant's subsequent decision to commit the offence. However, before H left the Gaol he gave the appellant his Gold Coast telephone number and address which the appellant wrote in his address book. The appellant said it was after his release in January 1991 that H telephoned him in about March or April of that year and said he had been talking to his friend Frank. It was, said the appellant, at H’s suggestion that the appellant sent him a letter or a telegram which led to the meeting at the Five Dock RSL Club in May 1991. By contrast, H claimed that the impetus for the meeting came from the appellant.

A difficulty for the appellant is that, even if the whole of his evidence on these matters is accepted, the conspiracy charged against him was alleged to have been formed between 17 February 1991 and 6 February 1992, and that H was not alleged to be a party to it. It may be a nice question whether someone can be held to conspire with a person who has no intention of making an agreement to commit an offence but is simply going through the motions of pretending to do so. However that may be, in the present instance the prosecution case seems clearly enough to have been that the conspiracy commenced with Steele as the other party, and progressively expanded to include the other persons as each of them was introduced to it. According to the appellant's evidence, it was in June 1992 that he received a telephone call from Steele. It is plain he must have meant to say June 1991, and not 1992, because the container had arrived in Brisbane well before the later date and the conspirators had already been arrested.

It is not, I think, possible for the Crown to avoid the consequences of the decision in Ridgeway by so contriving the form of the indictment as to avoid charging the offence as being committed at a time when the police were actively promoting it by illegal actions. Nevertheless, even if one accepts the appellant's version of events, the conspiracy charged against him was not completely formed until at earliest about June 1991 when the appellant began writing the letters to P and planning the importation with Steele. Excluding all the appellant's evidence of H’s approach to him in 1988, and even of his later part in the scheme in 1991, would have left untouched other cogent and compelling evidence of the appellant's agreement with Steele and the other conspirators. Indeed, the evidence of H added little or nothing to proof of the conspiracy that was ultimately formed. It is not shown to have involved any illegality on the part of the police. At the trial it was, of course, the appellant who wished to focus attention on H’s supposed influence in generating the plan to import. He was hoping to be able to invoke a defence of entrapment; but, as the decision in Ridgeway established, no such defence is recognised.

It was suggested that what was done by P in Thailand involved illegal police action. It was he who arranged for the cannabis to be purchased there and despatched to Australia. It was to him, or on occasions to his sister, in Thailand that the appellant wrote the letters about "navy uniforms" already referred to. P, seems so far as one can gather, to have operated in a shadowy world of profiting from association with both crime and law enforcement authorities; but at the time he was co-operating with Australian Federal Police officers stationed in Thailand. He supplied them with information and they checked the outgoing container to confirm that it contained cannabis. If these actions involved any breach of the law of Australia, as distinct from the law of Thailand, they did nothing to promote the carrying out of the conspiracy. Indeed, some of the cannabis was removed by them before it was despatched to Australia. Certainly there was nothing in that conduct of the Federal police that involved such grave illegality that the public interest in the conviction and punishment of the appellant was outweighed by other considerations demanding that evidence of that conduct be excluded. Cf. Massey v. The Queen (1995) 13 Leg. Rep. at C 14-15; High Court, Aug. 23, 1995).

McPherson's part in the scheme. The thread of association between the appellant and P in Thailand did not lead through H, but through McPherson and through P’s brother A, with whom McPherson shared a cell at the Metropolitan Reception Prison in Sydney. The appellant had come to know McPherson at some time in 1987 when they were working together in the kitchen at Berrima Prison. According to the appellant's own evidence, McPherson rang him at his home in May 1991 and told him to expect a letter. Thereafter he received a number of letters from McPherson, which were placed under his door. They directed the appellant to copy the letters, and send them to Thailand, which he did. If this involved illegal action on his part, it is not something for which the police can be held responsible. McPherson was not, on any of the evidence, a police agent. In fact he gave evidence at the trial as a witness for the defence, claiming privilege from answering certain questions under cross-examination on the ground that it might incriminate him.

The line of communication between McPherson and the outside world, including the appellant, passed through Allingham who visited McPherson in prison. Allingham was a friend of the appellant, and, like McPherson, gave evidence for him at the trial. There is no suggestion that he acted as a police agent or informer at any time. He was one of those jointly charged with the conspiracy to import cannabis. After some hesitation, he pleaded not guilty and was tried and convicted. McPherson was the link with A, who is a convicted heroin trafficker who is not due for release from prison until the year 2016. A began giving information to the police about the subject conspiracy from some time beginning in about May 1991. According to McPherson, A’s motive for doing so was to have his brother P arrested in order to "do a deal" with the Federal Police and so secure a reduction in the lengthy sentence he was serving. It was for this reason that he asked McPherson to help him set up a possible cannabis importation from Thailand. A did not give evidence for either the prosecution or defence, so that no question of excluding his evidence arose at the trial. On any view of his conduct, it was not the product of illegal activity by the police.

