R v Lonie
[1999] NSWCCA 319
•15 October 1999
CITATION: Regina v Lonie & Groom [1999] NSWCCA 319 FILE NUMBER(S): CCA 60087/98; 60134/98 HEARING DATE(S): 11 May 1999 JUDGMENT DATE:
15 October 1999PARTIES :
Regina v John Russell Lonie
Regina v Carla Phyllis GroomJUDGMENT OF: Barr J at 1; Greg James J at 2; Smart AJ at 11
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/11/0430 LOWER COURT JUDICIAL OFFICER: McGuire DCJ
COUNSEL: Appellant Lonie: R Burgess
Appellant Groom: P Hamill
Respondent: R D EllisSOLICITORS: Appellants: T A Murphy
Respondent: C.K. SmithCATCHWORDS: Cultivation of cannabis plantation; Supply of cannabis leaf; setting a device capable of inflicting grievous bodily harm; sufficiency of evidence; warning as to reliability of evidence; corrupt police officer implicating other police in corruption; references to Police Royal Commission; meaning of "suffers or permits"; erroneous directions. ACTS CITED: Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Evidence Act 1995CASES CITED: R v Flood [1999] NSWCCA 198
R v Vonarx, CA Vic unrep. 15 November 1995
Gipp v The Queen (1998) 72 ALJR 1012
R v Sanewski [1987] 1 Qd R 374
R v Siouter (1971) Cr.App.R 403
Broad v Parish (1941) 64 CLR 588
Adelaide Corporation v Australasian Performing Rights Association (1928) 40 CLR 481
R v Horton (1998) 45 NSWLR 426
R v Reid 1999 NSWCCA 258.DECISION: GROOM: Appeal allowed; conviction quashed; verdict of acquittal entered; LONIE: (a) Appeal allowed; convictions quashed on all three counts; (b) Verdict of acquittal entered on count of setting a device capable of inflicting grievous bodily harm on any person with intent to inflict grievous bodily harm.; (c) New trial to be held on the counts of cultivation and supply.
IN THE COURT OF
CRIMINAL APPEAL
60087/98
60134/98
BARR J
GREG JAMES J
SMART AJ
Friday, 15 October 1999
REGINA v______ JOHN RUSSELL LONIE
JUDGMENT
REGINA v CARLA PHYLISS GROOM
1 BARR J: I agree with Smart AJ.
2 GREG JAMES, J: I have had the advantage of seeing in draft the judgment of Smart, AJ. The facts of the case sufficiently appear there.
3 I agree that the verdict, in the case of Groom, having regard to the necessity for a jury to be satisfied beyond reasonable doubt that she "suffered" or "permitted", rather than simply knew of her co-accused having the drug or some of it in the house for the purpose of supply, was not supported by the evidence and should be quashed.
4 I agree with what his Honour has said on that matter and agree that an acquittal should be entered.
5 On the appeal of Lonie, I agree with his Honour's conclusion that the trial miscarried and generally with his reasons. Particularly in relation to the counts of cultivation and supply, I agree that the trial judge's observations to the jury on the effect of the evidence of Donnellan undermined the legitimately available use of that evidence, to the disadvantage of the appellant. I consider that the trial judge erred in failing to direct the jury as to what evidence was not available to be used generally and in failing to direct the jury on the purposes for which that evidence could not be used. I consider the trial judge erred also in failing to give, as requested or as was necessary to ensure a fair trial, appropriate directions on reliability and credibility as to the evidence of those police officers asserted by Donnellan to be corrupt. Their evidence was at the least potentially unreliable in the light of what Donnellan had said.
6 On the count of setting a device, it is important to note that although the evidence of the appellant's involvement in the plantation would have been relevant, that evidence was within a narrow compass. The case on the cultivation count was left to the jury as made out on their satisfaction that the appellant had watered the crop. The Crown did not undertake the task of proving his wider or earlier involvement in eg., establishing the plantation. It did not seek to do so even to establish the charge of setting a device although it relied on the appellant having a motive for the setting of the devices, ie., to protect the plantation.
7 The admissions were capable of proving the appellant knew of the traps at the time the police spoke to him. The evidence on the cultivation count was capable of proving an involvement and interest by him in the plantation but, in the absence of proof of the nature and extent of that involvement, eg. in the establishing of the plantation, that knowledge, involvement and interest was insufficient to prove the appellant himself set the traps or was party to the setting of them even if he later was shown to have known of them.
8 On that basis, having regard to the way in which the Crown put its case, I agree that the conviction on that count cannot stand.
9 Even if there were evidence on which the appellant might have been found guilty, the case having been run on the narrow basis on which it was, I do not think a new trial on that count is appropriate, applying the principles referred to by Dawson, J. in Parker v. The Queen [1997] HCA 13; (1997) 186 CLR 494.
10 For the reasons Smart, AJ. gives, however, I agree that otherwise there should be a new trial.
SMART AJ:
Introduction11 John Russell Lonie appeals against his convictions of on 31 March 1995 cultivating a prohibited plant, namely cannabis leaf, supplying cannabis leaf and setting a device capable of inflicting grievous bodily harm on any person with intent to inflict grievous bodily harm. He also seeks leave to appeal against the severity of a sentence comprising in all a minimum term of 4 years 3 months and an additional term of 17 months.
12 Carla Phyliss Groom appeals against her conviction of on 31 March 1995 knowingly taking part in the supply of a prohibited drug, namely cannabis leaf. She was acquitted by direction of a charge of knowingly take part in the cultivation of a prohibited plant. She was the de facto wife of Lonie. She was placed on a three year recognizance to be of good behaviour having regard to her previous good character, her persisting poor health and her comparatively minor criminality.
13 The cultivation charges arose out of a fenced cannabis crop in rugged bushland near Bucketty in the hills west of Gosford. The crop was spotted during a large scale police search of the hills and valleys west of Gosford involving the use of a police helicopter and a tracker dog. There were 225 mature plants estimated to have a street value of $450,000. The setting a device charge arose out of punji boards with protruding nails concealed along pathways in the fenced area. The supply charges arose out of about 1.75 kilograms of cannabis leaf having a street value of about $35,000 allegedly found in the home of the appellants at Somersby, some 40 kilometres from the crop.14 One of the police officers involved in both areas, who acted as the exhibits officer was, by his own admission, corrupt. That corrupt officer said that two of the other officers were also corrupt. He had shared cash taken criminally with them. The appellants submitted that the judge erred when he failed to warn the jury (pursuant to s.165 of the Evidence Act 1995) that the evidence of Detectives Lenihan and Oosterhoff may be unreliable, that his directions about the unreliability of Detective Donellan's evidence were inadequate and his directions to the jury about police officers generally were likely to have misled the jury. This involved the contention that the judge had not fairly summarised the report of the Royal Commission into the Police Service.
15 Lonie made the following additional complaints, namely, that the judge failed to give a warning about the unreliability of an alleged admission at the Somersby house, that the judge failed adequately to direct the jury to consider the evidence in relation to the supply charge separately from that in relation to the other charges, that he erred in his direction as to an alleged lie and that the verdict in relation to the setting a device charge was unreasonable and could not be supported on the evidence.
16 Groom relied on these further grounds, namely, that the judge failed to adequately identify the evidence that was admissible against her, failed to adequately direct the jury about the use that could be made of her presence near the crop site and any knowledge she might have of Lonie's activities at the crop site and that the conviction was unsafe and unsatisfactory. This last mentioned ground needs to be re-formulated..
