R v Justin Birk Hill No. SCCRM 96/328 Judgment No. 5975 Number of Pages 17 Criminal Law

[1996] SASC 5975

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ, BOLLEN AND WILLIAMS JJ

CWDS
Criminal law - particular offences - drug offences - penalties - manufacture of amphetamine and ecstasy - appropriate penalty range under s32(5)B(b) Controlled Substances Act. Controlled Substances Act1984 s43(5)B(b); Criminal Law Consolidation Act 1935 s353(5), referred to. R v Di Maria, Hudson and Pehlivanides (1996) 67 SASR 466; R v Mangelsdorf, Perry and Richards (1995) 66 SASR 60, applied. Everett v R 181 CLR, considered.

HRNG ADELAIDE, 9-10 December 1996 (hearing), 24 December 1996 (decision) #DATE 24:12:1996 #ADD 29:1:1997

Counsel for appellant:        Mr M Abbott QC with him Mr Agresta

Solicitors for appellant:     Patsouris &; Associates

Counsel for respondent:     Ms W Abraham with her Ms T Kelly

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ

1. This is an appeal against conviction recorded upon the verdict of a jury and an appeal against the sentence imposed by a judge of this Court.

2. The appellant was convicted of taking part in the production of methylamphetamine, contrary to s32(1)(b) of the Controlled SubstancesAct 1984 ("the Act"), and of conspiracy to produce 3,4- Methylenedioxymethamphetamine, to which I will refer by its common name of "ecstasy".

3. The prosecution case depended upon the evidence of two accomplices, Mr Edgerton and Ms Wheeler. Much of the argument on appeal related to the admissibility of and directions about evidence that they gave of dealings with the accused leading up to the offences, to the cross- admissibility of evidence on each count, and to directions about corroboration and circumstantial evidence.

4. To understand the grounds advanced on appeal it is necessary to summarise the prosecution case and the defence case.

Facts

5. In a nutshell, the prosecution case was that Edgerton and Wheeler were engaged in producing methylamphetamine, they met Hill, with him they produced amphetamine in New South Wales, then moved to Kersbrook where they produced amphetamine and where they agreed to produce ecstasy. Hill's case was that he was assisting them to locate and to purchase a property at which Edgerton and Wheeler could live, that he did that for commission, that Kersbrook was the property he located, and that his only dealings with Edgerton and Wheeler were in that capacity. He knew nothing about their involvement in the production of drugs.

6. I now turn to the facts in more detail.

7. In February 1993 Edgerton and Wheeler were manufacturing methylamphetamine at a property at Kooralbyn in Queensland. They were introduced to Hill by one Perrish. They showed Hill their laboratory and he took a quantity of amphetamine, apparently intended for sale. A few weeks later they met in Sydney. Edgerton was then on a drug charge. There was discussion of making a large amount of amphetamine. Hill and Perrish took Edgerton and Wheeler to a property at Yarramalong which Hill had rented under the name Ryan. There Edgerton and Wheeler produced a large quantity of amphetamine, Hill and Perrish disposing of most of it and all four of them sharing in the proceeds.

8. There was talk about where Edgerton and Wheeler would go next. Hill suggested that they consider going to Adelaide. Edgerton needed money and wanted to flee from his impending drug trial in New South Wales. Hill arranged for them to travel to Adelaide, met them there and showed them around. This was late April 1993. About two weeks later Hill said that he had located a property. Edgerton and Wheeler came back to Adelaide to inspect it. This was the Kersbrook property.

9. Edgerton and Wheeler returned to Kooralbyn to pack up. The property at Kersbrook was to be purchased with the proceeds of production at Yarramalong. Hill handled the purchase of the Kersbrook property, dealing with the landbroker involved under the false name of Robert Patrick. Hill was handling the money for the purchase, although some of it came from sources other than drug sales. Wheeler raised some $60,000 elsewhere, because funds from sales were slow coming in.

10. Edgerton and Wheeler moved into the Kersbrook property on about 1 July 1993. They did not have a car, and Hill arranged to get one for them. Production of amphetamine started in about August 1993, Hill delivering some of the ingredients and taking away some of the finished product.

11. Wheeler said that while at Yarramalong there was discussion about producing ecstasy. That was also discussed at Kersbrook, and they agreed among themselves to do so. They thought that they would need $100,000 to set up for ecstasy production, and aimed to make this money from the sale of amphetamine. This was discussed in about January or February 1994. Wheeler said that Hill made about 16 visits to the Kersbrook property, sometimes staying overnight. Edgerton said that Hill gave him the recipe for making ecstasy, providing it in four separate parts. The fifth part came from one Kruger. Along the way Perrish had dropped out of the arrangements, and had been replaced by Kruger.

12. The police uncovered the project when a courier, carrying some of the amphetamine produced at Kersbrook, was detected by police. The police raided the Kersbrook property on 18 February.