Entrapment or procurement. At the beginning of the trial the appellant required a voir dire on the admissibility of certain evidence which the Crown proposed to lead. Two issues were raised. One concerned the voluntariness of certain admissions alleged to have been made by the appellant at about the time of his arrest to Sgt. Conroy and Det. Const. Edwards of the Australian Federal Police. The decision on this question went against the appellant and has not been challenged on appeal. The other issue was the matter of entrapment. In answer to a question from the trial judge the appellant affirmed that his contention was that he would not have done the acts alleged to constitute the offence but for entrapment. On the voire dire he said that when H came into the prison in 1988 he was escorted to the appellant's cell by a man named Peter Cartwright. The appellant said he knew that Cartwright and another man Waddell were working for the Federal Police. This can have served only to arouse his suspicions. He described the conversations he had with H ("a persistent type of person") concerning his friend Frank who owned the container terminal in Queensland. The appellant told the judge that it was not his contention that the conduct in 1988 constituted the entrapment, but "that's where it probably began". He then went on to recount his dealings with McPherson and, through him, with A. He concluded by saying that "without the assistance of H, McPherson and others, this could never have come about. It would never have happened and it was never in my mind to have done it". It was all the result of police entrapment.

His Honour rejected the application to have any of the proposed evidence excluded. He said that, the onus being on the appellant, he was not satisfied that he had made out a case that there was any unfairness in the way the evidence was obtained against him enabling the discretion to be exercised to exclude it. He referred to both R. v. Venn-Brown [1991] 1 Qd.R. 485 and Bunning v. Cross (1978) 141 C.L.R. 54. Specifically his Honour said that, taken in the context of the 12 month period from January 1991 to February 1992 during which the appellant was alleged to have conspired, he could not see that there had been conduct that could have been operating on the mind of the appellant while he was participating in the acts or conversations about which evidence was proposed to be led. He concluded by deciding that there was no evidence of entrapment calling for the exclusion of evidence.

At the time the learned trial judge gave his ruling, he did not have the advantage of the judgments of the High Court in Ridgeway, which was decided only after the appeal was argued before this Court. Nevertheless, with respect, it appears that his Honour exercised his discretion in accordance with the principles later laid down in that case. His findings make it plain that (to adopt the expressions used in Ridgeway) "the actual commission of the crime" of conspiracy in 1991/1992 was not "procured by" any conduct, lawful or otherwise, undertaken by H in 1988. The findings of the learned judge are inconsistent with the notion that (in the words of Gaudron J.) the appellant's offence of conspiracy "can ... be seen as resulting from" criminal acts of the police. Even if, contrary to what he said in evidence, H was acting as a police agent in 1988, the effect of the findings on the voir dire is that it was not his influence that brought about the conspiracy later formed in 1991. The germ of the initial idea may, as the appellant claimed, originally have been planted by H in 1988; but that fell well short of procuring or bringing about the actual commission of the crime of conspiracy to import cannabis that followed in 1991. It is true that McPherson was actively involved in promoting the scheme in May 1991. The appellant in his evidence on the voir dire asserted that McPherson was "acting as an agent for the police at that time and sending out certain information". However, McPherson's own evidence, which he gave when he was called by the appellant as a witness at the trial, affords no support for such a conclusion. He seems to have acted as he did at the instigation of A, who had reasons of his own for promoting the importation of cannabis.

There is nothing in the evidence later adduced at the trial capable of lending weight to a suggestion that his Honour's decision was wrong. It is true that, as the decision in Ridgeway later demonstrated, evidence of the entry of the container with drugs and its delivery in February 1992 ought to have been excluded; but, for the reasons already given, the verdict and conviction are overwhelmingly supported by other evidence in the case. The conspiracy to import necessarily preceded any actions carried out in Thailand to export the cannabis, or anything done in Brisbane to pass it through customs. It is the evidence of those actions that falls to be excluded under the principle in Ridgeway.

Absence of representation by counsel. For these reasons, the matters specified in the additional grounds 6, 7 and 8 of the notice of appeal cannot be sustained. Grounds 2 and 3, both of which are concerned with the fact that the appellant was not represented by counsel at the trial, now fall to be considered.

For reasons to which reference will be made in more detail, the appellant was not legally represented at this trial. He conducted his own defence. That state of affairs was, he claimed, due to his financial inability to pay the fees of counsel. However:

"Australian law does not recognise that an accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused."

