Regina v Leslie Carl Jones, Regina v Leslie Shane Jones

[2000] NSWCCA 186

CITATION:	Regina v Leslie Carl JONES, Regina v Leslie Shane JONES [2000] NSWCCA 186
FILE NUMBER(S):	CCA 60623/98; 60636/98
HEARING DATE(S):	10/02/00
JUDGMENT DATE:	23 May 2000
PARTIES :	Regina v Leslie Carl JONES, Regina v Leslie Shane JONES
JUDGMENT OF:	Spigelman CJ at 1; Hulme J at 2; Carruthers AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	93/11/1400
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL :	(Appellant) Leslie Carl Jones - P R Boulton (Appellant) Leslie Shane Jones - P D Rosser QC (Crown) - M Grogan
SOLICITORS:	(Appellant) Leslie Carl Jones - T A Murphy (Appellant) Leslie Shane Jones - Mark Klees & Associates (Crown) - S E O'Connor
CATCHWORDS:	Criminal Law - conspiracy to supply drugs - sufficiency of evidence of agreement as distinct from expectation - Criminal Law - failure to call witness - Jones v Dunkel direction inappropriate.
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985, ss 25(2), 26
CASES CITED:	Mulcahy v R (1868) LR 3HL 306 Peters v R (1998) 192 CLR 493 Lipohar v R (1999) 74 ALJR 282 Trudgeon (1988) 39 A Crim R 252 RPS v R (2000) 74 ALJR 449 R v Newland (1997-8) 98 A Crim R 455 R v Taufua (Unreported, CCA, 30 July 1999)
DECISION:	(Spigelman CJ and Hulme J., Carruthers AJ dissenting); In the case of each Appellant: Appeal allowed. Conviction and sentence quashed.

