Ta and Nguyen v The Queen
[2011] NSWCCA 32
•04 March 2011
Court of Criminal Appeal
New South Wales
Case Title: Ta and Nguyen v R Medium Neutral Citation: [2011] NSWCCA 32 Hearing Date(s): 25 November 2010 Decision Date: 04 March 2011 Jurisdiction: Before: James J at 1
Hall J at 138
Price J at 139Decision: In the case of each appellant -
1. Appeal against conviction is dismissed.
2. Leave to appeal against sentence is granted.
3. Appeal against sentence is allowed.
4. Quash the sentence imposed by the sentencing judge.
5. In lieu thereof, sentence the appellant to a non-parole period of 3 1/2 years commencing on 27 September 2009 and a balance of the term of 2 1/2 years. The earliest date on which the appellant will be eligible for release on parole will be 26 March 2013.Catchwords: CRIMINAL LAW - knowingly concerned in cultivation of large commercial quantity of cannabis plants - discharge of jury - possibly prejudicial evidence effectively withdrawn by trial judge from jury's consideration - sentencing - aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act - wrongly found by sentencing judge - these factors inherent in offence - applicants re-sentenced
Legislation Cited: Drug Misuse and Trafficking Act
Criminal Procedure Act - s 281
Evidence Act - ss 37, 37(1)(c), Part 3.3
Criminal Appeal Act - s 6(3)
Crimes (Sentencing Procedure) Act - s 21A(2)Cases Cited: Crofts v The Queen (1996) 186 CLR 427
Weissensteiner v The Queen (1993) 178 CLR 217
Azzopardi v the Queen (2001) 205 CLR 50
Olbrich v The Queen (1999) 199 CLR 270
RPS v The Queen (2000) 199 CLR 620
R v Miller (2003) QCA 404
Elyard v R (2006) NSWCCA 43
Baxter v R (2007) 173 A Crim R 284Texts Cited: Cross on Evidence 7th Australian Edition para [17150] page 477
Category: Principal judgment Parties: Thi Dung TA (Appellant)
Phi Hung NGUYEN (Appellant)
Regina (Respondent)Representation - Counsel: Counsel:
L Lamprati SC (Crown)
T Gartelmann (Ta)
I Nash (Nguyen)- Solicitors: Solicitors:
S Kavanagh (Crown)
S O'Connor (Appellants)File number(s): 2008/5844 (Ta)2008/5846 (Nguyan) Decision Under Appeal - Court / Tribunal: - Before: Bennett DCJ - Date of Decision: 01 October 2009 - Citation: - Court File Number(s) 2008/58442008/5846 Publication Restriction:
Judgment
JAMES J: Thi Dung Ta and Phi Hung Nguyen appealed against their convictions after a joint trial in the District Court before his Honour Judge Bennett and a jury on a charge that on 22 November 2007 they knowingly took part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants. In the event of their appeals against conviction being unsuccessful, they applied for leave to appeal against the sentences imposed on them. By consent the two appeals and applications for leave to appeal were heard together.
At the trial of the two appellants they were also indicted on a charge of cultivating by enhanced indoor means not less than the large commercial quantity of cannabis plants. At the direction of the trial judge the jury returned a verdict of not guilty on this charge in favour of both appellants.
At the trial the Crown case against the appellants depended on evidence that on 22 November 2007 the two appellants were together at premises at 14 Tennyson Street, Campsie. It was not in dispute that at those premises a large number of cannabis plants exceeding the number set by the Drug Misuse and Trafficking Act as being the large commercial quantity were being cultivated by enhanced indoor means.
The Crown evidence at the trial
The Crown evidence at the trial may be briefly summarised as follows.
A police officer Constable Dodd gave evidence that on 22 November 2007 from about 2.30pm he conducted surveillance outside the premises at 14 Tennyson Street, Campsie from an unmarked vehicle with tinted windows. He had a direct uninterrupted view of the premises, being a two-story brick house with a garage. Between the time of his arrival and about 5.05pm no one entered the premises from the front of the house.
