R v Prochilo

[2003] NSWCCA 265

CITATION:	Regina v Prochilo [2003] NSWCCA 265
HEARING DATE(S):	11 February 2003
JUDGMENT DATE:	19 September 2003
JUDGMENT OF:	Beazley JA at 1; Greg James J at 2; Smart AJ at 3
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	Supply of prohibited drug - Evidence established joint enterprise not a case of conspiracy - Proof of participation in joint enterprise may be established by other than presence at scene of supply - Agreement as essence of joint criminal enterprise emphasised - Directions not confusing - Jury told what activities constituted the supply and what supply meant - What taped conversation could be considered and the use to be made of them - Facts supported "supply" and adequate directions given as to elements of "supply" and material facts - no error in admitting challenged evidence and in directions given as to its use.
LEGISLATION CITED:	Drug Misuse and Trafficking Act (1985) Evidence Act (1995)
CASES CITED:	Osland v. The Queen (1998) 197 CLR 316 R v. Lowery and King (No 2) (1972) VLR 560 Tangye (1997) 92 A Crim R 545 Ahern v. The Queen (1988) 165 CLR 87 Carusi and Casser (1989) 17 NSWLR 516
PARTIES :	Appellant: Francesco Rocco Prochilo Respondent: Regina
FILE NUMBER(S):	CCA 60024/02
COUNSEL:	Appellant: J. Papayanni Respondent: D. Frearson
SOLICITORS:	Appellant: Jeffreys and Associates Respondent: S.E. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0167
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

60024/02

BEAZLEY JA

GREG JAMES J

SMART AJ

Friday, 19 September 2003

Regina v Francesco Rocco prochilo

JUDGMENT

1. BEAZLEY JA

: I agree with Smart AJ.

2. GREG JAMES J

: I agree with Smart AJ.

3. SMART AJ

: Francesco Rocco Prochilo appeals against his conviction in the District Court of the charge that between 13 October 1998 and 22 November 1998 at Deniliquin he supplied a prohibited drug, namely, cannabis, contrary to s.25 of the Drug Misuse & Trafficking Act 1985. The appellant was sentenced to imprisonment for 2 years and 3 months, commencing on 21 September 2001, with a non-parole period of 12 months. He has been on parole since 20 September 2002.

4. The Crown case was that the appellant and his co-offender, Norman Hunt, were engaged in the business of supplying cannabis in the Deniliquin area. Supplies of cannabis were obtained from a number of wholesalers principally in Melbourne and brought to Deniliquin and other nearby towns and distributed amongst customers. To prove its case the Crown relied on surveillance, and some circumstantial evidence, but principally on 57 telephone intercepts of conversations between the suppliers and Hunt and those between the appellant and Hunt. A study of each of the 57 tapes establishes that Hunt and the appellant were jointly engaged in a business of purchasing cannabis supplies from wholesalers in Melbourne and elsewhere and selling cannabis to local customers. Most of the tapes are of conversations between Hunt and the appellant.

5. It is useful to refer to the glossary and explanations provided by Det D Doherty. He said that the street names for cannabis included weed, smoko, green, pot, ganga and buddha and that cannabis is usually smoked in cigarettes called reefers or joints, often mixed with tobacco. Cannabis was generally sold in pounds and then packaged for resale in ounce bags, half and quarter ounce bags and in street deals that were usually measured in grams. The street terminology for a pound is “elbow” or “full one”. Quarter weights are called “quarts”, an ounce would be an “ozzie” or “oz”, a half ounce would be “half” and street deals could be a “quarter”, a “gram”, “g” or “stick”. If there were a shortage of drugs, the terminology used is “dry”.

6. Det Doherty said that the price of high quality cannabis – being the head of the plant – was between $3500 and $5500 per pound. Inferior cannabis – the leaf and tip - could be as little as $1500 to $2200 per pound. The price of ounces ranged from $400 to $700. Half ounces were about $200 and quarter ounces about $100. Street deals cost between $20 to $50.

7. I turn now to the tapes of the telephone intercepts. What follows is a brief summary of some of them.

8. On 15 October 1998 at 1531 hours Hunt confirmed to Ralph Surace (a supplier) that he (Hunt) would be in Melbourne about dinner time to see Ralph. Hunt said, “I give a five” and “You pay three eight”. Ralph replied, “Three eight, right.” Ralph fixed a meeting time of 11 o’clock and arranged for Peter to give the address. Peter specified a Melbourne address.

9. On 15 October 1998 at 1753 hours, the appellant asked Hunt if he had a “full one there” and explained that “Cec” had already paid him for “a full one”. In a further conversation at 1759 hours Hunt stated, “Half’s about the best I can find.” The appellant replied, “Oh that’ll get him out of trouble for now I think.” Hunt said, “I’ll take quart … give him a quarter.” The appellant replied, “No … he wants at least that. He wants a full one. He already paid me.” The appellant further explained, “The boys go up there, we’ve got a few ‘em that want it.” After some further conversation Hunt and the appellant settled on “half”. It was referred to by the appellant as “this stuff”. At 1825 hours Hunt told the appellant that he had to be down there (Melbourne) by 11am the following morning at Ralph’s. The appellant asked, “Yeah and what you got there?” Hunt replied, “About three – three – thirty under a gram.” Hunt and the appellant agreed to meet in about 15 minutes.

10. On 16 October 1998, at 1205 hours, Hunt told Stretch that he (Hunt) was in Melbourne. Hunt referred to the appellant “going to do the other half.” Stretch accepted this.

11. On 16 October 1998, at 1233 hours, the appellant and Hunt discussed the shortage of supplies and the steps taken and to be taken to obtain supplies. There were a couple of subsequent telephone calls during which the appellant and Hunt reviewed the progress in obtaining supplies.

12. On 17 October 1998 at 1059 hours there was initially a conversation between Hunt (who was sitting at the appellant’s desk) and “Rob” about “bringing a couple around so Rob could get rid of it". Hunt put the appellant on the phone. Rob asked the appellant, “What’s going on with, um, that smoke?”

13. At 1124 hours the appellant told Hunt, “Yeah there’s one and a half there, and he’s left a half one there for me.” Hunt said that he would be round to pick it all up.

14. At 1326 hours the appellant and Hunt agreed that that was “four off” and another one for Rob. Hunt said, “Like I said, half a gee short or whatever”. The appellant replied, “Yeah, no, he said he’d throw that in for me.”

15. On 23 October 1998 Hunt told Stuart that some suppliers were too costly at “thirty nine”, describing them as flash.

16. On 24 October 1998 at 1050 hours the appellant told Hunt that “Stretch” had about “four of them other ones there with him.” Hunt asked if the appellant wanted him “to divide ‘em up into quarters for him.” Referring to an allied topic Hunt said, “We never got nothing … I’ve got to go back tomorrow.” The appellant said, “… you should have rang me. I know where else to go to there.” The appellant and Hunt discussed “paperwork” [cash] and whether either had any. Hunt said, “Yeah well I’ll drop up six and a half there. I’ve got here without havin – oh no I got more, ah fuckin’ just (pause) about nine seven five I think” and “I’ll keep the other for now.” Hunt said “Yeah well I’ll drop it up there in about ten minutes.” They then arranged that Hunt would “drop them four up to Stretch then.” At 1114 hours the appellant and Hunt had a conversation in code.

