R v Whelan

[2003] NSWCCA 59

Reported Decision: (2002-2003) 56 NSWLR 454

New South Wales

Court of Criminal Appeal

CITATION:	R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59
HEARING DATE(S):	4 March 2003
JUDGMENT DATE:	13 March 2003
JUDGMENT OF:	Hodgson JA at 1; Dowd J at 100; Barr J at 101
DECISION:	1. With respect to each appellant, verdict of guilty on count 2 substituted for the verdict of guilty on counts 1 and 3, and for avoidance of uncertainty the verdict of guilty on counts 1 and 3 quashed and a verdict of acquittal entered on those counts. 2. Appellant Whalen sentenced to imprisonment for two years three months commencing 1 March 2002 and expiring 31 May 2004, with a non-parole period of eighteen months expiring 31 August 2003, and the Court directs his release on parole on 31 August 2003. 3. Appellant Willer sentenced to imprisonment for one year nine months commencing 1 March 2002 and expiring 30 November 2003, with a non-parole period of twelve months expiring 28 February 2003, and the Court directs his release on parole forthwith.
CATCHWORDS:	CRIMINAL LAW - APPEAL - Identity of inanimate object - Whether s.165 direction required - Need to have defence case fairly before jury - Whether alternative count appropriate - Circumstances in which appeal court can substitute for the verdict found by the jury a verdict of guilty for another offence.
LEGISLATION CITED:	Criminal Appeal Act 1912 ss.6, 7 Criminal Procedure Act 1986, s.99 Evidence Act 1995 ss.54, 165
CASES CITED:	Checconi (1988) 34 ACrimR 160 Crupi (1995) 86 ACrimR 299 Hamzy (1994) 74 ACrimR 341 Locchi (1991) NSWLR 309 R v. Birks (1990) 19 NSWLR 677 R v. Clout (1995) 41 NSWLR 312 R v. Sultana (1992) 74 ACrimR 27 Shepherd v. The Queen (1990) 170 CLR 573 Theos (1996) 89 ACrimR 486
PARTIES :	Regina - respondent Andrew John Whalen - appellant Brett J. Willer - appellant
FILE NUMBER(S):	CCA 60270/02; 60271/02
COUNSEL:	Mr. M.C. Ramage QC for Mr. Whalen Mr. P. Hamill for Mr. Willer Mr. D.M. Howard for Crown/respondent
SOLICITORS:	Pickering Priestley for appellants S.E. O'Connor for Crown/respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 98/31/0436
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

CCA 60270/02
CCA 60271/02
DC 98/31/0436

HODGSON JA
DOWD J
BARR J

Thursday 13 March 2003

REGINA v. Andrew John WHALEN

REGINA v. Brett J. WILLER

Judgment

1 HODGSON JA: On 30 January 2002, the appellants Andrew John Whalen and Brett J. Willer were arraigned before Christie DCJ on three charges:

1. That they between 23 January 1998 and 13 March 1998 at Wherrol Flat in the State of New South Wales did cultivate prohibited plants, namely, 376 cannabis plants being an amount not less than the commercial quantity of such plants.
2. That they in the alternative between 23 January 1998 and 13 March 1998 at Wherrol Flat in the State of New South Wales did cultivate prohibited plants, namely, 78 cannabis plants.
3. That they between 23 January 1998 and 13 March 1998 at Wherrol Flat in the State of New South Wales did supply cannabis leaf.

2 Each appellant pleaded not guilty to each charge.

3 A trial ensued before Christie DCJ and jury, lasting over four weeks, and on 1 March 2002 the jury returned a guilty verdict against each appellant on the first and third charges. Because the second charge was brought as an alternative to the first charge, no verdict was taken on the second charge.

4 On 16 April 2002, Christie DCJ sentenced the appellants as follows:

· The appellant Whelan was sentenced on count 1 to imprisonment for four years six months commencing 1 March 2002 and expiring 31 August 2006, with a non-parole period of three years expiring on 28 February 2005; and on count 3 to imprisonment for twelve months commencing 1 March 2002 and expiring 28 February 2003.

· The appellant Willer was sentenced on count 1 to imprisonment for three years six months commencing 1 March 2002 and expiring 31 August 2005, with a non-parole period of two years expiring on 29 February 2004; and on count 3 to imprisonment for twelve months commencing 1 March 2002 and expiring 28 February 2003.

5 The appellants appeal from their convictions and seek leave to appeal from the sentences.

CIRCUMSTANCES

6 In order to understand the issues raised on the appeal, it is convenient first to give a brief account of the background circumstances that can fairly be regarded as established and not in dispute, and a brief outline of relevant evidence and of how the Crown and the appellants put their respective cases before the jury.

7 During January, February and March 1998, the appellant Whelan was residing in a house, which was described as being owned by one Gerard Stewart, situated on a property Lot 283 Mount Pleasant Road, Wherrol Flat, which property was owned by a number of persons as tenants in common, including Mr. Stewart.

8 Mount Pleasant Road runs generally west from a road which is called on one map Big Run Road, but which appears to be the same road as one called Dingo Tops Road on other maps and which runs generally south-east to north-west. Some distance north-west of the intersection of Dingo Tops Road with Mount Pleasant Road, there is another road running generally west from Dingo Tops Road, called Potoroo Road. As well as having a front entrance onto Mount Pleasant Road, Lot 283 has a rear entrance onto Potoroo Road.

9 In circumstances which I will describe, the police located six sites in the general vicinity of these roads on which cannabis plants were growing. Site 1 was located just off Potoroo Road, not far from the rear entrance to Lot 283, and contained 78 plants or thereabouts. Site 2 was just east of the intersection of Potoroo Road and Dingo Tops Road, and contained 36 plants or thereabouts. Sites 3 and 4 were considerably over 11 kilometres away, close together and just off a road called Knodingbul Road which could be reached either by driving generally west along Potoroo Road, or alternatively by driving some distance north-west along Dingo Tops Road. Dingo Tops Road and Knodingbul Road were also linked by a road called Compartment 86 Road, identified on maps of the area as a four-wheel drive track. Site 5 was located just off Compartment 86 Road. Sites, 3, 4 and 5 contained respectively 64, 108 and 90 plants or thereabouts; and another site located just off Knodingbul Road, called Site 6, contained just 11 plants.

10 Commencing on 27 January 1998, pursuant to warrants granted for that purpose, ingoing and outgoing calls to and from telephone number [phone] connected to the house occupied by Mr. Whalen were monitored and recorded by police. These calls indicated that the appellant Willer was present at the house at times during February and early March 1998, and they include conversations by both appellants in which both of them talk about being very busy and going out at night.