The Crown Case17 On 31 March 1995 Snr Const P.J. Clarke was the front seat observer in a police helicopter flying about 200 feet above the ground and about 100 feet above the tree tops. About 12.45 pm he saw a cannabis plantation and a male person wearing white runners, navy blue shorts and a bright light blue long sleeved sloppy top and having fair hair standing about 4 to 5 feet from the fence around the crop. Const. Clarke saw this person run from the crop and try to hide by crouching down in the ferns about 8 metres away. Const. Clarke could still see the bright blue sloppy joe. The helicopter was about 150 feet above the ground at this time. Const. Clarke spoke by radio to the police on the ground and saw them drive their vehicles to the vicinity of the crop and then proceed on foot.
18 A police dog handler (Snr Const Phillips) and police dog Thunda went to the position where the man was seen. The dog picked up a human scent. After tracking about 7 metres Thunda located a red torch and radio underneath a log. He continued to track through thick scrub, locating a banana sun lounge, some white bags, a bow and several arrows a further 15 metres away. After some changes in direction and travelling further along the track the dog stopped at the edge of a cliff leaning over and indicating over the cliff edge. Thunda jumped over the edge causing Phillips to go over the edge and fall some 18 feet The appellants were in a recess under the cliff and partially covered in bracken. Phillips told them that they were under arrest. Other police who had been following closely behind arrived and took over.
19 At the crop site some of the plants, estimated to be about half, appeared to have been freshly watered. Yellow buckets containing water were found there. The weather had been fine and there had been no rainfall. When the appellants were taken to the crop site Sgt McClelland noted that they were breathing hard, their hands and clothes were dirty and that Lonie was wearing an aqua coloured top. When Sgt McClelland went to step over the wire and nylon netted fence Lonie stopped him and told him that the crop was booby trapped. In all, there were four punji boards. The police allege that each was carefully concealed and that its location was revealed by Lonie.
20 Sgt McClelland interviewed Lonie at the crop site. Lonie said that he and Groom were walking along the ridge when a helicopter hovered around them. He said that they were located a few hundred yards away from the crop site. Lonie also agreed that he had warned the Sergeant not to enter the crop area as it was booby trapped. Lonie denied that he was the person responsible for cultivating the plants. Lonie doubted if he could understand the notes so Det Lenihan, the recorder, read them aloud. Lonie said that there was no pursuit and that they both fell off the cliff. Lonie signed the notes. Lonie denied in his evidence that he was responsible for putting the punji boards in position at the crop site.
21 After searching by helicopter for some time Clarke located a vehicle belonging to Groom. The car was some 300 metres off the main road in bushland, covered with a horse blanket. Lonie said that this was to reduce the chance of the car being stolen. A yellow bucket with "Gro-Plus" written on it was located in the boot of the car as well as a 15 kilo bucket.
22 In his ERISP Lonie insisted that he had no involvement in cultivating the cannabis plants. He said that he and Groom were walking along the ridge. He did not know of the plantation and had never been there. He explained that they became so dirty when they fell after the dirt on the cliff moved . He had no explanation as to how or why Thunda picked up his scent adjacent to the fence if he had not been to the plantation.
23 Once the crop was cleared the police drove Lonie to his home at Somersby. A number of other police officers entered the home with Groom. She had keys to the front door and unlocked it and showed them around the house. Sgt McClelland remained in the police vehicle with Lonie who was therefore not present during the search of the house. After some considerable time Sgt McClelland entered the house and spoke with Donellan. McClelland could not explain why he remained in the vehicle and did not conduct the search. Constables Oosterhoff, Scrace, Scollon and Lenihan did so.
24 Det Scollon said that, during the search while Scrace and Oosterhoff were talking to Groom about cannabis they had found, she searched the spare or second bedroom and saw a brown overnight bag with "J. Lonie" written on it. She opened the bag and saw a number of plastic bags containing cannabis. She showed the bag to Const Donellan. She had previously been minding Groom for about 15 minutes while other police searched other parts of the house.
25 According to Scrace and Lenihan they searched a room at the back of the house which Scrace called a back sitting room. They found a large white fertilizer (or feed) bag in which there were two white plastic shopping bags each containing cannabis. They then searched a back bedroom in which there was a strong smell of cannabis. The smell was noticeable at the doorway. A foil covered tray containing an amount of green cannabis leaf and a white plastic shopping bag containing cannabis leaf were next to each other under the bed. There were two small clear resealable plastic bags containing cannabis leaf in a drawer in a chest of drawers. On the tray of the scales were a couple of cannabis seeds and some minute particles of cannabis leaf. There was also a box containing cannabis seeds. Donellan said that Scrace pointed out to him the cannabis leaf in the white bag in the back sitting room (or sunroom). Donellan said he witnessed Scrace and Lenihan in the back bedroom with the items mentioned. Donellan thought that the scales and the box were removed from a tea chest in that room but he could not recall if he actually saw that happen.
26 Const Oosterhoff searched the main bedroom and found a plastic bag and a small foil containing green vegetable matter in the top drawer of a bedside chest. He also found a wallet containing Groom's personal papers. He indicated these to Donellan.
27 Donellan found two ultraviolet light globes and transformers. They were in the spare or second bedroom.28 Thunda was unable to locate any prohibited drugs in the grounds in which the house was situated. No fertilizers were found on the premises. Outside the house were 4 jerry cans which had each been fitted into a backpack and three buckets identical to those at the plantation.
29 When asked at Somersby by Sgt McClelland about the cannabis found in the house Lonie allegedly said "It's all mine. She had nothing to do with it". When asked where the cannabis came from Lonie allegedly said "It's not from the plants you found. I grew some other plants." Lenihan recorded these alleged admissions in a notebook. He said that he did not ask Lonie to sign the notes because he (Lenihan) was not so instructed by Sgt McClelland. Lonie denied the admissions attributed to him. During his ERISP these alleged admissions as noted by Lenihan .were not put to Lonie. That is in marked contrast to the signed admissions in respect of which Sgt McClelland had Lonie confirm that they were made.
30 In the ERISP Lonie declined to comment as to who owned the cannabis leaf at the house but said that Groom had no knowledge of it and would not know it was there. He declined to be interviewed about the cannabis leaf. He declined to comment about the cannabis seeds.
31 Groom was interviewed at the crop area by Det Snr Const Scrace. She told him that she and Lonie lived together and that they were walking through the bush. She fell down a cliff and ended up under a ledge. She knew nothing about the cannabis plantation or any of the items found nearby. They had travelled to the bush by her car; it was in her name. She said that Lonie took her bushwalking and fishing and that she had come to the area with him. She said that they rented the house in which they lived; it was in her name. The interview was read to Groom and she signed it.
32 Det Scrace described the house as neat, tidy and well-kept. It was sparsely furnished and small. After she had shown the police around the house she was seated in the dining room and remained in the custody of Const. Scollon. The search commenced. In his interview with her at the house Det Scrace detailed what he had found and where. He took Groom to the back sitting room and showed her two white shopping bags containing cannabis in a fertilizer bag. She said that she could say nothing about the bags except that Lonie used them. She did not know that they contained cannabis. The bags had only been there a couple of days. Det Scrace did not open the bags and show the contents to Groom.
33 When taken to the back bedroom and shown two resealable plastic bags containing cannabis which had been found in a drawer she said that she did not know that Lonie kept anything there. When shown a plastic bag box containing some cannabis seeds she said that she did not know anything about the seeds. When shown a tray containing some cannabis leaf she said that she had seen the tray outside the door. She did not know that Lonie had put it under the bed. She said that Lonie possibly owned the bag of cannabis found under the bed. As to a set of scales said to have been located on the bedroom dresser she said that they were just the kitchen scales which she had bought six weeks ago, later corrected to two weeks. She agreed that there were two cannabis seeds and a number of pieces of cannabis leaf (said to be a minute quantity) in the tray of the scales. She supposed the scales were in the bedroom to weigh up the marihuana.