17. On 25 October 1998, at 1734 hours, the appellant and Hunt agreed that “Rob” would not be given anything unless he paid in cash up front. The appellant warned Hunt to be careful of “Warren” and others. There was a mention of waiting for money and spending “a half over”. They agreed that they would not deal with particular people again.

18. On 26 October 1998, at 0833 hours, there was a further discussion about difficulties in obtaining supplies. Hunt said to the appellant “I had Pete offer me one last night for forty two.” That was too dear. There was a discussion about obtaining supplies from “Gary” and “Ralph”.

19. On 29 October 1998, at 1900 hours, Mark Griffin, after Hunt had remarked that he was on a joint, asked if Hunt wanted some more. Hunt replied that he was probably going to look at that on the following day. There was a discussion about when they might ”do” the business. The quantity mentioned was “two” and later the figure “ninety”. There was a reference to the price needing to be right. Griffin had to make enquiries about available supplies. Griffin telephoned at 2034 hours and advised Hunt that the supplier had “one” and was trying to obtain “two”. At 2144 hours Griffin advised Hunt “You got two” and arranged to meet across the road from Pentridge Gaol the following morning.

20. On 4 November 1998, at 0846 hours, the appellant and Hunt had a conversation about making up an item speedily.

21. On 6 November 1998, Hunt enquired whether the appellant had got on to Stuart (a supplier). Hunt told the appellant, " I got, ah, four to deliver shortly and another three in my pocket".

22. On 7 November 1998, the appellant remarked to Hunt “…they’ll be one there” and “We’ll get that one and I told him [Gary] you’d ring him back and let him know roughly what time you’ll be there".

23. On 13 November 1998, at 1330 hours, the appellant told Hunt that a particular person wanted a “a full one” and a “full elbow”. There was a reference by Hunt to having to pick up two. This was confirmed by the appellant who later said, "he wants five altogether but just one at a time". The appellant remarked that he would get a bill paid out of it.

24. At 1353 hours Hunt spoke with Ralph enquiring about supplies. Ralph told Hunt about “the three people who got the stuff” but that he (Ralph) had to wait until that night as he had to look at it. Hunt said he had to come to Melbourne the following day “to pick up some”. Ralph replied, “I’ll put tomorrow I think I’ll get it for sure.” Ralph put “Shane” on the telephone who stated “tomorrow should be ninety-nine per cent”. Hunt said that he wanted to know that night, as he could order (supplies) elsewhere if Shane could not obtain supplies.

25. On 14 November 1998, Hunt told the appellant that “the stuff” Ralph was talking about “could be the real McCoy”. The appellant remarked, “That’s very good.”

26. On 15 November 1998, at 0906 hours, Hunt referred to “the stuff” that the appellant mixed up being given to Sam. At 1442 hours, Hunt told the appellant that he had got “two” and that on Tuesday he was going to collect a kilo (or possibly a sample for a kilo). The appellant replied, “Yeah well tell him to weigh it exactly cause I’ll take it straight up the other place there.” At 1757 hours Hunt told the appellant, “I’ll drop his off and then yours.”

27. On 15 November 1998, at 1745 hours, Hunt and Griffin had a conversation as to Hunt requiring supplies on “Monday or Tuesday”. At 2127 hours Griffin advised Hunt that “Albi” had just telephoned and confirmed that he could get “two”. Hunt and Griffin arranged to meet on Tuesday.

28. On 17 November 1998, at 1054 hours, Hunt spoke with Ralph, seeking to purchase a "pair”. Ralph told Hunt that they would see what happened when Hunt arrived at 12.30pm

29. On 17 November 1998, at 1201 hours, Hunt told the appellant that a person (a supplier) wanted out but it did not matter because he had Ralph on the job for “two”. Hunt speaks of the one “I’m picking up off Ralph”. The appellant said, “But weigh up exact so you know exactly what’s there.” Between 1228 and 1236 hours Hunt and the appellant had further discussions about supplies and the quantities thereof.

30. On 20 November 1998, at 1019 hours, there was a discussion between Hunt, the appellant and Ralph: Ralph advised that he had seen his mate but would not know the outcome until dinner time. Hunt stated that he was “looking for two today and two tomorrow.” Ralph said that he could not meet this request and suggested slightly later dates as being possible. Ralph stated that he would have to telephone his suppliers after 1400 hours. At 1157 hours, in a further discussion, Hunt told the appellant that Serge wanted four ounces as he claimed that he could “unload” straight away. The appellant commented, “Oh yeah, yep, yep … can you give me four now and the rest tomorrow.” At 1210 hours Hunt and the appellant discussed delivery arrangements. At 1541 hours Ralph advised that he could not obtain supplies that day, but could do so on the following day. They agreed that Ralph should work on the following morning. Hunt remarked that he could get one off Peter. There was also discussion about some future supplies. At 1546 hours Hunt and the appellant discussed the position which existed with two of their suppliers. A 1626 hours Hunt and Griffin had a conversation about the availability of supplies. At 1700 hours Ralph telephoned Hunt and advised him that “supplies would be available at twelve (noon) tomorrow.” Hunt agreed to meet Ralph at that time. At 1700 hours Hunt told the appellant that he could not go to Melbourne until the following day. The appellant explained that certain people had been poking around having a good look and checking him out. They agreed that instead of Hunt delivering “eight” when he got home he should hang on to it. Further arrangements for delivery to the appellant would be made.

31. On 21 November 1998, at 0958 hours, Hunt enquired of the appellant how many “whatsanames” he wanted for Grant. The appellant said that he did not know. It was arranged that this would be ascertained. At 1004 hours the appellant asked Hunt to catch up with “Greg”. Hunt replied that he had told Greg to see the appellant yesterday as he thought that he might still have “some that other left”. After some further discussion the appellant said that he would work something out. There was some discussion about supplying “Greg”, “another bloke”, “Sam”, and “Scottie” and how much should be supplied, namely, “Full, half?”

32. At 1008 hours Hunt and the appellant further discussed supplies, including obtaining and delivering them. At 1224 hours Hunt spoke to Ralph and confirmed that he was five minutes from Ralph’s place. At 2055 hours there was a further discussion between the appellant and Hunt in which “Terry” and “Wayne” were mentioned. The appellant advised Hunt that before he got to the (NSW/Victorian) border, to turn off and come home a different way. A couple of men (Police officers?) had been sitting in an unmarked car on the road on which Terry and Wayne lived. Hunt said that he was just leaving Melbourne. At 2123 hours Hunt was told by the appellant that the men were still in position. The appellant told Hunt to put “it” somewhere even before he got to Echuca.

33. On many occasions after Hunt spoke with a supplier or suppliers, he telephoned the appellant to advise him what was happening. The appellant appeared to be familiar with the various suppliers and to have contacts with them. On occasions, he pursued obtaining supplies from other suppliers. What emerges from the telephone conversations is the close and frequent liaison between Hunt and the appellant and that they were operating a joint enterprise. There was a busy business on foot. From the terms of the telephone conversations it was apparent that they dealt with each other as equals in procuring supplies of drugs from a number of suppliers in Melbourne and elsewhere and distributing them locally. They often spoke to each other several times a day about the demands of the customers and the procurement of supplies from named suppliers, whom they both knew. The tapes also reveal that Hunt and the appellant met frequently. The appellant warned Hunt, when he suspected that police officers were seeking to catch Hunt committing offences. This was a cogent example of a joint enterprise.

