R v Weston and Lee
[1991] TASSC 152
•11 July 1991
Serial No B38/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Weston and Lee [1991] TASSC 152; B38/1991
PARTIES: R
v
WESTON
LEE
FILE NO/S: C81/1991
DELIVERED ON: 11 July 1991
JUDGMENT OF: Crawford J
Judgment Number: B38/1991
Number of paragraphs: 43
Serial No B38/1991
List "B"
File No c81/1991
THE QUEEN v WESTON and LEE
REASONS FOR JUDGMENT CRAWFORD J
11 July 1991
Both prisoners have pleaded guilty to one count of trafficking in a prohibited plant contrary to s47(3)(a) of the Poisons Act 1971. The trafficking alleged by the Crown relates to the supply at Launceston of two quantities of Indian Hemp to Detective Sergeant Chrisant of the Victorian Drug Squad. He was an undercover agent using the name "Bill" and pretending to be a genuine purchaser. The count related to one pound of cannabis delivered jointly by the prisoners to Sergeant Chrisant at the Village Motel, Launceston on Tuesday 12 June 1990 and twenty–one pounds delivered by them to him at the Coach House Motel, Launceston on Saturday 23 June.
The pleas of guilty were explained to me at the outset as an admission of trafficking in the one pound quantity but not in the twenty–one pound quantity. Both prisoners admitted through their respective counsel that they endeavoured to sell the one pound lot to Sergeant Chrisant and delivered it to him. They also admitted delivering to him the twenty–one pound lot and receiving $105,000 in cash for it (following which they were arrested). But their case is that the twenty–one pounds were supplied to them by the police, or an agent of the police, and by arranging in effect a sale of the plant, or a transportation of it, by the police to the police there was no trafficking. Crown counsel agreed that if the factual basis of the transaction was that asserted by the two prisoners there would have been no trafficking in the twenty–one pound lot, but she submitted that there was no evidence to support the defence case. The onus of proof of course rests with the Crown. The standard of proof is beyond reasonable doubt.
Unknown to the prisoners, their meetings with Sergeant Chrisant and their conversations with him at the Village Motel on 12 and 13 June and at the Coach House Motel on 23 June were recorded on video film. There was no relevant dispute concerning the accuracy of what was recorded and I will return to what occurred at those motels in due course.
The Drug Squad of the Victorian Police comprised three operational divisions and each of those divisions was controlled by a detective inspector and a senior sergeant. Senior Sergeant Barker was responsible for No 3 Division and under his jurisdiction there were four or five teams, in charge of each being a detective sergeant who had immediate control of up to four members. Senior Sergeant Barker was responsible in Victoria for Operation Hare. His evidence was that he received information in relation to the operation and the team concerned with it was led by Sergeant Strahan. There came a time when it was desired that a police officer act as an undercover agent. Senior Sergeant Barker decided, on the recommendation of Sergeant Strahan, to select Sergeant Chrisant for that task. The latter had not been involved in Operation Hare up until that time. He had been trained in undercover work and it was not the practice to use police officers for undercover work unless they had been so trained.
Senior Sergeant Barker gave evidence that he had no information concerning the source of the twenty–one pounds and he had no knowledge that it may have been supplied directly through a police officer or indirectly through a police informer or police agent. He gave evidence that it would have been improper practice and contrary to policy for the police to supply the plant. He maintained that he gave no directions for pressure to be put on any person in order to enhance the investigation. The operation took its natural course. He also gave evidence of procedures for strict control within the Victorian Police Force of quantities of plants and drugs received into the possession of the police.
He gave evidence that informants are used a lot. Considerable efforts were made by counsel for the prisoner Weston to obtain from Senior Sergeant Barker the identity of a particular informant used for the purposes of Operation Hare and it was put to him that a Victorian by the name of Roberto had provided information. The witness declined to answer the questions and I ruled that he was not obliged to do so because of the provisions of s72 of the Poisons Act 1971. He did however agree that there were two informers used for the purposes of the operation. He admitted to knowing of a person by the name of Roberto who became involved in the inquiry. He did not believe that any other officers "lower down the line" were speaking to other informants. I must say that the course of evidence, and the sergeant's objections and those of Sergeant Chrisant, gave me the strong impression that the person known as Roberto was, in fact, used by the police as an informant for the purposes of the operation.