13. As would be expected, the evidence given by Edgerton and Wheeler contained a good deal of detail about the events outlined above. Apart from their direct evidence, the prosecution relied upon a body of circumstantial evidence to implicate Hill.

14. I will do no more than indicate the nature of the circumstantial evidence, other than that relied upon as evidence capable of corroborating Edgerton and Wheeler.

15. First, there were some things found in Hill's safe. There were some fake birth certificates and a blank birth certificate. According to Edgerton and Wheeler these were used by Hill, or to be used, in connection with establishing false identities or names.

16. Secondly, the use by Hill of false names, coupled with the explanations that he gave. He used them on a number of occasions.

17. Thirdly, the evidence of Hill's journeys to Adelaide before and after the police raid.

18. Fourthly, the use in several different contexts of an address linked to Hill.

19. Fifthly, the evidence of Hill's dealings with the agent who sold Kersbrook and with the dealer who sold the car supplied to Edgerton and Wheeler.

20. Sixthly, records of phone calls made using mobile phones allegedly linked to Hill.

21. Seventh, the finding of a loaded revolver at Kersbrook, containing six bullets, and the finding at a flat used by Hill in Adelaide of a packet of similar bullets with six missing from the packet.

22. Circumstantial evidence relied upon to corroborate Edgerton and Wheeler was as follows.

23. First, in relation to the charge of producing amphetamine.

24. Evidence was given of the manner in which Hill used three bank accounts, which he controlled, in connection with the purchase of the Kersbrook property. The prosecution case was that money from the sale of amphetamine produced at Yarramalong was passed through these accounts and used towards the purchase price of the Kersbrook property. The prosecution pointed to the timing of the deposits, to the amounts (always below the limit that would have called for a report under Commonwealth law), to the use of some of the money in a manner indicating that it belonged to Hill, and thus inconsistent with his claim that he was a mere agent, and to the use of fictitious names or addresses in connection with some deposits.

25. The second item of corroboration was a payment by Hill of $20,000 to a car dealer, the registration of a motor car in the dealer's name and the supply of that vehicle to Edgerton and Wheeler at Kersbrook.

26. The third item comprised things found in Hill's safe. They were a loaded firearm, mace, four mobile telephones, an encryptor (a coding or scrambling device used in connection with telephones) and documents relating to the encryptor. Evidence was given by police witnesses that these items are commonly held and used by drug traders.

27. As to the conspiracy count, the prosecution relied again upon the third item. It also relied upon a fourth item. This was the finding of a copy of the ecstasy recipe which Edgerton had, but this was relied upon only on the basis that the jury was satisfied that the jury rejected Hill's explanation for how it came to be in his possession and if the jury was satisfied that the words "sulphuric acid" on the last page were written there by Hill.

28. As to the defence case, I can be much briefer. As already indicated, Hill said that after meeting Edgerton and Wheeler he did no more than assist them in connection with the purchase of Kersbrook, acting as their agent. He had practised as a solicitor for some years, ceasing practice in about 1992. Hill said that he himself had been thinking of moving to Adelaide, and possibly resuming his practice there. That explained him having a flat there in 1994. Hill had an explanation for the matters relied upon by the prosecution. I will touch on a few of them. He rented Yarramalong under a false name because he wanted a break, and to avoid being located by a private investigator who might be looking for him in connection with a disputed matter which occurred during his time in legal practice. Some of the apparently suspicious aspects of the Kersbrook purchase were attributed to the fact that Edgerton and Wheeler told him that for their own reasons, possibly related to income tax, they wanted to be discreet. Some of the false names or addresses on documents were put there by others, not by Hill. The money used to buy the car for Edgerton and Wheeler was a short term loan to the dealer, repaid in cash. He was not involved in the registration of the vehicle or its supply to Edgerton and Wheeler. The ecstasy recipe was a document which Reardon had given him, along with some others, and he had never looked at it or written on it. The encryptor was not his but Reardon's. Two of the mobile telephones were said to be old and unused, one was Reardon's, another was Hill's. The pistol had been purchased by him in connection with some earlier business activities, and he planned to join a pistol club. The revolver found at Kersbrook was not his.

29. As would be expected, the defence said that Edgerton and Wheeler were the real criminals, and were now seeking to implicate Hill to secure lenient treatment for themselves. Wheeler had been given an immunity from prosecution. Edgerton, presumably, received a lesser sentence in view of his promise to co-operate with the prosecuting authorities.Validity of information

30. Count 1 charged Hill with taking part in the production of methylamphetamine, contrary to s32(1)(b) of the Act. That provision makes it an offence to take part in the production of a drug of dependence or of a prohibited substance. Methylamphetamine is a drug of dependence by virtue of Regulation 5 of the Controlled Substances (Declared Drugs of Dependence) Regulations 1993 ("the DDD Regulations"). While the prohibition is found in s32(1)(b), the penalty provisions are found in s32(5), and in particular in s32(5)B(b) which provides for a penalty as follows:
    "where the substance the subject of the offence is a drug of
    dependence or a prohibited substance (not being cannabis or
    cannabis resin)-
    (i) if the quantity of the substance involved in the commission of
    the offence equals or exceeds the amount prescribed in respect of
    that substance for the purposes of this subsection - a penalty of
    both a fine not exceeding $500,000 and imprisonment for life or
    such lesser term as the court thinks fit; or
    (ii) if the quantity of the substance involved in the commission of
    the offence is less than the amount prescribed for the purposes of
    this subsection - a penalty not exceeding $200,000 or imprisonment
    for 25 years, or both."