34. On executing a search warrant at the rented home of the appellant, the police found a plastic resealable bag containing vegetable matter in the bathroom vanity along with four rolled cigarettes. The appellant admitted that this was dope and joints and asserted that they were for his personal use. On analysis the vegetable matter (dope) weighed 27.9 grams and the cigarettes (joints) weighed 2.3 grams and they contained cannabis. The appellant pleaded guilty in the Moama Local Court to possession of cannabis and was fined.

35. A number of documents were found in the appellant’s wallet. They appeared to contain drug and financial calculations. The appellant explained that the documents had been in his wallet for a number of years and related to his business interests including the development of the property on Conargo Road, about which he supplied the police with further information. A study of the documents points to that information being difficult, if not impossible, to accept.

36. Det. Sgt. D. Rowney demonstrated that a study of the call records relating to Hunt’s mobile phone revealed that Hunt was in Melbourne on twelve occasions, namely 14, 16, 20, 23, 27 and 30 October 1998 and 3, 7, 10, 14, 17 and 21 November 1998.

37. On 22 November 1998 a search warrant was executed at Hunt’s home and certain sections of the backyard were dug up. A hiding place was found. A plastic container was found buried in the ground. The prosecution linked this with Hunt’s statement to the appellant on 30 October 1998 at 1840 hours, “It’s goin straight in the ground.”

38. Det. Rowney stated that there were no obvious signs of wealth in and around the appellant’s home, and that an investigation into the economic position of the appellant by the Crime Commission discovered “nothing untoward”.

Appellant’s Case

39. The appellant did not give evidence and relied on the cross-examination of witnesses called in the Crown’s case. He called as a witness, his younger brother, Ross Prochilo. Through cross-examination the appellant sought to show that the telephone intercept material could be interpreted as conversation relating to matters other than the supply of cannabis including the supply of illegal tobacco, the running of a fruit and vegetable business and work being done on the appellant’s property at Conargo Road, which was being prepared for subdivision and sale.

40. Ross Prochilo gave evidence that in 1997-1998 the appellant was responsible for looking after the family farm at Wakool, where stock was kept and wood was cut into sleepers. At the family farm at Hay, fruit and vegetables were farmed. The farm on Conargo Road outside Deniliquin, where wheat and barley were grown, belonged to the appellant’s parents-in-law. The appellant engaged in some activity in the family farms and had a financial interest in them.

41. Ross Prochilo stated that the appellant had borrowed money from his parents-in-law to buy the Conargo Road property and was preparing it for subdivision and the sale of the lots. The preparation included planting trees, fencing, painting corner posts and digging a lake with a laser bucket. Amongst the men who worked on the subdivision were Norman Hunt, whom he saw painting fence posts, Dino, whom he saw watering the trees and “Stretch” Kelton, who did some slashing.

42. Ross Prochilo said that about four or five months prior to the appellant’s arrest he (Ross) was in the appellant’s kitchen at Renwick Crescent, Deniliquin, when the appellant offered him some cheap tobacco to smoke. The appellant took out of a kitchen cupboard a bag, some empty cigarette tubes with filters and a little machine. He prepared a cigarette and gave it to Ross Prochilo. He told Ross that he could obtain cheap tobacco if Ross wanted some, but Ross did not like it. The appellant gave him the cigarette rolling machine and some empty cigarette papers to use at home with commercial loose tobacco.

43. Appeal Ground 1 reads

"His Honour erred in law

(a) in directing the jury that this was a case of joint enterprise

(b) in failing to apply the correct test as to the admissibility of the acts and statements of others in the appellant’s absence in that his Honour failed to find a prima facie case against him, based on admissible evidence which was independent of the acts or statements of co-offenders and to consider the matter of discretion in excluding such evidence as operating unfairly against the appellant.

(c) alternatively, that if joint enterprise was applicable, his Honour misdirected and/or failed to direct the jury adequately or properly as to joint enterprise.

(d) in directing as to ‘involvement’, ‘involve’ etc …”

44. After referring to Osland v The Queen (1998) 197 CLR 316 especially at 341 et seq, R v Lowery and King (No 2) 1972 VLR 560 and Tangye (1997) 92 A Crim R 545, the appellant submitted that the authorities emphasised that the acts and not the crime of the actual perpetrator are attributed to the person acting in concert and that if the latter person has the mens rea, he is guilty of the principal offence because the actus reus is attributed to him by reason of the agreement and presence at the scene. It was submitted that in the present case, there was no evidence of any actual supply from the alleged amounts purchased by Hunt on his twelve trips to Melbourne in six weeks, and no evidence that the appellant was present at any actual supply by Hunt and no evidence given from which it could be inferred that the appellant was present at any supply by Hunt.

45. The appellant submitted that on the evidence, his alleged “involvement” was equally explained by an agreement only to obtain customers for Hunt and that would not be sufficient to support a charge of supply.

46. The appellant contended that the question as to whether there was any joint enterprise was determined conclusively by there being no evidence of the presence of the appellant at the scene of the offence of supply by Hunt, whether the supply by Hunt occurred by his act in supplying in the ordinary sense or in one or more of the extended definitions of supply. Accordingly, so the argument ran, there was no joint enterprise, even if there was a prior agreement. If there was a prior agreement, depending on its terms, the offence of taking part in supply or being other than a principal in the first degree may have been committed, but not that of supplying cannabis leaf..

47. The appellant submitted that there was no prima facie case against the appellant of supply, excluding the acts and statements of Hunt (and others).

48. The appellant pointed to the differences between the law of conspiracy and that of joint enterprise. He cited this passage from Ahern v The Queen (1988) 165 CLR 87 at 99:

“Once there is a reasonable ground for inferring a combination in cases other than conspiracy, acts and the declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination but the offence charged.”

49. The appellant contended that in the instant case, the pre-concert agreement was alleged to be with Hunt only and not with Ralph Surace, Griffin, Rob and others and that it was the acts of Hunt which were to be admitted, once the agreement with the appellant was proved and that those acts of Hunt in furtherance of the agreement could be used to prove the offence of “supply” not the pre-concert arrangement or agreement.

50. It was pointed out that the High Court in Ahern at 99 held that the standard of proof to establish the participation of the individual in the conspiracy was “reasonable evidence”. The judge determines whether reasonable evidence exists.

51. The appellant submitted that whether there was reasonable evidence of pre-concert was to be determined only from the tape recordings between Hunt and the appellant, and that only the acts and declarations of the appellant could be looked at and not those of Hunt. It was submitted that the trips to Melbourne by Hunt and the obtaining of cannabis there could not be used as evidence independent of the tapes.

52. The appellant contended that the Crown had put a case of joint enterprise in relation to what was a deemed supply and that the Crown had to prove a pre-concert agreement in relation to a deemed supply as there was no actual supply proved. It queried whether this was possible. The appellant contended that a person cannot be convicted under the statutory provisions relating to supply by reason of an agreement to supply, unless that person is a party to an actual handing over to somebody. He relied on Carusi and Casser (1989) 17 NSWLR 516, a case of conspiracy. The appellant’s submissions overlap and are, at least in part, repetitive. As I understood the appellant’s arguments, he contended that the Crown was, in truth, endeavouring to establish the offence of conspiracy. Alternatively it was seeking to make out a pre-concert agreement in relation to a deemed supply. The offence of conspiracy was not charged and the alternative was not permissible.