34 She was next questioned about an overnight bag in the spare bedroom which contained a number of plastic bags and paper bags containing cannabis. She believed that Lonie's father owned the bag. She knew the bag was there but was unaware that it contained cannabis.
35 She was taken to the main bedroom and shown a resealable plastic bag and a piece of foil containing cannabis located in the drawer of the bedside table. She did not know anything about either. She did not go to that drawer, using instead the lower ones. She and Lonie had been sleeping in that bedroom for six months.
36 She thought that Lonie did not keep large amounts of money hidden in the house. The notes of this second interview were read to her and she signed them as correct. In her ERISP she confirmed the correctness of the interviews at the crop site and at the house as recorded in the police notebook of Const. Oosterhoff, but stated that she did not wish to be interviewed further.37 Donellan said that after he, the other police officers and the appellants had returned to Gosford Police Station, Det Lenihan handed $500 to him, stating that the money had been found in the house. Donellan gave evidence that he had shared part of the proceeds of an armed robbery at a Post Office at Berkley Vale with Lenihan. The proceeds had been found in the getaway car. Donellan said that this involved creating a false document.
38 Donellan said that in June 1994 he and Oosterhoff were involved in investigating an armed hold-up at a Real Estate office at Gosford. He found some of the proceeds under the car seat of the getaway car. As to the proceeds so found, some was entered in the Exhibits Book and the balance was split between himself and Oosterhoff. There was another armed robbery where some of the proceeds which were seized were shared with another corrupt police officer.
39 Donellan said that there was an unwritten rule that you covered for your working partner even when he was acting corruptly. Lenihan and Oosterhoff had been working partners. While he knew Scrace and had done some work with him in larger operations, Scrace had never been a working partner. Donellan had resigned from the police force in February 1996. At the time of the trial Lenihan was a serving officer. Oosterhoff was on extended leave without pay. Both denied Donellan's allegations. The evidence of corruption could not affect the cultivation charge as that was cogently proved by the evidence of a substantial number of other police officers but it had the capacity to bear upon the supply charge and upon the charge of setting a device.
Lonie's Case40 In his evidence Lonie said that for a couple of seasons he had been picking and selling wildflowers. On 31 March 1995 he invited Groom to come with him through some valleys to see if they could find where the wildflowers were growing. He concentrated on Christmas bells, Christmas bush and waratahs. He was able to produce some receipts from Mr Colin White of Calga, who sold the flowers on his behalf taking 20 per cent of the proceeds. Mr White took them to the markets.
41 Lonie said that he drove into the general area he wished to visit, parked the car off a side road and covered it with a horse blanket and green shade on the nearest side so as to reduce its visibility from the road. It was about 9.20 am. He said that he was bare chested and wearing only shorts and running shoes. He moved off into the valleys. He found a variety of the flowers which he was seeking. He and Groom continued walking and came across a creek. He found more Christmas bush and waratahs along that valley. He described the route taken through and around the various valleys. He said that they first heard the helicopter about 11.30 am. It was about 4 miles away when he saw it and he continued to watch it. He was standing just near the top of the "drop off". The helicopter circled for a period and left. Then he saw police coming down the hill. There were about 12 officers and a dog and they were coming directly towards them.
42 Lonie put on his "jacket". He put his foot out but was watching the police and not where he was treading. He fell about 18 to 19 feet with Groom landing on top of him. He got up and started to attend to and help Groom who was badly shaken. The dog jumped over pulling the police officer. Lonie said that the police required them to climb up the cliff. Lonie said that it was muddy, wet and slippery and that he had to push Groom up the cliff. That was how he got mud all over him. They were taken about 300 metres across a creek and to a cannabis crop. Lonie said that he had never been there before.
43 Lonie said that the police asked if he owned the crop and he replied "No". He told police that he had been bushwalking. Later on he said that the helicopter was circling around up the valley. He thought that he did say that they were looking for wildflowers. He said that he told Sgt McClelland that they had come by car and that it was in a westerly direction about 300 metres off the tar road.
44 Lonie said that as the police were talking to him he was looking at the ground. He could see an area where a lot of dead bracken had shrivelled up. He was about a metre from the trap and looking straight down upon it. He said to Sgt McClelland "I wouldn't walk in there, it looks like a booby trap". Lonie said that he picked up a stick and started to flip the bracken. He denied that he said there were more and that he would show them. Lonie agreed that he had a conversation with Sgt McClelland and that Lenihan was making notes in a notebook. Lonie disagreed with some of what Lenihan recorded. He said that the police told him that he had to sign the notebook.
45 Lonie denied that he was ever in the cannabis crop and that he ran from the crop. He denied trying to hide himself and being in the ferns. He denied that any of the items or pieces of furniture found within a short distance of the crop were his. He denied having any yellow buckets. He admitted having quite a lot of buckets which he used to hold any water overflowing from the rainwater storage tanks at the Somersby house.
46 Lonie said that at the crop site he overheard two police officers say to Groom that if she told them that Lonie brought her there they would not charge her, but if she did not do so they would charge her with everything they charged Lonie with.
47 Lonie stated that the house at Somersby stood in about an acre of ground. When Sgt McClelland and Const Lenihan brought him to the Somersby house the police car was parked just inside the front gate. Sgt McClelland told him that he was to wait there until other police searched the premises. Sgt McClelland remained with him for a period and then went to the house and left him in the custody of another police officer. Upon his return Sgt McClelland said "What can you tell me about the cannabis leaf inside the house?" and he replied "I can't tell you anything about it". Lonie believed that Lenihan was outside the car when McClelland spoke to him. Lonie stated that he saw the watering cans in front of the house when he was returned by the police. They were not there when Lonie left the property in the morning.
48 Lonie identified the overnight bag found in the house as that of his father. He had brought some clothes in it from his parents' home at Currumbin. When he left the house on 31 March 1995 there was nothing in the bag so far as he was aware and the scales were in the kitchen. Lonie said that he kept the money from the sale of the wildflowers in the wardrobe in the main bedroom. The money, about $2500 to $3000, was in an envelope and wrapped up. It was not there that evening. Lonie denied that he had used the lights to grow cannabis. They were still in their packaging and had not been used. He intended to take them with him when he moved to Queensland as they would be of use in growing tomatoes. Lonie either disputed or explained away the other allegations of the police as to the items they claimed to have found in the house. Lonie insisted that there was no cannabis in the house when he and Groom left on the morning of 31 March 1995. He was never taken into the house on his return to the property with the police.
Groom's Case49 Lonie regarded the Somersby house as the matrimonial home of Groom and himself They had moved in together and intended to stay there until they moved to Queensland. He could come and go as he wished and had a set of keys. Although the lease was taken out in her name it was taken out on behalf of both of them. It was financially advantageous for her to take out the lease in her name. It would have enabled her to obtain a housing concession with her pension. He paid half the rent but he accepted that she was the tenant and he was not. Lonie said that it was a small house and that Groom did most of the housework. She had access to all the rooms, cupboards and drawers. She would never consider having cannabis in the house.
50 Groom did not give evidence. She relied, in part, on the evidence given by Lonie. She called no witnesses. When she spoke to police officers at the house she denied knowledge of the presence of almost all the cannabis. She told police she presumed that the cannabis belonged to Lonie. She knew about the presence of a small quantity of cannabis that was located in a tray. The police said that they found the tray underneath a bed in the second bedroom. She told the police that she had seen the cannabis in the tray outside the door. She knew nothing of the presence of the other cannabis which the police had allegedly found in the house.
