R v Scott McCONALOGUE - [2010] NSWCCA 56

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Scott McCONALOGUE [2010] NSWCCA 56

FILE NUMBER(S):
2007/152856

HEARING DATE(S):
17 December 2009

JUDGMENT DATE:
7 April 2010

PARTIES:
REGINA (Crown)
Scott McCONALOGUE (Respondent)

JUDGMENT OF:
Tobias JA Hidden J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0413

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
2 November 2009

COUNSEL:
P Neil SC & T Postma (CDPP) (Crown)
L Wells SC & N Marshall (Respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions - Applicant
S O'Connor - Respondent

CATCHWORDS:
CRIMINAL LAW
appeal by Crown against evidentiary rulings
knowingly concerned in manufacture of amphetamine
Crown case circumstantial
rejection of evidence bearing on relationship between respondent and principal offender
whether Crown case substantially weakened

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Crimes Act 1914 (C'th)
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Qualtieri v R [2006] NSWCCA 95, 171 A Crim R 463
R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228

TEXTS CITED:

DECISION:
Appeal allowed, evidentiary rulings set aside. See [29].

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/15286
TOBIAS JA
HIDDEN J
HOWIE J
Wednesday 7 April 2010

R v Scott McCONALOGUE

Judgment

TOBIAS JA: I agree with Hidden J.
HIDDEN J: The respondent, Scott McConalogue, awaits trial in the District Court on a charge of knowingly taking part in the manufacture or production of a large commercial quantity of amphetamine. At a pre-trial hearing, after receiving evidence on the voir dire, a judge of that Court made a number of evidentiary rulings. By two of those rulings his Honour rejected evidence which was to be led in the prosecution case. The Crown has appealed against those rulings, pursuant to s 5F of the Criminal Appeal Act 1912.
The offence is alleged to have been committed between late March and early April 2006 at a remote property in north-eastern New South Wales. The property was owned by Kane Holland. There is abundant evidence that Holland and three other men were involved in manufacturing amphetamine there. Indeed, the four of them pleaded guilty to an offence under Commonwealth legislation of conspiring to manufacture the drug. The respondent is charged with a State offence: s 24(2) of the Drug Misuse and Trafficking Act 1985. The matter had been the subject of a joint Federal and State police investigation.
It is the Crown case that the respondent was a party to a joint enterprise to manufacture amphetamine, his role being to be present at the property and to secure it during the production process. The case against him is entirely circumstantial. The circumstances relied on, including the matters the subject of the appeal, are as follows:
(a) Federal police executed a search warrant at the property in the late afternoon of 6 April 2006. In a large shed they found a metal drying tray containing several kilograms of amphetamine, together with a quantity of drug paraphernalia. Beneath the shed was a concrete bunker which was, in effect, a laboratory for the manufacture of amphetamine. Production of the drug was in progress in a modified beer keg contained in an electric cement mixer. In a smaller shed police found quantities of drug related chemicals, and empty containers which had held chemicals of that kind were lying in the open in the vicinity of the sheds.
(b) On three occasions between 29 and 31 March 2006, police who had the property under surveillance observed the respondent drive into or out of it. On two of those occasions he stopped at the mail box, which was located at the entrance to the driveway, and on one occasion he removed mail from it.
(c) There was a house on the property. During the search police found in the house various items connected to the respondent, including a series of documents in his name, some of them addressed to him at the property. Among those was a receipt, bearing a date in July 2005, for rent paid by him to Holland in respect of the house. Also found in the smaller shed was a photo album which contained, among other things, photos of the respondent in the house.
(d) The respondent was the only person present at the property at the time police arrived to conduct the search.
(e) At about 4.00pm on 6 April 2006, before the search, two Federal agents who were in the area encountered the respondent walking from the vicinity of the property. The agents were disguised as army officers and pretended to be involved in an exercise in the area. The respondent had a conversation with one of them, Federal agent (FA) Swanson, in which he said that he was renting the property and lived there alone.
(f) On a coffee table in the living room police found a handwritten note addressed to “Kaneo”. The note read:
“I am going to ask you for a lift in a minute, to Mel’s place, say ‘YES’. Will need to talk right NOW – But not in the car, down the road.”
