R v Slattery

[2002] NSWCCA 145

CITATION:	R v SLATTERY [2002] NSWCCA 145
FILE NUMBER(S):	CCA 60702/98
HEARING DATE(S):	1 March 2002
JUDGMENT DATE:	1 May 2002
PARTIES :	Appellant: Carl Rodney Slattery Respondent: Crown
JUDGMENT OF:	Sheller JA at 1; Grove J at 33; Simpson J at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0526
LOWER COURT JUDICIAL OFFICER :	Knight DCJ

COUNSEL :	Appellant: In person Respondent: P Barrett
SOLICITORS:	Appellant: In person Respondent:
CATCHWORDS:	CRIMINAL LAW - Drug Misuse and Trafficking Act 1985, s23(2)(a) - directions to jury - "reasonable explanation" consistent with innocence - fabrication of evidence - memory loss
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 De Facto Relationships Act 1984 Felon (Civil Proceedings) 1981
CASES CITED:	R v Oliverio Court of Criminal Appeal, 30 August 1989, (unreported) Shepherd v The Queen (1990) 170 CLR 573 Peacock v R (1911) 13 CLR 619
DECISION:	Appeal dismissed.

60702/98

SHELLER JA
GROVE J
SIMPSON J

REGINA v Carl Rodney SLATTERY

The appellant was found guilty by a jury of knowingly taking part in the cultivation of cannabis plants, contrary to s23(2)(a) of the Drug Misuse and Trafficking Act 1985. He was sentenced to a minimum term of one year, ten months and five days imprisonment. The appellant appealed against both his conviction and sentence.

It was argued that the appellant provided assistance and/or supplies to unknown persons, with the knowledge that such equipment and supplies would be used in the furtherance of the cultivation of cannabis. The Crown's case at trial was based on the evidence given by police officers as to the existence of the crop site, the statements made by the appellant's former de facto partner and circumstantial evidence.

The appellant alleged that the trial Judge had erred with respect to the directions which had been given to the jury regarding the requisite knowledge of the accused as to the actual cultivation of the cannabis plants. Further, it was claimed that the trial Judge failed adequately to direct the jury that an alternative explanation for the circumstantial evidence must be excluded.

The appellant also relied on medical evidence in order to argue that his defence had been impaired at trial because of profound memory loss. Claims that the evidence of the appellant's former de facto partner and certain police officers was fabricated were also advanced on appeal.

HELD (per Sheller JA, Grove J and Simpson J concurring)

1. An analysis of the trial Judge's summing up did not support a finding that his directions cast the onus on the appellant to point to a reasonable explanation consistent with his innocence. There is a fine distinction to be drawn between not finding an accused guilty if there is a reasonable explanation which is consistent with his innocence and not finding the accused guilty unless there is no reasonable explanation which is consistent with innocence.

2. The appellant's claims about his memory loss were inconsistent with much of the evidence which he gave in chief and under cross-examination at trial. The arguments raised about the credibility of the evidence of his former de facto partner were adequately addressed by the trial Judge in his directions to the jury. The claims of fabrication of evidence and profound memory loss were both dealt with at first instance.

3. The appellant's challenge to the sentence imposed by his Honour failed. His claim that the trial Judge did not take into account time served on remand was irrelevant as that time was served in relation to another offence.

ORDERS

Appeal dismissed
**********

60702/98

SHELLER JA
GROVE J
SIMPSON J

Wednesday, 1 May 2002

REGINA v Carl Rodney SLATTERY

Judgment

SHELLER JA:

Offence charged

1 The appellant, Carl Rodney Slattery, was charged that between 20 December 1992 and 5 January 1994 at Colo Heights and elsewhere in the State of New South Wales he did knowingly take part in the cultivation of prohibited plants – namely, cannabis plants, the number of which was not less than the commercial quantity applicable to that prohibited plant – contrary to s23(2)(a) of the Drug Misuse and Trafficking Act 1985. Section 6 provided that for the purposes of the Act “a person takes part in the cultivation ….of a prohibited plant ……if -

(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation….”

2 The appellant pleaded not guilty and the trial began in the District Court before his Honour Judge Knight and a jury on 9 September 1998. On 6 October 1998 the jury found the appellant guilty. On 23 October 1998 the appellant was sentenced to a term of imprisonment of four years, four months and five days commencing on that date and expiring on 27 February 2003. A minimum term of one year, ten months and five days expiring on 27 August 2000 was fixed. The appellant appealed against his conviction and sentence.

Crown case

3 The appellant was charged with taking part in the cultivation not only at Colo Heights (the crop site) but also at Augusta Street, Strathfield where he resided. There was no direct evidence of any person actively taking part in cultivating the plants of varying size found throughout the bush at the crop site. On 4 January 1994 in the area of the crop site the police heard a pump operating and two male voices. On 5 January 1994 the police raided the site and chased someone. The police did not see anyone at the crop site. The Crown presented its case against the appellant in two ways. First, it relied on circumstantial evidence claimed to link the appellant with the cultivation. Part of the circumstantial evidence was two thumbprints of the appellant on items found at the crop site. Second, the Crown relied on the direct evidence of Carol Duggan. She had had a de facto relationship with the appellant at the time of the alleged offence which broke up in 1996. She swore that the appellant admitted to her that he was at the cannabis plantation and on one occasion was chased out of it by helicopter. She gave evidence that the appellant told her about a glove with a hole in the position where the appellant’s thumbprint would have been.

4 The Crown listed the circumstantial evidence as follows:

1. The plantation site at Colo Heights was in rugged and isolated terrain difficult to get to and difficult to take things out of. There was irrigation and a flying fox. Water tanks had been constructed. There was a handmade wooden table. Whoever was involved needed knowledge of irrigation and pumps. The appellant’s talents and know-how meant he could have been one of the persons involved in the cultivation.

2. The appellant’s thumbprints were found on a peanut butter jar and on the inside of a hurricane lamp which were at the crop site. The Crown argued that there was a negligible chance of this occurring unless the appellant was connected with the crop site. At the time these prints were found by the police in January 1994, Carol Duggan was on good terms with the appellant and had no motive to plant them. The jar was found amongst other food items at the crop site and the print on the hurricane lamp was imprinted in soot which the Crown said must have happened at the crop site. If the lamp had been lit by anyone else at the crop site, one would have expected the thumbprint to be then covered in soot. In July 1997 the police returned to the area and found a glove with a hole in the right thumb. The appellant’s thumbprints on items at the crop site were right thumbprints. Dr Elizabeth Brown, a botanist, gave evidence of moss growing on the inside of the glove which negated any suggestion that the glove was later planted at the site. Dr Brown had never seen the type of moss growing on the glove in any Sydney metropolitan area, including Strathfield where the appellant had been with Ms Duggan at the residence in Augusta Street. The glove had been in a situation suitable for the growth of that kind of moss for not less than one year and probably much longer. The glove must have been in place with moss growing on it at an earlier time when the appellant and Ms Duggan still had a good relationship.

3. The twirls and criss-cross patterns on a grate found at the crop site matched with one placed over a manhole by the appellant at Augusta Street. The manufacturer of the grates gave evidence that they were exactly the same.

4. The garage at the Augusta Street property was the appellant’s domain. He acknowledged being in the garage tinkering around, fixing parts of lawn mowers and pumps.

5. A Tempest brand radio was found by the police on the table at the crop site. A witness, Luke Montague, said he last saw the radio in the garage at the Augusta Street property.

6. Burnt hessian at the crop site was of “generally similar” appearance to hessian found at the Augusta Street property.

7. Paint on the sprinkler hose bases and air filters from the green pumps found at the crop site were made of a similar colour and similar composition to paint in a can found in the Augusta Street property garage.

8. A freshly painted pump was found in the boot of a vehicle, in which the appellant was a passenger, by Constable Gorman. This pump was later found at the crop site. At the time the pump was found in the boot by Constable Gorman the appellant falsely told him he had picked up his girlfriend because her car had broken down.

9. A map of the crop site area and camouflaged clothing was found at the Augusta Street residence.

10. Two brackets found outside the garage were identical to the mounting bracket on the bases of two pumps found at the crop site.

11. Two plastic drums found at the Augusta Street residence were of the same size and shape as one found at the crop site. The base of the footings of the drums matched an imprint on the garden seat at the crop site.

12. The appellant admitted using glue which was the same as glue found on one of the exhibits.

Draft grounds of appeal

5 On 28 February 2002 the Registrar received a letter from Mr Scott Corish, barrister, referring to a letter that the appellant had written to the Registrar advising that he would be appearing for himself. Mr Corish had prepared submissions for the appellant based on what appear to be draft grounds of appeal and forwarded these to the Court for its assistance without seeking to limit the way in which the appellant put his case. Ground 3 was abandoned. The appellant adopted the other grounds and counsel’s submissions.

6 The draft grounds of appeal were as follows:

“1. The learned trial Judge erred with respect to the directions to the jury regarding the requisite knowledge of the accused of cultivation in relation to the provision of goods/equipment or comfort(s) by the accused and, in particular:
a. failed to adequately direct the jury’s attention to the necessity of finding of knowledge of actual cultivation, and
b. failed to adequately direct the jury that an alternative explanation must be excluded.
2. The learned trial Judge erred in directing to the jury with respect to circumstantial evidence by casting the onus on the accused to point to a reasonable explanation consistent with innocence.
3. The learned trial Judge erred in failing to adequately direct the jury with respect to the use of lies attributed to the accused.”

7 In the written submissions, Mr Corish pointed out that the Crown case was that the appellant provided assistance and/or supplies to unknown persons who were cultivating the crops, by way of supplying or repairing equipment or otherwise providing sustenance and supplies (eg the hurricane lamp or peanut butter in the jar). Allegedly this was done with the knowledge that such equipment and supplies would be used in furtherance of the cultivation of the cannabis. In summary, there were three legs to the Crown case which were:

(a) The evidence in relation to the crop sites given by police officers as to the existence of the cultivation.
(b) The evidence of [the appellant’s] former de facto partner, Carol Duggan, in relation to a conversation she had with [the appellant] at Long Bay Gaol in early 1994 to the effect that [the appellant] admitted to her that he was involved in the cultivation.
(c) The circumstantial evidence which categorised into nineteen points, reiterated to the jury by the trial Judge during his summing up.

8 The cannabis was first located by police in September 1993. Police visited the site on several occasions during that month (2, 6 and 29 September 1993) and then later in January 1994. Although the police stated that during the visit to the site on 4 January 1994 they heard a voice and a water pump operating and on 5 January 1994 heard a person running through the bush, no arrests were made.

Ground 1

9 Counsel pointed out that the Crown case was based upon the supply of the pump, the supply of other equipment and the supply of comforts. For the jury to be satisfied that it was appropriate to draw the inference that the appellant intended the equipment comforts to be used in the cultivation of cannabis, it was necessary for the trial Judge to have directed the jury that in making the connection between the supply of the equipment and the use in cultivation any other reasonable hypothesis consistent with innocence had been excluded. It was necessary that the trial Judge direct the jury that the Crown had to negative the possibility that the equipment, lamp and jar were supplied to the cultivators in circumstances other than that directly involved in the cultivation. Comparison was drawn with R v Oliverio (Court of Criminal Appeal, 30 August 1989, unreported). In circumstances where there was no direct evidence of the presence of the appellant at the site, it was submitted that it was imperative the jury be instructed they must exclude the hypothesis consistent with innocence, for example that some other person obtained a jar of peanut butter, lamp and pump in entirely unrelated circumstances for their own undisclosed reasons.

Ground 2

10 A direction on circumstantial evidence was required. In Shepherd v The Queen (1990) 170 CLR 573 at 586 Dawson J, with whose judgment Toohey and Gaudron JJ agreed, said:

“….the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories, there was no reasonable explanation consistent with the applicant’s innocence. It was appropriate that the jury should have been given a direction in those terms and they were given one.”

11 In summing up the learned trial Judge instructed the jury as follows:

“Once you have decided what the facts are as you find them to be, you can then decide whether the accused is guilty or not guilty but, you must not find the accused guilty if on the facts as you find them to be, there is a reasonable explanation for those facts which is consistent with his innocence. I will go over that again because it is very important. You must not find the accused guilty, if you are looking at the circumstantial evidence, unless on all the facts as you find them to be, there is no reasonable explanation which is consistent with his innocence. You have looked at the facts, you have decided what the facts are, if you think there is a reasonable explanation which is consistent with his innocence, then you must not find him guilty, you must find him not guilty.”

12 Emphasis was placed upon the first sentence in the passage suggesting that the jury was required to engage in an examination of the evidence to establish whether a “reasonable explanation exists” and shifting the burden to the appellant to satisfy the jury that such a reasonable explanation did exist. The verdict of guilty could only be returned when the jury were satisfied that the circumstances were inconsistent with any reasonable hypothesis other than the guilt of the accused; Peacock v R (1911) 13 CLR 619 at 634. Later in the summing up the trial Judge said:

“In relation to the circumstantial parts of the case, you must not find the accused guilty if there is another reasonable explanation for all the facts as you find them to be.”

13 It was submitted that the jury had not been disabused of the need to inquire whether the appellant had established the existence of a reasonable explanation. Later the trial Judge revisited the matter. It was submitted that the jury could only be left with the impression that it was for the appellant to establish the existence of such a reasonable explanation not for the Crown to negate it.

14 It was conceded that counsel at the trial, not Mr Corish, indicated that he had no complaint about the general direction in relation to circumstantial evidence. It was suggested that the subtle distinction between what was said and should have been said while important may have passed unnoticed. It was unlikely to be a consequence of any tactical decision by counsel for the appellant.

15 Mr Corish’s submissions did not address the core of ground 1, namely the asserted failure adequately to direct on the necessity for a finding of knowledge of actual cultivation and the absence of an alternative explanation. On these matters, in supplementary submissions, the Crown referred to various parts of the summing up where the trial Judge had stressed the elements of the offence as knowingly taking part in the cultivation (see pp 6, 7, 8 and 10 of the summing up). The learned trial Judge said:

“So the Crown has to prove beyond reasonable doubt that not only did Carl Rodney Slattery take part in the cultivation but that he did so with knowledge that the plants were cannabis plants and with an intention of taking part in their cultivation.”

At 60 of his summing up his Honour referred to what the appellant said. His Honour said:

“The accused’s case is a simple one. He simply says I did not know anything about this crop site. I never went there. I never knowingly gave any equipment, supplied any equipment or repaired anything to be used there. I did not provide any hurricane lamp or anything of that nature to be used there. It was a major crop plantation, yes. But it had nothing whatsoever to do with me and I was not knowingly in any way whatsoever.
As I have said to you, the Crown bears the onus of proving the case against the accused beyond reasonable doubt. In relation to the circumstantial parts of the case, you must not find the accused guilty if there is another reasonable explanation for all of the facts as you find them to be.”

16 The Crown submitted that an analysis of the summing up did not support the claim that the directions cast the onus on the appellant to point to a reasonable explanation consistent with his innocence. It seems to me a fine distinction to draw between not finding the accused guilty if there is a reasonable explanation which is consistent with his innocence and not finding the accused guilty unless there is no reasonable explanation which is consistent with his innocence. It was a distinction which apparently passed by counsel at the trial. In my opinion, there is nothing in the point and this ground of appeal fails.

17 The appellant was unrepresented on his appeal and argued the matter for himself. He relied upon three affidavits made by himself on 1, 14 and 15 February 2002, on two affidavits made by Silvia Mayorca on 9 February 2001 and 19 April 2001 and an affidavit of Mathew Wilfred Faith of 15 August 2001. The first of these affidavits, the appellant’s affidavit of 1 February, covers 77 pages and contains by inclusion, annexure or reference the bulk of the material upon which he relies. In the course of short oral submissions to the Court the appellant said that the appeal would stand or fall on the medical evidence.

18 At the beginning of the first affidavit the appellant set out his grounds as follows:

“1. Grave miscarriage of justice has occurred.
2. Fabrication of evidence by police and improper conduct.
3. Crown witness conducted a conspiracy to pervert the course of justice.
4. Direction as to the prints found being circumstantial evidence.
5. Defence impaired by profound lost memory.
6. Test carried out non-specific therefore non-expert no direction to probative value.
7. Crown witness Carol May Duggan’s evidence tainted.
8. Crown witness Carol May Duggan’s evidence not included in Crown brief.
9. All available evidence not before the jury.”

19 He next set out what he described as the questions involved in the Colo matter claiming amongst them that there was evidence of “amnesia” not available at the time of the trial and that his medical condition caused him not to be able to recall vital evidence which was supported by a wealth of corroborating evidence. He elaborated upon a claim that the witness Carol May Duggan conducted a conspiracy to pervert the course of justice with motives for revenge and financial gain.