At about 5.05pm Constable Dodd saw the garage door of the premises open revealing a motor vehicle registration AQT24K parked inside the garage. Shortly afterwards two persons of Asian appearance walked out of the garage, one male and one female. There was no dispute at the trial that the male person observed by Constable Dodd was the appellant Nguyen and that the female person observed by Constable Dodd was the appellant Ta and that the vehicle in the garage was owned by Ta.
Ta walked to a garbage bin on the nature strip and moved the bin some distance. Nguyen had some papers in his hands, which he placed in the garbage bin. The two appellants then walked back inside the garage and the door of the garage was closed.
At about 6.10pm Constable Dodd again saw the door of the garage open revealing Ta's vehicle inside the garage. The vehicle was reversed out of the garage. Nguyen was driving the vehicle and Ta was in the front passenger seat.
Constable Dodd remained outside the premises until about 8.15pm. During this further period he did no see any person enter the premises.
Constable Dodd was cross-examined on a number of matters.
In cross-examination Constable Dodd said that on 22 November 2007 he was equipped with a still camera and a digital camera. He agreed in cross-examination that there was no photograph or video footage of any moving of the garbage bin or any placing of papers in the bin, although "two persons emerging from the premises was a significant development". Constable Dodd offered the explanations that there was a broken mirror in the lens of the camera such that "a lot of photos came out black" and that a number of compact disks in the video camera had failed to operate.
In cross-examination Constable Dodd denied that what had occurred at 5.05pm on 22 November 2007 was that the vehicle had been driven into the driveway and into the garage.
Constable Dodd agreed that he had communicated what he had seen at 5.05pm to his supervisor Detective Sergeant Liddiard by radio. There was no recording of the communication and Constable Dodd himself did not make any note of the communication.
Detective-Sergeant Liddiard did make a note of the communication, which appeared to be inconsistent with part of Constable Dodd's evidence. The note made by Detective-Sergeant Liddiard stated that the vehicle under surveillance "pulled into D/Way and Drove into Drive". Constable Dodd maintained that the evidence he had given was correct and that what Detective-Sergeant Liddiard had written down was wrong.
Constable Dodd denied that his attempts to rectify the malfunctioning of his cameras had interfered with his observations of the house.
Detective-Sergeant Liddiard gave evidence that on the afternoon of 22 November 2007 he also was conducting surveillance but in a separate vehicle from Constable Dodd. From his location Detective-Sergeant Liddiard could not see the front of the house at 14 Tennyson Street. Another police officer Constable Campos was also conducting surveillance from a third vehicle, which was not in Tennyson Street at 5.05pm.
At about 6.10pm Detective-Sergeant Liddiard observed Ta's vehicle turning out of Tennyson Street into another street. Shortly afterwards the vehicle in which the appellants were travelling was pulled over by police and the appellants were arrested and taken to a police station. Both appellants declined to be interviewed by police.
It will be necessary to refer in detail to parts of Detective-Sergeant Liddiard's evidence in considering the appellants' grounds of appeal.
Constable Campos was unable to give evidence at the trial because of an injury he had suffered. By consent evidence given by him at a previous aborted trial of the appellants was read to the jury.
After the appellants were arrested a search warrant was executed at the premises 14 Tennyson Street. Police gained entry to the premises by forcing the front door off its hinges with an implement. Inside the house police found a total of 551 cannabis plants at various stages of maturity, hydroponic lighting, numerous pieces of electrical equipment such as transformers, fans and timer switches, an irrigation system, fertiliser and electronic scales.
Evidence was given by police officers about the means of access to the premises. All of the windows in the house and the rear sliding door had roller shutters or black plastic covers over them. Numerous bags of potting mix directly behind the front door prevented that door from being opened. There was another door to the premises near the kitchen but this was obstructed by a large fish tank. Police concluded that the means of access to the house was through a door in the garage.
The garage to the house had a roller door which was operated by remote control. Constable Dodd gave evidence that, because police did not have a remote device for opening the garage door, he had had to manually open the door "through pulling a cord and getting it on free stance".