31. The DDD Regulations do not prescribe an amount in respect of methylamphetamine for the purposes of s32(5)B(b), nor, indeed, in respect of any drug of dependence.

32. It was argued that, that being so, no penalty is imposed in respect of methylamphetamine by s32(5)B(b).

33. The argument which the appellant sought to advance is the same argument as was considered by this Court in R v Di Maria, Hudson and Pehlivanides (1996) 67 SASR 466.

34. In my judgment in that case I concluded that the terms of s32(5)B(b) disclosed a legislative omission that, exceptionally, the Court had power to remedy and that the Court should remedy. I will not repeat here the reasons that led me to that conclusion. The other two members of the Court agreed with my reasons.

35. In the present case the Court took the view that its previous decision determined the outcome of the argument which the appellant sought to advance. The Court declined to hear submissions in support of the appeal against conviction to the extent that they involved reconsideration of the issue decided in R v Di Maria, Hudson and Pehlivanides (supra).

36. In deference to the submissions foreshadowed by Mr Abbott QC there are two aspects of that decision with which I should deal.

37. In my reasons I referred to s22(1) of the Acts Interpretation Act1915 (SA). I did so after concluding that this Court could and should adopt a purposive approach to the interpretation of legislation. I said:"However, in more recent times the so called purposive approach to interpretation has predominated. Under this approach, the purpose of the legislation, as understood by the court, may influence the process of construction. But it could do so only if the literal approach resulted in an ambiguity or inconsistency. These approaches, and the use of the purposive approach, are discussed in Pearce &; Geddes, Statutory Interpretation In Australia (4th ed) 1996 Ch 2. The use of the purposive approach has, in my opinion, been assisted by rather than been dependent upon statutory provisions requiring courts to adopt a purposive approach. In my opinion, the purposive approach should be adopted by this court and has, generally, been adopted."Mr Abbott QC argued that I erred, because s22(2) of the Acts Interpretation Act provides that s22 "does not operate to create or extend any criminal liability", and so reliance upon that section was erroneous. As to that, the answer is that the Court's decision did not depend upon an application of s22. The purposive approach was adopted as a common law principle of interpretation, and not in reliance upon s22. To the extent that that renders that provision unnecessary, and its restriction inapplicable, that is simply a consequence of the legislative provision lagging behind the common law.

38. In my reasons I said that the legislative omissions that I identified could be remedied by inserting the words "in any other case" into s32(5)B(b). Those words are found in s32(5)A, and had originally been used in s32(5)(b), the predecessor of the provision now under consideration.

39. Mr Abbott QC rightly pointed out that if those words are inserted into sub-clause (b)(ii) at the beginning or immediately before the penalty is specified, the omission is not remedied. The answer to that is that, as I should have pointed out, the words to be read in are "in any other case or" or "in any other case including" (if inserted at the beginning) or "or in any other case" or "or including any other case" if inserted immediately before the penalty is specified.

40. In my opinion this attack upon the conviction fails.

Previous illegal activity - Admissibility of evidence

41. Objection was taken before the trial judge, and again on appeal, to the admissibility of the evidence relating to the activities of Edgerton and Wheeler at Kooralbyn and Yarramalong because such evidence disclosed the involvement of Hill in criminal conduct not the subject of a charge. It was said to disclose no more than a propensity on the part of Hill to offend, and it was argued that the prejudicial effect of such evidence outweighed any probative value that it might possess.

42. In deciding to admit the evidence on count 1 and count 2 the trial judge directed himself by reference to the High Court decisions in Harriman v R (1989) 167 CLR 590 and Hoch v R (1988) 165 CLR 292. He said that the evidence went to show how "the relationship between the accused, Edgerton and Wheeler began and continued through until the intervention by police É", and that it went in disproof of a claim that "the accused's relationship with Edgerton and Wheeler was innocent."