On about 10 June 1990, Senior Sergeant Barker travelled to Launceston with other Victorian officers for the purpose of what to the Tasmania police was known as Operation Viva. Involved was a transfer of the investigation from Victoria and in particular dealings between Sergeant Chrisant and the two prisoners. He was a sergeant in charge of a team in the Victorian Drug Squad, but not the team responsible for Operation Hare. Having been asked to act as an undercover agent, he commenced that duty on 29 April 1990 when he went to Riddells Creek near Melbourne and met with one Peter Wells. I admitted evidence of Sergeant Chrisant's conversation with Wells, not to establish the truth of what Wells said but upon the basis that it tended to refute the claim of the prisoners that it was the person known as Roberto, and not Wells, who initiated the dealings between Sergeant Chrisant and the prisoners. His evidence was that Wells told him that he could arrange to supply the sergeant with one hundred pounds of cannabis head at $5000 a pound and three hundred pounds of cannabis leaf at $600 a pound. There was further conversation in relation to the purchase of paintings by Australian artists and also jewellery, mainly gold. The sergeant asked Wells with whom he could make contact and the response was that Wells would make arrangements for him to deal with the persons involved. Subsequently on 7 June he spoke again to Wells who told him that twenty–three pounds was available at $5000 a pound and the supply would take place at Launceston. Sergeant Chrisant should take $120,000 to Tasmania. Wells referred to a contact by the name of Barry (the Christian name of the prisoner Weston) who was then in Sydney but who would be travelling to Tasmania, and the sergeant should have the money ready for the deal to proceed on 10 or 11 June. Wells said that Barry would be contacting Wells to verify the date.
On 10 June Sergeant Chrisant travelled to Launceston for the purpose of meeting the Barry who had been referred to by Wells and purchasing the cannabis. On 11 June Sergeant Chrisant left a message for the prisoner Weston who telephoned and told him that a fisherman, who had the cannabis, had not arrived because of weather. Weston undertook to contact Chrisant at the Village Motel. The two men spoke again by telephone that day. Following that, there were meetings in a room at the Village Motel, Launceston, all of which the police filmed secretly. At the first of those meetings on 12 June both prisoners went to the room where the sergeant was waiting. It was explained to him that the fishing boat had not arrived with the twenty–three pounds of cannabis, although it was believed to be at sea. It was also explained that Lee had been dealing with two other suppliers and it was hoped that other amounts could be obtained. Lee then produced a bag containing one pound of cannabis head obtained by him from someone. Weston explained that it was a sample of what that person could supply and that Lee could get back to the supplier to see how much he had available. Later in the conversation Lee explained that "the stuff that I'm going (to) hear about tonight, this isn't the 23, this is another lot, long heads all trimmed down, it's really nice manicured heads". The prisoners left the sergeant having arranged that they would get in touch with him later that night when they heard further about when the twenty–three pounds was likely to arrive.
Lee returned to the room on his own to see the sergeant at about 10pm that night. He explained that the fisherman had not made any contact but he still hoped to hear more, and he arranged to telephone the sergeant at midnight. During that conversation Lee told the sergeant that he had been able to arrange for supplies from other sources and he tried to persuade the sergeant to accept smaller lots than twenty–three pounds. He said that he was able to obtain three pounds the following afternoon and a further ten pounds the following day, on top of the twenty–three pounds. But he wanted money in advance. Lee was quite persistent in his efforts to obtain cash from the sergeant towards such a deal but the sergeant said he was not prepared to accept only small lots and the twenty–three pounds would have to be supplied first. Lee guaranteed that if the twenty–three pounds did not arrive he would be able to supply fifteen pounds from other sources.