IN THE COURT OF CRIMINAL APPEAL

60623/98
60636/98

SPIGELMAN CJ
HULME J
CARRUTHERS AJ

Tuesday, 23 May 2000

REGINA v Leslie Carl JONES
REGINA v Leslie Shane JONES

JUDGMENT

1   SPIGELMAN CJ: I agree with Hulme J.

**********

IN THE COURT OF CRIMINAL APPEAL

No 60623 of 1998
No 60636 of 1998

SPIGELMAN CJ
HULME J
CARRUTHERS AJ

Tuesday, 23 May 2000

REGINA -v- Leslie Carl JONES
REGINA -v- Leslie Shane JONES

JUDGMENT

2 HULME J: In this matter, I have had the advantage of reading the Reasons for Judgement of Carruthers AJ and I can accordingly be brief. I agree with His Honour's reasons and conclusion in respect of grounds 3, 5 and 6. 3 Ground 1 was that "the evidence was incapable of establishing against the Appellant(s) the conspiracy alleged by the Crown". 4 The evidence to which the Crown drew the Court's attention in response to this ground, and which is set out at length in the Reasons of Carruthers AJ, permits of no doubt that the Appellants and the other persons named were engaged on a large scale in activities which resulted in cannabis leaf being supplied to third parties, or as the Crown Prosecutor asserted in his opening, "to the world at large". However, there remains the issue whether it was open to the jury to conclude that the Appellants were party to a conspiracy with, in particular, Mr Gene Pye and Mr Jeffrey Bennett that this should occur. 5 In legitimate commerce, the fact that a retailer may, over a substantial period, obtain goods sold by him to the public from a producer, manufacturer or wholesaler, would not normally lead to the conclusion, even on the probabilities, let alone beyond reasonable doubt, that the parties had agreed that this should occur . Typically whilst a producer would hope and probably expect that a retailer would sell product supplied (and in turn purchase more) the producer would not concern himself sufficiently with the retailer's activities to seek to participate in an agreement that this should occur. 6 To take an example, I would not expect that there was a term of the contract between Woolworths and the manufacturers of breakfast cereals that Woolworths sells, that Woolworths would sell these products to the public. 7 I do not see any reason why a different approach is required or justified merely because the subject of the dealings is marijuana or other illegal property. 8 The evidence disclosed nothing as to the circumstances in which the Appellants on the one hand and Messrs Pye and Bennett on the other, became associated. It is consistent with the evidence which there was, that the Appellants, able to produce and/or in possession of marijuana for sale approached one or both of Messrs Pye and Bennett, informed them of the Appellant's capacity to supply and offered the marijuana on a continuing basis and sought no involvement on what happened thereafter. Equally there is the possibility that Messrs Pye & Bennett approached the Appellants, simply seeking supply (with some arrangement as to consideration) and again with no wider or more extensive agreement. 9 Thus the evidence does not seem to me to exclude as a reasonable hypothesis an expectation on the part of the Appellants that Messrs Pye & Bennett would resell the marijuana, as distinct from some agreement that they would do so. As this Court in Trudgeon (1988) 39 A Crim R 252 made clear, a mere expectation is not sufficient to constitute a conspiracy. 10 Although there are statements which put the matter more widely - e.g. that quoted by Gleeson CJ in Trudgeon (at p254), "a conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means" and His Honour's own reference (at p257) to "the making of an agreement … in the sense of a manifestation of a common intention that that should occur", I take the concept of conspiracy to require the conclusion that there was in fact an agreement - see Mulcahy v R (1868) LR 3 HL 306 at 317, 324. Peters v R (1998) 192 CLR 493 at 513, Lipohar v R (1999) 74 ALJR 282 at [42]. Of course acting in concert or manifesting a common intention is evidence from which an agreement may, depending on the circumstances of the case, be inferred but, for the reasons given, I see no requirement in the evidence in this case to infer an agreement by the Appellants that there would be "supply to the world" or to third parties. The case in my view is indistinguishable from Trudgeon. 11 In making that last statement I am not unconscious of the fact that in Trudgeon there was only one instance of supply and here there were many, nor that the relationship between the Appellants on the one hand and Messrs Pye and Bennett on the other was substantially more extensive than that between Mr Trudgeon and his supplier. However, I see nothing in that extended relationship to require the conclusion that there was a conspiracy and that all reasonable hypotheses consistent with innocence on that charge had been excluded. 12 In that connection, I would add that I do not see in the evidence justification for the conclusion that Messrs Pye or Bennett were selling marijuana on behalf of, inter alia, the Appellants nor that the moneys paid by the former to the latter represented the proceeds of sale to the public, as distinct from the "contract" price as between the Appellants and Messrs Pye and Bennett. The fact that the source of the funds paid to the Appellants were the customers of Messrs Pye and Bennett, who may have been extended credit, does not mean that the payments be them amounted to proceeds of any sale by the Appellants or of a group of which they were members. 13 Although it is not the only reason for this conclusion, mention should be made of the fact that, following the arrest of Messrs Pye and Bennett and the seizure by the police of a deal of marijuana they then had, there were conversations between Mr Pye or his wife on the one hand and Mr Shane Jones and his wife Toni on the other wherein it was said that Mr Pye was embarrassed and trying to get as much money together as he could before seeing Shane and that Mr Pye and his wife had their house on the market because of that embarrassment - see tapes NED 1516 and NED 2012. Although one cannot exclude the possibility that the reference to "house" was code, my impression of the conversations is that Mr Pye was someone who owed money and was telling his creditor that he was taking what steps he could to pay. Such a situation is quite inconsistent with the proposition that the marijuana seized was that of the venturers as a group. To my mind, these conversations argue with some force for the view that Mr Pye was a purchaser, not a partner, and against the proposition that when he paid money to the Appellants, it represented the proceeds of sale. 14 Whether the arrangement between the Appellants and Messrs Pye and Bennett was that of supplier and purchaser rather than of what might be called joint venturers was, of course, a matter on which the Appellants could have given evidence or addressed in their unsworn statements. They took neither of these options, the tenor their unsworn statements being that they had no involvement with marijuana. The questions then arise whether an inference that they were joint venturers or, to put the matter more precisely, parties to the conspiracy alleged by the Crown can more readily, or should, be drawn. 15 In the circumstances I am of the view that they should not be. To advert to the distinction between supplier and purchaser on the one hand and joint venturers or co-conspirators on the other, would have involved admitting some participation in the supply of marijuana and, even if it might have helped in resisting the charge brought, provide incriminating evidence of assistance to the Crown should it bring a charge of substantive supply. There being thus a good reason for the Appellants' silence on the issue, it seems to me it would not be appropriate to use that silence to strengthen any inference adverse to them - c.f. R v OGD (1997) 45 NSWLR 744 at 752-3, RPS v R (2000) 74 ALJR 449 at [34]. 16 The conclusion at which I have arrived means that, as the first ground of appeal asserts, "the evidence was incapable of establishing against the Appellant(s) the conspiracy alleged by the Crown" and that, within s6 of the Criminal Appeal Act, "the verdict of the jury… is unreasonable, or cannot be supported". It follows that the appeals should be allowed. 17 That conclusion makes it unnecessary that that I embark upon a consideration of the other grounds. However, I should not leave the matter without expressing my disquiet at the fact that at no time in a summing up, which commenced on the afternoon of 26 May 1998 and concluded at about 10.50 on the morning of 28 May, did the judge once tell the jury that the conspiracy on which the Crown relied was for the supply of marijuana "to the world" whereas on a number of occasions his Honour referred to the agreement alleged as one for supply. The only occasion when there seems to have been any reference to this other element of the Crown case was when his Honour was dealing with the question of quantity and drew attention to the Crown's reliance on the amount of cannabis found in the possession of Messrs Pye and Bennett as indicating that "over the period of the alleged conspiracy an amount was supplied to the world at large which was not less than the commercial quantity of 25". (sic) 18 And his Honour's response to the jury's questions:-

"Does knowledge of illegal activities make you part of a conspiracy?
Do deeds which may assist in illegal activities make you part of a conspiracy? and
Does knowledge of and doing deeds which assist illegal activity make you a member of a conspiracy?"

was calculated to mislead. What his Honour said was:-

"I give you the following direction: For participation to be established it must be proved beyond reasonable doubt that the accused intended that the object of the conspiracy be achieved. The intention of an accused may be inferred by the acts and statements of that accused. There must be a meeting of minds."