The vehicle owned by the appellant Ta was searched. A set of keys was found which included a remote control device for use on the vehicle. There was no key in the set which could be used to gain access to the house. Neither of the appellants was carrying a key which could access the house.
The owner of 14 Tennyson Street gave evidence that he had purchased the property in the year 2000, that he had moved out of the property in 2007 and that he had leased it to a man he had never previously met. The owner disclaimed having any knowledge that his property was going to be used for the cultivation of cannabis plants.
A total of 24 fingerprints from various items in the house were detected and developed but none of them matched the fingerprints of either appellant.
Some items which had been found in the house, including three cigarette butts, were submitted for DNA analysis. DNA recovered from one of the cigarette butts was found to have the same DNA profile as the appellant Ta. The profile of DNA recovered from a second cigarette butt was only a partial profile and matched the corresponding partial profile of Ta. DNA testing of the third cigarette butt was unsuccessful.
The defence cases at the trial
The appellant Ta gave evidence at the trial through an interpreter. The following is a fairly brief summary of her evidence-in-chief.
Ta knew the appellant Nguyen through her friendship with his mother, whom she had known in Vietnam.
On the evening of 21 November 2007 Nguyen, who lived in Melbourne, arrived suddenly at Ta's home in Sydney. He told Ta that he was looking for his father. Nguyen stayed at Ta's home on the night of 21 November 2007.
Ta got up late, in the afternoon, on 22 November 2007. Nguyen told Ta that he wanted to go to Campsie but did not have any transport. The appellants left for Campsie in Ta's vehicle with Nguyen driving. They did some shopping near Campsie railway station. Nguyen supplied Ta with the address 14 Tennyson Street, the appellants consulted a street directory and Nguyen drove Ta's vehicle to Tennyson Street.
When the vehicle had arrived and had stopped in front of the garage at 14 Tennyson Street, Ta got out of the vehicle. She saw a garbage bin near the driveway and she moved the garbage bin, because she was worried that her vehicle might hit the garbage bin.
Ta saw some advertising material lying in the front yard of 14 Tennyson Street and she picked it up. Some of the pages of the advertising material were dirty and she put those pages in the garbage bin. She kept the clean pages because she wanted to see if anything cheap was being advertised.
When the appellants had arrived at 14 Tennyson Street, the door to the garage was not open. When Ta went back to the car, after picking up the advertising material, the garage door was open. She did not know how the garage door became open. She did not have in her car any remote control device for opening the garage door.
After the car had been driven into the garage, Nguyen went into the house saying to Ta "Could you please wait for me. I am going to see my friend just only for a short time, then I will be back". Ta then sat in the car for about 10 to 15 minutes reading the advertising material.
After about 10 to 15 minutes Ta got out of the car and knocked at the door leading from the garage into the house. Nobody answered the door. Ta turned the handle of the door, which was not locked, and looked inside. She saw Nguyen talking with "his friend" in the kitchen area, where there was a fish tank. Nguyen's friend asked Nguyen, "whether your aunty wants to have a drink".
Ta walked to the tap in the kitchen, got herself a drink of water and smoked a cigarette. She disposed of the cigarette in an ashtray in the kitchen.
Ta remained in the kitchen for 10 to 12 minutes. She then went back to the car, because there was a smell in the house which made her uncomfortable and there were bags of "black garbage" in the house.
Ta waited for a time in the car but as Nguyen had not returned she entered the house a second time. Nguyen was no longer in the kitchen and she went looking for him. She pulled a piece of plastic aside and looked into a room which contained a number of plants. Nguyen was not in that room. Ta called out Nguyen's name but there was no response. While Ta was in the house a second time she smoked more cigarettes.
Ta went back to the car. Nguyen eventually returned to the car. By this time Ta had a headache and was lying in the car with her eyes closed. Nguyen reversed the car out of the garage. Ta did not know how the garage door was opened.
Ta estimated that she and Nguyen were at the premises for "around more or less than an hour". She said that she had never been to the house before and had not had any involvement in the cultivation of the plants in the house.
Ta was cross-examined about a number of matters about which she had given evidence in chief.