See Dietrich v. The Queen (1992) 177 C.L.R. 292, 311 (Mason C.J., McHugh J.) Their
Honours went on:

"A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial's judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained."

At regular intervals before the trial began on 8 August 1994, there were "mentions" or interlocutory hearings, beginning with one in June 1993, with a view to fixing the date for trial and assigning the necessary sitting time for it. The indictment originally included Allingham and Steele; but Steele pleaded guilty and Allingham was tried and convicted. As a result the appellant's original trial date, which had been 28 February 1994, was deferred. As late as 3 February 1994 the appellant was represented by Brisbane counsel and solicitors, but on 23 February 1994 they were granted leave to withdraw. Apparently, their reason for doing so was that the appellant had been refused legal aid. Subsequent efforts to have the decision on that matter reversed were unsuccessful. However, by 31 May 1994, the appellant had instructed solicitors in New South Wales, who on 17 June 1994 briefed Mr G. Cusack Q.C. of the Sydney Bar, with Mr Michael Gallagher as his junior, to represent the appellant at his trial on 8 August. The trial had been listed for hearing on that date at a mention held on 25 March 1994.

The appellant had a conference with Mr Cusack Q.C. on 24 June 1994. However, on 22 July, he applied for an adjournment of the trial on the ground that Mr Cusack Q.C. had on 26 June been admitted to hospital, where he had undergone a serious operation which was expected to prevent him from accepting briefs for the following six to eight weeks. Curiously, the basis of the application for adjournment was not identified as lack of finance, but rather that the appellant "required" Mr Cusack to be briefed in the matter, and also that he was not in a position to properly instruct his solicitors or Mr Cusack Q.C. or Mr Gallagher, or to get another senior counsel to do a four to six week trial in Brisbane. The adjournment application was refused.

An assumption implicit in the appellant's affidavit dated 14 June 1994 in support of the application seems to have been that the appellant was entitled to insist on being represented by a particular senior counsel; or at least on being represented by senior counsel and perhaps also one who was a member of the Sydney Bar. There is nothing in Dietrich to support such a conclusion. Indeed, in rejecting the proposition that an accused has an absolute right to the provision of counsel at public expense, Mason C.J. and McHugh J. said (177 C.L.R. 292, 310) that recognition of such a right would create problems of its own. Their Honours expressed the matter as follows:

"... if an accused has a right to counsel, does he or she have a right to demand counsel of a particular degree of experience and who can conduct the defence 'effectively'? How could such a right be monitored properly by the trial judge?"

In refusing the application to adjourn the trial, the judge observed that the trial date was over two weeks away, which he said was ample time to engage another counsel in place of Mr Cusack Q.C., and to prepare for the trial. He also noted that junior counsel Mr Gallagher had been retained. There was nothing in the material before his Honour on that occasion to suggest that Mr Gallagher had ceased to be available, or that, although only a junior counsel, he was not competent to conduct the defence on behalf of the appellant at the trial. The case therefore appears to fall within one of the exceptions, described by Deane J. in his reasons for judgment in Dietrich as "the most obvious category of case", in which the accused "... persistently neglects or refuses to take advantage of legal representation that is available" (177 C.L.R. 292, 236). It may be that the appellant's attitude in the present case cannot be characterised as "persistent neglect or refusal"; but, in the absence of an explanation why Mr Gallagher could not have conducted the defence, it is not possible to see why it should not be treated as having the same consequence.

Miscarriage of justice. In the end, however, the question is not whether the appellant was denied an adjournment that ought to have been granted, but whether, as a consequence, there was a miscarriage of justice. For the Court on this appeal, the question, according to what was said by Mason C.J. and McHugh J., in Dietrich (177 C.L.R. 292, 312-313), is:

"... not merely whether or not an adjournment should have been granted but whether the appellant's conviction should be set aside 'on the ground of a wrong decision of any question or that on any ground there was a miscarriage of justice', provided that the conviction will stand if 'no substantial miscarriage of justice has actually occurred'."

Earlier their Honours had said (at 311) that the appellate jurisdiction in criminal matters depended on the conclusion that there was a "miscarriage of justice" such that the appellant had thereby lost "a chance which was fairly open to him of being acquitted". Cf. also Dietrich, at 325 (Brennan J.); at 337-338 (Deane J.); at 343 (Dawson J.; at 361 (Toohey J.: "loss of a chance of acquittal fairly open to an accused"); and at 375 (Gaudron J.). See also Criminal Code (Qld.), s.668E(1), which is the appeal provision corresponding to s.568(1) of the Crimes Act 1958 (Vic.) considered in that case.