11 The appellants were arrested at about 9pm on 12 March 1998 in the vicinity of Site 1. Shortly earlier, according to police evidence, they had been seen leaving a vehicle on Potoroo Road and then entering Site 1 with torches and a dog. One was then seen tending a rabbit trap, and both were seen inspecting cannabis plants. When the presence of police was announced, both ran from the site and were pursued and caught. The vehicle they had left on Potoroo Road was identified as a cream-coloured Ford Falcon Utility, registration THC 125.

12 On 13 March 1998, Sites 3 to 6 were located as a result of a helicopter search. Also on that day, two police drove north-west along Mount Pleasant Road from the house occupied by Whalen, and along a track which veered off that road about 300 metres or more from the house. About 200 metres along this track, they found cannabis wrapped in a tarpaulin and shade-cloth under a lantana bush, and also some more cannabis lying under some wires tied to trees.

13 Another house on Lot 283 was occupied by one Patricia Stone. On 13 March 1998, her vehicle was searched and a small quantity of cannabis was found, for which she was charged. She gave evidence at the trial that she was then on her way home after being away for a week, and that she did not place cannabis in the blue tarpaulin.

14 The Crown relied on similarities between the five crop sites (that is, the sites excluding Site 6) to support an inference that the appellants were cultivating all of them, in particular the use of newish tomato stakes in all but Site 2 (where the plants were 1-2 metres tall rather than up to 3 or 4 metres tall as at the other sites) and the use of mulch hay around the roots in all but Site 5. There were rabbit traps at three of the sites, and varying buckets, drums, twine and rope at the different sites. Site 6 was very different from the other sites, having small unhealthy plants.

15 The Crown also relied on surveillance of the area between 9 March 1998 and the time of the arrest. Broadly, the evidence of this surveillance was as follows, although it should be noted that there were some discrepancies in the police evidence.

16 On 9 March 1998 at about 8pm, a vehicle similar to that used by the appellants on 13 March, was observed to drive with two males on board north-west along Dingo Tops Road past the intersection with Potoroo Road. This or a similar vehicle was seen to return south-east along Potoroo Road to that intersection at about 11pm (at which time a dog was seen in the rear, “squeaky suspension” was noted, and it was said that the number plate light was not working). This vehicle stopped near the intersection, two men walked into the bush towards Site 2. Fifteen minutes later the vehicle went west along Potoroo Road and was seen to stop in the vicinity of Site 1. It returned to the intersection and turned south along Dingo Tops Road at about 12.30am. (Sites 1 and 2 were discovered as a result of these observations.)

17 On 10 March, at about 11.40pm, a similar vehicle with two people inside was seen to proceed north-west along Dingo Tops Road. This or a similar vehicle was seen to return to the intersection at about 12.35am, and to proceed west along Potoroo Road and stop near Site 1. Two men were seen to walk to Site 1 at about 12.50am, to go to a rabbit trap at Site 1 and to hammer stakes, returning to the vehicle at about 1.15am. The vehicle then returned to the intersection and proceeded south-east along Dingo Tops Road.

18 On 11 March, a similar vehicle drove north-west along Dingo Tops Road, and stopped near the intersection at which time the passenger got out and looked at the road. The vehicle then proceeded west along Potoroo Road at about 7.45pm. A noisy fan belt was noted and the evidence was that the rear number plate light was not working. A similar vehicle was seen driving south-west along Dingo Tops Road at about 10.49pm, and again it was said that the rear number plate light was not working.

19 In general terms, the evidence was that very few other vehicles were seen moving around on these roads at night during the time of the police observations.

20 There was evidence that when the vehicle THC 125 was driven to the police station, it was noisy and rattly to drive, but there was no evidence of any detailed inspection to establish that it had a noisy fan belt, or squeaky suspension, or that its number plate light was not working. In fact, the defence led evidence from two persons who inspected the vehicle, respectively on 4 July 1998 and 19 August 1998, that the number plate light on that vehicle was working, with its appearance suggesting that it had not been recently interfered with or repaired. The person who carried out the inspection of 4 July 1998 gave evidence on behalf of the defence that that vehicle had no suspension noise, and that the fan belt squealed only on hard acceleration.

21 The Crown also relied on the remoteness and ruggedness of the area, as making it unlikely that other persons were involved in the cultivation of cannabis on the discovered sites. However, the evidence did disclose that there were a few houses in Mount Pleasant Road, and that there were forest headquarters at the intersection of Dingo Tops Road and Compartment 86 Road. Maps in evidence showed other buildings (presumably including residences) along another road which went generally east from near these headquarters, namely Tallowwood Flat Road, these buildings being a similar distance from Compartment 86 Road as was the intersection of Dingo Tops Road and Potoroo Road. The evidence was silent as to whether or not there were more houses to the west of Knodingbul Road, or to the north of the intersection of Dingo Tops Road and Knodingbul Road.

22 There was evidence that a search of the house in which the appellant Whalen resided, conducted on 13 March 1998, disclosed Whalen’s wallet containing $1,425.00 in cash, two two-way radios and a pair of night vision goggles, although none of these last three items were functional. On the same day, the cannabis referred earlier was found beside a track on Lot 283, the quantity being about 1.2 kilograms.

23 The Crown also relied on the telephone intercepts referred to earlier.

24 Apart from the evidence concerning inspection of the motor vehicle, the defence called evidence to show that the items found at the crop sites were very common, evidence to explain the purchase of rabbit traps and the possession of cash by Whalen, and (most relevantly) evidence from one David Wadsworth, who resided in Mount Pleasant Road in 1997 and 1998, and who said that he did not know Whalen at that time. His evidence was that there was a Ford Utility indistinguishable from Whalen’s vehicle kept on a property in Mount Pleasant Road owned by one Ken Evans, on which there lived two men and one woman.

SUMMING UP

25 In his summing up, the trial judge referred to what he said were a number of uncontested matters, as follows:

I did say earlier that there are some matters in this particular trial that, as I perceive them, are either not in contest or could not seriously be in contest, and I shall deal with them now, but quite briefly for the moment.

Two men in a utility, variously described as cream or fawn or whatever, variously described as a Falcon or a Ford or whatever, entered and tended crop 1 or site 1 on the night of 10 March 1998. I do not perceive that that is contested. I may be wrong, but I do not think so. What is contested is whether those two men were the accused, of course.