The appellant Nguyen did not give evidence at the trial. As previously mentioned, he had declined to be interviewed by police after he was arrested. To the extent that there was any positive defence case for Nguyen at the trial, it was based on Ta's evidence and particularly evidence given by Ta when she was cross-examined by counsel for Nguyen.
Ta gave evidence in cross-examination by counsel for Nguyen that in November 2007 Nguyen was living with his mother in Melbourne. His father, from whom his mother had been divorced, was living in Sydney and Nguyen had not had any contact with his father for a long time. Nguyen's mother had told Ta that Nguyen wished to re-establish contact with his father. On 22 November 2007 Nguyen did not know how to get to Tennyson Street, Campsie and Ta had given him directions from a street directory.
The grounds of appeal
The grounds of appeal against conviction of the appellant Nguyen were:-
1. The trial judge erred in determining that the question "[d]id you find anything similar to a remote control for a garage door?" was not leading.
2. The trial judge erred in admitting opinion and hearsay evidence relating to an object seen by Detective Liddiard during the search of vehicle AQT24K.
3. The trial miscarried owing to the failure of the trial judge to discharge the jury following adducing the evidence the subject of Grounds 1 and 2.
The sole ground of appeal against conviction of the appellant Ta was:-
The refusal of the trial judge to discharge the jury following the admission of evidence to the effect that an item in the appellant's vehicle was the remote control to the garage door of the premises in which the cultivation occurred gave rise to a miscarriage of justice.
The sole ground of appeal of the appellant Ta was substantially the same as the third ground of appeal of the appellant Nguyen and the matters referred to in the first two grounds of appeal of the appellant Nguyen were in fact also relied on by counsel for Ta in support of Ta's ground of appeal. In the circumstances, it is convenient to deal with all the grounds of appeal together.
Relevant parts of the trial transcript
For a proper consideration of the grounds of appeal it is necessary to refer in some detail to parts of the trial transcript.
I have already referred briefly to some of the evidence given at the trial by Detective-Sergeant Liddiard. Detective-Sergeant Liddiard gave evidence in his evidence-in-chief that, after the car in which the appellants were travelling was stopped by police, the car was searched. The following questions and answers then occurred:-
Q. Did you find anything similar to a remote control for a garage door?
A. Yes I did.
Q. Tell us about that please?
A. In the car above the radio was a small space in the dashboard. Inside there was a small remote device which had a number of buttons on it. That was about all, I took notice of that. It was probably about the size of a fifty cent piece.
Q. Did you take possession of it?
A. No I did not.
Q. What happened to it?
A. I put it back where I found it in the car.
Q. Did you, at that time, think that it had any relation to your investigation?
A. No I did not.
Q. What subsequently became of it?
A. My understanding is it remained in the car. We were later told of its relevance to this investigation but we didn't return to the car and the car had since left the - where it was left by on the day.
It is to be noted that there was no objection by counsel for either appellant to any part of this evidence.
In cross-examination of Detective-Sergeant Liddiard by counsel for Ta the following questions and answers occurred:-
Q. Constable, you've given some evidence that you saw an electronic device or some sort of item in the dash, in the centre of the vehicle. Is that right?
A. Yes.
Q. Can you describe that again for me please?
A. It was a small remote control, it was on a key ring from recollection. It was probably about the size of a 50 cent piece and that was in the small sort of compartment area above the radio of the car.
Q. And you never established what that was for, is that right?
A. I was later told that it was the remote for the garage.
Q. Who told you that?
A. Possibly--
HOGAN(counsel for Nguyen): I object your Honour,
DENNIS: Sorry, I withdraw the question.
HIS HONOUR: Well just so that the record is clear, that was an objection by Mr Hogan.
DENNIS
Q. Sir you never retrieved that advice (as said) and tested it on anything could you?
A. No I did not.
A. And so you didn't test to see whether it was indeed the remote switch to - such as the central locking switch for the vehicle?
