R v Martin
[2003] VSCA 80
•20 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 115 of 2002
| THE QUEEN |
| v. |
| LINDSAY PETER MARTIN |
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JUDGES: | CHARLES, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 June 2003 | |
DATE OF JUDGMENT: | 20 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 80 | |
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Criminal Law – Conviction – Trafficking in not less than a commercial quantity of ecstasy contrary to s.71(1) of the Drugs Poisons and Controlled Substances Act 1981 – Applicant convicted on evidence of accomplice – Whether trial judge’s directions regarding acceptance of accomplice’s evidence disclosed error – Identified categories of witnesses accepted as potentially unreliable or untrustworthy – Ample evidence before jury to support finding that applicant and accomplice were associated – Whether trial judge erred in making distinction between corroborated and circumstantial evidence – Whether verdict unsafe – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Crown For the Appellant | Mr J.R. Champion Mr G.J. Thomas | K. Robertson, Solicitor for Public Prosecutions Victoria Legal Aid |
CHARLES, J.A.:
Having had the advantage of reading the reasons for judgment prepared by Vincent, J.A., I agree that this appeal should be dismissed, for the reasons given by his Honour.
BUCHANAN, J.A.:
I agree with Vincent, J.A.
VINCENT, J.A.:
The Background
Version of events given by G
According to evidence given by him at the trial of the applicant, between September 1998 and June 1999, a man to whom I will refer as G, was involved in arrangements concerned with four large importations into Australia of a drug known as ecstasy. The first of these importations, consisting of about 7,000 to 10,000 ecstasy tablets, was received by G, on or about 18 September 1998, and subsequently sold through local distributors. A substantial proportion of the proceeds was remitted to bank accounts at the direction of his supplier, to whom I will refer as L or D as appropriate, with the balance presumably being retained by G as his share.
A second consignment of 15,000 to 20,000 ecstasy tablets was received by G, on around 17 November 1998. Most of them were sold through a dealer, to whom I will refer as K. However, K was arrested by Victoria Police at Williamstown, on 28 December 1998. He had in his possession, at the time of his arrest, a substantial quantity of ecstasy tablets from the shipment and $68,000 which represented the proceeds of the sale of other tablets that G had supplied to him on credit. The seizure of this money and the drugs created a substantial problem for G who, at that
stage, owed $168,000 to his supplier. In order to repay this amount, G agreed to participate in a third importation. The arrest of K also meant that G needed to find a new distributor.
It was against that background that he attended a festival at Lake Eildon on New Year's Eve 1998 and following days. He there encountered the applicant, who he had known for a number of years. During their conversations, G stated that he had some ecstasy tablets that he wanted someone to sell for him and he provided the applicant with a small number as samples. Shortly after the festival, the two men met again and discussed whether they could develop a business relationship. The applicant informed G that he knew “people” who might be interested in obtaining quantities of the drug and requested more samples. G provided him with either 50 or 100 tablets in response.
Following this discussion, the two men met on numerous occasions and, during the period between January and March, G provided the applicant with a “couple of thousand” tablets on credit. Whenever the applicant received a quantity of drugs under their arrangement, he would pay for them within a few days. G estimated that the applicant would have given him between $20,000 and $40,000 for tablets supplied to him during this period.
On about 5 March 1999, a third consignment of about 30,000 ecstasy tablets arrived in Australia. G began disposing of them, using a number of distributors, including the applicant to whom he initially supplied approximately 100 tablets, in order that the applicant could seek out buyers at G's asking price of $20 each.
Over the ensuing weeks, G supplied the applicant with further tablets from the third consignment. They were generally sold in lots of 1,000. On each occasion, the applicant made payments promptly in Australian currency until an incident in early April 1999, when, according to what he told G, he had lost $20,000 that he had placed on the roof of his car and then had forgotten as he drove off. Shortly before Easter 1999, which fell between 2 and 5 April, G provided the applicant with approximately 6,000 tablets to sell in order to recoup the lost $20,000. This constituted all of his remaining stock and was valued by him at $120,000. He estimated that, altogether throughout March and early April 1999, he had supplied the applicant with about 11,000 to 12,000 tablets.