19 The matter was hardly rectified when, after a request by counsel that his Honour answer the jury's questions, his Honour said that the answer to the first question was "no" and to the second and third, "not necessarily". 20 As I have indicated, in my view the appeals should be allowed. The Appellants' convictions and the sentences imposed should be set aside. Because the reason is the inadequacy of the evidence adduced by the Crown to support the charge, there should not be an order for a new trial. Whether the Crown will choose to present further indictments charging the Appellants with substantive offences of supply - c.f. DPP v Stewart (1983) 2 AC 91, Archbold, 41^st ed., para 28-27 - will be a matter for the Crown. 21   In the case of each Appellant, I propose the following orders:-

1. The appeal is allowed.

2. The Appellant's conviction and sentence are quashed.

**********

IN THE COURT OF
CRIMINAL APPEAL

60623/98
60636/98

SPIGELMAN CJ
HULME J
CARRUTHERS AJ
Tuesday, 23 May 2000

REGINA v Leslie Carl JONES
REGINA v Leslie Shane JONES

JUDGMENT

22   CARRUTHERS AJ: On 4 May 1998 the above named appellants, together with Mrs Toni Ruscoe-Jones the wife of Leslie Shane Jones, and Allan John Kelly, were arraigned upon an indictment containing one count, namely:

“For that they between 15 March 1991 and 28 April 1992 at Five Day Creek and elsewhere in the State of New South Wales, did conspire together and with Neville Bruce Jones, Jeffrey James Bennett, Gene Warren Pye and others to supply a prohibited drug, namely cannabis leaf, in an amount which was not less than the commercial quantity.”

The four accused pleaded not guilty.

23   On 2 June 1998 the Jury returned verdicts of guilty against the appellants and Mrs Ruscoe-Jones. A verdict by direction had earlier been given in the case of Mr Kelly. 24   On 12 October 1998, the appellants were sentenced to imprisonment. In the case of Leslie Carl Jones, a minimum term of 2 years and 348 days was imposed commencing on 2 June 1998, and an additional term of 358 days commencing on 16 May 2001, and in the case of Leslie Shane Jones, a minimum term of 3 years 341 days was imposed commencing on 2 June 1998, and an additional term of 15 months 23 days commencing on 8 May 2002. There is no application for leave to appeal against sentence. Mrs Ruscoe-Jones had been sentenced earlier. Both appeals were heard together. 25   The grounds of appeal filed by Leslie Shane Jones are as follows:

1. The evidence was incapable of establishing against the Appellant the conspiracy alleged by the Crown.
2. The learned trial judge’s directions as to the elements of the offence were inadequate and misleading.
3. His Honour erred by failing to warn the jury not to speculate about what evidence might have been given by people who were not called as witnesses.

26   As a matter of convenience I have renumbered the grounds of appeal filed by Leslie Carl Jones:

4. His Honour erred by failing to specify the scope of the conspiracy that had to be proved.
5. His Honour erred by failing to warn the jury not to speculate about what evidence might have been given by people who were not called as witnesses.

27   During the hearing of the appeal, Leslie Carl Jones was granted leave to rely on the ground numbered 1 above. Both appellants were granted leave to rely on a further ground to the effect of the following:

6. The trial judge erred in refusing to discharge the jury after the Crown Prosecutor, in his closing address to the jury, made a submission to the effect that the accused would have been expected to call Messrs Bennett and Pye, that their failure to do so was unexplained and, therefore, the jury could infer that any evidence from these two could not assist the accused’s case.

28   Grounds numbered 2, 3, 4 and 5 were not the subject of any application for a redirection at the trial. 29   In opening the case, the Crown Prosecutor particularised the conspiracy as an agreement that cannabis would be distributed to the world at large. The involvement of the alleged conspirators was described as follows: The appellants were described as the senior partners; Mrs Ruscoe-Jones was said to be the central point for communications amongst the conspirators; Messrs Kelly and Neville Jones were described as persons who assisted in more of the mundane hands-on activity involved in the conspiracy; Mr Gene Pye and Mr Jeffrey Bennett were said to be the distributors of cannabis on behalf of the conspirators. The jury were asked to conclude that Pye and Bennett attended a property, “Kimberley”, to pick up stocks of cannabis, take them away for distribution, and later return the proceeds of sales primarily to Messrs Les and Shane Jones (as the appellants were respectively referred to during the trial). 30   The geographical hub of the conspiracy was said to be the property known as “Kimberley” at Five Day Creek, approximately 80kms west of Kempsey. Shane Jones and Ms Ruscoe-Jones lived on this property together with Allan (Ned) Kelly. 31   Les Jones lived at Sherwood, approximately 10kms west of Kempsey, with his wife Greta Louise Jones. 32   Neville Bruce Jones, who is the brother of Les Jones, lived on a property at Niangala, which is approximately 40kms south of Walcha and several hours drive from “Kimberley”. 33   Gene Pye lived at Terranora, west of Tweed Heads. Jeffrey Bennett (also known as Jeffrey Smith) lived at Laurieton. 34   The Crown Prosecutor described the Crown case as wholly circumstantial, the Crown suggesting that the conspiracy was to be inferred primarily from evidence of duly authorised intercepted telephone conversations involving the alleged conspirators. 35   In his opening, the Crown Prosecutor acknowledged that there was no use of the word “cannabis”, or the like, in any of the telephone calls. The jury were asked to infer that a code was used by the participants in the conversations recorded, and notwithstanding that words said to be code words included words such as “fence posts”, “ticks”, “cattle” and “drenching”, together with the fact that more than one of the alleged conspirators lived on rural properties and dealt in cattle, the Crown case was that a number of the conversations were impossible to believe if taken literally. Thus, although the above words were used at times in a genuine context, they were at other times used to mask the real subject matter, namely the cultivation and distribution of cannabis. 36   Evidence, other than the tape recordings of the telephone intercepts, connecting any of the alleged conspirators with cannabis fell within a relatively narrow compass. There was evidence that in February 1992 a plantation of cannabis was found by police officers growing in the Styx River State Forest, which is in the vicinity of “Kimberley”, but at no time was any cannabis found on “Kimberley” itself or on the property of Les Jones at Sherwood. Earlier, on 22 April 1991, the premises occupied by Jeffrey Bennett were searched by police and some 68kg of cannabis leaf was found. While the police were there, Gene Pye arrived. A search conducted on the following day of premises being leased by Gene Pye revealed the presence of some 22kg of cannabis leaf. Both Bennett and Pye were arrested. They were both granted bail, and according to the Crown case, thereafter actively continued their involvement in the alleged conspiracy. It is not necessary for the purposes of this appeal, to refer to other detailed evidence adduced by the Crown. 37   Realistically, it was conceded during the course of the appeal by counsel for both appellants that there was evidence in the prosecution case which allowed the jury to conclude that the following objects had been achieved: · Les Jones cultivated cannabis.
· Shane Jones cultivated cannabis.
· Shane Jones supplied cannabis to Pye and Bennett.
· Les Jones supplied cannabis to Pye and Bennett.
· Shane Jones supplied cannabis to others, including Hulbert.
· Shane Jones and Les Jones communicated with each other about the supplies that they made (either individually or collectively) to Pye and Bennett.
· Les Jones assisted Shane Jones during the period that Shane Jones supplied cannabis to others including Hulbert.