43. In my opinion the trial judge was correct.

44. The relevant principles have been considered at length by the High Court. In my opinion they can be found in certain passages from the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig v The Queen
(1995) 182 CLR 461. While that judgment is not the judgment of the Court, and while there may be some minor variations of approach to be found in the recent decisions of the Court, I consider that the underlying principles identified command majority support. They said (at 482-485):
    "Because propensity evidence is a special class of circumstantial
    evidence, its probative force is to be gauged in the light of its
    character as such. But because it has a prejudicial capacity of a
    high order, the trial judge must apply the same test as a jury must
    apply in dealing with circumstantial evidence and ask whether there
    is a rational view of the evidence that is consistent with the
    innocence of the accused. Here 'rational' must be taken to mean
    'reasonable' and the trial judge must ask himself or herself the
    question in the context of the prosecution case; that is to say, he
    or she must regard the evidence as a step in the proof of that
    case. Only if there is no such view can one safely conclude that
    the probative force of the evidence outweighs its prejudicial
    effect. And, unless the tension between probative force and
    prejudicial effect is governed by such a principle, striking the
    balance will continue to resemble the exercise of a discretion
    rather than the application of a principle.In our view, the
    principles stated above which derive from Hoch correctly state the
    law with respect to the admissibility of similar fact
    evidence. ... Acceptance of the statement of principles stated
    above means that striking similarity, underlying unity and other
    like descriptions of similar facts are not essential to the
    admission of such evidence, though usually the evidence will lack
    the requisite probative force if the evidence does not possess such
    characteristics. ... That is how Lord Goddard L.C.J. had stated the
    law in Sims when his Lordship said: 'Evidence is not to be excluded
    merely because it tends to show the accused to be of a bad
    disposition, but only if it shows nothing more.' What his Lordship
    was insisting on was that the evidence of bad disposition should
    also have some 'specific connexion' with the commission of the
    offence alleged. That is because, as a matter of policy, the
    courts have taken the view that propensity evidence if it does no
    more is likely to have a very prejudicial effect and should not be
    received unless its probative force exceeds that prejudicial
    effect. So the evidence or propensity needs to have a specific
    connexion with the commission of the offence charged, a connexion
    which may arise from the evidence giving significant cogency to the
    prosecution case or some aspect or aspects of it. However, as we
    have already said, the criterion of probative force as against
    prejudicial effect and thus of admissibility is that deriving from
    Hoch."

45. As to the relevant prejudice to be considered, they said (at 487- 488):
    "Because propensity evidence may well have a prejudicial effect

    which is disproportionate to the probative force of that evidence,
    it is necessary to maintain an insistence on that evidence having a
    high level or degree of cogency in the circumstances of the
    particular case. In this context, the reference to prejudicial
    effect is a reference to the undue impact, adverse to an accused,
    that the evidence may have on the mind of the jury over and above
    the impact that it might be expected to have if consideration were
    confined to its probative force."

46. While reference is made in those passages to propensity evidence, one must be careful not to be distracted by such convenient shorthand descriptions. The relevant principles relate to the use of evidence which discloses past criminality (and perhaps wrong-doing in a wider sense) indicating a criminal disposition. The principles are concerned with the manner in which such evidence is used and with the problem that the evidence carries with it a potential for prejudice. They are not limited to cases in which the evidence is or may be used to reason by reference to propensity to offend. As Harriman v The Queen (1989) 167 CLR 590 illustrates, the same principles are relevant when the evidence is used to establish the nature of a relevant relationship between people. As Dawson J said in that case (at 597):
    "Evidence that the applicant had a previous relationship with the
    witness Martin involving dealings in drugs was clearly evidence of
    a disposition or propensity upon his part, indeed, on the part of
    both of them, to engage in dealings of that kind together with one
    another such as to make it highly improbable that their
    relationship in this case was of an innocent character. It was not
    so much the similarity of the previous dealings which was important
    as the nature of the association to which those dealings pointed."

47. In my opinion the evidence was admissible, applying the principles just identified by me.

48. Its probative value may be described broadly as follows. First, it established how the events at Kersbrook originated. It established the connection between Hill, Edgerton and Wheeler, the manner in which the Kersbrook activities were a continuation of the activities at Kooralbyn and Yarramalong, the use of money from the earlier drug production to finance activities at Kersbrook. In this respect the evidence, secondly, showed that the activities at Kersbrook were a continuation of arrangements which had grown from disposal of production (at Kooralbyn) to joint involvement in production. Thirdly, the evidence pointed tellingly to the true nature of the association between Hill and the other two.

49. In the words of Mason CJ, Deane and Dawson JJ in Pfennig (at 485), the evidence had "a specific connexion with the commission of the offence charged."

50. It does not matter that the activities at Kersbrook had not been agreed upon from the outset. The evidence showed how those activities grew out of the production at Yarramalong which in turn grew out of the production at Kooralbyn.

51. Because the evidence had that relevance and connexion, it was admissible, despite the prejudicial effect flowing from its disclosure of a criminal propensity, if there was no rational view of it consistent with innocence. In my opinion there was no such view open. The evidence was most telling.

52. Accordingly, I reject the view that the trial judge erred.

Previous illegal activity - Directions

53. Complaint was made that by his directions the trial judge permitted this evidence to be used in a manner that differed from the basis upon which it was admitted, that his directions were insufficient to guard against the risk of the jury reasoning simply from propensity in an impermissible manner, and that he gave the jury inadequate guidance on the proper use of the evidence.