A. No I did not.
After the cross-examination of Detective-Sergeant Liddiard had finished the Crown Prosecutor made an application in the absence of the jury that he be permitted in re-examination to elicit who had told Detective-Sergeant Liddiard that the item found in the car was the remote control for the garage at 14 Tennyson Street. It would appear that the person who had told Detective-Sergeant Liddiard this information was the appellant Nguyen, when he was speaking to police after his arrest. The Crown had refrained from attempting to lead evidence from Detective-Sergeant Liddiard about what Nguyen had said, apparently on the basis that the Crown accepted that any such evidence would have been evidence of an admission to which s 281 of the Criminal Procedure Act would apply and the conditions under that section for evidence being admissible were not satisfied.
After the Crown Prosecutor had made the application, the trial judge raised what appeared to his Honour to be a number of issues about the application and the Crown Prosecutor then withdrew his application.
After the evidence of Detective-Sergeant Liddiard had finished, the Crown Prosecutor by consent read to the jury the evidence which had been given at the previous trial by Detective Campos.
Late in the afternoon of the same day counsel for Ta made an application for the discharge of the jury based on the evidence given by Detective-Sergeant Liddiard which I have quoted and particularly his evidence in his evidence-in-chief that "we were later told of its relevance to this investigation" and his evidence in cross-examination that "I was later told that it was the remote for the garage".
Counsel for Nguyen joined in the application for the discharge of the jury.
On the day on which the application was first made the argument on the application was conducted in the absence of any transcript of the evidence which had been given by Detective-Sergeant Liddiard. The trial judge decided to defer giving a final decision on the application until after he had had the opportunity of reading a transcript of the evidence.
On the following day, after the transcript of the evidence of the previous day had been obtained there was further argument on the application for the discharge of the jury. Submissions made in support of the application included that the question asked by the Crown Prosecutor, "Did you find anything similar to a remote control for the garage door?" was a leading question; that that question called for an expression of opinion on a matter as to which there was no evidence that the witness had any expertise; that the evidence of the finding of something which was merely "similar" to a remote control for a garage door was irrelevant; that Detective-Sergeant Liddiard had given evidence which was hearsay evidence; and that there was a danger of unfair prejudice in that the jury might think that there was a basis for connecting the item found in the car with the door to the garage; and that there was no direction the trial judge could give which would remove the danger of unfair prejudice.
Submissions made by the Crown Prosecutor in opposing the application included that the question he had asked was not a leading question, that the evidence given by the witness was not expert evidence and that the evidence was relevant.
The trial judge refused the application for the discharge of the jury, delivering a judgment. In the judgment his Honour referred at some length to a number of parts of the evidence, including the evidence given by Detective-Sergeant Liddiard which I have quoted. His Honour made certain findings of fact, including a finding that the only rational inference to draw was that the occupants of the vehicle had had the means to remotely operate the garage door and that the evidence of the finding of the device in the vehicle, when combined with other evidence, would permit an inference to be drawn that the appellants had ready access to the premises by way of the garage door.
The part of his Honour's judgment headed "The Decision" in which his Honour stated his reasoning for his decision not to discharge the jury was quite brief and was as follows:-
"I am not persuaded that the question that gave rise to this application at page 46 of the transcript, line 27 was objectionable. I am not persuaded that it was in the nature of a leading question. I am not persuaded that it requires the application of principles relevant to opinion evidence, and I am not persuaded that it has no or limited probative value. I am not persuaded that there is any risk of unfair prejudice to the accused from the admission of this evidence, and I am not persuaded that it is appropriate that the jury be discharged.
Accordingly, in each case the application is refused".
The trial judge did not strike out any of the evidence given by Detective-Sergeant Liddiard and no application was made to him by counsel for either appellant to strike out any of the evidence.
In the Crown Prosecutor's closing address to the jury he said:-
"The discovery of what appeared to be a remote control device in the console or near the console of the car that Sergeant Liddiard described is a circumstantial - you don't know whether it really was the remote control device for that garage. You don't know definitely, you don't know certainly, it wasn't tested, and no-one claimed that it was anything other than a remote control device for something. That wasn't challenged. If it wasn't for the garage, well that's for you to add into the pot of facts that you're going to have.