53. The appellant was charged under s.25 of the Drug Misuse and Trafficking Act 1985. Section 3 contains the following definitions:

‘’’Sell’ includes sell whether by wholesale or retail and barter and exchange, and also includes dealing in, agreeing to sell, or offering or exposing for sale, or keeping or having in possession for sale, or sending, forwarding, delivering or receiving for sale or on sale, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things;

‘Supply’ includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, committing or attempting any of those acts or things.”

54. Sections 25 and 26 of the Act relevantly provide:

“25.(1)A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
…
26. A person who conspires with another person or other persons to commit an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the first mentioned offence.”

55. In Carusi at 522, Gleeson CJ said:

“The variety of possible arrangements which might in practice be made concerning the supply of drugs is so great that it is undesirable to attempt to paraphrase the words ‘agreeing to supply’ in such a way as to limit their application to certain classes of arrangement. I am unable, however, to accept the submission that there is something in the context of the definition of ‘supply’ which confines agreeing to supply to cases where the intended recipient is a party to the agreement. I cannot construe the statute as some kind of legislative attempt to enshrine the doctrine of privity of contract in the criminal law relating to the supply of prohibited drugs.
It is not possible by some verbal formula which is used as a substitute for the statutory language to state a proposition of universal validity which will for all cases mark out the boundary between a conspiracy to supply under s 26 and an agreement to supply which will involve an offence under s 25. As a general rule, however, and bearing in mind the great variety of cases that may arise in practice and that will require individual consideration, it can be said that a mere expression of a common intention held by two or more persons that they will together, or that someone will on their behalf, seek out possible recipients with a view to supplying drugs to them would not constitute agreeing to supply. Whilst, for reasons given above, I would reject the notion that the intended recipient or recipients must be parties to an arrangement before it can constitute an agreement to supply, I would accept that a mere agreement to seek out business opportunities lies in the area of conspiracy rather than of the substantive offence of agreeing to supply.”

56. The present case was not one of mere agreement to seek out business opportunities.

57. This was a case in which the Crown alleged that the appellant was involved with Hunt in a “straight forward joint criminal enterprise” to use the phrase of Hunt CJ at CL in Tangye at 556. The crime charged was the particular crime to which the parties to the enterprise had agreed. There was no direct evidence of any specific act of supply of cannabis by the appellant to any person. However, there was much evidence establishing that the appellant and Hunt were involved in a joint enterprise to obtain and distribute cannabis to others. Thus, given the extended meaning of supply the Crown did not need to prove that the appellant had undertaken any specific acts of supply himself. This was not a case of “deemed supply” see, for example s29 of the Act.

58. The evidence established that there was a joint criminal enterprise and the participation in it by the accused. It also established that actual acts of supply had occurred during the period specified in the charge. This was not a case of conspiracy.

59. Presence at the scene of supply is one way of proving participation in the joint criminal enterprise. It is not the only way. Participation is frequently proved by telephone intercept tapes and listening device tapes.

60. The judge was not in error in directing the jury that this was a case of joint enterprise. Appeal Ground 1(a) fails.

61. As to Appeal Ground 1(b), as previously stated there was much admissible evidence of the existence of the joint criminal enterprise and the appellant’s participation in it. There was no sustainable basis on which to exclude the evidence admitted by the judge. This ground is without substance and fails.

62. As to appeal grounds 1(c) and (d) the judge gave these directions to the jury:

“In order to prove the accused’s supply of cannabis leaf, that is the accused’s involvement in the offence alleged by the Crown, the Crown alleges that Mr Prochilo was involved in a joint criminal enterprise with Mr Norman Hunt. When joint criminal enterprise is alleged, the law provides that each person involved in the enterprise is responsible for the acts of the other in carrying out the enterprise but there must be certain tests met for that to be so. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists when two persons reach an agreement between them that they will commit a crime. The understanding or arrangement amounting to the agreement need not be expressed and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. But in this case it would need to have been reached between the date of 13 October 1998 and 22 November 1998. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement reached between them to commit that crime. An example of that, unrelated to this case is two men driving a car to a bank and they jump out of the car, one with a gun, one without a gun, the man without a gun stands at the door, the man with the gun runs into the banks (sic) holds up the tellers, takes the money, and with the other man runs back to the car and the two men drive away. There may not be any evidence of an expressed agreement between the two men, but as I said just a moment ago, the very circumstances in which the two people are participating together in the commission of the particular crime may establish such an agreement without it having been proved by any spoken words.
In this matter the Crown submits that the agreement was a spoken agreement as evidenced by the conversations between the accused and Mr Norman Hunt. Where an agreed crime is committed by one or other of the parties to the agreement, that is to the agreement to commit the joint criminal enterprise, all parties are equally guilty of the crime regardless of the part played by each in its commission. Remember, the essence of a joint criminal enterprise is agreement. That is a meeting of minds between the participants to commit the particular crime alleged by the Crown against a particular alleged participant. A person participates in a joint criminal enterprise either by committing the crime charged, or with the knowledge that the crime is committed by intentionally assisting and encouraging another person to the joint criminal enterprise to commit that crime. There must be knowledge of the crime and there must be on the part of the particular accused with whom you are concerned, an intention to commit the specific crime alleged in the indictment.
In this case, the Crown needs to establish beyond reasonable doubt, not only knowledge on the part of the accused that Mr Hunt was involved in the supply, that is the sale and/or distribution of cannabis but that he intentionally participated in the enterprise alleged to be undertaken by Mr Hunt by authorising or directing Mr Hunt to purchase cannabis leaf, carry cannabis leaf and/or subsequently distribute and/or sell the cannabis leaf obtained in those circumstances.”

63. The appellant criticised the use of the words “involvement” and “involve” but the criticism has no substance. The judge emphasised that the essence of joint criminal enterprise was agreement. The judge also pointed out that the agreement relied on was a spoken agreement as evidenced by the conversations between the accused (appellant) and Hunt. It was also made clear to the jury that in determining whether there was an agreement the jury looked at the conversations between the appellant and Hunt. This disposes of the further criticism that in the early part of his directions, where the judge explained that the existence of the agreement may be inferred from all the circumstances, he should have restricted that to the acts of the accused. As a general statement of the law, what the judge said was not erroneous. In the subsequent remarks previously mentioned, the judge explained that in the present case, in determining whether there was an agreement, the jury looked at the conversations between Hunt and the appellant. The judge then related the law to the facts.

64. For reasons earlier stated I reject the criticism that the judge erred in not telling the jury that the Crown had to prove that the appellant was at the scene of the supply of drugs.

65. The appellant criticised the use, at the end of the direction, of the words “by authorising or directing Mr Hunt to purchase cannabis leaf, carry cannabis leaf and/or subsequently distribute and/or sell the cannabis leaf obtained in those circumstances” upon the ground that some of the activities included in these words did not by themselves constitute offences. That does not matter. In the passage criticised, the judge was doing no more than referring to the various elements involved in the agreement to supply and its implementation leading to the supply of the cannabis.