On 29 April 1999, the overseas supplier, L, who had contacted G regarding money that was owing for the ecstasy that he had shipped to him, arrived in Australia. He met G in Melbourne and demanded payment. G did not inform L that he was, in turn, owed money for the tablets that he had supplied to the applicant and said only that he was waiting for his distributor to finalize arrangements for payment to him.
Over the ensuing weeks G, who was under pressure from L, was unable to locate the applicant despite repeated attempts to contact him by telephone. Eventually, he informed L that the applicant owed him money. L was dubious about this explanation and queried whether the applicant actually existed. In order to prove that he did, G took L to the applicant's home address where items were removed from his letterbox. Later, G provided L with the applicant's mobile telephone number. L rang that number on a number of occasions, however G did not indicate that, to his knowledge, contact was ever made.
A day or two before L's departure from Australia, on 9 May 1999, G went to the applicant's home. He told the applicant that, if he did not produce the money owing, there would be serious implications for both of them. That occasion, according to G, was the last on which he spoke to the applicant. He was never paid the $140,000 due.
Other evidence and relevant events
G was arrested on 3 July 1999, when he was attempting to take possession of a fourth shipment of ecstasy tablets from Belgium. Following his arrest, the police seized items, including articles that had been previously removed from the applicant's letterbox. On accessing G's mobile service, they recovered a message left by the applicant, on 5 August 1999 at 4.23 a.m.
In July 1999, L was arrested in Belgium. He had an Israeli passport in that name and a British passport in the name of D. He also had a Californian driver's licence in the latter name. Evidence seized by the Belgium police connected L to the various importations.
There was evidence to support the inference that a mobile telephone service, 0413 358 796, registered in the name of D was used by L, when he was in Australia. Call charge records obtained for the services of L, G and the applicant established, the Crown contended:
(a)That while L was in Australia, between 4 and 6 May 1999, L's 796 service telephoned the applicant's 031 service, seven times…. [T]he duration of the calls ranged from 2 seconds to 54 seconds. There was, however, no evidence that the applicant ever responded.
(b)The call charge records indicate further that between 3 and 9 May 1999, while L was in Australia, G's 361 mobile service called the applicant's 031 mobile service, eighty-eight times.
(c)Between 3 and 6 May 1999 the applicant's 031 mobile service called G four times, but he made no calls to G on 7, 8 or 9 May.
(d)On 7 May 1999, two days before L departed Australia from Melbourne, G, using his 361 service, called the applicant's 031 mobile service fifty times between 1.20 a.m. and 11.04 p.m.
(e)The following day, 8 May 1999, L's 796 service called G's 361 mobile service five times and G, using his 361 service, also called the applicant's 031 mobile service five times.
(f)On 9 May 1999, the day L left Australia, L's 796 mobile service telephoned G's 361 mobile service once and G's 361 service called the applicant's 031 mobile service five times.
In due course, on 1 December 1999, G pleaded guilty in the County Court to one count of being knowingly concerned in the importation of a commercial quantity of ecstasy on 18 September 1998, 15 November 1998, 3 March 1999 and 24 March 1999, contrary to s.233B(1)(d) of the Customs Act 1901 (Cth), and one count of money laundering, contrary to s.81(2) of the Proceeds of Crime Act (Cth) 1989.
On 25 January 2000 he was convicted and sentenced, on count 1, to imprisonment for eight years and, on count 2, to imprisonment for two-and-a-half years. The sentencing judge directed that the sentences commence on that day and fixed a non-parole period of four years and six months. Her Honour stated that, but for an undertaking given by G pursuant to s.21E of the Crimes Act 1914 to give evidence against other offenders involved in the transactions, a sentence of 12 years with a non-parole period of six-and-a-half years would have been imposed.
Proceedings relating to the applicant
The applicant was arrested by members of the Australian Police Force on 19 April 2000 in relation to the possession of prohibited imports.
He was ultimately presented before the County Court at Melbourne charged with trafficking in not less than a commercial quantity of ecstasy contrary to s.71(1) of the Drugs Poisons and Controlled Substances Act 1981. His trial commenced on 13 March 2002. As earlier mentioned, the version by G that I have set out, was given in this trial.