Secondly, two men, and sometimes one man, in a cream or fawn utility, variously described as a Ford, were driving in and around Dingo Tops Road, Potteroo (sic) Road and other roads that I will come to later, in and about March of 1998.

The third matter that appears uncontested, or not capable of contest, depending upon what view you take of the phone intercepts, is that those events appear to have taken place whilst either the accused Willer or the accused Whalen, or both of them, were absent from the premises that they were occupying in Mt Pleasant Road.

The fourth matter that does not seem to me to be either contested or capable of contest, and I shall deal with it in some little more detail subsequently, is that two men, Messrs Whalen and Willer, were arrested on crop site 1 about ten to nine on the evening of 12 March 1998.

I will deal with it specifically in a minute, but it is certainly uncontested that one of them was wearing a balaclava. You may be driven to the view that both of them were possessed of a balaclava. I shall return to that. They were on that occasion with a dog. They were on that occasion driving a cream or fawn utility of a Ford make. One of them was armed, and I do not use that in any pejorative sense, with a knife or machete, the exhibit of which you have. The other one was carrying an apple, an orange and some peanut butter in some sort of satchel.

The two of them arrived at the crop and, depending upon what version of the facts you accept, they were seen to tend to a possum in a rabbit trap and release him, and inspected the crop. The fact that they inspected the crop I perceive to be in contest.

The other thing that is not contested is that those events took place following various, and indeed, numerous conversations between both of the accused on one of the accused's telephone over the previous three or four weeks.

What is also not contested, subject to what I will have to say a little later, is that these two men enter upon extensive telephone conversations over a period of weeks, which appear to concern, amongst other things, and I shall not at the moment attempt to be exhaustive, the fact that they are working extensively, the fact that they are working extensively at night, the fact that this work requires the attendance of one or other or both from time to time over those period of weeks.

There are repeated expressions of the need to be careful. There are discussions as to the picking up of phosphate. There are discussions as to the picking up of fruit and batteries. There is a discussion as to the picking up of a packet of Winfield Blue cigarettes. There are discussions about the picking up of items on the way from a place called Broadwater and/or Port Macquarie. There are discussions about leeches. There are discussions about the extent and length of their working hours at night.

There are a number of discussions, to which I shall, I think, need to return in detail, about the existence of car and bike tracks and footprints. There are discussions about helicopters, their presence, their location, and enquiries in relation thereto. There is, I think it fair to say, uncontested evidence of dramatic disappointment and frustration that the presence of helicopter engender in one or other or both of the accused, and that dramatic disappointment and frustration appears to be expressed in words, not all of which I will repeat, but including "Fuck", "That's it, then", and, forgive my English, "What a cunt", appears to be the sort of language that is used to greet the news of the helicopters .

There are also discussions about some "sus" people hanging around, the presence of tracks, the fact that the tracks are not those of the two persons speaking, the significance of the types of tracks, and two things, one of which only relates to one accused and one of which relates to the other. In relation to Mr Willer, there appears to bean expression by the female on the phone of the need to invent, for the purposes of telling her relatives, a scenario as to where Willer is and what it is he is doing. And in relation to the accused Whalen, you will note in some of the transcripts, in some of the tapes, he refers to the place in which he and Willer appear to be from time to time occupying, he refers to it as "home".

Now, I mention those things as being uncontested, in this sense. You have heard nothing in this case as to what inference you might be able to draw as to the contents of those conversations. I shall deal with a few of them, but not all of them, because you have had them played and you can play them again, as often as you like. But where you are required to consider competing inferences, that is, in order to ensure whether there is only one inference available or whether there are competing inferences that would lead you to not draw an inference adverse to the accused before you can consider competing inferences you have got to know what they are.

Now, the Crown has told you, and there is no polite way of putting this, the Crown has told you what inferences the Crown invites you to draw from the contents of those telephone conversations. It is clear enough what inference the Crown wishes you to draw. So that you need to consider whether there are other inferences available from those conversations other than those inferences for which the Crown contends, and before you can consider what those inferences might be, you have got to identify them or have them identified for you.

Similarly with the other principal aspect of the evidence that I perceive is not in dispute, it is pretty clear what inference the Crown wishes you to draw from the presence of these two men on crop site 1 at ten to nine on 12 March. Plain as a pikestaff, what inference the Crown wants you to draw. And before you can consider whatever competing inferences might be available, you need to identify what they are or have them identified for you.

And those inferences, of course, have got to be an inference that is reasonably available and supportable by the facts as you find them proved by the Crown, if you do find them proved by the Crown.

26 In explaining the relationship between count 1 and count 2, the trial judge said this:

And I think it is tolerably clear, the manner in which the Crown puts the two alternate counts. The first count is dependent upon whether you accept beyond reasonable doubt that the accused were nurturing or cultivating sites other than site 1. The second count is dependent upon whether you regard the accused as having been cultivating whatever amount of cannabis plants, if any, you find were being cultivated in site 1.

27 In relation to the Crown’s reliance on observations of the movements of a vehicle or vehicles, the trial judge said this:

The Crown relies also on the various observations of the comings and goings of this utility - fawn, cream, squeaky suspension, all the other descriptive matters that were put about it.

It is apparent now, although I forgot to tell you, I do not recall it being put to Crown witnesses, it is apparent now that at least one of the accused alleges that a lot of this evidence is fabricated by the police; that is, made up and dovetailed by them in order to fit up, I think is the vernacular, in order to fit up the two accused, Whalen and Willer.

I do not recall it being put to a single witness that they had manufactured or fabricated their evidence. There were about thirty-five police gave evidence here. Certainly there were a lot of questions put to them with some significant barb and cynicism in them, questions put: "This spot where you say you were standing," or "This vehicle you say you saw," or "This dog you didn't see and then saw," and so on. So that obviously there was some - what is the word I am looking for - suggestion or innuendo in the questions that the questioner was not completely accepting of the version of events that was being given.

But no Crown witness was given an opportunity, unless I missed it, of answering a suggestion that they had fabricated the evidence, one with the other. And, of course, if they had been, you would have heard it, I think, fairly repetitively, that is, "I suggest you didn't do this, but in fact you put your head together with Bloggs," or whatever was going to be put.

I suppose one is entitled then, and it is perhaps a legitimate portion of your debate and enquiry, to examine whether you accept or reject that there was collusion or lying or anything else by all these police - got to be nearly all of them, or a significant number of them - and you are entitled to use your experience of the world, because I think I would be entitled to say, and I here do not express any view about the facts, but I put a matter to you that you would be entitled to legitimately consider.