66. The appellant criticised the use, by the judge, of the words “A person participates in a joint criminal exercise either by committing the crime itself, that is the crime charged or with the knowledge that the crime is to be committed intentionally assisting and encouraging another person to the joint criminal enterprise to commit that crime.” It was submitted that the latter part was not correct as it would equally apply to an accessory before the fact. In the sentence in question, the judge was endeavouring to explain what amounted to participation in the circumstances of the present case. In the context of the present case, the criticism should be rejected. I would also reject the criticism that the directions given were confusing and incorrect.

67. The appellant contended that the judge’s directions as to supply were confusing. At SU11-12 the judge gave these directions:

“Can I deal firstly with the element of supply a prohibited drug? This element, the first element that I describe requires proof beyond reasonable doubt that the accused either gave, furnished or made available a prohibited drug to another. That is the ordinary meaning of the word ‘supply’, and that ordinary meaning applies in this trial. The legislation relating to this particular offence, as it is described in that particular legislation, defines supply to also include ‘Agreeing to sell and otherwise supply, distribute, offer to sell and distribute and supply, forwarding, delivering or receiving for sale or distribution or authorising, directing or causing the sale, distribution or supply of a prohibited drug.’ In other words, it requires proof of involvement in either the supply in the sense that I earlier described, distribution or sale of the prohibited drug to wit cannabis leaf.
The Crown’s case against the accused in this trial is that he was involved in the sale, distribution, giving and making available, a prohibited drug by being involved in the offering of the drug, the forwarding, the delivering, the receiving of the drug and by authorising, directing or causing those acts.”

68. It was submitted that these directions were confusing and that the judge did not make clear what particular activities the Crown relied on as constituting the supply. The appellant complained that it was not made clear to the jury whether the Crown was relying on the ordinary meaning of supply or one or more of its extended meanings. The judge began by stating that the ordinary meaning of “supply” applied and that it meant that the appellant “either gave, furnished or made available a prohibited drug to another.” He then told the jury that it also included other meanings which he enumerated. They included an amalgam of some of the meanings of sell and supply, supply including sell. The jury would have understood that if the activities in question fell within any of the ordinary or extended meanings there was a “supply” by the appellant. The judge then crystallised the Crown’s case on supply by stating, the activities on which the Crown relied as constituting the appellant supplying cannabis. It is not to the point that those activities fell within more than one of the meanings of supply. Those overlapped. The jury would not have been confused or misled by the directions. They were told what activities allegedly constituted the supply and what supply meant. That sufficed.

69. The appellant challenged these directions: (SU30-33)

“The next matter I raise with you in respect of the tape recordings is that the conversations that are conversations between Mr Hunt and third parties are relied upon by, as I understand the Crown case, in order to establish the existence of the agreement to supply cannabis between Mr Hunt and Mr Prochilo. The evidence of these conversations is admissible as evidence of either acts done or statements made by persons other than Mr Prochilo, not to prove the truth of what each person asserts or what each person did, but in order to establish from the fact that the acts were done or the statements were made in furtherance of the agreement. To prove in effect the existence of the agreement to supply cannabis that the Crown alleges had been entered into between Mr Hunt and Mr Prochilo. Also, the conversations are relied upon by the Crown as evidence of the nature and extent of the agreement that existed between Mr Hunt and Mr Prochilo. That is the reason that the evidence was admitted before you of the conversations between Mr Hunt and those third parties. I repeat again, the evidence does not establish the truth of what each of the participants in the conversations assert in the absence of the accused. The conversations are said by the Crown to constitute evidence of the fact that certain things occurred such to support what the Crown says is the existence of the agreement at relevant times between Mr Prochilo and Mr Hunt. To that extent, the Crown says you not only look at those conversations individually involving Mr Hunt and third parties, but you see them in the context of other conversations involving Mr Prochilo and Mr Hunt. It will be entirely a matter for you to determine whether there is relevance in this respect. You cannot rely upon the conversations between Mr Hunt and a third or fourth party alone to prove the existence of the agreement to supply cannabis leaf, because if you are acting upon those conversations alone, you would only be dealing with an agreement between Mr Hunt and some other person who has nothing to do with this case in the legal sense. Evidence of the agreement would need to be found beyond reasonable doubt in the conversations between Mr Hunt and Mr Prochilo. The other evidence relied upon by the Crown, the evidence of Mr Doherty, Exhibits N, P and Q and other material, are directed to that issue. The Crown says that the tape recordings of conversations between Mr Hunt and Mr Prochilo in any event would satisfy you beyond reasonable doubt of the existence of the agreement to supply cannabis leaf. If the third party conversation, if I could all it that, that is a conversation between Mr Hunt and for instance, Ralph or Stretch or Mr Griffin, if a particular third party conversation you are considering is in your view, not connected to any specific conversation or conversations between Mr Prochilo and Mr Hunt, you are required to ignore it. You are required in effect to put it out of your minds, put it aside, and go on to the next matter you have to consider.”

70. It was submitted that only the acts of the appellant, independent of the acts of other persons, can be looked at to establish the pre-concert agreement and also whether there is a prima facie case.

71. The judge instructed the jury that evidence of the agreement to act in concert had to be found in the conversations between Hunt and the appellant. The taped conversations between them pointed conclusively to such an agreement. They went further and established that the appellant and Hunt were conducting a joint enterprise. This was not a case where acts of third parties had to be relied upon to establish the case against the appellant.

72. While the judge said at SU30-31 that he understood that the conversation between Hunt and third parties (the suppliers mainly) were relied upon by the Crown, to establish the existence of the agreement to supply, he explained that these conversations and acts done could be used not to prove what each person said or did, but to establish that these were said or done in furtherance of the agreement. They were explicable as statements made and acts done in pursuance of the agreement alleged and as evidence of the nature and extent of the agreement which existed between Hunt and the appellant. These statements and acts should be seen in the context of other conversations between the appellant and Hunt. Some of those other conversations were explicable, in the light of the terms of the conversations between Hunt and the third parties. They helped to complete the picture. The jury were told that they could not rely on the conversations between the appellant and a third party alone to prove the agreement and that they would need to be found beyond reasonable doubt in the conversations between Hunt and the appellant. The judge also told the jury that if a particular conversation between Hunt and a third party was not connected with any specific conversation or conversations between Hunt and the appellant, the former conversation should be put out of their minds.

73. I interpolate that on 6 June 2001, in the aborted trial, the judge considered in some detail the admissibility of the tapes and gave reasons for his findings. It is not necessary to rehearse these.

74. The judge did not err in the directions which he gave.

75. I would reject Appeal Grounds 1(c) and (d). Appeal Ground 1 fails in its entirety.

76. Appeal Grounds 2, 3 and 4 read:

“2. The facts as relied upon by the Crown did not support the offence of supply.

3. His Honour erred in law in misdirecting and/or failing to direct the jury as to the elements of supply.

4. His Honour erred in law in misdirecting and/or failing to direct the jury as to the facts material to the elements of supply.”

77. The facts did support the offence of supply, bearing in mind the extended definition of supply. The appellant took an active role in the supply of cannabis. For example, he advised Hunt of various customers’ orders for cannabis including, on one occasion, telling Hunt that “Cec” had paid in advance and often discussing when and where supplies of cannabis could be obtained and making his own inquiries in that regard. Hunt was kept fully informed as to the requirements of the customer.