The specific reference to Hulbert is not of significance.

38 Each of the appellants and Mrs Ruscoe-Jones made unsworn statements. Shane Jones in a lengthy statement said that he had nothing to do with conspiring to supply a large quantity of cannabis and there was no code. Les Jones, also in a lengthy statement, said that he was in Court to prove his innocence. He denied speaking in code. 39 Both appellants referred to various transcripts of intercepted telephone conversations with the intention of explaining to the jury that they were genuine conversations relating to rural matters. 40 The first, second and fourth grounds of appeal may conveniently be dealt with together. 41 It is helpful to note, at the outset, certain well established principles relating to an asserted conspiracy to supply a prohibited drug pursuant to the provisions of s25(2) and s26 of the Drug Misuse and Trafficking Act, 1985, as amended. 42 Relevantly, s25(2) provides that a person who supplies an amount of a prohibited drug which is not less than the commercial quantity is guilty of an offence. 43 Relevantly s26 provides that a person who conspires with another person or other persons to commit an offence [under s25(2)] is guilty of an offence and liable to the same punishment as the person would be if the person had committed the abovementioned offence. 44 The definition of “supply” is to be found in s3(1). It is as follows:

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

45   That definition, it may be noted, is identical with the definition of “supply” in the Poisons and Therapeutic Goods Act 1966 (N.S.W.). 46 The first case to which reference should be made is the judgment of this Court in Regina v Chow. (1987) 11 NSWLR 561 47 In Regina v Challita (1988) 37 ACrimR 175 at 184. this Court explained the decision in Chow as follows:

“Before leaving the aspect of the case relating to the conspiracy charge and his Honour’s directions in respect thereof, we wish to make a brief observation on the decision in Chow (1987) 11 NSWLR 561; 30 ACrimR 103. There appears to be confusion amongst counsel as to just what that case decided. It decided no more than that where there was a would-be seller of heroin and a would-be purchaser of heroin, the agreement for sale which resulted could not be charged as conspiracy. The would-be seller could not conspire with himself and the agreement for sale between the parties could not be said to have been preceded by a conspiratorial agreement between the two parties to achieve that result. The case has no application at all to the present case.”