If these thirty-odd police are lying, or a significant number of them, then they are not particularly good at it, because if one is to fit up these accused - and you might come to the view they are, I do not know - it would seem, perhaps, in the ordinary experience of - human nature, it would be a hell of a lot easier to do it if one simply falsely writes down the number plate that one is looking for; and also, not only writes down THC-125, but says, "I recognised Willer," or "I recognised Whalen," or "I saw him do this or that." So that if they are fitting up these two accused, they are not doing it in a particularly clever way.

28 In relation to a defence submission concerning delay in charging the appellants in relation to Sites 3 to 4, the trial judge said this:

But let me deal with the proposition that was put to you, that they were not charged with the commercial quantity of cannabis until about, I think it is twelve days, or eleven days, after the date of their arrest; that they were arrested on the night of the 12th, and I think the word was "processed" and charged, of course, simply with the cultivation, presumably of site 1, where they were actually apprehended.

It is part of my duty to point out to you, of course, that at the time they were arrested and at the time they were processed, the police had not even found sites 3, 4 and 5. As far as I am aware, the evidence would indicate they did not find them until the helicopter found them on the morning of the 13th.

29 In relation to count 3, after explaining the notion of deemed supply and the meaning of possession, the trial judge said this about the cannabis found beside a track on Lot 283:

And the Crown, I think it is fair to say, rely upon the isolated spot where it was and the fact that it was under the lantana, and they rely upon the observations of an officer on the evening of 10 March when the Crown says that something was secreted under the lantana that you might find was something similar, like cannabis wrapped in plastic.

So that it is possibly a little misleading, to say the least of it, in the indictment when one reads that they are alleged to be possessed of this cannabis leaf between a date in January and a date in March, because the Crown case quite clearly is that, if they are possessed of it, they are possessed of it some time between, and perhaps during the whole time, of 10 and 13 March. Because, if I understand the Crown case, unless I have misinterpreted it, the Crown case is that this cannabis under the lantana is part of or portion of cannabis that was hidden by these two men if it was these two men on 10 March, or part of or portion of that cannabis which the Crown says was taken from lot 1 on the night of 10 March.

The Crown would need to prove that the cannabis found under the lantana, said to be five or six or seven hundred metres from the accused's house, was at least part of either the cannabis, if you find it was cannabis, that was said to be hidden under the lantana on the night of 10 March, if it was hidden by the accused, if you find it was the accused, and/or part of the cannabis which was said to have been harvested from site 1, if you find any was harvested on the night of 10 March, and if you find it was harvested by one or other or both of the accused.

Even if the Crown establish that to your satisfaction beyond a reasonable doubt, the Crown would still need to prove that the accused were possessed of it to the exclusion of all others. If you found that the accused secreted it, as distinct from some other person secreted some cannabis under the lantana on 10 March and/or took some from site 1 on 10 March, you might find - you would have to be convinced beyond reasonable doubt - that they secreted it in the lantana in which it was said to be found on 13 March. But if you were convinced of that beyond reasonable doubt, you might find that it is unlikely that other persons would know of its existence. But the defence points not only to the inconsistencies and weakness of that evidence that links, or is said to link the lantana secretion on 10 March with the secretion on 12 March, the defence not only points to the weakness and unsatisfactory nature of that evidence, but they also point to the existence of several other persons who could be perceived to be possessed, or at least partially possessed, of this particular lot of cannabis.

The accused point to The Clown - I have forgotten what his right name was - Kim or Les or something like that; anyway, the chap nicknamed The Clown, who is said to have lived down in one of those cases down near the river bed by the look of it, or where that low lying area where we passed there that morning. And Mrs Stone; they say, well, you could not exclude her. It is not a question of whether you are convinced that Mrs Stone did or did not have it. It is not a question of whether you are convinced that The Clown did or did not have it. You would need to be convinced beyond reasonable doubt that both of the accused had it to the exclusion of both those people, or any other persons you might find were in an about that particular area at that particular time.

30 In the course of dealing with a view that had been taken, the trial judge said this:

Now, we all went out and had a view, had a look around the place, and I remind you that - I do not even know if I said this to you, so it may be that I am not reminding you of it, perhaps I am telling you for the first time - you did not go out to the Dingo Tops Road to make yourselves witnesses in this case. You went out there in order to more clearly understand the evidence, and of course, what you saw out there is evidence in this trial, so that you are entitled to draw inferences in relation to what you saw there, in so far as it is consistent with the evidence you have heard about the area. We covered, of course, some greater area than that which is involved in these proceedings, if I correctly understand these proceedings.

31 The trial judge directed the jury that it must consider the case against each appellant separately, on evidence relating to that appellant; and that it should not use the existence of count 2 as a pretext for compromise. He directed that the jury first should consider count 1, and proceed to consider count 2 only if it found the appellants not guilty on count 1.

32 Later, the trial judge returned to the surveillance evidence, and said this:

So that there has been a lot said about the evidence of the comings and goings of different people, the directions in which they travelled. You have got all the maps. Various submissions have been made to you about what you should do with the various evidence of observations. The Crown has drawn your attention to what they say the observations prove. The defence has drawn your attention to alternative scenarios as to what the observations prove or do not prove. I am not going to go into all of them, because they are all on the maps and they have been dealt with at some significant length.

33 He directed the jury to the effect that it would draw an inference adverse to an appellant only if that inference was the “only available supportable inference”, and not if there were other inferences available. But he went on:

But before you can consider any available alternate inference, you must be able to identify such an inference. And I will be corrected in a couple of minutes if I am wrong, you may rest assured. I cannot identify an alternate inference for the contents of the telephone calls. I cannot, and I tell you quite bluntly, I cannot. And I am emboldened in that view because, unless I have missed it, nobody else has identified an alternate view, that is, an alternate inference available. And I will be quickly reminded if one exists.

That does not necessarily, indeed, it does not alleviate you from the responsibility of searching for some alternate inference that arises. Indeed, I detect that an alternate inference was put by Mr Young in relation to the presence of the accused on lot 1 the night of their arrest, and this is put to you for your consideration, and I need to point it out. They could have been there by chance, following the dog, or they decided to help themselves to a bit of what had already been harvested. Now, you look at those. If you think they are supportable inferences, you give them such consideration as you wish. You bear in mind the evidence of the circumstances in which their arrest took place.

34 The trial judge said this about consciousness of guilt:

And finally, I do not think I mentioned that the Crown also relies, as a demonstration of a consciousness of guilt, upon the accused fleeing the scene at the time the alarm went up on 12 March. You would only look upon their decamping from the scene as evidence of a consciousness of guilt if you were satisfied that whatever made them flee was a consciousness of guilt of the crime charged, and not some other aspect of the matter.