78. The judge gave the jury extensive directions as to the meaning of the word “supply” as it related to the charge against the appellant. They were based upon the definitions of the words supply and sell. The directions were not erroneous. The evidence established that the appellant and Hunt were involved in the:

“sale, distribution, giving and making available, a prohibited drug by being involved in the offering of the drug, the forwarding, the delivering, the receiving of the drug and by the authorising, directing or causing these Acts.”

79. The judge could have used a stronger word than “involving”.

80. As the Crown pointed out, it is incorrect to suggest that the inference from the taped conversations of the agreement to supply cannabis creates the limits of the offence and that the appellant was guilty of the offence of conspiracy rather than that of supply. The evidence established that Hunt travelled to Melbourne on 12 occasions and that he acquired cannabis which was subsequently taken to the Deniliquin district. Further, the appellant gave Hunt numerous directions as to the distribution of the cannabis. The extended meaning of “supply” must not be overlooked. The evidence established more than an agreement to supply and compelled the inference that actual acts of supply were undertaken by Hunt in accordance with the inferred agreement. This was an instance of actual supply, not merely of conspiracy to supply.

81. The appellant complained that the judge did not summarise in detail the arguments of counsel for the Crown and the appellant as to the facts bearing upon whether there was a “supply”. It was submitted that when this failing was coupled with the judge’s directions as to the facts relied upon by the Crown as to “supply” that created confusion, whether the agreement between Hunt and the appellant fell within the extended definition of agreeing to supply. The appellant claimed that it did not. The Crown relied upon the agreement to constitute the joint enterprise.

82. The appellant submitted that if the judge “had given the facts in respect of the allegation of ‘supply’ by Hunt and in each case directed that the extended definition of ‘agreeing to supply’ or whatever part of the extended definition applied to those particular facts and therefore could constitute ‘supply’ and such was the substantive crime in which it was alleged there was a joint enterprise between Hunt and the appellant and therefore the appellant was liable for those acts of Hunt, it may have been possible to ascertain more clearly whether there was a conspiracy or an offence under s.25.”

83. This lengthy submission of the appellant is not easy to understand. I do not agree with the submission that the judge was bound to go through each individual conversation and point out which particular part of the definition of “supply” applied to that conversation. The appellant reiterated his submission that the way the matter was put to the jury was one of conspiracy. I again disagree. Nor do I agree with the appellant’s submission that it was not a joint enterprise between Hunt and the appellant, in respect of each particular supply by Hunt, whether an actual or deemed supply.

84. The appellant submitted that what actually happened did not necessarily mean that the pre-concert agreement was to the effect of a joint enterprise to supply. He submitted that the pre-concert agreement may have been only a mere expression of a common intention held by Hunt and the appellant that, together or individually, each would seek out possible customers. It was submitted that such an arrangement lay in the area of conspiracy. Considerable reliance was placed upon the discussion in Carusi by Gleeson CJ at 521 of the difficulties attendant upon the phrase “agree to supply”, “supply” in that phrase having its ordinary and not its extended meaning.

85. While it is possible to point to a myriad of difficulties and possibilities, the appellant’s difficulty lies in the facts, particularly the terms of the taped conversations. They were eloquent of a joint criminal enterprise.

86. The appellant submitted that the judge’s direction (SU13-14), that the agreement needed to have been reached between 13 October 1998 and 22 November 1998 was misleading, as it was the supply which needed to be proved to have occurred between those dates. What the judge said was that the agreement “need not have been reached at any particular time before the crime is committed. But in this case it would need to have been reached between … 13 October 1998 and 22 November 1998.” What the judge is there saying is, that the agreement could have been reached prior to 13 October 1998, but it must have been reached not later than between the dates mentioned and continued during that period. The tapes demonstrated that the agreement continued throughout the period charged. The appellant contended that the jury "could have been confused in believing that the agreement, as founding the joint enterprise once established, could satisfy 'agreeing to supply' as being 'supply' within the extended meaning of 'supply'". I do not think that, in the circumstances, there was room for confusion.

87. In the present case there was ample evidence establishing that there was more than just an agreement to supply and that actual acts of supply were undertaken by Hunt in accordance with the agreement with the appellant. The Crown correctly pointed out that the judge was correct when he directed the jury that there must have been a mutual agreement “reached” between Hunt and the appellant to supply during the period charged. The Crown accepted that the absence of such an agreement throughout that period would have been fatal to its case. How it is proved is another matter. The Crown conceded that technically it could be argued that it was the Crown case that there were numerous specific acts of actual supply during the period charged, each of which was capable of isolation. The Crown was entitled to frame the indictment in the way it did, the joint enterprise covering a number of instances of the supply of cannabis. The charge was representative of a number of specific acts of supply which were sufficiently identified and embraced within the charge preferred.

88. The judge’s summary and review of the evidence called by the Crown extended from p37 to p102 of the summing-up and the evidence called on behalf of the accused from p103 to p113. The judge dealt with the tape recordings from p47 to p72. He referred briefly to the subject matter covered by various tapes and the arguments of the Crown and the appellant upon the more important tapes and other evidence related to the tapes. What the judge did amongst other things, while he was dealing with various tapes, was to remind the jury of the arguments on those tapes of the Crown and the accused (the appellant). What the judge did was more than adequate.

89. The summing-up dealt with the facts at considerable length and more than adequately. The appellant undertook the formidable, if not hopeless, task of trying to persuade the jury that the appellant and Hunt were not talking about drugs (cannabis leaf). Once the jury were satisfied beyond reasonable doubt that Hunt and the appellant were talking about drugs, the material on the tapes proved the offence. The judge adequately related the law to the facts. He explained what “supply” meant in the context and linked his directions as to supply to the facts.

90. Grounds 2, 3 and 4 fail.

91. Appeal Grounds 5 and 6 read:

“5. His Honour erred in law in admitting into evidence and misdirected and failed to direct the jury properly also:-
(a) the circumstances in respect of the location of Cannabis at the appellant’s premises and his charging in respect thereof and the ERISP (ER).
(b) the location of the container hidden on N. Hunt’s premises.
(c) the scraps of paper located in the appellant’s wallet Exhibits N, P and Q.
(d) the evidence of N. Hunt’s movements particularly in respect of his trips to Melbourne.
(e) the taped conversations between Hunt and persons other than the appellant i.e. Griffen, Ralph, Surace, Stretch and Serge Exhibits A & B, 1, 5, 13, 14, 17, 21, 22, 23, 29, 34, 37, 38, 42, 43, 47, 49, 50 and 55.
(6) His Honour erred in law in misdirecting and/or failing to direct the jury adequately or properly as to the conversation on the tapes and the way they could be interpreted and applied and the facts proved by them.”

92. As to Ground 5(a) the appellant submitted that the evidence as to the location of the cannabis at the appellant’s home was inadmissible. From SU22 it appears that the evidence was admitted as part of the circumstantial evidence on which the Crown relied.

93. At SU80 the judge forcefully warned the jury that they were not entitled to reason that, simply because the appellant was in possession of marihuana he was a person of bad character and therefore more likely to have committed the offence charged, namely supply cannabis leaf. The judge instructed the jury that they were entitled to take the evidence of cannabis leaf being found in the appellant’s home into account “in relation to whether the accused is guilty of supplying cannabis on the basis that the Crown suggests that the accused’s possession of a small quantity of cannabis may be consistent with him having provided himself with cannabis from larger amounts that he had acquired himself, or through the acts of Mr Hunt with Mr Prochilo’s approval for the purpose of supply as I have previously defined it.” The judge continued:

“I remind you however that the accused’s explanation for the possession of the cannabis, that is for personal use, if that could reasonably be true or reasonably possible, then at the end of the day his possession of a small quantity of cannabis leaf, and tobacco as is the case here would be of little value to you in respect of your deliberations and in those circumstances you would ignore the evidence in making your determination of the facts of this case.”