At the trial the appellant does not seem to have specifically renewed his application for an adjournment, but he complained to the trial judge that he was "not capable of running this trial in a fair and proper manner". The question now is whether, despite the absence of legal representation for the defence at the trial, it is possible to say that no miscarriage of justice has occurred; or, to express it in the other way, whether the appellant lost a chance of acquittal that was fairly open to him. The question, as Mason C.J. and McHugh J. acknowledged in the passage already quoted from their joint judgment (at 311), is whether, "depending on all the circumstances of the particular case", lack of representation meant that the appellant was "unable to receive, or did not receive a fair trial".

The circumstances at the trial of the appellant differed in several respects from those that prevailed at trial in Dietrich. There is no doubt that in both the accused was facing a serious charge. The punishment which the appellant attracted in this case is a sufficient indication of that. However, his personal circumstances and his conduct of the trial differed very widely from those of the accused in Dietrich. The latter was described as having been "emotionally and psychologically overwhelmed" by the prospect of proceeding to trial unrepresented (177 C.L.R. 292, 314). There was evidence from a psychologist that he was an "excitable, volatile person". He gave way to "irregular outbursts of volatile behaviour" in the course of the trial, and his defence was "so disorganised and haphazard as to lack cogency" (at 315). A central factor in their Honours' conclusion that the accused in that case had been deprived of a real chance of acquittal was that he had been found not guilty of possession of some heroin which was not alleged to have been imported (at 314).

None of these circumstances are reflected in the case of the present appellant. Having been a serving police office for 20 years, and having undergone a three month trial in 1986, he was no stranger to the courts, to the legal system, or to procedure governing prosecutions. In the course of one of the pre-trial hearings or mentions on 1 March 1994, the appellant said he had given evidence "many times". He added that he had never cross-examined anyone or tried to conduct any type of hearing. However, a reading of the transcript of the trial shows that the appellant conducted his defence with a good deal of ability. His questions to and cross-examination of witnesses were clearly framed. His approach was methodical, and, on questions of fact and law, his submissions, if simple, were succinct and not without cogency. Unlike the accused in Dietrich, the appellant was neither excitable nor volatile. He does not appear to have been emotionally overwhelmed by the proceedings.

Even so, it is impossible to say that in some respects he would not have been better placed had he had the advantage of representation by a competent member of the legal profession. As much as anything, the critical benefit is, or may be thought to be, the detachment which an advocate brings (or is expected to bring) to the task of representing a client. It makes for dispassionate assessment of the strengths and weaknesses of the evidence to a far greater degree than is possible for an accused, who has an obvious interest in the outcome of the proceedings. That is the underlying theory of legal representation, and for the most part has proved to be so in practice.

Chance of acquittal. The question remains, however, whether the absence of legal representation in the appellant's case meant that he was deprived of a chance of acquittal which was fairly open to him. It seems clear that he was not. The question is impossible to answer without attempting some kind of assessment of the strength of the prosecution case against him. It must surely be characterised as overwhelming. There were letters from the appellant to P and Steele; telephone intercepts of calls between him and those people, as well as others; videos and photographs of meetings between the appellant and other conspirators; and so on. Some 40 or so witnesses were called to prove these matters, and many pages of transcriptions of conversations were put in evidence. It was not suggested on appeal, where the appellant was represented by counsel, that any of this material was inadmissible, or that, if objected to at the trial, it might have been excluded. It demonstrated the appellant's participation in the conspiracy up to the hilt. It would have been perverse of the jury to reject it. They did not do so.

On top of this there are the appellant's own admissions at the trial of his involvement in the conspiracy. He gave those admissions under oath in the course of cross-examination. Of course, it is true that, if he had had legal representation, he might have been advised not to give evidence, and he might well have followed that advice. But it is not possible to say that his giving evidence, as he did without legal advice, turned a trial that in other respects was not unfair into one that was. He might equally have pleaded guilty without legal advice. There would have been nothing unfair in that. His action in giving evidence at the trial was governed by s.618 of the Criminal Code, which provides:

"618. Evidence in defence. At the close of the evidence for the prosecution the proper officer of the Court shall ask the accused person whether he intends to adduce evidence in his defence."

Some judges in Queensland are so scrupulous in following the letter of this provision that they insist that the question be directed to and answered by the accused himself even where he is represented by counsel. The appellant here was asked and elected both to give and to call evidence, which he proceeded to do. By giving evidence, he exposed himself to cross-examination by counsel for the prosecution. As a former police officer, who had given evidence "many times" and who had previously undergone a lengthy trial himself, it is difficult to suppose he was ignorant of that possibility. Having given evidence at the trial he was not entitled to refuse to answer a question put to him in cross-examination on the ground that to do so would tend to prove the commission by him of the offence with which he was charged. See Evidence Act 1977, s.15(1). The law is the same in other jurisdictions.