20 The questions then extended out to allegations against the police officers involved. In particular, the appellant claimed, in reliance upon the evidence of Ms Mayorca and Mr Faith, that the area of cultivation was easily discoverable and not a remote and isolated area. This was evidence based on visits to the site made in 2000 and 2001. On its face it seems to be rather beside the point. There was no issue at the trial that the site was one on which in late 1993 and January 1994 a substantial crop of cannabis was being cultivated. There was no issue that on the site were found two articles, the peanut butter jar and the lamp, which bore the appellant’s thumbprint. There was evidence that the glove with a hole in the right thumb was found some years later which might be regarded as surprising. But there was also evidence upon which the jury could be satisfied that it had been there for some years before it was found.

Loss of memory

21 The main thrust of the appellant’s argument related to what he described as his “profound loss of memory” at the time of the trial which robbed him of the opportunity to defend himself properly (see para 8 of his first affidavit). Perhaps more significant is the claim that at the time the appellant made the admission to the witness Duggan, he was suffering from a form of “global amnesia”. This condition was said to result from a head injury he claimed was caused by a police assault in 1991 and to have been aggravated by his coming upon the blood soaked corpse of a cellmate while he was in gaol. According to the appellant the consequences relevant to this appeal were as follows:

“i) The profound memory loss caused me not to be able to recall that I had served near to 8 months on remand. This was not taken into account by either judges nor was it raised during the course of both sentences.
ii) Not to able to recall that I had already told Carol Duggan that I was arrested for cultivation and that a print of mine was found on a peanut butter jar. I gave instructions that she was to inform my legal representatives.
iii) Not to be able to recall that Carol Duggan was present at the Auburn Hospital in the company of my solicitors.
iv) Not able to recall that my wife Janet Slattery, was told on the 16 January 1994 before the alleged admission took place, by Carol Duggan that I was arrested for cultivation and that a print was found on a peanut butter jar.
v) Not able to recall that I was suffering from profound memory loss at the time of the alleged admissions.
vi) Not able to recall that I had met Detective Henry at our home some time in 1993 and that he was introduced to me as a friend of Carol Duggan’s who was married to one of her old girl friends.”

22 The appellant claimed that he was disadvantaged at the trial because the prison records did not show that he was admitted to Prince Henry Hospital from 14 January 1994 to 23 January 1994. At the trial the appellant gave the following evidence:

“Q. Where were you in January 1994 after the day of your arrest? A. I was in the Prince Henry Hospital for 14 days.
Q. And when you say Prince Henry Hospital, what part of Prince Henry Hospital were you in? A. It’s the prison annex of Prince Henry Hospital.
Q. After 14 days, where did you go then? A. I was transferred to the Remand Centre at Long Bay, the prison complex.
Q. And were you in custody as a result of having been refused bail? A. Yes, I was.”

23 Not long after that evidence was given the trial Judge granted the appellant leave to serve a subpoena on the proper officer of the Department of Corrective Services Sydney for the production of all records of outgoing telephone calls made by him whilst in custody at the Prince Henry annex of Long Bay Correctional Centre for the period 13 January 1994 to 10 February 1994.

24 It is not entirely clear from the material the appellant has submitted the period during which he was said to have suffered global amnesia, but it seems to have been during the twelve months after the alleged bashing in 1991. Doctor Swan, in her report of 17 January 1994, referred to amnesia as part of the history she was given by the appellant. She wrote:

“Mr Slattery gives a history of generalised amnesia for all the details of his life prior to his collapse ….. in police custody for charges of cultivation of marijuana. He states that he has no memory for personal identity and that he was unable to remember also his wife and son. The one detail he was able to remember is that he is a cigarette smoker. (The appellant) also states that he is ….. depressed.”

25 In the Prince Henry Hospital evening nursing report of 14 January 1994 appears:

“Admitted to Auburn Hospital following queried seizure whilst in police hospital. Patient suffering from memory loss and experiences bouts of dizziness accompanied by headaches and blackouts since December 1994 ……Patient unable to remember date or why he was admitted into hospital.”

The nursing notes for 15 January 1994 state:

“Patient states he does not know where he was before being admitted. Denies being in gaol.”

Notes of Dr Spira of that date state:

“Mr Slattery claims no memory of self or past beyond his time in Auburn Hospital yesterday. Nevertheless he has a clear recall of what has been said to him…… He seems surprised at being in gaol. …. Either a conversion reaction or malingering.”