I have not attempted to summarize or indeed refer to all of the evidence adduced in the applicant's trial as the balance does not bear significantly upon the issues raised in this proceeding. The applicant was found guilty by the jury and, after considering a plea in mitigation made on his behalf, the judge recorded a conviction, and imposed a sentence of three years and six months' imprisonment with a non-parole period of 18 months.
The applicant’s version
The applicant gave evidence on oath denying the allegations and the central features of the evidence given by G.
He stated that he met G, whom he claimed not to have known beforehand, at the Earthcore Festival at Lake Eildon at the commencement of 1999. He agreed that they had conversed, but denied that they discussed ecstasy or that he was provided with any ecstasy tablets for sale. Subsequent to that occasion, and between January and March 1999, he encountered G “every now and again” at clubs in Melbourne. On none of these occasions was there conversation about the supply or sale of the drug and no tablets were ever provided to him. At around 3 May 1999, he spoke to G on the telephone. G indicated that he was "in trouble" and needed $50,000. He enquired as to whether the applicant could assist him. The applicant responded that he might be able to speak to his brother, who was a bank manager, concerning the possibility of arranging a loan. He said that, because he felt that there was something “a bit dodgy” about the request, he did not, however, ever mention this inquiry to him. G sounded “a bit persistent and stressed” as he endeavoured to pursue the matter and told him that "you're my last hope". After a time, the applicant decided not to take any further calls from G concerning the obtaining of a loan and switched his phone off as he was “sick of it ringing all the time”. He denied that he knew the man known as L or D and had never spoken to that person. The applicant agreed that he called G at 4.23 a.m. one day and had left a message for him. He said that he did so as he was intoxicated at the time and felt guilty about not pursuing the possibility of obtaining a loan for him through his brother. He said that he was apologetic and expressed a desire to make amends if he could.
The Application
The applicant has sought to overturn his conviction on the following grounds:
"1.The learned trial judge erred in her directions to the jury regarding inferences and as a result a miscarriage of justice occurred.
2.The verdict of the jury was unsafe or unsatisfactory.
Particulars
(a)The Crown case relied overwhelmingly on the evidence of the witness G. His evidence was so unreliable and lacking in credit that no reasonable jury could safely have acted on the evidence of the witness in order to be satisfied of the guilt of the accused beyond reasonable doubt.
(b)The circumstantial evidence alone could not have been sufficient for a reasonable jury to be satisfied beyond reasonable doubt of the guilt of the accused.
(c)The combination of the circumstantial evidence and the evidence of G, which was the inculpatory evidence relied on by the Crown could not have been sufficient for a reasonable jury to be satisfied beyond reasonable doubt of the guilt of the accused.
(d)The evidence of the witness G was that of an accomplice and was uncorroborated; and though a jury could have accepted his evidence as truthful, in all the circumstances of this case, no reasonable jury could have been sufficiently satisfied of the truth of the uncorroborated evidence of the witness to the extent that no reasonable doubt existed as to the guilt of the accused."
Ground 1
Although this ground, in terms, addressed the judge's instructions with respect to the drawing of inferences in the context of the particular trial, the arguments presented before us were directed primarily to the instructions given by her Honour in relation to the evidence of G and, more specifically, with respect to his claimed role as an accomplice of the applicant.
It is apparent from the description of the background set out above that, as the applicant has asserted in his grounds of application, the prosecution case against him relied overwhelmingly on the evidence of G. Apart from that evidence, no foundation existed, or was suggested by the prosecution, which was capable of supporting a finding of guilt.
There was before the jury ample evidence to support the finding that L and G were associated in the importation for sale in Australia of ecstasy tablets during the relevant period. That, as I understand the position, has understandably never been the subject of any controversy, save that it was argued by counsel for the applicant that the jury may not have been entitled to conclude that the material being trafficked was ecstasy. I will return to this aspect.