Shortly after midnight, that is early on 13 June, both prisoners returned to the room to see the sergeant. They explained that the fisherman had left an island and that they would have expected him to have arrived by then. When the fisherman did arrive he would contact Lee. There was talk of bad weather and gale–force winds. Weston said that he knew of fifteen or perhaps twenty–five pounds which could be supplied on top of the twenty–three pounds. Lee said that they could obtain without a shadow of a doubt, at least fifteen pounds by the following day. The sergeant, however, said he wanted the twenty–three pounds first and he mentioned that originally the talk was of one hundred pounds. Weston confirmed that by saying "Yes, but over three drops that was". Clearly, the prisoners were concerned that the sergeant would leave Launceston and return to Victoria not having purchased any cannabis from them. It was certainly not a case of the sergeant putting pressure on them. At one point Lee asked: "Can we entice you to stay for two more days by dropping the price or something for yah .... I'm prepared to do that". He tried to persuade the sergeant to purchase four pounds "tomorrow", hold on to it and purchase a further eleven pounds the following day. The sergeant would not agree. It was arranged that Weston would ring the sergeant at about 7am and both prisoners left the room.
At about 8am that day, Wednesday 13 June, both prisoners returned to the room. The fisherman had still not arrived. Weston asked the sergeant if he wanted them to pick up four or five pounds. But the sergeant said that it was not worth it and that it would be better to wait for the twenty–three pounds, keep the four pounds and give it to him at the same time. Weston asked the sergeant if he returned to Melbourne that day and the twenty–three pounds arrived that afternoon when would he be able to pick it up, and the sergeant said the "day after". Weston said he would notify the sergeant as soon as it came in. The sergeant persisted with his attitude that he would not accept the four pounds, despite the attempts of Lee to persuade him to take it.
The sergeant's evidence was that he returned to Melbourne. On 20 June he telephoned the prisoner Lee, who told him there was twenty pounds of cannabis ready to be picked up. Lee requested the sergeant to fly to Wynyard and said that he would meet him there and they would drive to Smithton for the delivery. The sergeant said that he was not prepared to do that and that he would do business at a Launceston motel. He asked for a discount on the price to make it $4800 a pound instead of $5000. Lee said that if the quality was not good he would agree to that, but he expected that the sergeant would be pleasantly surprised when he saw the cannabis. He said that the prisoner Weston knew of the plans and told the sergeant to ring Weston at about 9am the next day. He said that the source was not the fisherman, it was another source. The sergeant's evidence was that later that day he spoke to the prisoner Weston by telephone. Weston said that he had spoken to Lee earlier that day. He referred to twenty pounds of black colt and that it was not from the fisherman, but from another source. The matter was left on the basis that the sergeant would contact Lee between 8.30 and 9am the following day. On the following day, 21 June, he rang Lee at about 10.35am and apologised for being late. Lee said that he had been waiting for the call since 8.30am It was arranged that the sergeant would ring Weston, and according to his evidence he did so at midday when Weston told him that he had twenty pounds at a price of $5000 per pound. The sergeant was told to ring Weston when he arrived in Launceston on 23 June.
Accordingly, the prisoners and the sergeant met in a motel room at the Coach House Motel on 23 June. Their conversations were recorded by a hidden camera and microphone as was the case at the Village Motel. Weston told the sergeant that Lee would go and obtain the cannabis. He said that they had had to borrow from "the bank" to buy it and that it had cost "an arm and a leg". He asked the sergeant how quickly after "this load" he would be willing to accept another supply, because they wanted to use the money as quickly as they could. Lee then left the room to obtain the cannabis. Weston said that they wanted to do another quick deal using the money being paid by the sergeant. He talked of being able to obtain sixty to seventy pounds a year from one source. He told the sergeant that the cannabis would be in one pound bags which would be contained in duffle bags. He explained that the fisherman had not supplied because they did not have the money to pay him up front. Lee returned to the room with twenty–one pounds of cannabis in twenty–one bags of one pound each. Weston had previously said that he thought twenty–four pounds were being supplied. When Lee returned and was asked by the sergeant where the other three pounds were he said that they were supposed to have been dropped off for him and he had not been able to get hold of "him". He said that "he" was supposed to drop them off at 1 o'clock and when he went to pick them up they were not there. When they were not there he had made a thorough search for them. Sergeant Chrisant then called his police colleague, Sergeant Moutsidis, who was posing as one of the purchasers and who brought to the room over $105,000 in cash. The prisoners were given it. Shortly afterwards, other police officers came to the room and the prisoners were arrested.