35 After the summing up, there were some requests for further directions. The Crown Prosecutor made the following request:

CROWN PROSECUTOR: Yes, your Honour. My friend, Mr. Young, in the course of his closing address anticipated that your Honour would say something about identification evidence as it related to the motor car.

HIS HONOUR: No, I don’t intend to. I don’t see this as an identification case.

36 Mr. Young, Counsel for the appellant Whalen, objected to certain directions concerning the selection of telephone intercepts put before the jury. Mr. Driels, Counsel for the appellant Willer, made this request:

DRIELS: Your Honour, there has been no mention by yourself in your summing up to the approximately seven witnesses that were called for the defence, in any shape or form, that they had been called or what their evidence was.
HIS HONOUR: I didn't think their evidence was in contest I didn't hear the Crown contest any of it.
DRIELS: Well, exactly. You put very-strongly what you considered to be uncontested evidence at the commencement of your summing up, and it did not include that uncontested evidence of those seven witnesses.
HIS HONOUR: The only thing I was going to say about the defence case was the suggestion that Detective Muxlow should have interviewed somebody who owned a white ute from last Monday. But anyway, I didn't. I don't propose to say anything further about it, but you will be protected, because it is recorded. Anything else?

GROUNDS OF APPEAL

37 Both appellants relied on the same 26 grounds, which were as follows:

1. The trial miscarried.
2. The trial judge erred in permitting the Crown to present an indictment alleging the cultivation of 378 plants between 23/1/98 and 13/3/98.
3. The trial judge erred in permitting the Crown to present an indictment containing as count 2 an allegation of a separate cultivation of 78 plants.
4. The trial judge erred in failing to sever the 3rd count from the indictment.
5. The trial judge erred in failing to discharge the jury on 18/2/02.
6. The trial judge erred in leaving the 1st count to the jury.
7. The verdict on the 1st count was unsafe.
8. The trial judge erred in leaving the 3rd count to the jury.
9. The verdict on the 3rd count was unsafe.
10. The trial judge erred in failing to give the jury directions in accordance with Section 165 Evidence Act.
11. The trial judge erred in permitting the Crown to ask Detective Hickey whether there was anything which distinguished the accused from persons previously seen.
12. The summing up was inadequate and unbalanced.
13. The trial judge erred in permitting the Crown to tender the wallet of the accused Whalen and lead evidence that it contained $1425.00.
14. The trial judge erred in permitting the Crown to lead evidence against both accused of the finding of a two way radios and night vision goggles at Whalen's premises.
15. The trial judge erred in failing to distinguish the cases and the evidence.
16. The trial judge erred in refusing to sum up or refer in any way to evidence given by witnesses for the defence.
17. The trial judge gave inadequate directions to the jury on the drawing of inferences.
18. The trial judge erred in his directions to the jury in respect to the relationship between the 1st and the 2nd count.
19. The trial judge erred in his directions to the jury on consciousness of guilt.
20. The trial judge erred in his directions to the jury in relation to the view.
21. The judge erred in directing the jury that the accused could have done certain things to challenge the prosecution case.
22. The trial judge erred in directing the jury that the accused had not given an explanation or given any explanation of those parts of the Crown case that may require explanation.
23. The trial judge erred in directing the jury that a matter of fact appears uncontested or not capable of contest.
24. The trial judge erred in his direction to the jury concerning failure of defence counsel to put questions.
25. The trial judge erred in directing the jury that the cultivations on crop sites 2, 3, 4 and 5 were not located until after the accused had been arrested and processed.
26. The judge erred in directing the jury in respect to matters that were not in evidence before them.

38 It will be convenient to consider these grounds under the following headings. First, a number of grounds relevant to the identification of the vehicle or vehicles whose movement was observed on 9-11 March: grounds 10, 16, 23 and 24. Next, grounds relevant to the drawing of a further inference of involvement in Sites 3, 4 and 5: grounds 2, 3, 6, 7, 12, 18 and 19. Next, additional grounds relevant to count 3: grounds 4, 8 and 9. Next, other specific grounds: grounds 5, 11, 13-15, 17, 20-22 and 25-26. Finally, the ground relating generally to miscarriage of the trial: ground 1.

39 I will then consider the applicability of s.7(2) of the Criminal Appeal Act and the proviso under s.6 of that Act. Finally, I will deal with the question of sentence.

GROUNDS RELEVANT TO IDENTIFICATION OF VEHICLE

40 I commence consideration of these grounds by noting that the jury could not convict on count 1 unless it was satisfied beyond reasonable doubt that the appellants were cultivating at least two out of the sites 3, 4 and 5. A commercial quantity of cannabis is 250 plants; and the Crown could not establish cultivation of 250 plants without establishing that the appellants were cultivating at least two of those three sites. Further, in my opinion, the jury could not find beyond reasonable doubt that the appellants were cultivating Sites 3, 4 and 5, or at least two of them, unless it was satisfied beyond reasonable doubt that the vehicle or vehicles seen by police at about 8pm and about 11pm on 9 March, and the vehicle or vehicles seen at about 7.45pm and about 10.49pm on 11 March, was Whalen’s vehicle. Even if it is accepted that, on the basis of the telephone intercepts, the appellants were doing more than cultivating Site 1 or Sites 1 and 2, and even accepting there were similarities between Site 1 and Sites 3, 4 and 5, a jury could not reasonably find beyond reasonable doubt that the appellants were cultivating Sites 3, 4 and 5, being over 11 kilometres away, unless the jury found that the appellants were on those nights headed in the direction of those sites and were absent for a time which could be sufficient to do some cultivation. I think in the circumstances of this case the finding as to the identity of the vehicle was a link in a chain rather than a strand in a cable: cf. Shepherd v. The Queen (1990) 170 CLR 573.

41 However, in my opinion, there certainly was evidence on which the jury could have been satisfied beyond reasonable doubt that it was the appellant’s vehicle seen on these occasions: this could properly be based on the general consistency of the appearance of the vehicle, the telephone intercepts suggesting frequent night work, the scarcity of other vehicles and the remoteness of the area, and the circumstance that a vehicle similar to Whalen’s vehicle was seen to visit Site 1 on 9 March and 10 March.

42 The defence case was that there were deficiencies and discrepancies in the police evidence of their observations (including the unexplained loss of some important evidence), that there was established to be another indistinguishable vehicle in the area, and that certain characteristics of Whalen’s vehicle were different from characteristics of the vehicle observed by the police (especially in relation to the number plate light and squeaking suspension); and that case had to be fairly before the jury.