The Crown submission is this though. It would have been a rather different situation if no remote control device had been found in the car at all. What would you then have thought about the sort of access that people might have to that particular house at 14 Tennyson Street. Because you've been told, and there is nothing to suggest otherwise that the only way of getting in and out of that house realistically was through the roller door. So that was the key, a remote control device was the key, and the Crown says it was a remote control device was found in the car, it's a circumstance and when taken together with other evidence, you will be satisfied that they had access to that house. A very important point ladies and gentlemen, they had access to that house."
In his summing up at page 30 the trial judge referred to "a sighting of what Detective Liddiard said was a remote control device in the vehicle".
At pages 44-45 of the summing up his Honour said:-
"There was no remote control identified in that process (of searching) other than the Honda remote control with the car key and other keys. Sergeant Liddiard said he saw a device in a compartment in the dashboard of the car above the radio with buttons, which he believed was a remote control. However he did not seize the item and there is no evidence that it was in fact a remote control - that is direct evidence - or that it was the remote control for this house.
Therefore, the mere reference to that item where found would not prove conclusively beyond reasonable doubt that it was the remote control for this garage door. However you would not consider the sighting of that item in isolation, but within the matrix of facts that are before you, including the search of the accused and of the vehicle, the access of the vehicle to and from the house through the electronically-operated garage door, when considering whether the circumstances combine to persuade you that the item seen by the police officer was the remote control giving access to the house".
At pages 58-59 of the summing up the trial judge quoted all of the evidence given by Detective-Sergeant Liddiard in his evidence-in-chief which I have quoted earlier in this judgment. His Honour summarised the evidence given by Detective-Sergeant Liddiard in cross-examination which I quoted earlier in this judgment, except that in his summary the trial judge did not make any reference to the evidence that Detective-Sergeant Liddiard had later been told that the item was the remote control device for the garage.
Consideration of grounds of appeal
Nguyen's first ground of appeal was that the trial judge erred in determining that the Crown Prosecutor's question in examining Detective-Sergeant Liddiard "did you find anything similar to a remote control for a garage door?" was not leading. The trial judge so held in his judgment dismissing the application for a discharge of the jury. On this appeal counsel for the Crown submitted that the question had not been a leading question and, accordingly, the trial judge had not erred.
In my opinion, the question was clearly a leading question; it suggested a desired answer that the witness had indeed found something similar to a remote control for a garage door. It was a leading question within the definition of "leading question" in part 1 of the dictionary at the end of the Evidence Act, as being a question directly or indirectly suggesting a particular answer to the question. See also Cross on Evidence 7 th Australian Edition paragraph [17150] page 477. The question could not be justified as being merely a question designed to bring the witness's mind to a particular subject matter.
However, the question was not objected to and accordingly it was not a question to which the prohibition in s 37 of the Evidence Act, on the asking of leading questions in examination-in-chief, applied (s 37(1)(c)).
If the question had been objected to, it should have been rejected. However, the same evidence could have been elicited, without contravening s 37, by the breaking up of the single question into two questions along the lines of "Did you find anything?" (and upon receiving an affirmative answer) "What did you find?"
The first part of Nguyen's second ground of appeal was that the trial judge had erred in admitting opinion evidence; that Detective-Sergeant Liddiard's evidence that the item was similar to, or was, a remote control for a garage door, was evidence of an opinion and inadmissible under Part 3.3 of the Evidence Act .
I do not consider that this part of Nguyen's second ground of appeal should be upheld. In my opinion, a submission made by the Crown Prosecutor at the trial was correct. The Crown Prosecutor submitted:-
"As for it being (submitted to be) expert evidence ... remote control devices, whether they be for televisions or doors or absolutely anything else that one cares to think about these days, it's a common piece of property in the public domain these days".
The identification by a witness of an object as falling within a class of objects commonly encountered by members of the general public in ordinary life is not expert evidence within Part 3.3 of the Evidence Act . No specialised knowledge based on training, study or experience is required in order to be able to give the evidence.
In any event, as already noted, the evidence by Detective-Sergeant Liddiard was not objected to.