However, whether the applicant could be found to have been implicated in the distribution of the drugs once they were in this country, depended entirely upon acceptance by the jury of G's version of events. True it was that the nature of the association between G and the applicant could be regarded as suspicious in the circumstances, and the applicant's explanation, that he was being pestered to secure the assistance of his brother to arrange a loan for G, may well have been rejected by the jury as either fanciful or highly improbable. Similarly, it was open to them to regard his explanation for making the 4.23 a.m. telephone message as highly improbable. Further, there was evidence that G had items belonging to the applicant in his possession when arrested, and the jury would have been entitled to infer that L secured the applicant's mobile telephone number from G. They may well have regarded the taking of the items and the giving of the telephone number to L as being more consistent with G's version of events than that of the applicant. However, none of these matters, whether considered in isolation or in conjunction, were capable of constituting proof beyond reasonable doubt of the charge laid against the applicant.
G, however, was, on his version and on the Crown case, an accomplice. Accordingly, in relation to his evidence the trial judge was obliged to provide clear instruction to the jury on a number of matters. They included the dangers inherent in the acceptance of the evidence of an accomplice generally; the need to emphasize the special risk involved in reliance upon the evidence of a person who fell into this category, in the event that it was not corroborated; and the identification of any evidence which as a matter of law was capable of constituting such corroboration, if any such evidence was before them. The trial judge was mindful of her obligations in these respects and provided to the jury general instructions in what can be appropriately described as the standard form.
After doing so and informing them that it was dangerous to convict on the uncorroborated evidence of an accomplice, her Honour went on to say that:
"In this case, members of the jury, there is no evidence as a matter of law that is capable of amounting to corroboration."[1]
However, a little later she stated:
"You have heard in this case that the Crown does rely upon certain evidence in this case to support the evidence of [G] on a number of aspects, and I am going to come to that later. What I want to say about that now is that that is not corroborative evidence. You have heard it referred to as circumstantial evidence, and that [it] is being led or relied upon by the Crown to show on the Crown's construction that there is some other evidence that supports certain aspects of [G's] evidence. It is not corroboration in the sense that it does not amount to independent evidence which tends to show that the trafficking was committed and that the accused trafficked and was involved in it."[2]
[1]T.428.
[2]T.432.
The judge then provided instructions, also in a standard form concerning the manner in which a jury must approach circumstantial evidence, in the course of which she told them:
"One circumstance by itself may have little effect, but the other circumstances may make it more likely to be true, and that is the importance of circumstantial evidence. You do look at each particular piece, and you look at its true worth, but its true value cannot be ascertained until you look at it in the whole of the setting as you find that scene to be. That is the way in which you need to look at the pieces of evidence that surround [G's] evidence in this case.
The Crown say that the circumstantial evidence supports various aspects of his evidence, and that it will allow you by a proper process of reasoning to reach a satisfaction that he can be accepted on the relevant facts in this case, despite the need to scrutinise his evidence very carefully, because he is an uncorroborated accomplice. It is the combination of his evidence, with the circumstantial evidence, which the Crown says rules out any other reasonable conclusion, other than that the accused man was trafficking between the dates alleged.
It is quite obvious, members of the jury, if you do not accept [G's] evidence, irrespective of any other factual evidence, the Crown case cannot succeed. That is the crucial link of the Crown case, and that has been conceded throughout."[3]
[3]T.440-441.
And:
"The Crown case is that you should not treat the factual circumstances separately, or [G] separately, but that you should look at it as a whole picture, and based on that ask yourself whether you are satisfied beyond reasonable doubt that this man was involved in the trafficking in the way that is alleged. It does not remove the need to apply the warning in regard to [G's] evidence on the basis that he is an accomplice, but it is a legitimate process of reasoning to take into account all the circumstances that surround, when considering whether you can accept his evidence."[4]
Finally, in this context:
"The Crown, as I say, go to you in this trial on the basis that [G's] evidence may well be the only direct evidence, but that there is circumstantial surrounding evidence that would allow you to come up with a picture that is only consistent with the accused man's guilt. The Crown say if you take all the evidence, it is consistent with saying that the only reasonable inference you can draw is that the accused man was acting with [G] in selling drugs as a business.
As I say, the Crown case is put on the basis of [G's] evidence needing to be accepted beyond reasonable doubt. The other circumstantial evidence, the Crown says, allows you to reach that conclusion, despite the warnings, and despite the careful scrutiny, you must give his evidence."[5]
[4]T.442.
[5]T.449.
What was this circumstantial evidence, that was incapable of constituting corroboration but could provide support for G's evidence, upon which the prosecution placed reliance? According to the Respondent's Outline of Argument with which we have been provided, it consisted of:
"a)The documents taken by the police from the possession of [G], and said by him to have been removed from the applicant's letterbox.
b)The telephone message left by the applicant on [G's] mobile telephone message service; and
c)The telephone call charge records showing the telephone in the - name of D, and used by L, had called the applicant's telephone at a time when L was in Australia."[6]
[6]At p.3.
It is, I consider, unfortunately apparent in these passages of her Honour's charge that the trial judge evidenced the presence of significant misconceptions concerning the nature and effect of corroborative evidence in such cases. She regarded as relevant the existence of a distinction between evidence which may be perceived as capable of corroborating the evidence of an accomplice on the basis that it tends to implicate the accused in the commission of the offence charged on the one hand, and evidence of a circumstantial character which is capable of supporting the evidence of the accomplice on the other. In so doing her Honour failed to appreciate the true purpose and effect of the approach of the law in this area.
For a variety of reasons, categories of witnesses have been identified, the evidence of members of which has been accepted as potentially unreliable or untrustworthy. In consequence, the courts have recognized that the highest level of care must be exercised before reliance is placed upon evidence emanating from such sources. There is no need to do more than refer broadly to these developments.[7]
[7]The categories have been held to encompass, for example, prison informers: see Pollitt v. R. (1992) 174 C.L.R. 558, and a witness suffering from mental disability: Bromley v. R. (1986) 161 C.L.R. 315. See, in relation to evidence of police witnesses: Carr v. R. (1988) 165 C.L.R. 315, and McKinney v. R. (1991) 178 C.L.R. 468. Whilst as a consequence of statutory enactments in different jurisdictions the principles governing the evidence of children or the complainants in cases of alleged sexual assaults have been changed, the Courts have considered the provision of warnings in particular situations is required. See, for example, R. v. Longman (1989) 168 C.L.R. 79 and R. v. Kilby (1973) 129 C.L.R. 460.
The form and strength of the instructions that a trial judge must provide has, of course, been dependent upon the nature and seriousness of the perceived risk.
In Faure[8], Hampel, J. put the position as follows:
"While no particular formula is appropriate, a warning in a case such as the present should be one which is given by way of a direction to the jury from the trial judge and with the force of his authority. It should be more than a general comment about the need to scrutinise evidence of important witnesses carefully. It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge. Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of commonsense.
The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury's attention should be drawn to the dangers inherent in such evidence and at least to the desirability of, if not the need for, the search for supporting material.
What warning is appropriate and adequate depends on the circumstances of the particular case. The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of a miscarriage of justice is reduced. That, after all, is a most important consideration and one which has moved the courts to extend the requirement of judicial warnings beyond the cases involving accomplices to cases involving prison informers, identification evidence, disputed confessions by people in custody to police officers, mentally disabled witnesses and other cases in which the witness is significantly tainted or for some other reason the evidence is inherently unreliable."
[8]DPP v. Faure [1993] 2 V.R. 497 at 504.
Over the years the categories have altered, and different approaches have been employed according to the nature of the problem presented. However, the underlying notion has essentially remained the same. Juries are to be instructed concerning the danger of the injustice that could occur if evidence, from what is recognized as a potentially unreliable source and which lacks independent support, is not subjected to the most intense scrutiny before any decision is based upon it. In R. v. Hester[9], Lord Morris of Borth-y-Gest addressed the rationale underlying this approach:
"The accumulated experience of courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. There are some suggestions which can readily be made but which are only with more difficulty rebutted. There may in some cases be motives of self-interest, or of self-exculpation, or of vindictiveness. In some situations the straight line of truth is diverted by the influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood. It must, therefore, be sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilt may be insecurely based."
The law is not here centrally concerned with the presence of independent evidence tending to establish the commission of the offence and the accused person's participation in it, in other words, with what could be described as corroboration according to the traditional usage of that term, but with reliability or trustworthiness of the evidence given by the particular witness. As a practical proposition, nevertheless, I suspect that, in the vast majority of cases, there would be little difference in the outcome whichever approach was adopted. Evidence which could be regarded as capable of supporting the reliability of the witness' testimony in a relevant respect would also almost certainly tend to implicate the accused in the commission of the crime charged.
[9][1973] A.C. 296 at 309.
In the case of accomplice evidence, it has long since been laid down that the trial judge must, using the full authority of his office, instruct the jury that it is dangerous to act on the uncorroborated evidence of a person who they regard as falling into this group. They are to be instructed that they may act on such evidence, but only after they have subjected it to intense scrutiny and have determined that, regardless of its source, it would be safe to do so. Corroboration, as understood in this context, is not accorded a narrow or technical meaning of the kind that has, in the past, been given to it when considering the evidence of complainants in cases of sexual assault or the evidence of children who could not give evidence on oath. As Lord Simon stated in R. v. Kilbourne[10]:
"Corroboration is … nothing other than evidence which 'confirms' or 'supports' or 'strengthens' other evidence (Lord Morris of Borth-y-Gest; Lord Pearson; Lord Diplock). It is, in short, evidence which renders other evidence more probable. If so, there is no essential difference between, on the one hand, corroboration and, on the other, 'supporting evidence' or 'evidence which helps to determine the truth of the matter.' Each is evidence which makes other evidence more probable."
[10][1973] A.C. 729 at 757.
Corroborative evidence may be circumstantial or direct. Its real force is not derived from such considerations, although, when dealing with circumstantial evidence care must be taken to ensure that the evidence is capable of providing relevant support[11], but also from the fact that it comes from a source independent of the witness concerned. The value of the evidence is increased because there is support for its truth and reliability from a separate and more trustworthy source. Accordingly, whether or not the evidence claimed to support that of the accomplice is direct or circumstantial, the judge must approach it in the same fashion. The evidence is either capable of providing corroboration or support, or it is not.
[11]See R. v. Kalajzich and Orrock (1989) 39 A.Crim.R. 415 and the cases there discussed.
In the present case, none of the other evidence, whether viewed independently or in conjunction, was capable of incriminating the applicant. As the trial judge pointed out in her charge to the jury, the three pieces of evidence set out earlier were relied upon as providing support to G; in other words, to corroborate his evidence. I am of the opinion that the finding by the police of items removed from the applicant's letterbox, the call charge records and the recorded 4.23 a.m. telephone message, were all capable of providing some support for the evidence of G; in other words, they were all capable of providing some corroboration. There can be little room for doubt that the trial judge held the view that they were capable of providing support to G's evidence. No objection was taken by counsel for the applicant at the trial to the use of the evidence in this fashion. As I see it, her Honour's error lay not in the provision of instruction to the jury that the evidence could be so used, but in making the distinction to which I have earlier referred. Nevertheless, the jury was provided with a strong accomplice warning, and instructed that it was dangerous to convict on the basis of G's evidence in the absence of independent support for it. Indeed, the judge's error arguably reinforced this direction which was repeated several times. Her Honour's instructions with respect to circumstantial evidence were comprehensive, and proper emphasis was given to the need to exclude any reasonable hypothesis consistent with innocence beyond reasonable doubt before a finding of guilt could be made. They were instructed of the need to subject the evidence of G to intense scrutiny on more than one occasion, as the passage from the charge set out earlier indicates. The need to scrutinize the circumstantial evidence before it could be employed as possible support for that of G was also made clear. Were it not for the unfortunate distinction made between corroborating and supporting evidence, which ultimately can be seen to have had no practical impact, the charge could not have been the subject of any significant criticism.
The evidence, upon which the prosecution relied to provide support to that given by G, and the manner in which it was claimed to have done so, were the subjects of considerable attention in the trial. The jury was entitled to infer that the drug dealer G supplied the drug dealer L with the applicant's telephone number. That, if no relationship of the kind claimed had existed, may have been an extraordinarily dangerous thing to do. A jury would have been entitled to conclude that G was, at maximum, concerned to reassure L that he was acting in good faith. But, suppose, for instance, that L did make contact with the applicant and learned that he was an innocent party, G could well have found himself confronted with a very serious state of affairs (he owed L a very large amount of money). G was found in possession of items taken from the applicant's letterbox. For what possible reason would he have taken them? He proffered the explanation then that he wanted to persuade L that the applicant existed. This version is not only supported to some extent by the provision of the applicant's telephone number to L, but the large number of telephone calls made to the applicant's number by G at around that time. The issues raised by the evidence of G were clearly before the jury. The possibility that there may have been some misunderstanding with respect to those issues, or the care with which the evidence of G had to be approached, or the standard and burden of proof with respect to the issues in the trial, can, I think as practical propositions, be rejected.