48   In Regina v Trudgeon (1988) 39 ACrimR 252. the appellant was charged with and convicted of conspiracy to supply a prohibited drug. A sale agreement between the vendor Cheung and the appellant purchaser was established, but there was no direct evidence of an intention in Cheung that the appellant would on-sell the drug. 49 In quashing the conviction, the Court noted that there could be little doubt that the appellant intended in acquiring the heroin from Cheung to sell it to whoever would buy it. But that is no evidence, the Court said, that he had agreed with Cheung that it should be resold - that it was part of their mutual understanding that it should be resold. It was, at most, an expectation on the part of Cheung that it would be resold by the appellant. Thus, consistently with the decision in Chow, the Crown had failed to establish a conspiracy to supply the prohibited drug. 50   Finally, it should be noted that in Tannous v The Queen, (1990) 64 ALJR 141 the High Court in refusing special leave to appeal, held that the decision in Chow was inapplicable to circumstances where accused persons allegedly conspired to supply a prohibited drug to another not being one of their number. 51   The Crown asserts that the present is such a case. 52   On behalf of the present appellants it was argued, in reliance upon the abovementioned line of authority, that it was not sufficient for the Crown simply to prove that Pye and Bennett sold cannabis to others. An agreement by the appellants and others to grow and/or sell cannabis to the distributors Pye and Bennett would not, it was argued, be a conspiracy to distribute cannabis “to the world at large”, as alleged. 53   It was argued that the telephone intercepts relied upon by the Crown were equally consistent with the conclusion that Pye and Bennett had purchased the drugs from the appellants, and then on-sold them to third parties for their own benefit, as they were with the conclusion pressed by the Crown, that Pye and Bennett sold the drugs to third parties (the world at large) on behalf of all the conspirators. 54   If the appellants are correct in this argument, then the appropriate conclusion would be (it was argued) that there was insufficient evidence to establish the conspiracy and the case should, therefore, have been taken away from the jury by the trial judge. No such application was made to the trial judge, but in view of the importance of the submission, this Court has received detailed submissions, by reference to the telephone intercepts, directed specifically to whether there was sufficient evidence to go to the jury to establish that, at all relevant times, Pye and Bennett were selling cannabis on behalf of the other alleged conspirators and accounting to the appellants for the proceeds. 55   Although the Crown has specifically relied in this Court on certain specific intercepts, it has been necessary for the members of this Court to consider each of the large number of transcripts of telephone conversations tendered at the trial. The specific transcripts relied on by the Crown on this particular issue can only be properly evaluated in the light of the evidence as a whole. 56   Ultimately, the Crown relied upon 17 tapes, as specifically demonstrating that the nature of the relationship between the appellants and Pye and Bennett was clearly distinguishable from the factual situation in Chow. It was submitted that these 17 tapes, in the light of all the evidence, established that the arrangement between the appellants and Pye and Bennett was characterised by the fact that the appellants received payments from Pye and Bennett as a consequence of the sale by the latter of the cannabis to third parties on behalf of the conspirators. 57   Rather than attempting to summarise the Crown’s submissions, it is convenient if I set out here the following extract from the Further Crown Submissions, dated 14 February 2000:

“18. There was evidence available to the jury from which they could conclude that the nature of the relationship between the Appellants, Pye and Bennett was distinguishable from that dealt with in Chow . There was for example, evidence that the arrangement between the Appellants and Pye was characterised by the fact that the former received payment as a consequence of the subsequent sale of the cannabis to third parties.

19. In Ned 134 there is a conversation between Pye and Shane Jones in which the former says that he had organised to fix Jones up “with all them cattle tomorrow”. The Appellant’s case was that he had sold cattle to Pye. The reference to fixing him up must have been a reference to payment for cattle. In light of other conversations it was open to the jury to conclude that this was a payment for cannabis. This conversation was on 22 March 1991.

20. In Ned 313 a further conversation, on 2 April 1991 Pye tells Shane Jones that he and “Jeff” will be up the next day and that Pye would drop off some money for the cattle. In a call on 6 April, Ned 354 Pye refers to providing half the payments for the cattle. In Ned 358 Pye tells Les Jones that he would drop something in. In a similar vein Pye tells Shane Jones in a call on 1 May, Ned 791 , that he has “two suits of the money” for Les. In Ned 1516 Pye requests that Shane Jones tell Les that he should not worry as he is going to put his house on the market and “fix him up”. About a week later in a conversation with Shane Jones recorded as Ned 1644 , Pye again refers to getting rid of his house and fixing “him” up. It was reasonably open to the jury to conclude that there was a financial relationship between the Appellants and Pye in which the latter was indebted to either or both of them, at least Leslie Carl Jones.

21. Other aspects of the evidence strengthen the availability of that inference. It is apparent that Pye’s arrangements with the Appellants were regular. In Ned 381 , shortly before the Appellants left for a trip overseas Pye tells Shane Jones that things have slowed slightly but that while he, Shane, was away, “we’ll take care of everything”. The “we” must have included Pye and indicates that the overall arrangement between them will be looked after. This is consistent with the existence of a mutual involvement on an enterprise rather than a situation such as that referred to in Chow .

22. Similarly in Ned 397 Pye tells Les Jones shortly before he leaves that he would look after him. It was open to the jury to accept these comments as indicative that the enterprise was a joint one and that there was (sic) a mutual interests and benefits involved. In Ned 429 Pye tells Toni Jones that things have slowed down “that little fraction”. In Ned 492 Pye again tells Toni Jones that things were a little slower, but she should tell the “lads … not to worry”. This also suggests that there was a direct relationship between Pye’s activities and those of the others involved in the arrangement. Similarly, in Ned 536 Pye again tells Toni Jones that things had been slow, but had picked up and given another week “it will be all gone”. In the same conversation he tells her that “Geoffrey” would be there in an hour with “about two and a half for youse”. It was an available inference for the jury that Pye was keeping the others informed about the volume of the business because it was relevant to them.

23. In Ned 1360 Shane asks Pye how things are going. He is told that it had quietened down. Pye then says:

Yeah not bad. Not bad. Anyway mate, ah, get, ah, get amongst them, amongst the, the herd and ah, to get rid of them for ya.