51 The Crown stressed that Groom at no time alleged that the police had brought the cannabis into the house or disputed that they had found the cannabis in the house. There was considerable debate as to how much she could see from where she was seated in the house. Little, if any weight is to be attached to Groom's alleged failures to dispute that cannabis leaf was found in the house. This assumes that if cannabis was brought on to the premises by some police officers she would have seen it. Lonie was outside in the police car and she thought that any cannabis found was possibly his. She denied knowledge of the cannabis found except the small quantity on the tray. It is not surprising that she was not aware of the contents of the overnight bag of Lonie's father.52 It is convenient to take these first as they are common to both appeals.
The Directions as to the evidence of Donellan, Lenihan and Oosterhoff.53 It is apparent from the judge's summing-up that much was made by the appellants in the trial of the conduct of some police officers. The judge warned the jury against chasing red herrings and being diverted from concentrating on the issues in the present case. The judge said at SU14:
Groom: Appeal Ground 3 - failure to warn the jury that the evidence of Lenihan and Oosterhoff may be unreliable.
Appeal Ground 4 - inadequately directing the jury about the unreliability of Donellan's evidence.
Lonie : Appeal Ground 1(a) - failure adequately or at all to warn the jury about the evidence of Donellan, Lenihan and Oosterhoff.54 The judge reiterated these points in a forceful way and continued at SU14-15:
"Obviously the credit or reliability of police officers is an important matter for your consideration and you must carefully assess them when looking at their accounts. It is vital ...that you remember that you are here to determine whether the accused ... are guilty of the charges brought against them. You are not here to return verdicts in relation to proved or alleged misconduct against police officers."
55 The judge cautioned the jury not to take the incorrect approach that because Donellan had lied by not including the money taken in his statement and in the Exhibits Register and was a thief, all the other police officers must be liars and dishonest. The judge correctly instructed the jury to assess the reliability of the evidence of each police officer individually (SU17).The judge said of Donellan (SU15):
"You will be well aware from disclosures which emerge from the Wood Royal Commission, publicity about other court cases involving police misconduct and indeed on the evidence of the witness Donellan in this case that some police officers are corrupt liars. You have heard from Donellan that he took money from the proceeds of armed robberies and shared moneys with other police officers. Indeed in the case that concerns you Donellan stated that he received some $500 from Lenihan, being the part of the proceeds money taken from the house occupied by the two accused."
56 At SU19 the judge reminded the jury that Donellan opened the overnight bag pointed out by Det Scollen and saw that it contained cannabis, found the two ultra-violet lights, two transformers, some plastic pots and one of the four watering cans present in the house. The judge said: "Apart from his failure to enter the money in the exhibits register there is no evidence whatsoever of any misconduct with regard to those exhibits registers." There was no dispute about the lights and the transformers. At SU88 the judge said:
"He was insistent that his only impropriety in this matter was with regard to the money . You may feel that his involvement at this plantation and at the house were not all that important."
"I thought that I had made it plain but if I have not ... you are aware that Donellan has admitted corruption with regard to stealing of money and with regard to falsifying his police statements as to those matters, or matters pertaining to that, and that if necessary he would give false evidence with regard to that. You should carefully scrutinise Donellan's evidence because of his admitted corruption."
57 The appellants complain that this was inadequate in that it did not warn the jury that Donellan's evidence may be unreliable. Nor did it inform the jury of matters that may cause it to be unreliable and warn the jury of the need for caution in determining whether to accept this evidence .and the weight to be given to it. These are the requirements of s.165(2). No particular form of words need be used.
58 It is necessary to take into account the passage quoted from SU88 and the earlier passages referring to Donellan. The judge did advise the jury that the credit or reliability of police officers was an important matter and that Donellan was a corrupt liar. Donellan was of importance in corroborating the finding of cannabis leaf in various places in the house and on the credit of Lenihan and Oosterhoff.. However, the judge also pointed out that Donellan was insistent that his only impropriety was as to the money and added that they jury "may feel that his involvement at the plantation and at the house were not all that important. It is a matter for you."
59 Donellan was of some importance at the house, in that he corroborated that cannabis leaf was found in some of the rooms. If he was involved in receiving and stealing money taken from the house and prepared to lie about it, there are difficulties about accepting his evidence as to the presence of the cannabis leaf in the house. It was not sufficient to tell the jury to scrutinise Donellan's evidence carefully. It was necessary to direct the jury that his evidence may be unreliable (or some word of similar meaning) and to explain why. The judge would not have had to add a great deal to what he had earlier said. The jury should also have been warned of the need for caution in determining whether to accept the evidence and the weight to be given to it. The direction to "scrutinise carefully" is often given where the prosecution depends substantially on one witness, usually the complainant.
60 I doubt if the failure to give the direction in question could possible affect the jury's verdict as to the cultivation, but it may, having regard to other unsatisfactory features, have affected the verdict on the supply charge against Lonie and on the charge against Groom of knowingly take part in the supply of cannabis leaf.
61 At the trial counsel also asked the judge to direct the jury that they deal with the evidence of Lenihan and Oosterhoff with caution because their evidence may be unreliable. In support of that submission counsel relied on the evidence of Donellan which as to Lenihan applied directly to the present case. It is unusual for a court to have express evidence of a former police officer that he and his partner acted corruptly and dishonestly. From the exchanges between he judge and counsel, it appears that the reason the judge refused was because Lenihan and Oosterhoff denied the assertions made in the evidence of Donellan. The judge was concerned about having to give such a direction every time a witness asserted that he and another witness had been involved in corrupt conduct in a police operation.
62 At the trial the application was made under s.165(1)(C):
"evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding."
63 I have considerable doubt whether this applies in the present case. That sub-section would apply to an accomplice or someone rendering some kind of assistance including suffering, permitting of harbouring. The words "in the events giving rise to the proceeding" are important. I doubt whether it applies to police investigating a crime or conducting an operation as to a crime and who engage in collateral crime. It is not necessary to pursue the matter. Section 165(1) applies to evidence of a kind that may be unreliable and it is not necessary that the evidence fall within one of the paragraphs of s.165(1). In relation to these paragraphs the word "including" has been used. This approach has been adopted in earlier decisions of this Court. There can be no doubt that evidence given by corrupt and dishonest police officers who are prepared to lie may be unreliable.
64 In R v Flood [1999] NSWCCA 198 Spigelman CJ at para. 3 observed that the scheme of s.165(1) is to apply a test of possibility. The Chief Justice held that a fact finding exercise on the part of the trial judge was required as to whether the evidence in question may be unreliable; such finding to be made on the balance of probabilities.
65 The judge did not give reasons for his ruling. There were the comments during argument mentioned earlier. He was faced with evidence from Donellan as to the corrupt and dishonest conduct of Lenihan and Oosterhoff and their denials. It is not clear if he applied the test "may be unreliable" or "was unreliable" or some other test. It does not seem that the judge addressed the statutory test. It would not be a sufficient reason for declining to give the direction that positive evidence of corrupt conduct given by one witness is denied by the person alleged to be guilty of such conduct. The allegations made by Donellan against Lenihan and Oosterhoff were grave. If the evidence of Donellan was accepted or if it was thought that it may well be true it was capable of undermining the evidence of Lenihan and Oosterhoff which went to the central issues.