I turn to the second part of Nguyen's second ground of appeal. Detective-Sergeant Liddiard did give two pieces of evidence which were clearly hearsay and did not come within any of the exceptions to the hearsay rule of exclusion in the Evidence Act . These pieces of evidence were his evidence-in-chief that "we were later told of its relevance to this investigation" and his evidence in cross-examination that "I was later told that it was the remote for the garage".
As I have already indicated, both pieces of evidence were apparently based on an admission by the appellant Nguyen after his arrest but the Crown accepted at the trial that evidence of the admission would be inadmissible by reason of s 281 of the Criminal Procedure Act.
If the evidence had been objected to, it should have been rejected. However, no objection was made by either counsel to either piece of evidence and no application was made by either counsel to have either piece of evidence struck out. Consequently, his Honour could not properly said to have made any error in admitting the evidence, and I would reject the second part of Nguyen's second ground of appeal.
I turn now to Nguyen's third ground of appeal and Ta's sole ground of appeal, that the trial miscarried because of the failure or refusal of the trial judge to discharge the jury.
Submissions made on behalf of the appellants in support of these grounds of appeal included:- Evidence had been adduced before the jury that the witness had been told that the item in the appellant's car was a remote control device for operating the door to the garage at 14 Tennyson Street. This evidence was inadmissible hearsay. Counsel for the appellants at the trial could not challenge the evidence without running the risk of it emerging that the person who had told the witness this information was the accused Nguyen. There was a risk that the jury would itself infer that the informant had been one of the accused. The evidence was clearly significant in that it was evidence that the appellants were in possession of a device for operating the door to the garage at the premises where the plants were being cultivated, showing a connection between the appellants and the premises which was quite inconsistent with the defence cases. The trial judge did not make any order striking out the evidence and did not direct the jury to disregard the evidence.
On the principles to be applied in the determination of a ground of appeal of this kind both counsel for the appellants referred to a passage in the joint judgment of Toohey, Gaudron, Gummow and Kirby JJ in Crofts v The Queen (1996) 186 CLR 427 at 440-441, stating:-
"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ..."
It was submitted by counsel for the appellants that the trial judge made errors in his judgment refusing the application for a discharge, for example in holding that the question asked in evidence-in-chief was not leading. However, the thrust of counsel for the appellants' submissions was that the refusal of the application for a discharge had given rise to a miscarriage of justice. It was accepted by counsel for the appellants that in deciding whether the refusal of the application had given rise to a miscarriage of justice, this Court was not limited to the reasons given by the trial judge for refusing the application.
I accept a number of the submissions made by counsel for the appellants, including that the pieces of evidence I have identified were hearsay; that counsel for the appellants at the trial could not challenge the evidence without incurring a risk of the admission by Nguyen emerging before the jury, and that the trial judge did not make any express order that the evidence be struck out and did not given any express direction to the jury to disregard the evidence.
I would not accept that there was any real risk that the jury would itself infer that Detective-Sergeant Liddiard's informant had been one of the accused. It was, of course, known to the lawyers at the trial that Detective-Sergeant Liddiard's informant had been one of the accused. However, so far as the jury were concerned, I do not consider that there is any reason to suppose that they would have inferred that the informant might have been one of the accused. It seems to me that, if the jury did give any thought to who the informant might have been, they would have dismissed both of the accused, on the basis that, if the informant had been one of the accused, the Crown would have elicited that fact before them. The jury were unlikely to have had any knowledge of the provisions of s 281 of the Criminal Procedure Act .
Although I consider that some of the submissions made on behalf of the appellants should be accepted, I have nevertheless concluded that the refusal to discharge the jury did not occasion the risk of a substantial miscarriage of justice.
It is true that the trial judge did not make any express order that the hearsay evidence be struck out or give any express direction to the jury to disregard the hearsay evidence. He was, of course, not asked to do either of these things. However, in my opinion, the way in which the trial was subsequently conducted by both the Crown Prosecutor and the trial judge ensured that the evidence in question was effectively withdrawn from the jury's consideration, without it being highlighted, and that it ceased to have any significance in the trial.