In the context of other references to cattle and herds it was open to conclude that Pye was confirming that he was going to dispose of cannabis for Shane Jones.
24. Other examples of Pye’s involvement being greater than merely a party to an agreement to supply is evident from Ned 409 in which he tells Toni Jones to tell Ned that there had been complaints about “a few of the cattle” and that he was going to have to clean them up. Having regard to the evidence from which the jury could infer the cattle references in this context were references to cannabis, it was also open to conclude that Pye was engaged in aspects of the cultivation of cannabis for sale.
25. Similarly, in Ned 561 Bennett indicates that he has gone to where the cannabis is growing and considers the quality to be adequate although, he says later in conversation, it will take him a day or two to “clean it up”. That conversation suggests a broader level of involvement by Bennett than that of a person who had done no more than agreed to be the beneficiary of an agreement to supply.
26. In Ned 397 , after telling Les Jones that he will look after him, presumably while Jones is away, Pye says that whatever he “picks” of Jones’ will be dropped off at his place. That conduct suggest direct involvement in harvesting of something. It was open to the jury to conclude that the relationship involved cannabis. It was therefore open to conclude that the relationship was one of something more than Pye just being a party to an agreement to supply.
27. Ned 158 also suggests a degree of mutuality in the arrangement. It is apparent that Bennett had asked Shane Jones to supply some bathroom scales which, it appears, he had supplied.”

58   In the Further Submissions in Reply counsel for both appellants challenged the conclusions sought by the Crown. 59   I quote the following paragraphs from the Further Submissions in Reply of Mr Boulton of counsel for Les Jones, which were adopted by Mr P D Rosser QC for Shane Jones:

“3. It is not sufficient to demonstrate that the appellants received payment from Pye and Bennett as a consequence of the subsequent sale of the cannabis to third parties. The telephone conversations highlighted by the Crown in their recent submissions do no more than that.
4. There needs to be a particular response to several of the conversations relied upon by the Crown. In several instances the meaning of the words spoken by the participants cannot be inferred from the terms of the conversation.
5. It is suggested that Ned 381 means that Pye will “take care of everything” on behalf of the appellants whilst the appellants were overseas. This meaning cannot be derived from the transcripts. The correct context for this quote is as follows:

Gene Pye: “Ah, so I want to go, I’ll probably come and see you before you go .”

Sean Jones: “That would be good mate.”

GP: “Yes mate, I’ll ah, just ah, there’s, it’s slowed down a little bit, just ah, oh just a fraction.”

SJ: “(Can’t decipher).

GP: “But listen don’t worry about it, go away and enjoy your holiday and …”

SJ: “Yeah mate.”

GP: “We’ll take care of everything mate.”

SJ: Yeah mate I’ll see you tomorrow.”

GP: “Yeah mate we’ll come and see ya, we’ll come and see ya before you go anyway.”

SJ: “Oh that would be good mate.”
6. The meaning to be inferred from this portion of the conversation is that Gene Pye was assuring Sean Jones that he would come and see him the next day to “take care of everything mate”, i.e. to make a payment. It does not suggest “that the overall arrangement between them will be looked after”. (Crown Submissions para 21).
7. Likewise, the reference in Ned 397 to Pye telling Les Jones “We’ll look after you mate” is another assurance that Pye will pay Les Jones.
8. Ned 409 does not allow an inference that Pye was engaged in aspects of the cultivation of the cannabis for sale (per para 24 of the Crown Submissions). The reference on page 3 of that transcript to cleaning up cattle and taking “loosen and sticky” out of it can be references to cannabis but cannot by itself, or in conjunction with any other tape be used to infer that Pye was taking part in the cultivation of cannabis.
9. Likewise Ned 561 , is not capable of the inference that Bennett had a broader level of involvement than merely as a party to an agreement to supply (per para 24 of the Crown Submissions). The proper inference to be drawn from this conversation is that Bennett was talking to “Darryl”, a prospective purchaser, and was assuring him that Bennett had seen the cannabis and that it was of good quality.
10. The reference to “bathroom scales” in Ned 158 may be bathroom scales, or maybe something else. Either way, his conversation, either singularly or in conjunction with any other conversation, is not capable of demonstrating the requisite intention that needs to be proved.
11. The suggestion in paragraph 28 that, during the period in which Les and Sean Jones travelled overseas Pye was to at least assist in overseeing the operation, is not supported by any references to the evidence other than the ones which have been specifically answered in those submissions.”

60   Mr Rosser QC added the following comments in relation to the following intercepts relied upon by the Crown:

“2. None of the calls Ned 602, 603, 604, 615 or 617 involves either of the appellants as a party. Even if they are capable of being regarded as statements made in pursuance of the conspiracy as opposed to recitations of past events they are capable at their highest of disclosing no more than a concern on the part of Ruscoe-Jones and Kelly at the arrests. No principle of law enables that state of mind to be visited upon either of the appellants. Any such concern is in any event explicable on the basis of a fear that Pye and Bennett may disclose the source of their purchases of cannabis.
3. The high water mark of the Crown case is Ned 381 . It cannot be divorced from the context that there are moneys owed from time to time by Pye and Bennett to the Jones’. This, indeed, is a matter strongly contended for by the Crown. Within that context the promise to ‘take care of everything’ is most probably a reference to making payment for cannabis purchased. There is nothing in the evidence to suggest that during the absence of the appellants Pye acted in any manner consistent with the interpretation for which the Crown contends.
4. Whilst it is clearly open in the evidence to infer a relationship of vendors (the appellants) and purchasers (Pye and Bennett) that is not the conspiracy which went to the jury.”