66 The absence of reasons and findings causes much difficulty. The judge should have told the jury that if they accepted the evidence of Donellan or thought it may well be true, they may think that the evidence of Constables Lenihan and Oosterhoff may be unreliable, explained why and the need for caution in examining it and before accepting their evidence and in the weight to be attached to it.67 In addition to the matters mentioned earlier the judge emphasised that the overwhelming majority of policemen and women were honest. He said (SU16):
Police Conduct and Royal Commission
Groom : Appeal Ground 5 - the directions about police officers generally were likely to have misled the jury.
Lonie : Appeal Ground (1)(b) - failing to properly instruct the jury about the findings of Justice Wood in the Police Royal Commission.68 The appellants complained that this direction undermined unfairly the evidence of Donellan that the police in this case had acted corruptly in the course of the search of the Somersby house and undermined the defence case completely and unfairly.. They submitted that this passage did not adequately and fairly convey what the Royal Commission had found in that at p.161 of the Final Report it was said:
"All of us watch television and read the papers and are aware of the dramatic, disgusting revelations which emerged from the Wood Royal Commission. However it is important that Mr Justice Wood stated on a number of occasions that there were something like twelve to fourteen thousand members in the New South Wales Police Force and that the overwhelming majority of the policemen and women were honest officers doing the best they could to protect the public in performing what in many instances is a distasteful, difficult and dangerous task He lamented the fact that the reputations of honest policemen and women suffered because of the lies and misconduct of the few.
There can be no argument that some police officers would be and indeed have been prepared to lie, steal and give false evidence to suit their purposes. On the other hand as people of common sense you will readily appreciate that the vast majority of policemen and woman are not liars, perjurers, thieves who are cynically prepared to pervert the course of justice."
69 At SU 78, 79 the judge was asked to withdraw that part of the summing-up that asserted that the vast majority of policemen and women were not liars, perjurers and thieves and contained in his extract from or summary of the Wood Royal Commission Report and to tell the jury that Justice Wood did not make the findings which he (the trial judge) had stated. The trial judge was also asked to tell the jury that the Royal Commission report had found significant (or widespread) corruption that could only be regarded as systemic and entrenched. The judge replied that he would withdraw all references to what Justice Wood said but he declined an application to tell the jury what Justice Wood really did say. The judge then refused an application to discharge the jury.
"There was a very serious state of corruption that was widespread and of long standing origin .... The culture was such and the management and an internal investigative system was so deficient that the state of corruption found can only be regarded as systemic and entrenched."
The judge, in his further directions, said at SU88:
"Complaint has been made that I did not quote all of what Mr Justice Wood said in the Wood Royal Commission, and I did not, and I do not intend to. We would be here for another few days. So what I will simply do is to withdraw any remarks which I made which was seeking to give you the effect of what Mr Justice Wood said about police officers. So ignore what I previously said about Mr Justice Wood's views on the police."
70 The appellants submitted that the judge's directions on the aspect of police conduct and the Royal Commissioner's views were misleading and that the attempt to correct them was inadequate. It was further submitted that in his withdrawal the judge implied strongly that what he had said had been a fair representation of what been found by Justice Wood. The appellants contended that having himself raised what the Royal Commissioner had said it was incumbent on the trial judge to give a balanced summary of the Commissioner's findings.
71 The judge had expressed himself in powerful language and had personally endorsed the view that the vast majority of police officers were honest and honourable. It was not language which was easy to put out of mind especially as the judge in his withdrawal stated that he had been seeking to give them (the jury) the effect of what Justice Wood said about police officers. Once the judge raised the Royal Commission report he could not fairly omit the Commissioner's finding of systemic and entrenched corruption. That suggests rather more than a few police officers being dishonest and behaving disgracefully. The effect of the summing-up as a whole was to bolster the police evidence in a way that went too far and to minimise the effect of Donellan's evidence that he, Lenihan and Oosterhoff were corrupt. They had been working partners and Donellan's evidence as to actual corruption by Lenihan in searching the house could not fairly be ignored or downplayed. It is not easy to detect the reasons which Donellan would have to give false evidence. He could be prosecuted for that. He had left the police force of his own volition nearly two years prior to the trial.
72 While there was evidence that Donellan, Lenihan and Oosterhoff had given evidence before the Royal Commission and that Donellan had been given immunity from prosecution it does not appear why it was necessary for the judge to give the general directions which he did about the Royal Commission and that the vast majority of the police force were honest. Even if there had been some reference in counsel's address to the Royal Commission and an argument by counsel that the Royal Commission showed how serious corruption was in the police force, the correct approach by the judge was to direct the jury that they had to consider whether the elements of the offences had been proved beyond reasonable doubt after assessing the credibility of each of the police officers individually.
73 The complaint as to the judge's directions about police conduct, the Royal Commission and the police evidence has been made good. The directions given were unfairly prejudicial and lacked balance.74 The evidence of Groom's presence at the crop site was identified as evidence on which the Crown was entitled to rely to place her relationship with Lonie into context. The judge further stated that the evidence was to be taken into account when considering the state of her knowledge as to what he did in the house. The judge continued:
Groom : Appeal Ground 1 - the judge failed to adequately identify the evidence that was admissible against Groom.
"If she was aware of his activities at the crop site, she surely should have knowledge of what he did in that small dwelling."
75 Groom contended that some of the evidence that concerned the crop site and Lonie's activities at the crop site was admissible only against Lonie and not against her. She submitted that such evidence should have been identified by the judge and the jury directed not to take it into account against Groom otherwise they were likely to do so. In particular, the existence of the man traps was evidence only against Lonie and could not be used against Groom. Although the jury were told that Groom did not participate in the setting of the traps (SU51) they were not told that this evidence could not be used by them in considering Groom's case. A direction was sought (SU80) that the existence of man traps at the crop site was not evidence against Ms Groom. The judge refused to direct in those terms.
76 In her interview with the police near the crop site she said that she had seen the plantation prior to seeing the police helicopter but she knew nothing about it. She said that she and Lonie were walking through the bush. She did not know why they ran when they saw the police helicopter.
77 It is one thing to see a cannabis plantation and quite another to know that there are traps concealed beneath the surface of the land. There was no evidence that she had any knowledge of the concealed man traps. The presence of the man traps added a particularly nasty dimension to the drug offences and one that was highly prejudicial. Because there was no evidence that she knew about the man traps and that could not be inferred from her seeing the plantation it would have been incorrect for the jury to proceed on the basis that because she had seen the plantation which contained man traps she must have known of the cannabis which he had in the house and permitted or suffered it to be there. Fairness required that the direction sought should have been given to avoid unfair prejudice.
78 Groom also submitted that having been acquitted of knowingly taking part in the cultivation the evidence of the watering of the plants at the crop site could not be used by the jury in considering the case against her of knowingly take part ion the supply. She contended that a direction to this effect, as requested at the trial, should have been given. I do not agree. The evidence was that parts of the crop had been freshly watered. This was visible. Close to one end of the property was a creek and buckets were found in the vicinity of the crop. It was open to the jury to conclude that she must have seen the crop being watered or that it had just been watered by Lonie.
79 Groom also contended that evidence of the value of the plants growing at the crop site was not evidence concerning knowingly taking part in supplying. The value helps in an appreciation of the overall picture and the amount of cannabis involved. The judge correctly refused the direction sought.
Groom : Appeal Ground 5 - failing to adequately direct the jury about the use that could be made of the evidence of her presence near the crop site and any knowledge she might have of Lonie's activities at the crop site.80 Groom complained that the judge's directions did not explain that the evidence of Groom's presence at the crop site or her knowledge of Lonie's activities at the crop site could be used by them only if they were satisfied that Lonie had been cultivating cannabis at the crop site and that Ms Groom knew it. Groom submitted that the direction given tended to infer that Groom did have or would have had knowledge of Lonie's activities at the crop site. The judge told the jury "although she did not participate in the cultivation or the setting of the traps, clearly she would have been aware of his presence at the crop site" (SU51) and "If she was aware of his activities at the crop site she surely should have knowledge of what he did in the small dwelling" (SU52). Groom complained that the judge virtually directed the jury that she was aware of Lonie's participation in the cultivation.