There was therefore ample and convincing evidence at the close of the Crown case that the prisoners supplied to the under–cover police officer and trafficked in one pound of Indian Hemp on 12 June and twenty–one pounds of it on 23 June. It remained to be seen whether the prisoners' evidence would raise a reasonable doubt.
All of the police officers who were asked gave evidence that they did not know the source of supply of the twenty–one pounds and that they did not believe that it came from a police source.
The following is some of the evidence of the prisoner Weston. He met a man with the first name of Roberto at Moonee Valley horse races about two years ago. He spent some time in his company, at horse races mainly but also at restaurants and cafes. He regarded him as a "mate". From time to time they smoked cannabis together. About a month after they first met, Roberto said he was a bit short and asked whether the prisoner could give him some and later the prisoner provided him with half a dozen joints. The prisoner's evidence was that he obtained it at a pub, the identity of which he could not recall. His evidence was that he smoked cannabis with Roberto on six or eight occasions.
Weston also gave evidence of having known Peter Wells for about ten years. He also knew him through racing and regarded him as a friend. They had each other's telephone numbers.
Weston's evidence was that about a month before 13 June, Roberto asked him whether he could obtain a supply of cannabis for him in Tasmania. He wanted "bulk" and said that it was his "go" (meaning that he trafficked in it). Weston told him that he probably could obtain it and that he would see what he could do. However, he was unable to obtain a supply. He contacted his friend, the prisoner Lee, and asked if he could find some but no large amounts could be located. About a week before 12 June, Roberto telephoned and told him that his friend "Bill" was coming over. Weston told Roberto that he had not been able to obtain any cannabis and Roberto pressed him to do his best.
According to Weston about a week or ten days before 12 June, Sergeant Chrisant telephoned him and gave his name as "Bill". He said he was Roberto's mate and was coming to Tasmania the following weekend. They arranged that Bill would contact Weston when he arrived. Weston's evidence was that prior to Bill's arrival he telephoned Roberto and told him that he had not been able to obtain any cannabis. Roberto pressed him to do his best. Then a couple of days before 12 June, he told him once again that he had not been able to obtain any cannabis. Roberto told him that "they are already there", meaning that Bill had arrived in Launceston. Weston's evidence was that he was angry but Roberto asked him to do a favour and string Bill along because he, Roberto, was in a bit of trouble. Weston's case was that he then resolved to do what he could as a favour to Roberto and endeavoured to string Bill along with a false story about a fisherman bringing the promised supply of cannabis. He said that Roberto indicated to him that Bill was a "heavy" and Weston thought that this meant the "mob" or the "mafia". He agreed to do what he could for Roberto. Accordingly, on 12 and 13 June, the prisoners had their meetings with Sergeant Chrisant. Weston agreed that his friend Lee had been able to obtain one pound from somewhere and that was delivered to the sergeant. But his evidence was that no other source of supply had been found. He and Lee told many lies to Bill about the fisherman and about there being other sources, solely because Roberto had requested that they string the sergeant along. After one of the conversations on 12 June, Weston telephoned Roberto who told him it was very important to him to keep stringing the sergeant along for a few more days. Weston agreed to do this.
Weston's evidence continued. After the sergeant had returned to Melbourne on 13 June, he spoke to Roberto by telephone again. Roberto told him that he had been able to arrange for a supply from a man called "Tony". He told Weston that on the following day he was to go to the Pizza Pub in Launceston at 6pm and simply walk in and walk out, when the man called Tony would follow him. Weston did as he was told and a man who gave his name as Tony spoke to him outside. Tony said that he was Roberto's mate and that Roberto had said that Weston would move twenty–one pounds of cannabis for him. Weston's payment for taking part in the transaction was to be either $10,000 or two pounds of cannabis, being half for himself and half for Lee. Tony gave him a pager number to contact when the deal was ready to be done. When Weston knew when Sergeant Chrisant was returning to Launceston to complete the deal he Weston telephoned Tony and arranged that Lee would meet with Tony on 23 June at a bridge on Lilydale Road for the purpose of taking delivery.