54. I have already identified, in brief terms, the basis upon which the judge admitted the evidence.The judge's directions about the use of the evidence were as follows. As to count 1 he said:
    "Besides the prosecution's case being fundamentally dependent upon
    the evidence of participants in the two crimes charged, the
    evidence includes references to activities before the events the
    subject of these charges indicative of the accused being involved
    in the production and sale of amphetamine from Yarramalong in New
    South Wales and having taken a couple of pounds of amphetamine away
    from Kooralbyn.If you are to accept or act upon the evidence of
    previous conduct involving participation by an accused in other
    illegal conduct, it is important that you understand the use to
    which you may put that evidence. In general, evidence of previous
    unlawful conduct is not admissible in proof of an alleged offence.
    A person is not to be convicted upon evidence of a mere disposition
    or propensity to commit a crime based upon any previous unlawful
    conduct. Evidence of such unlawful conduct can be highly
    prejudicial to an accused, so it's vital that you understand the
    use which may be made of evidence of this kind.It's an important
    element of the prosecution case here that the circumstances related
    to each of the charges against Mr Hill were a direct incident of an
    established ongoing course of illegal trading in drugs. If you did
    consider that the evidence proved that the accused was involved in
    any ongoing course of illegal trading in drugs from the time when
    he met Edgerton and Wheeler, then you may take that evidence into
    account in deciding whether any explanation of innocence offered by
    him with respect to either or both charged is credible.You may also
    take the evidence of that earlier illegal involvement into account
    as supporting an inference of continued participation in that type
    of conduct. None of this means that because you might be satisfied
    that the accused was involved in an ongoing course of illegal
    trading in amphetamines, it necessarily follows that he has
    committed either of the offences with which he's been specifically
    charged It would be wrong and impermissible to reason in that
    way.It still remains necessary for you to consider each charge
    before you separately in light of the evidence solely and directly
    related to that particular charge. You may make use of the
    evidence of previous unlawful activity on the part of the accused
    if you accept that evidence only in the way I have put it to you.
    That is, in deciding whether any explanation of innocence offered
    by the accused is credible and as supporting an inference of
    continued participation in a course of unlawful conduct."

55. As to the conspiracy count, count 2, he said:
    "However, with respect to both charges, you must remember it is
    important not to reason that because an accused may have done wrong
    things in the past, he is the sort of person who would be likely to
    commit the sort of offences for which he is now on trial and is
    therefore likely to be guilty. Considerations of that kind must be
    ignored by you in the course of your deliberations. You focus on
    the evidence relating to the offences charged using evidence of
    previous conduct as part of the background to and context of the
    events alleged to constitute the offence of the ecstasy conspiracy
    in this case or the production of amphetamine at Kersbrook in the
    other.A person is not to be convicted upon evidence of a mere
    disposition or propensity to commit a crime based upon any previous
    unlawful conduct. If you consider that the evidence establishes
    that Mr Hill was involved in an ongoing course of illegal trading
    in drugs, then you may take that evidence into account in deciding
    whether any explanation of innocence offered by him is credible.You
    may also take the evidence of illegal trading in amphetamine into
    account with respect to the ecstasy charge as supporting an
    inference of continued participation in the production of and plans
    to produce illegal drugs. Remember you have to consider each charge
    separately.The evidence of any unlawful activity with respect to
    amphetamines, if accepted, can only be used in deciding whether any
    explanation of innocence offered by the accused is credible and as
    supporting an inference of continued participation in a course of
    illegal drug activity. Again remember the warning I have given you
    about acting upon the evidence of accomplices unless their evidence
    is corroborated. That warning has equal application to the second
    charge."

56. As to the first complaint, in my opinion the trial judge did not direct the jury in a manner inconsistent with the basis upon which he admitted the evidence. In both cases the focus was upon the relationship between Hill and Edgerton and Wheeler. I cannot see any unfairness here.

57. As to the directions about how the evidence could not and could be used, I again consider that the complaint is unfounded. The judge did not say explicitly that proof of involvement in events at Kooralbyn and Yarramalong was not in itself proof of involvement at Kersbrook, and that the jury should not reason loosely from involvement in one crime to involvement in another. But he warned the jury in terms against a finding of guilt on the basis of past wrongs. Something linked more closely to the facts might have been desirable, but it does not follow that the direction was inadequate.

58. I am of the same view in relation to the directions about how the evidence could be used. The focus upon the issue of "continued participation" and "explanation of innocence" (alluding to the innocent association claimed by Hill) was correct. Once again, some judges might have given the jury closer guidance in considering the use of the links between the past conduct and the charges under consideration. In my opinion it is preferable in such cases to do so. But, in the end, the issue was, as the judge said, whether there was "continued participation." I do not accept that the lack of more detailed guidance gave rise to a realistic risk that the jury reasoned in an impermissible manner.