43 It was submitted for the appellants that this defence case was not fairly before the jury, for reasons advanced under grounds 10, 16, 23 and 24.

44 Ground 10 invoked s.165 of the Evidence Act 1995, which is in the following terms:

165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,
(e) evidence given in a criminal proceeding by a witness who is a prison informer,
(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,
(g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165B.

45 In my opinion, what was said by the Crown Prosecutor at the end of the summing up amounted to a request within s.165, so it is necessary to consider whether this was identification evidence within s.165(1)(b).

46 The circumstance that it concerned the identity of an inanimate object, rather than a person, does not mean that it cannot be identification evidence: see R v. Clout (1995) 41 NSWLR 312; Crupi (1995) 86 ACrimR 299; Theos (1996) 89 ACrimR 486. Furthermore, these cases indicate that the circumstance that the evidence seeks to establish identity by virtue of similarity of features, rather than outright identification, is also not determinative of the question.

47 However, in my opinion, these cases also indicate that in order for the evidence in question to be identification evidence, reliance on identification or similarity of features must be a “significant part” of what the Crown relies on in order to establish the identity of the person or object in question. In this case, in my opinion there was no question of direct evidence of identification, and the similarity of features was not a significant part of what was relied on. What was relied on, as indicated above, was the general consistency of the appearance of the vehicles observed with Whalen’s vehicle, coupled with the telephone intercepts, the scarcity of other vehicles, the remoteness of the area, and the visits to Site 1.

48 However, it was important that the jury understand that the police evidence, although accepted as honest, could perhaps be considered not substantially accurate because it did contain certain inconsistencies and deficiencies; that even if the police evidence was accepted as substantially accurate, it did not go further than showing that the observed vehicle or vehicles could possibly be Whalen’s vehicle; and that there was evidence from the defence (about the other similar vehicle and differences between Whalen’s vehicle and the observed vehicle or vehicles) which could suggest that the observed vehicle or vehicles was or were not Whalen’s vehicle. Of course, the jury could have understood these things from the addresses of Counsel, even if they were not specifically pointed out in the trial judge’s summing up; although, in circumstances where they were not pointed out, it would be particularly significant if they were obscured by the summing up.

49 Turning to ground 16, it was submitted that a summing up should adequately put the case for the accused: see Checconi (1988) 34 ACrimR 160 at 173, and cases there cited.

50 For the Crown, we were referred to s.99(1) of the Criminal Procedure Act 1986, which is as follows:

99(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.

51 In my opinion, the evidence referred to concerning the existence of another similar vehicle and possible differences between Whalen’s vehicle and the observed vehicle or vehicles were such an important part of the defence case that they should have been referred to in the summing up. It could be said that this evidence had been heard recently and addressed on, and that therefore the jury would have it in mind; but in my opinion that would not absolve the judge from referring to such a significant aspect of the defence case. His failure to do so could at least lead the jury to think that this evidence had no relevance or merit.

52 Turning to ground 23, it was submitted that the trial judge was in error in relation to what he called the third undisputed fact, namely that the phone intercepts indicated that the sightings of the vehicle(s) occurred when one or both of the appellants were absent from the house. That inference was not merely not undisputed, but it seems to me was not a valid inference: assuming that there were no telephone calls at that time, that does not support a positive inference that one or both of the appellants were absent from the house.

53 Although, as pointed out for the Crown, the trial judge did direct the jury to disregard any opinions of fact which he expressed which did not accord with their own opinions, I think it was an error to give the judge’s imprimatur to a wrong proposition of fact in this way.

54 Ground 24 was essentially the complaint that the judge’s Browne v. Dunn comments were too strong, and in effect invited the jury to consider the question whether the police had got together to make a false case, thereby diverting them from the true question, that is, whether the Crown evidence established guilt beyond reasonable doubt.

55 I accept the Crown’s submission that a Browne v. Dunn comment may be appropriate where, as happened in this case, submissions were made suggesting impropriety where the police witnesses were not given a fair opportunity in the witness box to deal with that suggestion: cf. R v. Birks (1990) 19 NSWLR 677.

56 However, in this case, where the jury was given so little assistance in approaching the question whether or not it was Whalen’s vehicle that was seen on 9, 10 and 11 March, the extended focus on the question whether or not the police had got together and lied would in my opinion have tended to distract the jury from the real questions before it, namely whether it was satisfied that the police evidence was reasonably accurate, and whether this plus the other circumstantial evidence to which I have referred, but having regard to the defence evidence, was sufficient to satisfy the jury beyond reasonable doubt that the observed vehicle or vehicles was Whalen’s vehicle.

57 In my opinion, for all the reasons set out above, this question was not fairly before the jury in this case.

GROUNDS RELEVANT TO FURTHER INFERENCES CONCERNING SITES 3, 4 AND 5

58 I note first that, in my opinion, it is not necessary to give separate consideration to Site 2: slightly different considerations arise, and questions concerning Site 2 are not determinative of any issue in this case.

59 Looking first at grounds 2 and 3, it is clear in my opinion that cultivation on a number of different sites can be the subject of a single charge of cultivation of a commercial quantity: see Hamzy (1994) 74 ACrimR 341, Locchi (1991) 22 NSWLR 309. Furthermore, subject to a question of unfairness to which I will come, I see no objection to having a separate alternative count of simple cultivation, as in count 2. Under the statute, where a person is charged with cultivation of a commercial quantity, it is open to the jury to return a verdict of cultivation, if the jury is not satisfied that a commercial quantity was involved; but for this alternative to be explicitly before the jury as a separate alternative count seems to me to be productive of clarity rather than a matter that could be unfair.

60 Mr. Ramage QC for Whalen, however, submitted that there was the danger that the jury could reason that the appellants were guilty of more than what was charged in count 2, so that it would not be appropriate to convict them on count 2, and that could lead to a conviction on count 1 without the elements of count 1 being properly considered.

61 In this case, the trial judge correctly directed the jury to first consider count 1; and only move to count 2 if the jury did not convict on count 1. That was an appropriate direction, and went some way towards removing the danger suggested by Mr. Ramage.

62 However, in my opinion, whether or not there was a separate count like count 2, it was necessary to explain to the jury with some precision what was required before it could be satisfied on count 1, ie, that the appellants were cultivating at least two sites out of the three Sites 3, 4 and 5. It was necessary for the jury to understand that it was not sufficient that the appellants may have been cultivating cannabis on other undiscovered sites, or that they were cultivating just one of those three particular sites. Thus, if there were a reasonable possibility that the accused were not cultivating at least two of Sites 3, 4 and 5, but were cultivating only one of those sites and/or cultivating other undiscovered sites, then the jury had to return a verdict of not guilty on count 1.