94. The judge reminded the jury that the cannabis leaf found in the appellant’s home weighed 27 grams. The appellant submitted that as character had not been raised, the cannabis in his possession could have no reference to any one of the alleged supplies. The appellant contended that the judge’s directions could not possibly cure the admission of this evidence. Further, no warning was given that this evidence could not be used in their decision as to whether cannabis was being discussed on the tapes, but speculation was encouraged and the onus of proof was reversed. That puts the position too high. Speculation was not encouraged and the onus of proof was not reversed.

95. The appellant complained that the judge supported the Crown’s submission that possession of 27 grams of cannabis leaf and some plastic bags might be consistent with his obtaining larger amounts himself or from Hunt, by directing that this was acceptable reasoning, whereas it was pure speculation. That again put the position too high. The judge summarised the Crown’s submission, but did not endorse it. The Crown’s submission was couched in terms that the appellant’s possession of a small quantity of cannabis may be consistent with him having provided himself with cannabis from larger amounts. It was a very muted submission. It was discounted further by the judge’s remarks as quoted above. The appellant submitted that the judge should have told the jury that, if the appellant’s explanation was not negatived by the Crown it should be accepted that the cannabis leaf came from another source. There was nothing wrong in the judge saying that if the appellant’s explanation could reasonably be true, or reasonably possible, then the evidence of possession of the small amount of cannabis leaf should be ignored. That does not involve any question of onus.

96. The appellant submitted that even if the evidence of his possession of 27 grams of cannabis leaf was admissible, the judge should have excluded that evidence as the probative value was far outweighed by the unfair prejudice to the appellant (s.137 of the Evidence Act 1995) or was so unfairly prejudicial (s.135). The appellant also submitted that the portion of the ERISP dealing with possession of the cannabis leaf and the plastic bags should also have been excluded.

97. In his reasons of 15 June 2001, in the aborted trial which were adopted by the judge in the trial under review, the judge said:

"In relation to the quantity of cannabis found in the accused’s possession I concluded that his possession of cannabis was relevant (see s.55 Evidence Act 1995) and ought not to be excluded in exercise of discretion pursuant to s.137 Evidence Act, 1995. In my view the ‘unfair prejudice’ to the accused in introducing evidence of his possession of cannabis (noting his explanation during the search and in the ERISP that the cannabis was for personal use) was outweighed by the probative value of the evidence. In any event part of the unfair prejudice to my mind can be cured, and has been cured, by proper warnings given to the jury when the evidence was introduced through Detective Jarrett. If the accused was involved in the distribution of cannabis, it rationally follows that he was able to provide cannabis to himself for his personal use. If he had no cannabis in his possession at the time of the search by the police this would have been a matter advanced on his behalf as being inconsistent with the suggested meaning of the recorded telephone conversations admitted into evidence".

98. The substance of those views was reasonably open to the judge. It is incorrect to speak of s.137 conferring a discretion. In my opinion, the evidence in question was on the fringe of the case, but others may have attached more importance to it as the judge did. The prejudicial effect of that evidence was slight and was sufficiently met by the directions which were given. This case turned on the taped conversations. It was reasonably open to the trial judge to admit the evidence. It is not to the point that I may have reached a different conclusion. Even if I am wrong in that view, no miscarriage of justice has occurred. Similar considerations apply to evidence of the charging of the appellant and the admission of the ERISP. Ground 5(a) fails.

99. As to Ground 5(b) which asserts that evidence of the location of the container hidden in the grounds of Hunt’s premises was inadmissible, the judge incorporated in his reasons for admitting that container, what he had said in the earlier aborted trial:

“… it is frankly sufficient for the Crown’s purpose to lead evidence of the fact that there was a trapdoor and a secret compartment with a plastic container in it and a photograph of that plastic container could be shown to the jury.”

100. As earlier mentioned in the recorded conversation of 30 October 1998 at 1840 hours, between the appellant and Hunt, the latter had said, “It’s goin’ straight in the ground. …” . In the light of Hunt’s statement, the finding of a subterranean hiding spot in Hunt’s premises on 22 November 1998 was admissible. The judge explained (SU65) the Crown's argument, that if the jury connected the conversation of 30 October 1998 at 1840 hours with what was said in the conversations of 29 October 1998 at 1900 hours, 2034 hours and 2144 hours all between Hunt and Griffin, what it meant was that Griffin supplied Hunt with cannabis leaf which he brought back to Deniliquin in furtherance of the agreement with the appellant and that such cannabis leaf would be placed in the ground. It is incorrect to suggest that because the police did not discover the hiding spot until after 9am on 22 November 1998, when any joint involvement had ceased in respect of any crime committed on 21 November 1998, that evidence as to the hiding spot and its contents was inadmissible.

101. The appellant complained that no direction was given as to what inference the Crown said should be drawn in respect of the container, except that it was part of the circumstantial case. At SU21 the judge pointed out that the direct evidence comprised the tape recordings and that the other evidence, the circumstantial evidence, was to assist the jury in their consideration of the direct evidence. The judge outlined the circumstantial evidence on which the Crown relied. That included the evidence of the container found buried in Hunt’s backyard (SU22). The judge told the jury that the Crown case was dependent upon the tape recorded conversations and that if they were not satisfied beyond reasonable doubt that the appellant and Hunt were discussing the supply of cannabis leaf the Crown would have failed to prove the guilt of the accused. The jury were told that they may consider the circumstantial evidence to see if it supported what the Crown contended, in relation to the recorded conversations and that they could not be satisfied of the guilt of the accused on the circumstantial evidence alone (SU22-23). After giving the usual circumstantial evidence direction (SU26-28) the judge told the jury that if they found that any of the circumstances existed, that finding may help them in their main task to decide whether, upon the whole of the evidence, the appellant was guilty (SU28). The judge again reminded the jury that the tapes were the essential evidence and stated that if they were not satisfied beyond reasonable doubt that the appellant and Hunt were talking about cannabis and its supply, then the circumstantial evidence would not be able to pull the Crown’s case up by its bootstraps (SU29).

102. In the present case further direction was not required.

103. The appellant submitted that there was inconsistency in the judge’s rulings on the admissibility of evidence. The judge declined to admit any evidence as to the contents of the container on the basis that the cannabis leaf said to have been therein could have been referrable to other dealings by Hunt not connected with the appellant. The appellant contended that the same reasoning would make the container not admissible. It was pointed out that there were two other containers allegedly used for other drugs which were not admitted. The appellant submitted that the reasoning which led the judge to refuse to admit the evidence of cannabis leaf having been in the container, would also result in the rejection of the container, as this would have been used by Hunt for dealings independent of the appellant. The appellant submitted that the jury were misled into believing that they could draw an inference that the container was part of a supply which had been effected and that was not open on the evidence. The appellant contended that the jury were left to speculate as to what an empty container was doing in Hunt’s backyard and what relevance it had in relation to an act by Hunt in the furtherance of the common purpose. The appellant submitted that the fact that the appellant had knowledge of the container or something being put in the ground and no evidence as to when that happened, without more, did not make the evidence as to the container admissible.