Weston's evidence was that after 12 June he had made no efforts to provide any quantity of cannabis for the sergeant because he thought he had done all he could. He maintained that he had no independent means of providing twenty–one pounds or any other quantity. He was only doing what he could to assist his mate Roberto who he thought was in some kind of trouble.
Of considerable significance was the evidence of Weston that so far as he was aware Peter Wells had nothing to do with the arrangements leading to his dealing with Sergeant Chrisant. In cross–examination he said that he could not recall the last occasion prior to 12 June when he spoke to Wells. He could not even guess. He did not know that Wells had met Sergeant Chrisant and he had not spoken to Wells about the sergeant, that is about "Bill", nor about the fact that he was going to enter into a transaction with him. He had not discussed cannabis with Mr. Wells. I have no hesitation in finding that Weston was lying when he gave evidence to this effect. The video recordings of his conversations with Sergeant Chrisant clearly established the contrary. I will refer to some of what was said in this regard.
Weston said to Sergeant Chrisant that he had been unable to work out how the sergeant had obtained the telephone number of Weston's friend, Kenny Austin, and he had telephoned Wells to find out if he had given it to him. At some stage the conversation between Weston and the sergeant turned to opium gel and Weston asked the sergeant "Did Peter tell you what happened?". Weston also told the sergeant that "Peter" had given him the sergeant's pager number. He asked, in relation to the "black" whether Bill was "the one that got it analyzed or Peter get it analyzed the last sample". He also told the sergeant that when he realized that there was going to be a delay in the supply (he was obviously referring to the supply from the fisherman) he telephoned "Peter" at 6 o'clock on the previous Sunday morning to "put that off for a day or two", and Peter had said that he would get hold of Bob and let the sergeant know. He also said that he explained to Peter briefly what had happened "you know about the colt", which was a reference to cannabis. Weston told the sergeant that in future they could deal direct with each other and they did not have to deal through Peter. He added that it would be less expensive.
Under cross–examination Weston tried to explain away his references to Peter Wells by saying that he had been confused and when he referred to Wells he had meant to refer to Roberto. He also gave evidence that when he told the sergeant that he had rung Wells on the Sunday morning to put him off he was simply referring to the fact that he had tried to ring Roberto for that purpose and, not being able to make contact with him, had telephoned Wells and asked him to pass on a message to Roberto.
I found the prisoner evasive and unbelievable in his answers in these regards. He was cross–examined at great length and he was plainly lying about the matter.
Having viewed the video recordings of his conversations with the sergeant, I am also satisfied that he was lying when he said that he had not been able to obtain any supply of cannabis, other than the one pound through Lee and the twenty–one pounds through "Tony". At the meetings he clearly supported Lee in his claim that he had other supplies available and I concluded from watching and listening to him that he believed it. I found his evidence about the man "Tony" untruthful. I have no reasonable doubt in finding that he trafficked in the twenty–one pounds.
I will now deal with the evidence of the prisoner Lee. He said that in early June 1990 he was asked by Weston to obtain some cannabis for him. He knew of no contacts but discovered that on making enquiries he could find some "people" who could supply a drug. He found in total one pound. He went with the prisoner Weston to the Village Motel with that quantity for the purpose of selling it to Sergeant Chrisant. He was told by Weston to make out that they had more and to go along with Weston and agree with what he said. There was no other source of supply. Before I proceed further, I state that I found Lee intentionally evasive and vague. I was given a positive and strong impression that he wished to avoid giving detail in case he said anything which clashed with proven facts.
Having watched and listened to Lee on the video recordings I am satisfied that he, in fact, had established a source of supply for a quantity greater than one pound at the time of his conversations with Sergeant Chrisant at the Village Motel on 12 and 13 June. Further to this, I am satisfied that he did what he could to persuade the sergeant to pay in advance for quantities he had been able to arrange, contrary to his denial that he had made any such arrangements.