Having admitted on oath to having committed the offence, it is difficult to appreciate how the absence of legal representation at the trial can have the result that there has been a miscarriage of justice, or that the appellant has lost a chance of acquittal that was fairly open to him. In the face of the prosecution evidence against him, he had no realistic chance of acquittal. His testimony at the trial serves to confirm that conclusion. It also shows that the appellant cannot now look towards a further chance of acquittal at a fresh trial in the future. It would be pointless to order such a trial if the only consequence would be that his guilt would be established yet again with the assistance of the evidence he gave at the trial from which the appeal is now brought.

The reception of such evidence at any future trial could in my opinion not be characterised as improper or unfair. There are rules which in some circumstance make it unfair to adduce evidence of confessions or admission made out of court in order to prove guilt at the trial of an accused person. The fact that a warning has not been given or understood may be such a circumstance. The present case is not an instance of that kind. The admission was not made out of court. Nor can it be compared with a plea of guilty which has been withdrawn, which was a matter considered in Rimmer (1972) 56 Cr. App.R. 196, 100-201. It is, if anything, more like the partial plea of guilty considered in R.v. Hazeltine [1967] 2 Q.B. 857, 862-863, except that here the appellant made a full confession on oath which cannot be withdrawn or impugned. There is nothing in either s.618 of the Code or s.15(1) of the Evidence Act to suggest that a warning should be given before an accused person, whether legally represented or not, elects to give evidence at his trial. To adopt such a requirement would be to introduce a new rule of procedure into criminal trials for which there is no warrant in authority as the law now stands. Giving a warning like that would almost inevitably leave the jury with an adverse impression if, after the warning had been given, the accused chose not to give evidence at the trial. Even if given in the absence of the jury, such a warning might be raised on appeal as having discouraged or persuaded the accused not to exercise the right to give evidence.

The present case is distinguishable from R. v. de-Cressac (1985) 1 N.S.W.L.R. 381, where in upholding an appeal against conviction based on misdirection at the trial, the Court of Criminal Appeal declined to act on a pre-sentence report recording a statement on the part of the appellant which apparently incriminated him in the offence charged. The statement in question amounted to fresh evidence on appeal of the guilt of the appellant which had not been available or considered by the jury at the trial. Without passing on the admissibility of that material or whether it could be used to decide whether there had been a substantial miscarriage of justice, Street C.J. and O'Brien C.J. of Cr.D. held that it did not deprive the appellant of his right to a re-trial according to law. Hodgson J. who considered the matter at somewhat greater length (1 N.S.W.L.R. 381, 398-399), expressed the view that regard could be had to the admissions in deciding whether a miscarriage had occurred. His Honour gave three reasons for not acting on the statement in the report. One was that it involved the Court in constituting itself as the tribunal of fact to determine guilt or innocence, and that it was only "in very rare cases" that, in reliance on evidence which was not before the jury, the Court would undertake that role. Another was that questions of the weight and reliability of the evidence were involved. A third was that, in the circumstances in which the statement was obtained, a question arose whether or not it was voluntary in the sense of having been given in the exercise of a free choice to speak or be silent: see R. v. Lee (1950) 82 C.L.R. 133, 189.

None of these issues arises in the present case. The appellant exercised his right to give evidence and by doing so exposed himself under s.15(1) of the Evidence Act to cross-examination about his part in the conspiracy. If his election to give evidence at the trial is to be considered as not voluntary, then the same would apply to the testimony of every accused who gives evidence at his trial. The practical effect would be to nullify s.15(1) of the Evidence Act. The evidence was not fresh evidence on appeal. It did not come into existence only after the trial but was given at the trial itself. This is not a case where this Court is called upon to assess the evidence, its weight or its reliability, for the first time on appeal. The evidence was given at the trial, and the jury doubtless acted upon it in arriving at their verdict.

The appellant's evidence on oath that he participated in the conspiracy is plainly relevant to the exercise of the discretion conferred by the proviso to s.668E(1). There is no basis in law on which that evidence could be excluded at any future trial of the appellant that would result from allowing this appeal. In the face of that evidence an order for a new trial would be pointless. The appellant's criminal responsibility for the conspiracy charged is established by his own testimony as effectively as if he had pleaded guilty to the offence. Indeed, in one sense it goes further than a plea of guilty because it was an admission of his guilt given by him on oath in the course of the trial.

The appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused.