R v Pangallo

[1995] QCA 442

IN THE COURT OF APPEAL	[1995] QCA 442
SUPREME COURT OF QUEENSLAND

C.A. No. 185 of 1995 C.A. No. 274 of 1995

Brisbane

[R. v. Pangallo]

T H E Q U E E N

v.

MARIO PANGALLO

Appellant

Pincus JA Thomas J Williams J

Judgment delivered 3 October 1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:	Criminal Law - Appeal against conviction - Drug cultivation - Evidence of accomplice - Whether adequate warnings of weaknesses in identification evidence - Whether requirements of Domican v. R. (1992) 173 C.L.R. 555 sufficiently observed - Visit to jury room by police officer - Whether reasonable suspicion jury interfered with - Whether media publicity caused a mistrial.
Counsel:	Mr D Lynch for the Appellant Ms L Clare for the Respondent
Solicitors:	Legal Aid Office for the Appellant Director of Public Prosecutions for the Respondent

Hearing Date: 4 September 1995

JUDGMENT OF THE COURT

Judgment delivered 3 October 1995

After a twenty-one day trial in Townsville the appellant was convicted of unlawful production of cannabis sativa in excess of five hundred grams. He was sentenced to five and a half years imprisonment. He appeals against his conviction.

Four men (the appellant, Hinkle, Guifre and Sergi) were jointly charged on the indictment. Hinkle and Guifre were convicted of the same offences as the appellant. There was a disagreement with respect to Sergi and he was remanded for retrial.

The principal witness was one Randall who had earlier pleaded guilty to the same offence and been sentenced. He gave evidence of the planning of this enterprise by persons in Griffith (NSW) and of various preparatory steps. Randall's evidence was the effect that he was in due course despatched to Townsville and upon his arrival he met the appellant for the first time at a motel. Thereafter the appellant actively participated in the Townsville area in the preparation for the growing of the cannabis crop, including travelling with Randall and others to the secluded location near Pentland where the crop was grown and assisting in the hard work involved. The appellant stayed with Randall at the crop site until 29 August 1991. On that day the two men had just finished work and were sitting in the tent having a drink. They heard a motorcycle from the opposite side of the bank. The cyclist crossed the river, spent a short period near the tractor that the accused persons had been using and then drove off. Randall and Pangallo decided to leave the area. They abandoned the crop, destroyed their camp-site and attempted to remove incriminating evidence such as fingerprints. Randall and the appellant then set off on foot into the bush and were eventually located by police on 3 September 1991 some twenty to thirty kilometres from the crop site. When interviewed the appellant claimed that he and Randall were looking for work at a nearby station, and that he and Randall had been travelling together for some months. Randall confessed to the police very quickly.

The learned trial judge correctly directed the jury of the danger of acting on an accomplice's evidence without corroboration. He also directed the jury on evidence capable of amounting to corroboration. This included the finding of boot-prints at the crop site which matched the sole of a boot worn by the appellant when he was located by police; identification by a Mrs Saul of the appellant as a person present with the co-accused Guifre when Guifre hired a Pantechnicon truck in Brisbane, which vehicle Randall described as used for the transport of necessary items to Townsville for use at the crop site; the appellant's false denial to police of ever having met the co-accused Guifre; the appellant's false account that he had been travelling with Randall for some months (such account being inconsistent with evidence placing him in Brisbane in the latter part of June 1991); and the circumstance that the appellant was found with Randall in a gully off a dirt road some twenty to thirty kilometres from the crop site.

The appeal was brought upon five main grounds, but counsel for the appellant maintained only three of them.

The first and principal point is that the learned trial judge erred in failing adequately to sum up the weaknesses in the identification evidence of Mrs Saul. Counsel conceded that his Honour fairly summarised Mr Saul's evidence, including her cross-examination, and that his Honour mentioned all relevant weaknesses, particularly drawing the jury's attention to them. The point of the objection is that his Honour did not sufficiently identify these points as going to a matter of principle. Warnings given by trial judges as to the pitfalls of identification evidence might more accurately be described as statements of collective judicial experience than the statement of legal principles. What is important is that the warnings be clear and that they have the benefit of the authority of the judge's office behind them (Domican v. R (1992) 173 C.L.R. 555, 562). Indeed "a warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'" (ibid). That precisely was what his Honour did, and it was done in a way which carried the authority of the judge. His Honour was, for example, not merely reciting counsel's arguments.

We do not propose to restate the particular points of potential weakness. There were strong points as well as weak ones and there is nothing unsafe in reliance being placed in the end upon Mrs Saul's evidence identifying the appellant as being in company with Guifre on the relevant occasion. His Honour fairly summarised her evidence, repeated the general warning and specifically detailed the deficiencies in her identification. We do not think that in the circumstances the summing up was defective on this particular issue.

The next point concerned an incident which occurred on the eleventh day of the trial. While the court was in session the bailiff noticed a police officer (who was attached to the witness protection division of the CJC), who had from time to time been present in a corridor outside the jury-room, enter the jury-room for two to three minutes and emerge carrying a magazine. The jury-room was at that time empty, as the jury was in court listening to evidence. His Honour then heard evidence from the bailiff and the police officer in the absence of the jury. The police officer claimed that he had not realised that this was the jury-room and that he only entered for sufficient time in order to obtain a magazine to read. His Honour was also informed that a juror had, during the break following the incident, asked the bailiff whether anyone had been in the jury-room. The learned trial judge, in writing, enquired of the jury the reason for so asking, and was informed that the jury did not know whether anyone had entered the jury-room and "did not know who had been in the corridor outside". It may be inferred that the jury had noticed someone (no doubt the police officer) in the corridor outside the jury-room and that this had produced some concern or suspicion. His Honour heard submissions and framed the issue as whether the incident would give the appearance that justice may not have been done or whether it might give rise to a reasonable suspicion that a fair trial would not be open. This was consistent with the requirements of Webb and Hay (1991) 73 A.Crim.R. 258.

It was clear that there had been no contact, directly or indirectly, between the policeman and the jury, and that there was no attempt to interfere with the jury. The jury was not threatened or intimidated by the incident and seems to have been reasonably alive to the question of security. His Honour instructed the jury that the incident was not related to the accused and it seems to us that the direction was adequate in the circumstances. No complaint was made with respect to the direction given by the learned trial judge, and we think he was correct in rejecting the ensuing applications for discharge of the jury on this ground.

The third ground concerns press and electronic media publicity during the trial. The complaints were essentially in relation to reports of the alleged value of the crop, and repeated reference to the fact that a "supergrass" was giving evidence and was being guarded by police. One report placed the value of the crops as $40 million, another at $90 million. The Crown had evidence that its maximum value, if successfully grown and harvested, was $8 million. It was also reported in the press that evidence had been given that Sergi had paid Randall's hotel bill. Five particular complaints were made by counsel. On three occasions his Honour gave directions to the jury, reminding them of the need to confine their considerations to the evidence given in court, and to disregard anything that anyone might say outside such as in the press or on television.

Several applications were made for mistrial and these were refused by his Honour. On some of these the Crown Prosecutor offered to lead evidence of the crop's true value. The defence however did not wish such evidence to be led.

The offensive publicity did not go to the issue of the appellant's involvement. So far as the reference to "supergrass" is concerned, apart from a touch of hyperbole and the use of a slang expression, it did not tell the jury anything that was not already obvious to them. It was a tolerably accurate example of contemporary journalism. However the references to the value of the crop are of more concern. Of course it must already have been obvious to the jury from evidence of the extent of the plantings that this was a considerable enterprise and that it was aimed at producing an extremely valuable crop. Its ultimate expected value was however not relevant to the question of guilt. The effect of media reports of inflated values would tend to sensationalise or over-emphasise the importance of the case, but they could have no rational effect on the question whether any of the persons charged was guilty.

This is an issue upon which the learned trial judge was in the best position to assess the nature and potential effect of the relevant publicity. It is to be noted that the jury did not convict Sergi, upon whose case the publicity would have had the same potential effect as upon the others.

The ground is based upon the creation of prejudice against the appellant in the minds of the jury which could not be cured by appropriate directions from the learned trial judge. We consider that the directions were appropriately low-key and effective. In the circumstances mentioned we do not see this case as one where his Honour was bound to accede to the applications of defence counsel to discharge the jury, or that any miscarriage of justice resulted from such failure.

Counsel for the appellant was unable to support the remaining grounds of appeal which complained in relation to directions on the approach to be taken to the evidence of an accomplice, and the directions concerning lies told by the appellant.

The appeal should be dismissed.