59. In my opinion it was appropriate for the jury to consider whether the evidence of illegality by Hill at Kooralbyn and Yarramalong (if accepted) supported an inference of involvement in events at Kersbrook. The inference which the prosecution sought to draw was one of continuing involvement. The movement of money and equipment to the Kersbrook venture, and the existence and nature of the past association, were all highly relevant to that. The danger of reasoning from "mere propensity" in this case was easily understood, and was not likely to have been missed by the jury.

60. In my opinion, these complaints should be rejected.

61. A further complaint was made that the judge did not warn the jury to consider the possibility that Edgerton and Wheeler had together concocted their evidence to implicate Hill.

62. The answer to that is that in a re-direction relating to the danger of acting upon the evidence of accomplices, the judge did give such a direction.

63. It is convenient here to deal with another complaint touched upon by the appellant. Complaint was made that the judge did not adequately identify the evidence on count 2 which was not admissible on count 1. At p12 of the Summing Up the judge directed the jury to disregard, in relation to count 1, what he called "the ecstasy evidence." That, as far as I can tell, is the only evidence inadmissible on count 1. In addition, the judge repeatedly warned the jury to consider each charge separately. In my opinion, in this respect the Summing Up was adequate.

Corroboration directions

64. The judge warned the jury, in terms not criticised, of the need for corroboration of the evidence of Edgerton and Wheeler, and of the nature of corroboration. He then identified for the jury certain evidence which was capable of corroborating them.

65. Before doing so, mindful that this potentially corroborative evidence was circumstantial evidence, he gave the jury general directions about the proper use of circumstantial evidence. After doing so, and immediately before identifying the potentially corroborative evidence, he said this about circumstantial evidence relied upon as corroborative:
    "So, circumstantial evidence. It may be corroborative, but, and in
    this case more importantly, it may only be consistent with what the
    accomplices say, or merely supporting their credit. Circumstantial
    evidence can't be corroborative unless it comes from a source or
    sources independent of the accomplice, and is evidence showing or
    tending to show that the accomplice's allegation of the involvement
    of the accused in a particular charge is true.The corroboration
    need not be direct evidence that the accused committed a particular
    crime or crimes, as I hope I have made plain. It is sufficient if
    it's merely circumstantial evidence of an accused person's
    connection with the particular crime. However, such evidence must
    render more probable the evidence of an accomplice by connecting or
    tending to connect the accused with the crime charged, in the sense
    that it shows or tends to show that the accomplice's evidence is
    true, not merely his or her evidence that the crime has been
    committed, but also his or her evidence that it was committed by
    the accused.It doesn't have to do so standing alone. It may, with
    other evidence, establish some matter upon a circumstantial basis
    which tends to show the crime was committed by the accused.
    Particular items of evidence, taken individually, may be little
    more than straws in the wind. Taken together, they may present a
    pattern in which some degree of corroboration could be found. It
    may well be that none of the facts and circumstances individually
    are capable of corroborating either or both of the accomplices.
    The question is whether, collectively, they may do so in such a
    situation. Whether collectively one throws light on another, so
    that they become circumstantial evidence in which you get strands,
    like strands of a rope twining together, and so gradually building
    up into, not just weak individual strands of thin skeins, but
    winding together into strands which go to the extent of being a
    firm strong rope.Well, corroboration is not infrequently provided
    by a combination of pieces of circumstantial evidence. Perhaps
    each innocuous on their own, but together, tend to show the accused
    was involved in a particular crime charged. Circumstantial
    evidence must constitute a substantial confirmation of the
    accused's continuing involvement with events at Kersbrook before
    it's capable of constituting corroboration. You may only use an
    item of circumstantial evidence as capable of constituting
    corroboration if it comes from a source or sources independent of
    the accomplices, and goes some significant part of the way towards
    showing the offence was committed, and that the accused committed
    it."

66. Three complaints were made, which all relate to this part of the directions, and which focus upon this passage.

67. One complaint was that the judge did not explain how an item of circumstantial evidence which, "standing alone", was not corroborative, might be coupled with other corroborative evidence.

68. Another was that this problem was deepened by the judge's reference to the use of "other evidence", by implication, it was said, inviting the jury to have regard to evidence not identified as potentially corroborative.

69. A further complaint was that he did not then or later identify the fact, if any, to be inferred from any item of potentially corroborative evidence. Nor did he warn the jury of the need to be satisfied of the inferred fact beyond reasonable doubt if the fact was to be used as a basis for an inference of guilt: cf Chamberlain v R (1983) 153 CLR 521 at 536.

70. I consider that the thrust of the paragraphs set out above adequately instructed the jury on the use of more than one item of circumstantial evidence as corroboration: cf R v Lindsay (1977) 18 SASR
103 at 119-120 Zelling and Wells JJ.

71. I do not accept that the reference to "other evidence" impermissibly evidenced the focus of the jury's attention to embrace all circumstantial evidence in the case. This occurred in the middle of a passage in which the judge focussed the jury's attention on evidence from a source independent of the accomplice, which evidence had to have a special effect. The judge went on to identify specifically the evidence which potentially had the required quality. In my opinion the jury would not have understood (or misunderstood) these two words in the manner suggested.

72. It is convenient to defer the third complaint for a moment.

73. I have earlier summarised the evidence that the judge identified as potentially corroborative.

74. In relation to count 1 the judge identified the three items, then said to the jury:"You can only use any of these items of evidence if, with respect to a particular item, you disbelieve and reject as a reasonable possibility any innocent explanation with respect to that evidence of profit by the accused." It was said that that introduced an element of circularity, because the jury could reject any explanation only by relying upon the evidence of Edgerton and Wheeler.

75. I disagree. The matters pointed to by the judge were mainly not disputed facts. The real issue was, what inference should be drawn from them? Hill offered an explanation for each item, an explanation consistent with innocence. Those explanations were such that they were capable of being considered on their merits, without regard to the evidence of Edgerton and Wheeler.

76. I return now to the third complaint. In Doney v The Queen (1990) 171 CLR 207 in its judgment the Court said:
    "It is not necessary that corroborative evidence, standing alone,
    should establish any proposition beyond reasonable doubt. In the
    case of an accomplice's evidence, it is sufficient if it
    strengthens that evidence by confirming or tending to confirm the
    accused's involvement in the events as related by the accomplice
    ..."It follows that the jury did not, to decide whether Edgerton or
    Wheeler was corroborated, have to decide upon any matter beyond
    reasonable doubt. Nor was the judge, in the directions referred
    to, suggesting that any one of the corroborative facts might be
    used, standing alone, as a basis for a finding of guilt. His
    general directions on the use of circumstantial evidence did,
    however, warn the jury of the need to exclude "any reasonable
    hypothesis consistent with his [Hill's] innocence."

77. It follows that it was sufficient for the judge to identify the items which were potentially corroborative, and to give any needed directions on their use. He did that, in a general way, in relation to the bank accounts. He did not explain the possible significance of the payment of $20,000 to B L Auto Traders. But the relevance of that, as leading to a possible conclusion that Hill was (contrary to his evidence) arranging for a motor car to be provided to Edgerton and Wheeler, was self evident. He explained to the jury the possible link between the items in the safe and trading in drugs. The fact that the significance of these items depended upon evidence about aspects of the drug trade is no valid objection to the use of the evidence: R v Blackwell (1996) 186 LSJS 336.

78. In my respectful opinion no complaint can be made about the judge's approach. One or all of the items identified was or were capable of corroborating the accomplices. One item was capable of doing so in combination with another. The process of reasoning required was not complex, and in this case I consider that it was unnecessary to spell out the process of reasoning for the jury: cf R v Lindsay (1977) 18 SASR 103 at 116-117 Zelling and Wells JJ. The aspect of the evidence relied upon as confirmatory of the accomplices must, of course, be in the area of dispute, not in the area of matters common to prosecution and defence: R v Lindsay (supra) at 108 Bray CJ. But in this case that requirement was clearly satisfied, because the relevant inference was one of connection with existing or proposed trade in drugs.

79. It may be that some further guidance on the significance of each piece of identified evidence, alone or combined with another piece, would have been helpful. But, as I have already said, I do not regard the assessment of the evidence as difficult, and one also has to bear in mind the value of not overloading the jury with information.

80. In my opinion the complaints about these directions should be rejected.

81. A like complaint was made about the shorter direction dealing with corroboration in relation to count 2. I would reject that complaint as well.

82. It remains to be mentioned that the evidence linking certain items to the drug trade was further objected to. It was said that this was evidence of a criminal disposition, and attracted the rules already referred to. The danger of misuse was there, but the fact is that if the jury rejected Hill's evidence relating to these matters then the possession of the relevant items had considerable potential significance. This material was not proof of a relatively remote (in time) connection with the drug trade: cf R v McGhee (1993) 61 SASR 208 at 211 Cox J. It was also argued that there could be no sufficiently close nexus between these items and the offences under consideration. There is some force in that point, but that would nearly always be so when the prosecution case includes evidence of possession of implements with a possible use for the offence in question.

83. In my opinion the items identified by the trial judge were potentially corroborative, and the directions which he gave were adequate for the purposes of the case.

Separate trial

84. Although relied upon as a ground of appeal, as I understood the argument the complaint turned upon the directions about the use of evidence on count 2 in relation to count 1. I have already rejected that complaint.

Joint enterprise

85. A complaint was made that the judge should have identified for the jury evidence which the jury might be minded to accept as establishing the accused's participation in the alleged conspiracy: Ahern v The Queen (1988) 165 CLR 87. But that complaint seems artificial in the present case. The jury had before them direct evidence from the other two participants. If they accepted that evidence, the conspiracy was proved. I do not see the need for further directions in this respect.