On 18 January 1994 Dr Spira observed that the appellant had no memory and claimed not to have recognised his wife “but feels that he would do so now”. The doctor also notes some inconsistencies in history. Dr Swan, in the report from which I have already quoted, said that the features were consistent with psychogenic amnesia.

26 The appellant’s claims about problems with his memory which he says continued until about 1999 do not sit well with a reading of the transcript of his evidence at the trial which continued for some time. Both in chief and under cross-examination he appeared to answer questions positively and with ready recall. There is no sign that I have come upon which indicates a lapse of memory. I give a short and random example of his evidence in cross-examination relating to the occasion when he had been pulled over by police on 23 November 1993 at 5 am in the morning when driving a white Ford Falcon which appeared to be travelling in convoy with a red Toyota Hilux along the Singleton Road towards Wilberforce:

“Q. Did you deny knowledge of the other vehicle when police initially spoke to you? Answer, ‘Yes’. Was that answer of yours to the police, true? A. That I denied knowledge of the other vehicle?
Q. Yes? A. Yes.
Q. That of course was a reference to the Hilux, the red Hilux in which your son Darren was driving? A. That’s correct.
Q. Now, tell me: What was actually said by you to police about that matter? A. The officer said ‘who was driving the other vehicle.’ I said ‘I don’t know.’ That’s in fact what I said.
Q. That was the end of it? A. There could have been more words spoken. It has been a long time. It is 1994.
Q. That of course was Constable Gorman? A. Yes.
Q. The officer you were speaking to at the side of the road? A. I can’t agree or disagree with this. There is large portions been left out of the police statement in relation to what Mrs Duggan said to him. None of that is recorded here.
Q. Does that relate to the questions I am asking you now? A. No.
Q. Let’s not get side tracked: When Constable Gorman asked you if you knew, had knowledge of the other vehicle, and you answered that you did not, I take it that that was a lie? A. Yes, that was a lie.
Q. To Constable Gorman at the side of the road on that day? A. Yes.
Q. Now, did you also say to Constable Gorman that you were there that morning and you had come to pick up your girlfriend and that her car had broken down? A. Yes.
Q. When you said that, did you indicate the white car that was right next to all three of you? A. Yes.
Q. Well now, were you worried about the fact that the police might associate you with your son Darren on that particular morning? A. No.
Q. Were you worried about the fact that the pump was in the back of the car? A. No.
Q. Were you worried about giving a true explanation to Constable Gorman as to why you were at Windsor on that particular morning? A. Could you repeat that question again?
Q. Were you worried about the reason that you were at Windsor on that particular morning? A. No.
Q. You see is this the case: That that very pump was destined for the cannabis plantation? A. No.
Q. The very pump that you had in the boot of the car? A. No, it was not.
Q. Was this the case: That the very pump that you had in the back of the car, was the pump in the middle there, exhibit AD? A. No it was not.
Q. Was it in fact the case that you had exhibit AD in the boot of the white car, on that particular morning and you had a guilty conscious about the fact? A. No.
Q. Can I suggest that was the reason you lied to the police as you did? A. No that was not the reason.
Q. Now, at the time that you were pulled over by the police did you know that Darren had the tiller on the back of the red Hilux? A. Yes.
Q. At the time you were pulled over by the police, did you know that Darren had fittings, and I mean irrigation type fittings, in his car? A. Yes.
Q. At the time you were pulled over by police was Darren wearing camouflaged clothing? A. I never seen him. He never got out of the vehicle for me to observe whether he was wearing camouflaged clothing or not.
Q. Did you see him at all that day? A. Do you mean in the morning when we pulled up?
Q. No, at any time that day? A. I only seen him sitting in the truck, oh 20 feet away.
Q. Did you see he was wearing camouflaged clothing? A. No, it was dark sir.
Q. Did you see your son later that day? A. No I did not.
Q. You didn’t go to help him with the strawberry patch later that day? A. No I did not.
Q. Have you ever seen Darren wearing camouflaged clothing? A. Yes I have.
Q. When? Tell me about it? A. Just around the farm.
Q. There was camouflaged clothing found by police when they searched Augusta Street? A. Yes that’s correct.
Q. Was that Darren’s? A. No that was not.
Q. You gave evidence, I just want to check whether this is just a slip of the tongue: I don’t mean anything sinister by that. I want to clear this up. Do you remember giving evidence that when shown the photograph with the camouflaged clothing found at Augusta Street, by the police, that you said ‘it is Luke Duggan’s for sure’? A. That is correct.”