63 This was not pointed out by the trial judge, and this absence was in my opinion exacerbated by the circumstances referred to in grounds 12, 18 and 19.

64 In relation to ground 12, it was submitted that the trial judge was in error in suggesting that only one inference could be drawn from the telephone intercepts, without making it clear that this inference (presumably, cultivation of cannabis at night) could be limited to Site 1 and perhaps other undiscovered sites. In my opinion, that is a valid complaint.

65 In relation to ground 18, the explanation given by the trial judge in relation to the difference between count 1 and 2 did tend to suggest that if the jury was satisfied that the appellants were cultivating more than Sites 1 and 2, then it could convict on count 1.

66 In relation to ground 19, the direction on consciousness of guilt did not point out that there was no sound basis for inferring from flight guilt in relation to any more than Site 1.

67 These points were not taken in this form at the trial, so leave may be required pursuant to s.4 of the Criminal Appeal Rules to raise them on appeal. There was in my opinion no tactical advantage in failure to draw the trial judge’s attention to these matters; and in my opinion there was a real inadequacy in the directions such that the question of the further inference which needed to be drawn concerning Sites 3, 4 and 5 was not fairly put to the jury. Any necessary leave should be granted.

68 Turning to grounds 6 and 7, dealing with the question of whether it was open for the jury on the evidence to convict on count 1, my opinion is that it was open to the jury to find beyond reasonable doubt that it was Whalen’s vehicle which was observed on 9, 10 and 11 March; and therefore that the appellants had about three hours on each of those nights during which they could have visited Sites 3, 4 and 5. If one puts that together with the moderate similarities between the sites, the remoteness of the area, the scarcity of other vehicles, and the telephone intercept material, there was in my opinion just enough evidence to support a conviction on count 1, assuming that the matter was put fairly to the jury.

OTHER GROUNDS RELEVANT TO COUNT 3

69 Under ground 4, it was submitted that the evidence of extensive cultivation activity on Sites 1, 2, 3, 4 and 5 was prejudicial, and this prejudicial effect outweighed any probative value.

70 In my opinion, although it can be said that the evidence concerning cultivation on those sites could be prejudicial, that evidence was of substantial probative value: evidence that persons residing on a property where cannabis was found secreted beside a track in the vicinity of wires that, it could be inferred, were used for drying cannabis, were engaged in substantial cultivation activities in the general area, was of significant probative value in relation to an allegation that those persons had possession of that cannabis.

71 Indeed, turning to grounds 8 and 9, under which it was submitted that there was insufficient evidence to convict on count 3, it was only by virtue of evidence about this substantial cultivation activity that it would be possible to convict on count 3. Given that there were substantial cannabis sites near to Lot 283 and further substantial sites somewhat over 11 kilometres away from that property, and if there was no reasonable possibility that some other persons were cultivating those sites, that circumstance would go quite some distance towards establishing that it was the appellants who were responsible for placing the cannabis beside the track. If the jury was properly satisfied, on the basis of proper directions, that it was the appellants who cultivated those five sites (and I have held that that was possible), then in my opinion the jury could have been satisfied beyond reasonable doubt that it was the appellants who were in possession of this cannabis.

72 However, if the jury was not satisfied beyond reasonable doubt in relation to Sites 3, 4 and 5, and if it was not satisfied beyond reasonable doubt in relation to Site 2, then I do not think it could have been satisfied beyond reasonable doubt in relation to count 3. It follows that the misdirections that I have identified as being relevant at least to Sites 3, 4 and 5 also affect the conviction on count 3.

OTHER SPECIFIC GROUNDS

73 In my opinion, none of the other grounds of appeal, either by themselves or in combination, justify interference with the convictions. I will deal with them briefly.

74 In relation to ground 5, in my opinion the publicity concerning Counsel for the appellant Whalen did not involve material risk of influencing the jury.

75 In relation to ground 11, the question “Was there anything about the accused you arrested on 12 March which distinguished them from the people you have seen previously?” could I think be considered a leading question in the circumstances, and on that basis should I think have been rejected. However, I do not think this could be considered an error material to the result.

76 As regards ground 13, there is a question whether Whelan’s possession of $1,425.00 cash was admissible. On one view, it could be relevant only by suggesting that Whelan had sold drugs for cash on another occasion, which could only support guilt by way of tendency, a form of reasoning which was unavailable in the circumstances of this case. We were referred to R v. Sultana (1992) 74 ACrimR 27 for the proposition that evidence that an accused was “currently in the business of drug dealing” would be relevant to a charge of possession of drugs otherwise than as tendency evidence. However, evidence of possession of $1,425.00 cash falls far short of being evidence of carrying on a business of drug dealing, and, at least unless coupled with other evidence that might suggest the carrying on of some kind of business, I think this evidence should have been rejected. However, there was also evidence before the jury of other sources of cash for the appellant Whalen, namely by the sale of bush rock, and the finding of the cash was not referred to at all in the summing up. On the whole, I do not think this was an error which could materially have affected the result.

77 In relation to ground 14, in my opinion the finding of two-way radios and night vision goggles had some probative value, albeit marginal; and I do not think any prejudicial effect or risk of prejudice outweighed that probative value so as to require rejection.

78 In relation to ground 15, the alleged failure to sufficiently distinguish the cases against the two appellants, the trial judge did tell the jury that it had to consider the case of each appellant separately; and in any event, in my opinion there was no material difference in the evidence against them.

79 In relation to ground 17, it was submitted that the trial judge did not direct the jury that inferences could only be drawn from established facts. In my opinion that is not a universal principle. In cases where circumstantial evidence is relied on, as it was in this case, inferences may be drawn from a combination of facts, where some of these facts are not themselves established beyond reasonable doubt: cf. Shepherd. I do not detect any material deficiency in directions about inference.

80 Turning to ground 20, it is put that the directions concerning the view were in error, having regard to s.54 of the Evidence Act, which is as follows:

54 The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

In my opinion, the direction read as whole was not erroneous, and in any event could not materially have affected the result.

81 In relation to ground 21, it was submitted that the judge directed that the appellants could have led certain evidence to challenge the prosecution case. Considered in isolation, that direction might have raised a suggestion that the appellants bore some onus; but it was given in a context where the trial judge was considering a particular submission by Whalen to the effect that a telephone call may have been recorded at a time different from that suggested by the Crown, in circumstances where that proposition had not been put to a relevant Crown witness. In that circumstance, I do not consider the remark inappropriate, and it was given in the course of a judgment where it was properly stressed to the jury that the appellants did not bear any onus.