61   Having carefully considered the totality of the intercepted telephone calls and the 17 calls specifically relied upon by the Crown with regard to this point and the submissions of the parties, I am quite satisfied that there was evidence available to the jury from which they could conclude, to the requisite standard, that Pye and Bennett were selling drugs to third parties on behalf of the conspirators as a whole. The evidence does not in my view, fall foul of the principles enunciated in Chow and Trudgeon. 62   By way of elaboration, having carefully considered the arguments on behalf of the appellants, may I say that I generally accept the Crown submission set out above as providing the correct interpretation of the conversations. The strength of the Crown case lies in the combined effect of the telephone conversations which, in particular, involve the activities of Pye and Bennett over the whole life of the conspiracy. It is not necessary to consider each conversation in isolation. However, it must be noted that certain conversations carry particular force. Thus the following conversations may be considered to have particular significance in the context of the evidence as a whole. · In 381 (8.4.91) Pye tells Shane Jones, who is going overseas, “We’ll take care of everything mate” and “Just go away mate, I’ll organise it all while you’re away mate”. · In 397, the day after 381, Pye is with Les Jones and both have a conversation with Shane Jones about access to the property in the latter’s absence. Les Jones advises Pye that [Neville Jones] “knows which paddocks they’re in” and can “round ‘em up for you”. · In 409 (11.4.91) Pye tells Shane Jones’ wife to tell him that he has received some complaints about quality and that he is going to “clean a few of them cattle up a little bit” by taking “a bit of the loosen [?lucerne] and sticky out of it” and he wanted to “tell [Shane] before I did it”. · In 1186 (21.5.91) Pye tells Shane Jones he has “sixty head for a bloke to have a look at in the next day or so if that’s all right”. Shane Jones agreed. · In 1360 (28.5.91) Pye tells Shane Jones that he wants “about fifty head … to get rid of them for ya”. · In 1516 (5.6.91) Shane Jones asks Pye if there were “any cattle left” and was told “they’ve been selling pretty fast”. · In 1416 (30.5.91) Shane Jones tells Pye that he, i.e. Jones, has “sold a few of them cattle” through the stock and station agent. · In the immediate aftermath of the arrests of Pye and Bennett on 23.4.91, the wives of Les and Shane Jones discussed the events (in 603, 615, 617, 621 and 736), including a conversation about “How many herd of cattle did they sell” (604). 63   It was further submitted by the appellants that His Honour’s directions to the jury did not go far enough in explaining to the jury that they needed to be satisfied, beyond reasonable doubt, that the agreement which the Crown had undertaken to prove was an agreement to supply cannabis to the world at large (or at least to third parties) and that each conspirator made such an agreement and intended that the object of the conspiracy be carried out. It was submitted that His Honour should have directed the jury’s attention to the difference between such an agreement as this and a mere expectation on the part of the appellants that Messrs Pye Bennett and would supply cannabis to others. It was submitted that his Honour should have made clear that it was insufficient for the Crown simply to demonstrate that there was an agreement between the appellants on the one hand to supply cannabis to Pye and Bennett on the other. 64   At some stage the jurors were each provided with a copy of the indictment and early in the summing up the terms of the indictment were read. The concept of a conspiracy was explained and the elements of the charge stated. The jury were reminded that they were being asked to infer the existence of the agreement relied on by the Crown. His Honour said: at T12-13.

“I want to say to you now something about conspiracy. A conspiracy is an agreement between two or more persons to do an unlawful act. The nub of the offence is the agreement to engage in a common enterprise of that kind; it is the agreement.
In the present case I have already just read the indictment indicating what the Crown alleges is the conspiracy, namely an agreement to supply a prohibited drug, namely cannabis leaf, in an amount which was not less than the commercial quantity, and during the period mentioned.
In order for you to find any of the three accused here on trial guilty, the Crown must satisfy beyond reasonable doubt of the following matters.
One, that there was an agreement to supply a prohibited drug, namely cannabis leaf, in an amount which was not less than the commercial quantity.
Two, that such agreement was to do an unlawful act It seems, from the way this trial was conducted, that there is no issue that the supply of a prohibited drug, namely cannabis leaf, in an amount which was not less than the commercial quantity is an unlawful act.
Three, that the particular accused whose guilt you are considering - and do not forget there are three separate accused on trial here - participated in that agreement.
I want to say something now about what is understood by “agreement”. An agreement does not have to be reached by formal means. There does not have to be writing or even someone saying “I agree” for there to be an agreement. As you will know from your own experience of life, many agreements are made informally, and people often enter into agreements without there being any express statement to that effect between them. The form of agreement does not matter. In this area of the law, all that is necessary for there to be an agreement is for two or more persons to concur, either by words or by conduct, in a common design.”