81 The judge directed the jury correctly that there was no evidence to connect any of the marihuana in the house with the crop site. Complaint was made that the judge had made the assertions mentioned in the preceding paragraph and that it did not follow that knowledge of Lonie's activities at the site led to knowledge of his activities in the house. The judge intimated that he was telling the jury what the Crown case was and that he would tell the jury that. He did so. (SU87) Counsel asked the judge to further direct the jury that before they could use evidence of her presence at the crop site against her, they had to be satisfied beyond reasonable doubt that she did have knowledge about his activities at the crop site. The judge declined to give such a direction and, in any event, what was sought went too far.
82 It is obvious that a jury can only use relationship evidence if they are satisfied that the matters relied upon to establish the relationship occurred (R v Vonarx, CA Vic, unreported, 15 November 1995 at 12-13) See also Gipp v The Queen (1998) 72 ALJR 1012 at 1015 (Gaudron J), 1027 (McHugh and Hayne JJ) 1041 (Kirby J) and 1047-8 (Callinan J). Normally, directions to this effect must be given.
83 In the present case the jury was satisfied beyond reasonable doubt that Lonie cultivated the cannabis crop. That was one of the matters which had to be proved before Lonie could be convicted. The evidence on that point was strong. It was not in dispute that she had travelled to the area by car, had walked with him in the bush and been with him near the crop site. It could not reasonably be denied that she had knowledge of his cultivating the cannabis plantation even if she did not know all the details. In the circumstances of the present case no miscarriage of justice arose because of the judge not telling the jury that they had to be satisfied that Groom was aware of Lonie cultivating the cannabis crop.
84 Groom further complained that the direction given did not advise the jury that they could not use the evidence as propensity or tendency evidence and that without such a direction there was a real risk that the jury used the "relationship evidence" as positive proof of her guilt. She submitted that the jury should have been expressly instructed that they could not use this evidence as proof of her guilt of "knowingly taking part in the supply of cannabis": BRS v R (1977) 71 ALJR 1512. In other factual situations this point would have had merit. Failure to take it did not lead to a miscarriage of justice. This point was not raised at the trial and I would refuse leave to raise it on this appeal.
Groom : Appeal Ground 6 - the conviction was unsafe and unsatisfactory.
This ground needs to be re-formulated. Groom complains that there has been a miscarriage of justice and that the materials are not sufficient to support a conviction. The Crown alleged that the cannabis leaf belonged solely to Lonie. The Crown submitted that there was so much cannabis spread around the house at Somersby that she could not possibly have been unaware that Lonie possessed it in those premises. It was the Crown case that Groom knowing that Lonie possessed a large quantity of cannabis in and around the house for the purposes of supply suffered or permitted him to keep such cannabis in the house (SU53). As the lease was in her name the Crown contended that she was in a position to ensure that the drugs were not kept by him in the house, yet she permitted him to store or keep them there.
85 The judge stated that the Crown had submitted that she had a legal duty to ensure that illegal activities such as the storing of cannabis, keeping it for supply were not carried out in the house of which she was the lessee. She could have demanded that he remove the cannabis and reported him if he refused. (SU53-54)
86 The judge told the jury that even if they concluded that she was aware that cannabis was in the bedside chest drawer and spread throughout the house that knowledge alone was not a crime. The judge continued (SU67):
"For you to find her guilty, you must be satisfied beyond reasonable doubt that she was aware that Lonie possessed the drug for supply and with this knowledge she intentionally suffered or permitted such conduct at the premises of which she was the lessee."
87 The judge did not elaborate on the meaning of the phrase "suffers or permits". By virtue of s.6 of the Drug Misuse and Trafficking Act 1985 a person takes part in the supply of a prohibited drug if the person suffers or permits any step (that is, the taking or participating in, any step or causing any step to be taken) in the process of supply to be taken in the premises of which the person is the lessee. Storing or holding cannabis would be a step in the process of supply.
88 The judge put Groom's argument that there was a joint venture, and that the lease being in her name was a technicality. The rent was shared. Lonie could do as he wished in what he regarded as the matrimonial home. He had his own keys and he did not believe she could evict him. She could not stop him storing cannabis.
89 Groom submitted that "suffering" was less positive than "permitting" and meant passively or implicitly allowing the act to take place as distinct from actively or expressly allowing it: Sanewski [1987] 1 Qd R 374 at 378. Thus Groom submitted that the Crown had to prove that she was at the very least, intentionally unwilling to prevent Lonie from using the premises for the purposes of possession of cannabis for supply": Souter [1971] Cr, App. R 403 at 409. Groom further submitted that "permitting" "denotes an authorisation by a person who has at least de facto control". Broad v Parish (1941) 64 CLR 588 at 594 per Rich ACJ. This was said to be the ordinary English meaning. At 595 Starke J said the word "permit" means "intentionally allow" and "Permission may be given expressly or it may be inferred from circumstances which carry with them a reasonable implication of a discretion or liberty to use." The question of "permitting" is usually one of fact. While McTiernan J was in dissent upon the main point and the case turned on a statute, he said:90 In the last quoted case it was said at 504 by Gavan Duffy and Starke JJ:
"It has been observed by the courts that the word 'permits' has a very extensive connotation. Its primary meaning according to the Oxford dictionary is to 'allow, suffer, give leave, not to prevent. That meaning has obtained judicial endorsement ( Adelaide Corporation v Australasian Performing Right Association (1928) 40 CLR 481 at 490)."
"Mere inactivity or failure to take some steps [by the owner of the Town Hall] to prevent the performance of the work [a song in a vocal concert by another] does not necessarily establish permission ...It is a question of fact in each case what is the true inference to be drawn ..."
91 At 498-499 Higgins J referred to one meaning of "permit" discussed by Atkin LJ in Berton v Alliance Economic (1922) 1 KB 742 at 759) which relevantly was "to abstain from taking reasonable steps to prevent the act where it is within a man's power to prevent it."
92 The words "permit" or "suffer" are sometimes used as synonymous but there are some slight differences in their meaning and the 1985 Act is seeking to cover the field.
93 Groom submitted that the evidence was not sufficient to satisfy the jury beyond reasonable doubt that she intentionally permitted or suffered the premises to store or hold cannabis for supply. It was impossible to distinguish between these two hypotheses:
(a) she intentionally permitted or suffered the storing or holding for supply,. or
(b) she was merely inactive.
94 It was further submitted that there was no evidence that would enable the jury to conclude beyond reasonable doubt that the appellant had the legal power to prevent Lonie from using the premises to store or hold cannabis.
95 The answers to the questions raised depend primarily upon the facts which the jury found and the inferences which they were entitled to draw. The jury was entitled to find that there was a substantial amount of cannabis spread over a number of rooms in a small house and that in one room there was a noticeable smell of cannabis. It was entitled to infer that she knew of the cannabis in the house. There is no evidence as to how long it had been there. That is important.
96 In effect, the lease was in her name to obtain a cheaper or subsidised rent. She was a pensioner and not in good health. She was not in affluent circumstances. Indeed, it would not be easy for a single pensioner to afford the rent of a three bedroom cottage with living and service areas and set on a large block even though it was located in an outlying area. The evidence was that the rent was shared and that Groom and Lonie lived as man and wife. He appears to have been robust and in good health. They moved into the house together. One issue was whether she held the lease on behalf of both of them.