82 Similarly, in relation to ground 22, the statement by the trial judge that the accused had not given an explanation of those parts of the Crown case that might require explanation, was made preparatory to statements where the trial judge made it clear that such absence of explanation was not evidence against the appellants, and that it should not be used to make up any deficiency that might be perceived in the Crown case. I do not consider there was a material error in that matter.

83 Ground 25 seems to be based on an error: as I read the summing up, the trial judge correctly said that Sites 3, 4 and 5 were not located until after the appellants had been arrested.

84 As regards ground 26, it appears that there had been some agreement concerning what tapes were to be in evidence; and even if the trial judge’s remarks as to the tapes and transcripts being in possession of the appellants for four years was not accurate and not in evidence, I do not see that these remarks amount to something material to the result.

MISCARRIAGE

85 It follows from what I have said that I consider the trial did miscarry on the questions whether the jury was satisfied beyond reasonable doubt that it was Whalen’s vehicle observed on 9, 10 and 11 March; and whether the jury was satisfied beyond reasonable doubt that the appellants were cultivating at least two of Sites 3, 4 and 5. Accordingly, in my opinion there was a miscarriage in relation to the convictions on count 1, in so far as that required satisfaction as to Sites 3, 4 and 5, and the convictions on count 3.

86 The question is then whether this led to a miscarriage in so far as the jury was satisfied beyond reasonable doubt of cultivation of Site 1.

87 It is possible that it would do so, because identification of the vehicle did have some relevance to satisfaction beyond reasonable doubt of cultivation of Site 1. The vehicle observed on those prior occasions was twice seen to visit Site 1; and a finding that the appellants were out at night cultivating cannabis in various places would tend to support the inference that what they were doing at Site 1 when arrested was in furtherance of cultivation rather than, say, just visiting and observing the site.

88 In my opinion, the question is then whether the errors which I have identified relevant to identification of the vehicle, which I have found to be material concerning the implication of the appellants in activities on Sites 3, 4 and 5, were material to a finding beyond reasonable doubt that they were cultivating Site 1.

89 On this matter, it is necessary to have regard to the other evidence which supported a finding that they were cultivating Site 1. There was the circumstance that they were arrested in the vicinity of Site 1, having been seen performing some activities on Site 1, at night. They had driven to Site 1 in a utility, not visited Site 1 in the course of walking in the area. There was the circumstance of flight when police presence was announced, and there were the telephone intercepts, powerfully supporting the inference that they were busy working at night. When one has regard to all that evidence, I think it is fair to say that the evidence concerning the identification of the vehicle observed on the earlier occasion only adds marginally to the case concerning Site 1. In those circumstances, I think the errors which I have identified in relation to identification of the vehicle can properly be considered as not material in relation to a finding beyond reasonable doubt that the appellants were cultivating Site 1.

CRIMINAL APPEAL ACT SECTIONS 6 AND 7

90 Section 6(1) of the Criminal Appeal Act 1912 provides as follows:

6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

91 Section 7(2) of the Criminal Appeal Act provides as follows:

7(1) …
(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

92 The verdict of guilty returned by the jury on count 1 meant that the jury must have been satisfied beyond reasonable doubt that the appellants cultivated Site 1; and it follows from my discussion above that the finding was not vitiated by the errors that I have found in the judgment. In those circumstances, in my opinion s.7(2) of the Criminal Appeal Act authorises this Court to substitute a verdict of cultivation, either as a statutory alternative for count 1 or alternatively as a finding of guilty under count 2.

93 In those circumstances, it is not necessary to consider the proviso. If I had come to the view that the jury’s finding beyond reasonable doubt that the appellants cultivated Site 1 was vitiated by errors, it may have been necessary to consider whether pursuant to the proviso, either on its own or in combination with s.7(2), this Court could have substituted a verdict of guilty on count 2 or as a statutory alternative to count 1, on the basis that it was affirmatively satisfied that such a verdict would involve no substantial miscarriage of justice. I think it is fair to say that this Court was in fact invited to take that course by Counsel appear for the appellant Willer. I am not sure that such a course is possible: s.6(1) appears only to authorise dismissal of an appeal if the court is satisfied that no miscarriage of justice has actually occurred. I think the better view is that the substitution of a verdict is only available if the Court is of the view that the jury’s findings supporting such an alternative verdict are not vitiated by any material error, that is, any error such as could as a reasonable possibility have affected the jury’s decision.

94 For those reasons, I propose that for each appellant a verdict of guilty on count 2 be substituted for the verdict of guilty on count 1 and 3.

SENTENCE

95 Leave to appeal has been sought in relation to the sentences, on the assumption that the appeal against convictions is dismissed, essentially on the basis that the sentences were excessive. Although statistics suggest that these sentences were in the higher part of the range of sentences for such offences, I have not detected any error in the remarks on sentence, and I would not consider the sentences excessive so as to justify the grant of leave to appeal. Indeed, subject to the following qualifications, I am content to adopt the substance of the trial judge’s reasons.

96 However, the substitution of a verdict of guilty on count 2 for verdicts of guilty on counts 1 and 3 has significance in three respects. Firstly, the maximum penalty for simple cultivation, as opposed to cultivation of a commercial quantity, is ten years rather than fifteen years. Second, the conviction on count 3 could have impacted on the penalty for count 1 in final adjustments made on the basis of the principle of totality. Third, a plea of guilty was offered by both appellants in relation to count 2, but not accepted by the Crown. This last matter suggests some discount for the utilitarian value of the plea is appropriate, and also justifies a more favourable view on the issue of contrition.

97 In very broad terms, the substitution of a verdict of simple cultivation rather than cultivation of a commercial quantity might be seen to justify a reduction in the sentence of about one-third, the offer of a plea of guilty to justify a reduction by a further 15% or thereabouts, and the element of contrition and the possible adjustment to totality to justify some further reduction.

98 Overall, my opinion is that the sentence of each appellant should be halved. That is, Whalen should be sentenced to a term of imprisonment for two and a quarter years, with a non-parole period of eighteen months; and Willer should be sentenced to a term of imprisonment of one year nine months, with a non-parole period of one year, entitling him to parole now.

99 I propose the following orders:

100 DOWD J: I agree with Hodgson JA.

101 BARR J: I agree with Hodgson JA.

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Last Modified: 03/17/2003