65   A third particular complaint raised under the aegis of these grounds was that, in the course of responding to a note from the jury, his Honour said:

“Firstly, I direct you again on the direction I gave you on the meaning of conspiracy. In order for you to find the accused or any of the three accused in this trial guilty, the Crown must satisfy you beyond reasonable doubt of three matters in relation to each of the accused, and remembering they are three separate cases against each accused.
These matters are:-
1. That there was an agreement to supply a prohibited drug, namely, cannabis leaf in an amount which was not less than a commercial quantity.
2. That such agreement was to do an unlawful act, and you will remember there is no issue about that.
3. That the particular accused whose guilt you are considering, participated in that agreement.
You have asked these questions:
Does knowledge of illegal activities make you part of a conspiracy?
Do deeds which may assist in illegal activities make you part of a conspiracy?
Does knowledge of and doing deeds which assist illegal activity make you a member of a conspiracy?
I give you the following direction: For participation to be established it must be proved beyond reasonable doubt that the accused intended that the object of the conspiracy be achieved. The intention of an accused may be inferred by the acts and statements of that accused. There must be a meeting of minds.”

66   In summary it was submitted that the case was finally left to the jury on the basis that they could convict the appellants if they concluded that they had agreed with each other to supply cannabis to Bennett and Pye. But, it was submitted, the Crown case was more than that. In order to convict the appellants the jury had to be satisfied beyond reasonable doubt that they were party to an agreement to distribute generally, and that they had an accompanying intention to achieve that objective. 67   Lest it be thought that the matter has been overlooked, it is clear that the passage last quoted from the summing up, as a statement of what is necessary to establish participation in a conspiracy, suffers, if I may respectfully say so, from a number of deficiencies. However, it is only necessary for this Court to deal with the specific points raised on the appeals 68   During the course of his summing up, the learned trial judge directed the jury that on the Crown case, Pye and Bennett were:

“Distributors of cannabis on behalf of the conspirators, that they attended the property at Kimberley, and that you would be asked to conclude that they attended the property to pick up stocks of cannabis, take them away for distribution and later return with the proceeds.”

69   The Crown case was thus succinctly and accurately stated in regard to the involvement of Pye and Bennett in the alleged conspiracy. The appellants, for their part, unequivocally denied that they had any involvement at all in the cultivation or distribution of cannabis and consequently any conspiracy. 70   In my opinion the directions of law which his Honour gave were adequate in the circumstances and considered as such by counsel at the trial. The only law which it is necessary for the jury to know is so much as must guide them to a decision on the real issues or issues in the case : see Alford v Magee (1951-52) 85 CLR 437 at 466.; RPS v The Queen. (2000) 74 ALJR 449 71 I would grant leave to the appellants under Rule 4 of the Criminal Appeal Rules to argue these grounds but reject each ground.

Grounds 3, 5 and 6

72   At the trial both appellants denied any illegal dealings with Pye and Bennett, neither of whom was called as a witness. They contended that the intercepted telephone calls between themselves and Pye and Bennett dealt genuinely with cattle and the like; further, that whenever Pye and Bennett came to their respective properties, it was for a legitimate agricultural purpose. 73   Regrettably, during the course of the Crown prosecutor’s closing address he made a submission, without prior notice, to the effect that the jury would have expected the appellants to have called Pye and Bennett, and their unexplained failure to do so entitled the jury to infer that their evidence would not have assisted the Crown case. Thus the Crown Prosecutor indicated that he was seeking a Jones v Dunkel, (1959) 101 CLR 298. direction in this regard. This submission was clearly inappropriate for the simple reason that on the Crown case, Pye and Bennett were co-conspirators of the appellants: see Regina v Newland (1997-1998) 98 A Crim R 455 and Regina v Taufua. (unreported, NSWCCA 205 (30.7.99) 74   Not surprisingly this submission attracted an application by counsel for the appellants that the jury be discharged. The applications were rejected. 75   His Honour dealt with the matter in his directions to the jury, as follows:

“Members of the jury, you have heard during the course of this trial evidence about, and submissions about, whether one person or the other, particularly Gene Pye and Jeff Bennett, why they have not been called. In relation to this matter, I direct you to refrain from any speculation in relation to the attendance or non-attendance, the calling or not calling, of such persons by anyone, be it the Crown or the accused, remembering that the accused - and each of them - has nothing to prove in this case, and that, in the circumstances, you should refrain from any speculation. You have heard those words “refraining from speculation” many times during this trial. You will hear them again, I can assure you, before I finish. But it is, nevertheless, necessary that I direct you that is the situation.
In addition to that, you have heard some evidence about what might or might not have happened to other persons who are not here today, whether they have been arrested or whatever. Those matters are not relevant to your consideration of any issue in this trial. The matters of relevance are whether the Crown has proved beyond a reasonable doubt the elements of the charge in relation to each of the three accused, not what happened to somebody else…” [27.5.98 p16]

76   It was submitted to this Court that this direction did not go far enough in that it did not include a direction that the jury should not speculate about what evidence the witnesses might have given had they been called and to decide the case on the evidence before them. A wider direction along these lines was suggested by Gleeson CJ in Regina v Newland. (1997-1998) 98 A Crim R 455 at 462 77 No such re-direction was sought at the trial by the appellants’ counsel. While the wider direction may have been preferable, what was said was, in the circumstances, sufficient. 78 In my view, his Honour was correct in not discharging the jury when requested to do so. Although it is regrettable that the Crown Prosecutor made the submission which he did, the direction by his Honour was such as to ensure that the appellants suffered no consequential prejudice. I would reject these grounds of appeal. 79 The appeals should be dismissed.

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