“Mel”, apparently, was a female friend of the respondent. It is the Crown case that “Kaneo” was Kane Holland, that the respondent suspected that the two men who appeared to be army officers were police investigating activities at the property, that he was expecting Holland to arrive at the property that evening, and that he feared that the house and Holland’s vehicle might be bugged. Accordingly, he wrote the note with a view to drawing it to Holland’s attention and speaking to him down the road and out of the house, so as to alert him to the possibility that police had detected the amphetamine production. In fact, at about 6.30pm Holland drove his vehicle into the access road leading to the property, but drove away when he saw police officers and vehicles in the vicinity. He was pursued by police and arrested.
(g) On the floor of the main bedroom police found a semi-automatic pistol, together with a loaded magazine and a box of ammunition. There were also found in that bedroom documents bearing false names used by Holland and a plastic container of amphetamine bearing his fingerprint, from which it appears that Holland occupied that bedroom, at least from time to time.
(h) At the time of the search of the property, the respondent was confronted by several police officers, made to lie on the ground, was handcuffed and was searched by FA Green. Green asked him whether there was anyone else in the house, and he said that there was not. Green asked whether there were any weapons in the house, to which he replied, “Yes, there’s a pistol in the bedroom.”
(i) There were three bedrooms in the house. Apart from the main bedroom, there was a second bedroom which may have been used by the respondent. A third bedroom had been converted into a sophisticated hydroponics set up, apparently for growing marijuana. Two hydroponic light bulbs in the room contained Kane Holland’s fingerprints. In the large shed was found a pot containing over one kilogram of marijuana.
It is the evidence of the last two matters, that is, the respondent’s admission that he knew there was a gun in the house and the hydroponic set up in the third bedroom, which his Honour rejected. To enliven this Court’s jurisdiction to entertain an appeal by the Crown against those rulings, they must be such as to eliminate or substantially weaken the prosecution case: s 5F(3A) of the Criminal Appeal Act. I am satisfied that they would substantially weaken the Crown case, and I shall return to that matter after considering the merits of the appeal.
The respondent had objected to the admission of the “Kaneo” note, but his Honour allowed it. However, the Crown had submitted that one of the inferences that might be drawn on the basis of the note, together with the evidence of Holland approaching the property in his vehicle on the evening in question, was that he intended to spend the night at the property and complete the amphetamine “cook”. His Honour expressed the view that that inference was too remote.
This was also the subject of a ground of the appeal. The Crown prosecutor before us explained that the ground had been put on for more abundant caution. However, it does not appear to me that his Honour’s observation could be the subject of an appeal under s 5F, which is concerned with interlocutory judgments or orders, and at the hearing the Crown prosecutor did not press this ground. Whether it was appropriate for his Honour to make such an observation in the course of a pre-trial evidentiary ruling, and what status it might have in the course of the trial, are not matters which need be considered.
It is important to understand the purpose for which the Crown relies upon evidence of the respondent’s knowledge of the presence of the gun in the house, and the hydroponic set up in the bedroom. There is evidence that the respondent occupied the house as Holland’s tenant. The inference is available that he knew that a large-scale drug making enterprise was being conducted on the property. However, that knowledge would not be sufficient to establish his complicity in the enterprise. As I have said, the Crown case is that his role was to be present at the property and to secure it during the production of the amphetamine.
It is necessary, then, for the Crown to prove that the respondent was not simply a person legitimately occupying the house by virtue of a tenancy, who may have turned a blind eye to criminal activity being conducted on the property. The Crown does not suggest that the gun found in the main bedroom belonged to the respondent or was in his possession. Nor does the Crown suggest that the respondent was involved in any way in the hydroponic cultivation of marijuana. Indeed, there is no evidence that the hydroponic set up was being used at the time of the search. However, the Crown says that he must have been aware of the hydroponic set up and the evidence of FA Green conveys that he was aware of the presence of the pistol in the house. This evidence, it is said, tends to establish that the association between Holland and the respondent at the relevant time was not the normal relationship of landlord and tenant.
The pistol
In rejecting the evidence of the respondent’s conversation with FA Green concerning the pistol, his Honour found that he was in police custody and “a suspect in a possible illegal activity”. He saw the question relating to the gun as “a question to a suspect and in itself possibly involved a criminal offence.” He noted that FA Green had not cautioned the respondent, which he found to be a breach of s 23F of the Crimes Act 1914 (Cth). Accordingly, his Honour held that the evidence had been obtained in contravention of an Australian law, for the purpose of s 138(1) of the Evidence Act 1995. In assessing the gravity of that contravention, as required by s 138(3)(d), he referred to the right of a person under police investigation for a crime to remain silent, a right which he described as “fundamental”. He then concluded that it would be unfair to the respondent to admit the evidence, applying s 90 of the Evidence Act.
By s 23F(1), an investigating official must caution a person before questioning him or her, if the person “is under arrest or a protected suspect …”. The expression “protected suspect” is defined in s 23B(2) of the Crimes Act. It is not necessary to examine that definition because it was not put on the respondent’s behalf that he was a protected suspect. What was argued by Ms Wells SC, who appeared in the District Court and this Court, was that he was effectively under arrest.
His Honour made no express finding about that proposition, although what he said implies that he saw s 23F as applicable on that basis. Nor did his Honour refer to the voir dire evidence of FA Green about the matter, apart from the officer’s evidence that the respondent “was in his custody after he had been confronted by the 4 Agents, made to lay face-down on the ground and handcuffed.” However, for the purposes of s 23F, a person is arrested if he or she “is arrested for a Commonwealth offence …”: s 23B(1). On any view of the evidence, that had not occurred.
Certainly, the respondent was in police custody, having been restrained in the manner described in the evidence. However, the search warrant expressly authorised officers executing it to use “such force against persons … as is necessary and reasonable in the circumstances …”, a power authorised by s 3G(b) of the Crimes Act. His Honour saw the process of making the respondent lie on the ground, handcuffing him and searching him as “normal police procedure … in this type of situation …”.
FA Green’s evidence was that he asked the respondent whether there were any other persons or weapons in the house “for the safety of my team and the safety of any other persons that may have been on the property.” It was the responsibility of him and the officers with him to “conduct a clearance of the property”, so that other police later could “safely search the property for evidence.” In response to an assertion in cross-examination that there was no basis for the respondent to be restrained as he was, he said that they had information that there may be weapons on the property, that at that stage they did not know who the respondent was or whether he may have had a weapon on him, or how many other people there might have been at the property.
In the light of this evidence, there appears to be no basis upon which a breach of s 23F of the Crimes Act could have been found, and it was that finding only which led to his Honour’s conclusion that there had been a contravention of the law engaging s 138 of the Evidence Act. However, his Honour does not appear to have rejected the evidence through the application of that section, as he did not consider the probative value of the evidence and undertake the balancing exercise, with an eye to policy considerations, which the section requires. It seems that his conclusion that the evidence should be rejected was founded upon a finding of unfairness for the purpose of s 90, but that itself was based only upon the finding of a breach of s 23F.
Accordingly, I am satisfied that his Honour fell into error in his reasoning towards rejection of the evidence. In oral argument, Ms Wells realistically acknowledged as much. Her primary submission was that his Honour’s ruling did not substantially weaken the Crown case, a proposition to which I shall return.
I should record that Ms Wells had also submitted that his Honour should reject the evidence under s 137 of the Evidence Act, on the basis that its probative value is outweighed by the danger of unfair prejudice to the respondent. His Honour did not deal with that argument, but it is apparent that it could not have succeeded. There would be no prejudice to the respondent, given that the Crown case is no more than that he was aware of the presence of the weapon and it is not suggested that he had any involvement with it. On the other hand, the evidence has considerable probative value on the question of the relationship between Holland and the respondent. As Howie J put it during an exchange with Ms Wells in oral argument, it is improbable that in a normal domestic tenancy the landlord would leave a pistol and ammunition in the house, given that the tenant would be entitled to the free run of the premises.
The hydroponic set up
In rejecting evidence of the hydroponic set up in the third bedroom, his Honour recognised that the Crown did not rely upon it as tendency evidence, but only as evidence tending to establish the true nature of the relationship between the respondent and Holland and to rebut any suggestion that that relationship was solely one of landlord and tenant. His Honour recognised that the inference could be drawn that the respondent knew of the hydroponic set up in the third bedroom. However, his Honour continued:
“In my view, the next step, the Crown wishes to take, that is the accused knew what was going on in the room, he too must have been involved in the cultivation of the cannabis or that he was in the drug business with Kane Holland, is too big a leap, on the basis of the evidence, for the Crown to take such a step.”