Initially in evidence he said that after the discussions with the sergeant at the Village Motel, the next information he received to the effect that the sergeant would be returning to Launceston on 23 June was on either 21 or 22 June when Weston told him that Bill would be returning the next day to pick up twenty–one pounds of cannabis. He could not remember where the conversation occurred and said that he might have been incorrect about it. He then considered that the sergeant might have told him by telephone that he was returning.
Someone, but he could not remember who, told him that there was some cannabis available at Smithton. It was an acquaintance but not a close friend. He considered that he knew him. He thought that he was told that the buyer would have to go to Smithton for the purchase. He thought the amount available was about eighteen pounds. He did not know whether the person at Smithton was a grower or not. He did not know where at Smithton it was available. He thought he had about two conversations with the person who told him about the Smithton supply. From memory he said that he would get back to the person who gave him the information. He could not be sure where he was when he obtained that information but it was in Launceston. He only knew the person who gave it to him by sight and not by name. He still has a mental picture of that person. He could have talked to him in a hotel. He spoke to that person on a second occasion and told him that the transaction would not be occurring because the buyer was not interested in going to Smithton. He contacted the person at "the hotel" but he was not sure which hotel it was. I found the prisoner Lee unconvincing and totally unbelievable in relation to the Smithton connection.
Lee agreed in cross–examination that he had telephoned the sergeant and told him that there was a supply available at Smithton. But the sergeant made it clear that he did not want to go to Smithton and would only deal at Launceston. He was unable to remember what price per pound was being sought, but it would have been less than $5000 a pound. He thought it was to be paid for by cash on delivery "from memory". He did not understand that he was to receive some percentage although it occurred to him "that maybe I would get something for it". He later corrected himself and said that the sale price mentioned was $5000 a pound. He was considering the setting up of a transaction worth $100,000 but revealed an unbelievable vagueness of memory relating to the matter when giving evidence.
Lee stated that if "Bill" had agreed to go to Smithton it would have been necessary for him to get in touch with the person with whom he had spoken and arrange a meeting between the owner of the cannabis and "Bill". He would have put "Bill" in contact with that person who would have put "Bill" in contact with the person in Smithton. He was not able to speak to the prisoner Weston before he spoke to "Bill" about the Smithton cannabis. At no time did he himself intend to go to Smithton because he did not have the connection and did not know the name of the Smithton person. The identity of the Smithton person would not have been made known to him.
That much of this evidence concerning the Smithton supply was a lie was established when counsel for the Crown played a tape recording of a telephone conversation between Sergeant Chrisant and Lee, which the latter accepted was of a telephone conversation between them. In that conversation Lee told the sergeant that he had been trying to contact him "for a couple of days" and that he had obtained a supply of about twenty pounds of "the best colt I've ever seen". He asked the sergeant to fly to Wynyard and said that "as soon as you see me ...... we'll go straight to it. You get it and go and that's it". He said that "it's not in the bush, it's in the town". He later added that "you don't have to be with me ....... you can follow in your car or something like that. You don't have to come travelling with me". Sergeant Chrisant made it clear that he did not want to be dealing at any small town and that he wanted the transaction to be effected at Launceston. It was clearly not to the liking of the prisoner but in the end he agreed. He said: "That's alright. I'll change them. I'll just have to go down and tell them........Barry knows". He said that if the sergeant was not one hundred percent satisfied, the price would be reduced to $4800 a pound. He made it very clear that the source of supply was definite. However "I've got to speak with the man with the business because definitely he's got to travel now ........". But "I've definitely got this .......I've seen it myself, mate". He added "I've got to now travel that 110 miles and tee it up to know when they can bring it to me up here and then I'll get on to you as soon as I can. As soon as that is done, I'll be on to you and I'll be leaving shortly .......it's about a three hour trip, taking it easy". It was arranged between Lee and the sergeant that the latter would telephone at 9am the following morning. Lee told the sergeant to give Weston a telephone call if he wished to and said that "he's there".
It was put to the prisoner in cross–examination that the tape recording of the conversation was inconsistent with the evidence he had previously given. His response was that the tape recorded conversation occurred after a previous conversation he had with the sergeant about the Smithton supply. They were very similar conversations. He had not mentioned the recorded conversation because he had not recalled it.