104. The evidence as to cannabis leaf was not regarded as being inadmissible as such. It was rejected on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant. That was in a different category from the evidence which was admitted, as explained by the judge. The judge did not think that the admission of evidence that there was a subterranean hiding place with a trapdoor and a secret compartment with a plastic container in it posed the same danger, bearing in mind that Hunt told the appellant “It’s goin’ in the ground.” This was evidence of how the joint enterprise was being conducted. The judge’s rulings of 17 September 2001 were correct for the reasons which he gave. I reject Ground 5(b).

105. As to Ground 5(c) the appellant submitted that the pieces of paper, Exhibits N, P and Q found in the appellant’s wallet "could not be connected to any particular transaction by time or price or content and more". Further, no directions were given as to the Crown’s submissions and the use which the jury made of this evidence was problematical. The judge adopted the rulings which he gave at the first trial. At SU22 the judge stated that the pieces of paper were part of the Crown’s circumstantial case and were covered by the judge’s directions as to circumstantial evidence mentioned earlier and his emphasis on the primacy of the tape recorded conversations.

106. At SU84 the judge referred to the appellant being interviewed about the contents of his wallet and his explanation that those pieces of paper had been in his wallet for a period of time and that they had been associated with his legitimate business interests including the development of the property on Conargo Road. A study of those pieces of paper makes it difficult to accept that they had any connection with the conduct of the appellant’s legitimate business interests even as rough jottings. They appear to be the kind of notes which might be made in carrying out a drug dealing business and to contain the initials of people, amounts of money and quantities. They were admissible but they would not carry much weight. I reject Ground 5(c).

107. As to Ground 5(d) the appellant submitted that the evidence of Hunt’s movements particularly in respect of his trips to Melbourne was inadmissible. The appellant submitted that this evidence was admissible only if a prima facie case was found against the appellant on evidence independent of the acts of others. The appellant submitted that there was no such finding and that no attempt was made to identify the pre-concert agreement. The tapes were relied on by the Crown but it was not clear from the directions as to how they were to be used.

108. I have discussed these points previously. The recorded conversations between the appellant and Hunt established the existence of a joint enterprise to acquire substantial supplies of cannabis leaf from drug dealers in Melbourne and elsewhere and distribute such drugs to their customers in the Deniliquin area. The evidence of Hunt’s movements, including his trips to Melbourne, were admissible. I have earlier dealt with the directions which the judge gave. They were not erroneous. I reject Ground 5(d).

109. As to Ground 5(e), namely, that the taped conversations between Hunt and persons other than the appellant were not admissible and that the judge did not direct the jury correctly as to these, such complaints have been dealt with earlier and rejected.

110. The appellant repeated his complaint that the judge had not identified the agreement, spelt out its terms and the evidence from which such an agreement was derived. The appellant submitted that as neither Hunt nor the third party were called to give evidence, the statements made in the taped conversations by them were hearsay. The appellant complained that the tapes of the conversations between Hunt and the suppliers were part of the evidence on which the judge invited the jury to find whether there was an agreement, and if so, the nature of the agreement. The appellant also complained that the jury were invited to look at the “very circumstances in which two people are participating together in the commission of the particular crime” to establish the agreement (SU14). The appellant complained that in considering the circumstantial evidence the jury was invited to look at the whole of the evidence and that included the tapes of conversations between Hunt and his suppliers (third parties). The judge told the jury that they should consider the circumstantial evidence in the light of all the material in the case, including that placed before them by the appellant. That was unobjectionable The circumstantial evidence as identified by the judge did not include the taped conversations between Hunt and third parties.

111. The appellant attacked the judge’s directions as to the use to which the taped conversations between Hunt and third parties could be put. I have earlier dealt with this attack. As the Crown pointed out, there was a nexus between the conversations between Hunt and third parties and those between the appellant and Hunt. The material was admissible. Ground 5(e) should be rejected.

112. The appellant submitted that the basis of admissibility of taped conversations was determined by s.65(2)(3) (6), s.57(1)(2) and s.87 (1)(c) of the Evidence Act 1995. As to 87(1)(c), reliance was placed upon the ALRC report that a previous representation by A alleged to be acting in furtherance of a common purpose by B would not be hearsay, where it is relevant as a verbal act to establish the existence of the common purpose. This was in accordance with the common law and applied in the case of conspiracy, but not in that of joint enterprise. It was submitted that accordingly, the evidence was not admissible. I have earlier dealt with similar submissions to the same effect. I reject Ground 6.

113. Appeal Ground 7 reads:

“The conviction of the appellant was against the evidence and the weight of the evidence”.

114. The appellant contended that the taped conversations between Hunt and the appellant were not sufficient to prove beyond reasonable doubt that they were talking about cannabis leaf, as being the only inference available. I disagree. The appellant submitted that even if there were some dealings, the only reference which could be attributed to cannabis was in the taped conversation of 17 November 1998 at 1054 hours between Hunt and Ralph Surace where “green” was mentioned. I disagree. The appellant contended that that tape was not admissible and that it was not admissible to determine the agreement between Hunt and the appellant. It was not so used.

115. The appellant submitted that the fact that the appellant had in his possession cannabis for his own use could have influenced the jury or swung the balance in their determination, that the conversations were about cannabis. I disagree. The quantity found in the appellant’s possession was small. Contrary to the appellant’s submissions the evidence was admissible.

116. The appellant pointed out that no evidence was given as to the distribution of any particular quantity obtained by Hunt. The appellant contended that the “involvement” of the appellant generally, or in any particular case, did not reveal any particular acts by the appellant in relation to any particular amounts except as to two smaller amounts, which may have had no relevance to the alleged agreement. The appellant further contended that the Crown case was limited to the appellant’s “involvement” in amounts obtained by Hunt and this “involvement” was not particularised in that the appellant’s part or acts were not specified. They may, it was submitted, only have “involved” him in “taking part” or in some other way that meant that he was not liable for the act of supply.

117. It was accordingly contended that the verdict of guilty was unreasonable and not supported by the evidence. Indeed, it was submitted that the verdict was against the weight of the evidence.

118. The judge correctly described the Crown case as overwhelming. The taped conversations between the appellant and Hunt justified this description. They were supplemented by the limited use made of the conversations between Hunt and his suppliers. Expert evidence was led as to some of the terms used in the telephone conversations. This justified the conclusion that the appellant and Hunt were speaking about cannabis and not the illegal acquisition of tobacco. There was supporting circumstantial evidence.

119. The explanations given by the appellant in his recorded police interview were not such as to give rise to a reasonable doubt. I entertain no doubt that the appellant was correctly convicted. It was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. Any other conclusion would be surprising.

120. There was no objection taken at trial to the directions given by the judge regarding joint enterprise, supply or the approach which should be adopted by the jury to the taped conversations. The appellant was represented at his trial by an experienced and capable solicitor, deeply versed in the criminal law. The appellant’s discursive and somewhat convoluted submissions in this Court were strongly focussed on theory, but did not come to grips with the facts as they emerged from the evidence. They were intractable.

121. The appeal against conviction should be dismissed.

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Last Modified: 09/26/2003