His Honour added that to admit the evidence would raise “a real possibility” that the jury might misuse it notwithstanding any directions he gave about it. He found that there was “not a sufficient connection” between the offence charged and “the evidence sought to be adduced about the hydroponic equipment in one room of the house.” He concluded that the probative value of the evidence was outweighed by the unfair prejudice it would cause the respondent, applying s 137 of the Evidence Act.
With respect, the passage of his Honour’s reasons which I have quoted misconceives the basis upon which the Crown tendered the evidence. The Crown did not seek to establish that the respondent “must have been involved in the cultivation of the cannabis” or that he was, in some general way, “in the drug business” with Holland. While his Honour did state the purpose for which the Crown tendered the evidence, that is, as evidence going to the true relationship between the respondent and Holland at the relevant time, he did not address it in his reasons.
It is true, as Ms Wells pointed out in submissions, that the hydroponic equipment related to a different drug from that the subject of the offence charged, and that there was no evidence that it was in use and, in particular, that it had been used while the respondent was at the property. Given the limited purpose for which the Crown relies upon the evidence, however, none of this is to the point.
Nor did his Honour explain why he thought it possible that the jury might misuse the evidence notwithstanding his directions about it. The jury would need to be directed that the evidence was led for a limited purpose only and that they should avoid impermissible propensity reasoning. In child sexual assault cases, almost routinely, trial judges have to give a direction of that kind where the evidence of a pattern of abuse has been admitted to put the offences charged in their context: see generally Qualtieri v R [2006] NSWCCA 95, 171 A Crim R 463. This case presents no greater difficulty.
In these circumstances, it is difficult to see how the respondent would suffer any unfair prejudice through admission of the evidence, let alone prejudice such as to outweigh its probative value. The evidence has a probative force similar to that of the evidence concerning the respondent’s knowledge of the pistol in the house. To adapt the observation of Howie J to which I earlier referred, it is improbable that there would be a normal domestic tenancy, entitling the tenant to the free run of premises, over a house containing a room with equipment for the clandestine production of a prohibited drug.
In rejecting this evidence also, I am satisfied that his Honour fell into error.
Jurisdiction
It remains, then, to deal with the question whether the threshold for this Court’s jurisdiction set by s 5F(3A) of the Criminal Appeal Act has been crossed: in this case, whether the rejection of the evidence substantially weakens the Crown case. For this purpose, it is necessary not just to examine each of the items of evidence concerned but also to have regard to their combined effect. That involves an assessment of the case at hand, assisted by the Chief Justice’s examination of the approach to the issue in R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228, at [27] – [40].
As I have said, the Crown case against the respondent is entirely circumstantial. Moreover, that circumstantial case is within a small compass. Putting aside the evidence the subject of this appeal, it comprises evidence to this effect:
the respondent was in occupation of the house and had access to its surrounds;
he lived there alone or, at least, was the only regular occupant (evidence of FA Swanson, evidence of occasional occupation of the main bedroom by Holland);
in the afternoon of 6 April 2006, when an amphetamine “cook” was in progress, he was the only person present at the property;
the “Kaneo” note and the evidence of Holland’s approach to the property in the evening suggest that the respondent was aware of the “cook”, was expecting Holland to arrive, and was concerned that the production of the drug would be detected by police.

Given that the Crown must prove not only that the respondent knew about the manufacture of amphetamine but also participated in it in the manner alleged, a circumstantial case based on those particulars might be seen as fairly weak. It would become significantly stronger if one were to add evidence that the association between Holland and the respondent at the relevant time was anything but the normal relationship of landlord and tenant. In my view, evidence to that effect would be an important plank in the Crown’s circumstantial case and would strengthen it to a substantial degree. That is the effect of the two items of evidence which his Honour rejected, and it follows that the rejection of that evidence would substantially weaken the Crown case.
Accordingly, I am satisfied that the Court has jurisdiction to intervene. I would allow the appeal and set aside his Honour’s rulings that evidence of the respondent’s knowledge of the presence of a pistol in the house, and of the hydroponic set up in the third bedroom, be rejected.
HOWIE J: I agree with Hidden J
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LAST UPDATED:
8 June 2010