27 In his affidavit the appellant emphasised that it was in early 1997 that Ms Duggan contacted the Department of Public Prosecutions and told an officer of that department that she had information that might assist the department in its case against the appellant. A meeting was set up between her solicitor, who was acting for her in civil proceedings which the appellant had begun against her on 20 December 1996 under the DeFacto RelationshipsAct 1984. The police made available to the solicitor copies of photographs and the appellant’s statement. The resultant statement made by Ms Duggan on 24 July 1997 and police interview on 30 July 1997 referred in particular to a glove with a hole in it and the Tempest brand radio that she claimed belonged to her son Luke Montague.

28 The appellant claimed that Ms Duggan provided this false evidence in order to have the appellant convicted and so defeat the civil proceedings in reliance upon the Felon (Civil Proceedings) Act 1981. Contrast was given between her evidence at the trial and what she said in the civil proceedings. She conceded that she made the statements to the police three years after the appellant’s arrest “out of revenge”. The affidavit extended in various ways to undermine the credit and credibility of Ms Duggan. In the first affidavit the appellant claimed that the Senior Detective in charge of the matter, Detective Henry, was a personal friend of Ms Duggan.

29 The appellant’s counsel canvassed with Ms Duggan various aspects of his condition and custody during her cross-examination (T450.41, 452.25, 452.31, 452.48). At T454, Ms Duggan was cross-examined on an affidavit she swore in 1994 to be used in support of the appellant’s application that he was not fit to stand trial. At T815.5 and T816.04, the appellant gave evidence that he had not made the statements attributed to him by Ms Duggan. Ms Duggan gave evidence at T408-522 and the contentions now put forward by the appellant were discussed exhaustively.

30 During the summing up the trial Judge at pages 18.2-22.5 and 46 gave directions about the possible unreliability of Ms Duggan’s evidence and at 18, 19 and 46 isolated the reasons why she might be unreliable. No additional directions or re-directions were sought. The alleged conspiracy was sufficiently before the jury when they considered the evidence of Ms Duggan. The medical conditions that the appellant suffered were well documented and known both to the appellant and his counsel at the trial. The appellant’s court and custodial history was also known. The appellant, in giving evidence at the trial, chose not to claim that his memory was impaired and gave detailed evidence from memory of events and circumstances of his defence (see T787-793, 793-797, 797-805, 805-833). Apart from matters now raised in the affidavit of Ms Mayorca all other material was before the Court. As I have indicated, I do not think that Ms Mayorca’s evidence is of any weight in determining whether or not there has been a miscarriage of justice.

31 Taking account of all the matters raised by way of grounds of appeal and in the affidavits and other documents to which the appellant has referred I am satisfied that there has been no miscarriage of justice and that the appeal against conviction should be dismissed.

Sentence

32 In sentencing the appellant, Judge Knight took account of the whole of the period of two years seven months and twenty-five days that he had spent in custody being two years seven months and eight days between 13 January 1994 and 21 August 1996 and seventeen days between 6 October 1998 and 23 October 1998 when his Honour passed sentence. His Honour said that before taking into account the time in custody the appropriate sentence would have been a total sentence of seven years with a minimum term of four and a half years and an additional term of two and a half years. His Honour reduced both the total sentence and the minimum sentence by the two years seven months and twenty-five days. In his affidavit the appellant referred to what he described as a further eight months that was not taken into account and that was served on remand after his arrest on 25 March 1991 to release on bail on 7 November 1991. The period referred to followed the appellant’s arrest during a police raid on a cannabis plantation in Mount Kaputar National Park as a result of which he was charged with various drug and firearms offences. No explanation is given to support a claim that this period should have been taken into account in determining the sentence for a quite different offence for which he was arrested on 13 January 1994. At the time of this later arrest he was on bail for the Mount Kakputar matters. No other reason was suggested, let alone argued, for interfering with the sentence imposed and that part of the appellant’s appeal should also be dismissed.

Orders

Appeal dismissed.

33 GROVE J: I agree with Sheller JA.

34 SIMPSON J: I agree with Sheller JA.

**********