During the closing address of Crown counsel on the day following this evidence, application was made by Lee's counsel to recall him. I permitted this to occur and the prisoner's evidence was that overnight he had recalled that he had confused the two conversations and that the conversation recorded on the tape had been the first one between him and the sergeant concerning the Smithton supply. It was clearly an untruthful attempt to try and improve on a deliberately untrue story told the day before.
The evidence of the prisoner Lee was to the effect that Weston asked him to meet with "Tony" on 23 June and collect the cannabis which was later supplied to the sergeant in a quantity of twenty–one pounds.
Because I found Lee untruthful in his evidence, I have no hesitation in rejecting his claim that he did not traffic in the twenty–one pound quantity. I find that his Smithton source supplied it.
The Victorian police officers who gave evidence conceded that they were assisted by informants. Because they exercised their rights under s72 of the Poisons Act 1971 and declined to identity their informants and the information they received, and when asked what conversations they had had with the person called Roberto declined to answer, there are positive grounds for believing that he was, in fact, one of the informants. But I reject the claims made on the prisoners' behalf that there was credible evidence suggesting that he arranged for the twenty–one pounds to be provided to the prisoners. There was absolutely no evidence that police officers played any part in the arranging of the supply of the twenty–one pounds to them for the purpose of them selling it to Sergeant Chrisant.
It was submitted on behalf of the prisoners that I should rule inadmissible most of the police evidence upon the ground that it was unfairly obtained. Reference was made to a number of authorities including R v Ireland (1970) 126 CLR 321, Bunning v Cross (1978) 141 CLR 54, Hunt v Wark (1985) 40 SASR 489, Papoulias (1987) 31 A Crim R 322, R v Vuckov & Romeo (1986) 40 SASR 498, Sloane (1990) 49 A Crim R 270 and R v Venn–Brown [1991] 1 Qd R 458. Those cases establish that there is no defence of entrapment recognised by Australian law. But evidence obtained by entrapment or by the use of an agent provocateur may be grounds for the exercise of a judicial discretion to exclude the evidence if use of those methods amount to an unfair or improper obtaining of evidence. I am completely unpersuaded that there was any unfair or improper obtaining of evidence. I do not accept the submission of counsel that, on the evidence, the police initiated the offences which would not otherwise have been committed by the prisoners and that the police, or their agent, beguiled or seduced two unwilling persons to commit the crimes charged. The video films of the conversations between the prisoners and Sergeant Chrisant satisfied me that the prisoners were willing and eager to deal with him and sell whatever quantities of Indian Hemp they were able to find. The police took advantage of the prisoners eagerness to deal and were assisted by information, but there was no credible evidence to suggest that the prisoners were entrapped in some unfair or improper way.
Counsel for the prisoners also submitted that I should be prepared to find in their favour because the Crown did not call Roberto as a witness and did not explain why not. Reliance was placed on principles stated in cases such as Jones v Dunkel (1959) 101 CLR 298.
If Roberto was an informant, as claimed on behalf of the prisoners, reluctance on the part of the prosecution to call him is understandable. The only evidence of his present whereabouts came from the prisoner Weston who agreed that he had heard that Roberto was in a European country and that Salonika (in Greece) had been mentioned.
Even if it can be said that the Crown failed to call Roberto for unexplained reasons, I am not persuaded on the evidence that the "rule" in Jones v Dunkel assists the prisoners. The failure to call a witness is not evidence but it can make more readily acceptable, or easier to accept, evidence about an issue given on behalf of the other party, and it may increase the probabilities in favour of the evidence being true. Jones v Dunkel (supra) at 312; Taylor v Spencer [1965] NSWR 961 and 964. But the rule cannot be used to convert conjecture and suspicion into inference. Having no hesitation in finding the evidence of the prisoners untruthful concerning the source of the supply of the twenty–one pounds being Roberto, there is nothing left on which the rule in Jones v Dunkel can operate. Certainly it does not influence me to have a reasonable doubt concerning the principal issue.
Accordingly, I find beyond reasonable doubt that both prisoners are guilty of trafficking in both the one pound and twenty–one pound lots of Indian Hemp, as alleged by the Crown, and they will be sentenced on that basis.
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