Conviction appeal - conclusions

86. In my opinion the challenges with which I have dealt fail.

87. The grounds of appeal include a ground, not argued upon the hearing, that the conviction was unsafe and unsatisfactory. My impression is that that ground depends mainly upon the attack upon the directions.

88. The prosecution case was supported by a wealth of circumstantial evidence, and direct evidence of a damning nature, provided of course that Edgerton and Wheeler were believed. In my opinion, once the challenges to the directions fail, there is simply no basis for an attack upon the conviction as unsafe.

Sentence

89. In passing sentence the judge said that the maximum sentence was life imprisonment and a fine not exceeding $500,000. That is incorrect. As no amount has been prescribed for the purposes of s32(5)B(b), in relation to the drug of dependence or the prohibited substance, the maximum penalty on count 1 is imprisonment for 25 years and a fine not exceeding $200,000. That follows from what I said in R v Di Maria, Hudson and Pehlivanides (supra) and what I have said on this matter above.

90. The penalty on count 2 is at large.

91. Accordingly, the judge erred, and this Court must fix an appropriate sentence.

92. The offences were serious offences. The judge described the conduct of the parties as "a large scale illegal drug operation." It is clear that Hill and his accomplices aimed to make large amounts of money from their operations. The judge said that the amphetamine produced was "said to have yielded some $600,000." The appellant clearly played a significant part in the offending, and was treated by the judge as an equal partner in the events. The planning and things done by the offenders displayed a degree of sophistication. This was no amateur effort.

93. Hill is 42 years of age. He has no previous convictions. He has practised as a solicitor, but has not done so since 1992. The needs of his defence caused him to sell his assets for less than their true value, and he is now said to be penniless. There was no expression of contrition.

94. One is left with the fact that a man of mature years has become actively involved in a serious criminal enterprise which was likely to make a very large amount of money for the participants. There are no mitigating factors that I can identify.

95. Edgerton pleaded guilty to the same offences as those for which Hill was convicted, plus one count of possessing methylamphitamine for sale. The judge who sentenced him took as a starting point 10 years' imprisonment, intending to impose a single sentence for the three offences. After reductions for the plea of guilty and for "other matters", a sentence of five years' imprisonment was imposed.

96. The judge who sentenced Hill said that there were some circumstances of aggravation in Edgerton's case, which made it appropriate to impose a lesser sentence than that which Edgerton would have got, but for the reductions. I agree, and am prepared to take the same course.

97. Although the trial judge erred when referring to the maximum penalty, I consider that the single sentence that he imposed of 8 years' imprisonment with a non-parole period of 5 years is an appropriate penalty for these offences. A deterrent sentence is required.

98. Accordingly, having reached the same result as the trial judge reached, I would dismiss the appeal against sentence.

JUDGE2 BOLLEN J

99. I agree with the reasoning of, and order proposed by, the Chief Justice.

JUDGE3 WILLIAMS J

100. I agree that the appeal against conviction and appeal against sentence should be dismissed.

101. In my opinion s32(5)B(b) subpar(ii) of the Controlled SubstancesAct 1984 should be read as if the words "in any other case or" appeared at the beginning of the sub-paragraph. In my view this follows from the decision of this Court in R v DiMaria Hudson and Pehlivanides
(1996) 67 SASR 466. The present appellant was sentenced before the publication of that decision but, in light thereof should have been dealt with upon the footing that relevantly the statute provided "a penalty not exceeding $200,000 or imprisonment for 25 years or both".

102. There being no appeal against sentence by the Director of Public Prosecutions, no greater sentence should now be imposed than that which was fixed by the learned sentencing Judge - see Criminal Law Consolidation Acts353(5). Were it not for this constraint I consider that the appellant's crimes deserve a significantly greater period of imprisonment than the appellant will be required to serve. I intend no criticism of the Director of Public Prosecutions by this observation, because the special principles applying to prosecution appeals would have placed an obstacle in the Director's path (Everett v R 181 CLR at 299). Moreover, consideration must also be given (as the sentencing Judge acknowledged) to the penalty imposed upon another participant in this illegal enterprise. However the facts of this case present a particularly bad example of offences involving "middle range drugs"; I adopt the terminology used by this Court in R v Mangelsdorf, Perry and Richards (1995) 66 SASR 60 where the sentencing principles are reviewed. In the present case the appellant, a solicitor involved himself in the establishment of a factory to produce the drug "ecstasy" and participated in the selection and purchase of the land, organised the finances and held the recipe and instruction sheet for making methylenedioxymethamphetamine. His part in this large scale operation is deserving of a heavy sentence.

103. In my opinion the sentence to be served namely 8 years imprisonment with a non parole period of 5 years is modest (although the sentence runs from the date of the jury's verdict and brings to account time previously spent in prison). My concurrence in the orders now proposed should not be regarded as derogating from the sentencing benchmark to be found in R v Mangelsdorf, Perry and Richards (cited above).