97 Proceeding, as the Court must on the basis that Groom knew that there were substantial quantities of cannabis in the house, the evidence does not disclose the circumstances in which it was brought into the house and how long it had been there. There is often not a lot a wife or de facto wife can do if a husband or de facto husband brings prohibited drugs onto premises. Groom has not been charged for her failure to report Lonie's offence (or offences) to the police. The evidence does not disclose whether Lonie brought the cannabis on to the premises and she became aware of it later and was presented with a fait accompli. Nor does the evidence disclose whether the cannabis was brought on to the premises at the one time or gradually over an extended period or on a number of days.
98 The matter should be approached on a twofold basis. In the case of a couple living together as man and wife and sharing the rent with the de facto wife in poor health and on a disability pension it is artificial just because the lease is in her name to talk of her having any power to give the de facto husband directions as to what he was to do. Nor is it at all clear that she could legally do so especially if the lease was held in her name on behalf of both of them. For example, it is not easy to envisage a husband being able to evict his wife from the matrimonial home of which he was the lessee if she brought some prohibited drugs on to the premises.
99 In his remarks on sentence the judge described Lonie as a most unimpressive witness and stated that the jury could well have rejected his claims with regard to his status in the premises. The evidence did point to them living together in the premises and being the only couple in the house. Indeed the judge so found. It would have been unreasonable for the jury not to have so found and not open to them, at the very least, not to have a reasonable doubt on the point. The judge commented:
"Having observed Lonie at length in the witness box and having heard Carla Groom this morning it seems obvious that he was the dominant partner in their relationship. She was acting as a loyal wife. She had no financial independence and I do not consider that in a realistic sense, she could have prevented his actions albeit that she might have had the legal right or the legal obligation so to do. There is no suggestion that she was to share in the proceeds of any drug trafficking."
100 After a close examination of the evidence and despite the very suspicious circumstances it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that Groom suffered or permitted Lonie to use the Somersby house for storing or holding cannabis for the purpose of supply.
101 Even if I am wrong in the view expressed in the previous paragraph, the other grounds of appeal which have been established necessitate allowing the appeal and quashing her conviction. As Groom received the recognizance mentioned earlier and her criminality was described by the judge as comparatively minor I would not order a new trial but direct that a verdict of acquittal be entered.
Lonie Ground 1C - failure to give a warning to the jury about the unreliability of the alleged admission at the house at Somersby.102 Lonie's alleged admissions at the house at Somersby that the cannabis allegedly found in the house was all his formed an essential and central part of the Crown case against him. The alleged admissions were recorded by Lenihan in his notebook but Lonie was not asked to sign them nor were they put to him in his ERISP. This is in marked contrast to what happened with the alleged admissions at the plantation. Lonie was kept outside the house while the search occurred. Section 424A(1)(b) of the Crimes Act 1900 renders admissions of this kind made after 19 June 1995 inadmissible. The effect of this section was discussed in R v Horton (1998) 45 NSWLR 426 and R v Reid (1999) NSW CCA 258, unreported, 25 August 1999. Counsel for Groom accepted that the section did not apply in the present case because the admissions were allegedly made in March 1995. However, counsel submitted that the admission was inherently unreliable and required a warning.
103 At SU10 the Crown Prosecutor stated that she anticipated that the judge had:
"given consideration to giving the warning under section 165 ... as to how [the jury] should approach the unsigned conversation between the police and the accused Lonie."
104 The judge replied "I had not, no." This occurred during the discussion as to the effect of s.66 of the Evidence Act 1995 and whether the conversation with Lonie was admissible as to the truth of what he said. Groom's counsel was anxious that Lonie's statement that the cannabis was all his and that Groom had nothing to do with it be admitted as evidence of the truth of what was said in Groom's case. The need to give a warning in Lonie's case about the alleged admissions was not canvassed further. Perhaps Lonie's counsel and the Crown Prosecutor regarded the judge's answer as decisive. It is a little unusual for a warning not to be given when the matter is raised by the Crown Prosecutor.
105 Section 165(1)(f) of the Evidence Act 1995 includes amongst evidence of a kind that may be unreliable, the following:
"(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant."
Section 165(2) provides that if there is a jury and a party so requests the judge is to warn the jury that the evidence may be unreliable. The Crown was a party and what the Crown Prosecutor said was close to a request.
106 The failure of Det McClelland to ask Lonie about his source of supply of the cannabis at the house, where he grew it and how many plants were involved is curious. Det McClelland said that he had no reason for not inviting Lonie to sign the notebook (T165) or presumably, to read it. He said that at that stage he intended to interview Lonie and have that electronically recorded, refer to the same questions and have him adopt the questions and, presumably, the answers. Det McClelland said that during the recorded interview he completely forgot to ask Lonie about the conversation he had with him at Somersby (T174). In cross-examination Det McClelland rejected the propositions that no notes were taken at Somersby and that Lonie asserted during the conversation that he knew nothing about any cannabis in the house.
107 The recorded interview started at 1808 hours and concluded at 1830 hours. Much of that time was taken up with formal matters. About 12 minutes related to the actual offences alleged. The interview was simple. It is not easy to accept the explanation of Det McClelland that he forgot to confirm with Lonie what he had said at Somersby. The questioning as to events at Somersby extended over 4 pages (Q&A 46to 78). Lonie made no admissions about the cannabis leaf allegedly found in the house and stated that he did not wish to answer questions in relation to that. He answered some general questions about the house, the renting of it, what was in the grounds and sharing the double bed with Groom. He asserted that she had no knowledge of cannabis leaf.
108 In these circumstances it is remarkable that Det McClelland did not attempt to confirm what Lonie had allegedly said at the site. Det Sgt McClelland was the officer in charge and an experienced detective. It is odd that there were so many departures from good practice, namely, failing to read the notes back or allow Lonie to read the notes at the site, failing to invite Lonie to sign the notes and their contents and failing to ask Lonie about the notes during the electronically recorded interview. This combination of failures is striking. Further, Lenihan, the recorder of the alleged conversation was said by Donellan to have been heavily involved in corrupt conduct in relation to the supply charges and in other cases.
109 The materials compelled the conclusion that the police evidence as to Lonie making the admissions alleged at Somersby may be unreliable. No other conclusion was reasonably open. Irrespective of s.165 of the Evidence Act 1995 a warning was required. Counsel for Lonie did not request the relevant direction but the matter was raised by the Crown. The reasons for the introduction of s.424A into the Crimes Act include avoiding disputes, saving time and ensuring the reliability of the evidence given by police of their interviews with suspects and those under arrest. In the present case the Crown depended on the admissions to establish that the cannabis leaf was in the possession of Lonie for the purpose of supply. Lonie should be granted leave to raise this ground which should be upheld.
Lonie: Appeal Ground 2 - failing adequately to direct the jury to consider the evidence in relation to the supply count separately from the evidence as to the cultivation count and setting a device count.110 Leave pursuant to r.4 is required to allow this ground to be argued. Lonie complained that the judge did not make clear to the jury that they could not use the evidence of his activities at the crop site against him when considering his guilt on the supply charge. It was submitted that the need for such a direction was heightened by the direction given as to Groom that the jury could use the evidence of her connection with Lonie at a point not far from the crop site as material which would place her relationship with Lonie into context.
111 At SU4 the judge said:
"You are to consider the charges against each accused separately and you must attribute the evidence which is exclusively related to a particular charge to that charge only. In other words compartment the evidence when deliberating with regard to each of the charges, consider only the evidence relating to that particular charge."