It follows that, in my opinion, the defects in the judge's charge have not led to a reasonable possibility that there may have been a miscarriage of justice.
Ground 2
In support of this ground, reliance was placed upon a number of considerations, listed in the Applicant's Outline of Submissions as follows:
"[G] was a drug trafficker who on his own evidence:
(a) treated people as 'disposable' (T219,221);
(b)was afraid of his supplier L in circumstances where money and/or drugs was not able to be accounted for (T227);
(c)had the 'gift of the gab and bullshit flows' from his mouth (T277);
(d)was used to establishing false identities through confidence tricks (T269);
(e)gave different accounts of who it was he dealt with for the first and second shipments (T232);
In relation to Martin, who was said to have obtained 11,000/12,000 tablets of ecstasy from a third consignment [G] told the Court:
· All records had been destroyed (T147,183).
· He could not remember who he had dealings with in relation to ecstasy except Martin (T230).
· He did not know and would not say who moved the rest of the 30,000 tablets involved in the third importation (T244-5, 314, 316).
· He cannot remember who he borrowed money from to repay L (T285) or who gave him Martin's telephone number (T267).
· He would have tried to get a loan from Martin's brother if he knew he was a bank manager (T296), he had attempted to obtain a loan against his house (T178).
Inconsistencies in relation to his dealings with Martin included :
· At another trial in January 2002, $140,000 was owed. At the Martin trial in March $160,000 was owed (T243).
· Martin was seen before Easter 1999, but to police in interview he was seen at Tocumwal at Easter (T256).
· Martin's telephone number was given to him by somebody else in interview with police (T262). He told the jury it was from Martin [that] the number was obtained.
Convictions/Court Hearings
He was convicted of fraud in America and lied on oath at his plea about the amount obtained from the fraud (T187, 190);
He never made full disclosure of his criminal activity despite an apology (T194) nor did he disclose others involved (T194);
At a well prepared plea it slipped his mind that a gun was placed in his mouth in the context of L's intimidation of him (T197);
He told a psychiatrist he saw in preparation for the plea that there were no overt threats when planning for the importation of drugs was discussed. This was inconsistent with what he told the Martin jury (T218).
Discounted Sentence
The discounted sentence was from 12 years with a non-parole period of 6½ years, to 8 years with a non-parole period of 4½ years. He understood that if he said anything different from his statement he was at risk of having the sentence increased (T185)."
As can be observed from the transcript references, every one of these matters was the subject of attention in the course of the trial. Most, if not all, were referred to in the trial judge's charge. There is no reason to suppose that any escaped consideration by the jury or that they were not individually and collectively taken into account by them. Further, as earlier indicated, not only was there some limited support in the evidence for what G told the jury, but they may well have rejected the applicant's response given on oath as selectively vague and highly implausible.
Notwithstanding the serious criticisms which could be and, indeed, have been made of the evidence of G upon which the conviction ultimately rested, I am not persuaded "that upon the whole of the evidence it was [not] open to the jury to be satisfied beyond reasonable doubt that the accused was guilty"[12] of the charge laid against him.
[12]M v. R 181 C.L.R. 487 per Mason, C.J. Deane, Dawson and Toohey, JJ at 494-5.
A subsidiary argument was advanced on behalf of the applicant to the effect that, even if the jury was entitled to act upon the evidence of G, it did not follow that they were entitled to conclude that the material being trafficked was ecstasy. There was independent and undisputed evidence that G had supplied K with ecstasy tablets. The substance seized by the police when a fourth importation was attempted was ecstasy. G admitted being an importer of that material and claimed not only to have been familiar with the substance, but to have personally tried samples of the first, second and third consignments. In the circumstances of the present case, the argument also lacks substance in my view.
I would dismiss this application.
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