The judge also explained to the jury that they could return different verdicts in relation to each of the charges against Lonie.
112 In summing-up the judge dealt separately with the elements of each offence, the facts relating to each offence and the Crown case relating to each and later Lonie's case as to each offence. He also dealt separately with the case against Groom. As to the supply charge the judge, after explaining what was involved in a deemed supply charge, the elements of the offence and the concept of possession summarised the Crown case on that charge against Lonie (SU45) on which it relied. These included that the two accused had occupied the house for some months, that the police did not know this until they arrested them at the plantation, the significant quantity of cannabis leaf in the house and the significant area it would have occupied even if spread around various rooms because of its bulk, the readily noticeable bags and the rooms in which the cannabis leaf was found by the police and the substance of the record of interview with Lonie. The judge mentioned the opportunities Groom had to see what was happening and the absence of any protest on her behalf. The judge referred to the police asking the accused where they lived (and that was at the plantation) and the police not expecting to see the accused at the plantation. There was no reference to what had occurred there. The judge dealt with the supply charge as a discrete matter.
113 Given the way the judge dealt with the supply charge and the completely separate way he dealt with the other two charges, there was no appreciable risk of the jury taking into account when dealing with the supply charge what occurred at the plantation site. The judge instructed the jury that there was no evidence that any of the cannabis leaf found at the Somersby house came from the plantation. No direction was sought at the trial by the experienced counsel who appeared for the accused. The point lacks substance. Leave to argue and rely upon it should be refused.
Lonie : Appeal Ground 4 - The verdict on the setting a device count is unreasonable and cannot be supported by the evidence114 Sgt McClelland and Det Lenihan gave evidence that during an interview at the crop site Sgt McClelland told Lonie that he was to wait there while the police removed the cannabis plants. They said that Lonie replied "I wouldn't go in there if I were you, it's booby trapped". Lonie removed one of the wooden pegs supporting the nylon mesh and then scraped away some of the bark and leaves off the ground just inside the enclosure. That revealed a hole about 2 feet wide by about 18 inches deep with a piece of wood with spikes protruding upwards. They said that Lonie added "There is more, I will show you" and attempted to enter the enclosure but he was stopped. Sgt McClelland stated that before some of the material was scraped away the hole was not visible to him (McClelland). After some of the material had been scraped away the hole was visible. A number of booby traps (or punji boards) were found at the plantation including on the pathways.
115 Lonie, as recorded in the police notebook, agreed he had said "Don't go in there because it is booby trapped" and that he then used a stick by which to uncover a hole about 2 feet in diameter and about 18 inches deep which had a number of steel spikes protruding upward". Lonie made the point that there is no reference in the notebook and the police questions to his alleged comments as to punji boards, namely "There is more". Lonie asserted that he did not make any such comment. He asserted as to the punji board close to where Sgt McClelland and he were standing that he was able to see that something was there from the nature and condition of the surface. He used a stick to scrape away the surface materials. It is odd that there is no reference in the notebook to Lonie's alleged statement of there being more punji boards. That was important.
116 The police did not ask Lonie if he had set the punji boards or placed them in position. This is an unusual oversight. In the ERISP Lonie was asked whether he agreed that he had shown Sgt McClelland and Det Lenihan a booby trap just inside the fence. Lonie replied:
"Well I did see it from outside the fence but obviously there was - it'd been covered over and there was a few holes in it so it looked like a trap."
117 Again, no reference was made to Lonie saying there were more traps nor was he asked if he had set the traps or any of them. This is unusual as Sgt McClelland appears to have been and was said by the Crown to be an experienced officer with experience in investigating drug offences.
118 The Crown also relied on Lonie being able to water the plantation and run from it without falling into any of the traps. The plantation was in a remote area and the crop was well developed and at an advanced stage. The Crown contended that only someone with a knowledge of and interest in the crop would have attended to water it and that in the circumstances it was obvious that Lonie knew where all the traps were and that the correct inference was that he not only cultivated the crop but set the devices. It was Lonie's crop. The Crown also relied on Lonie's denial that he was at the crop site and that he knew of the existence of the plantation.
119 What was proven beyond reasonable doubt was that Lonie had watered the crop and that he drew Sgt McClellands attention to a punji board which was at least partially concealed. If the jury accepted Sgt McClelland's evidence the punji board was not visible. If the jury accepted the police evidence they were entitled to be satisfied that Lonie knew of the existence of the punji boards. The judge directed the jury:120 It is one thing to water a crop and to know that a number of punji boards are located throughout the plantation and their approximate location. It is quite different to have set the traps. The circumstances are very suspicious but I do not think that they are sufficient to entitle the jury to be satisfied beyond reasonable doubt that Lonie set the devices. The evidence did not support the verdict. A verdict of acquittal in favour of Lonie should be entered on the count that he set a device capable of inflicting grievous bodily harm on any person with intent to inflict grievous bodily harm.
"to prove ... Lonie's guilt the Crown does not have to establish that he set all of the punji boards. It would be sufficient if he simply set the one which was shown to Sgt McClelland. The Crown, of course, says that it is a matter of common sense that he did set the lot of them."
Lonie : Appeal Ground 3 - the judge erred in directing the jury that the appellant's lie was relevant to the charge of setting the device.121 The lie alleged by the Crown was Lonie's denial of knowledge of the existence of the plantation.: Q&A 26 of the ERISP. Lonie also denied that he had ever been to the plantation. The Crown did not rely by way of consciousness of guilt on Lonie's denial of any involvement in the cultivation. The judge gave conventional directions as to lies and consciousness of guilt. He told the jury that if the pre-conditions were met they could draw the inference that Lonie had lied because he feared he would be found guilty of the cultivation and man trap charges if he told the truth.
122 The judge directed the jury that the evidence as to the existence of the punji boards was relevant to both the cultivation count and the setting a device count. The traps had obviously been set to protect the crop. Lonie contended that there was no logical connection between a denial in relation to the existence of the plantation and his guilt as to the setting the trap. He further submitted that a denial of knowledge of the existence of the plantation could not demonstrate a consciousness of guilt of a charge as obscure as setting a device.
123 If there had been sufficient evidence to establish beyond reasonable doubt the offence of setting a device by Lonie there would have been a basis for the direction given and the linking of the cultivation and setting a device. In the circumstances it was incorrect to extend the direction as to lies to the count of setting a device.
124 As earlier appears there will have to be a new trial on the supply count. As to the cultivation count there will have to be a new trial on that count. I have reached that conclusion with reluctance as there was a strong Crown case on that count. The materials on the setting a device count were linked with those on the cultivation count, an important aspect being the presence of the punji boards. In his summing-up the judge expressed himself strongly and it often appeared that he was expressing his own view rather than summarising the Crown case. The judge did tell the jury that they had the sole responsibility to decide the facts and that the opinions of counsel and himself did not matter. Nevertheless the summing-up contained a powerful endorsement of the Crown case and a strong discounting of the matters favourable to the defence case. There should be a new trial on the cultivation count.
125 It is unnecessary to deal with the sentence appeal. However, in the event of convictions on a new trial, the sentences imposed by the judge should not be taken as a bench mark. They appear to be high.
126 I propose the following orders:
Groom
Appeal allowed, conviction quashed; verdict of acquittal entered.
Lonie
(a) Appeal allowed; convictions quashed on all three counts;
(b) Verdict of acquittal entered on count of setting a device capable of inflicting grievous bodily harm on any person with intent to inflict grievous bodily harm.
(c) New trials be held on the counts of cultivation and supply.***********
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