Earlier in this judgment I set out part of the Crown Prosecutor's closing address. The Crown Prosecutor referred to the item as "a" control device found in the car. He reminded the jury that the item had not been tested. He told the jury "no one claimed that it was anything other than a remote control device for something". The Crown Prosecutor submitted to the jury, properly in my opinion, that the jury could find as a circumstance that a remote control device had been found in the car and combine that circumstance with other circumstances that they found in drawing inferences.
Earlier in this judgment I set out or referred to parts of the trial judge's summing up. The trial judge summarised Detective-Sergeant Liddiard's evidence as being that he saw a device which he believed was a remote control device. The trial judge told the jury that there was no direct evidence that it was a remote control or a remote control for the garage. His Honour told the jury that the sighting of the item in the car could be combined with other pieces of evidence which his Honour described (which did not include Detective-Sergeant Liddiard's hearsay evidence) in deciding whether the item seen by the police officer was in fact a remote control device giving access to the garage and the house.
Later in his summing up the trial judge summarised parts of Detective-Sergeant Liddiard's cross-examination. The trial judge did not include in the summary any reference to the evidence "I was later told that it was the remote for the garage".
Because of the conclusion I have formed that the evidence in question was effectively withdrawn from the jury's consideration and ceased to have any significance in the trial, the refusal of the trial judge to discharge the jury did not lead to any miscarriage of justice. In these circumstances it is not necessary to consider the proviso to s 6 of the Criminal Appeal Act and, accordingly, it is unnecessary for me to determine whether I myself am satisfied beyond reasonable doubt, on the evidence properly before the jury, of the guilt of the two appellants of the offence of which the jury found them guilty.
I will, however, observe that in my opinion the case against the appellants was strong. For at least more than an hour on 22 November 2007 both appellants were at the premises 14 Tennyson Street and both the appellants entered the premises. The house at 14 Tennyson Street was almost entirely devoted to the cultivation of a large number of cannabis plants. There was evidence of acts on the part of the appellants showing a connection with the premises, such as the moving of the garbage bin, the putting of papers in the garbage bin and the picking up of the advertising material left in the front yard.
Even without the disputed evidence, there was a strong inference available that the appellants in driving in and out of the garage had a remote control device for operating the garage door. In my opinion, it is pure speculation to suppose that a third person within the house operated the garage door for the appellants.
In my opinion, all three grounds of appeal of the appellant Nguyen and the sole ground of appeal of the appellant Ta should be rejected and the appeals against conviction should be dismissed.
The applications for leave to appeal against sentence
Both Ta and Nguyen applied for leave to appeal against sentence, in the event of their appeals against conviction being dismissed. In considering these applications it will be convenient to continue to refer to Ta and Nguyen as "the appellants".
Judge Bennett sentenced each of the appellants to the same sentence, a head sentence of seven years consisting of a non-parole period of four years and a balance of the term of three years.
The maximum penalty for an offence of knowingly taking part in the cultivation of not less than the large commercial quantity of cannabis plants is imprisonment for 20 years or a fine of 5,000 penalty units or both. There is a standard non-parole period of ten years for the offence.
The Remarks on Sentence
In his remarks on sentence the sentencing judge summarised some of the evidence which had been given at the trial. Neither of the appellants had given evidence in the proceedings on sentence and his Honour made comments about the appellants not having given evidence in the proceedings on sentence. It will be necessary to refer to these comments in some detail in considering one of the grounds of appeal against sentence.
Constable Dodd had given evidence at the trial from which, if the evidence was accepted, it could be inferred that the appellants had been at the house at 14 Tennyson Street from about the time that Constable Dodd said he commenced surveillance of the house at 2.30pm. However, the sentencing judge declined to accept this part of Constable Dodd's evidence and made a finding that the two appellants had arrived at the house together at 5.05pm and had, accordingly, been at the house for only a little more than an hour, when they departed from the house at 6.05pm.
The sentencing judge referred in his remarks to a number of circumstances which had been established by evidence given at the trial and which the Crown relied on in the proceedings on sentence as being relevant to an assessment of the level of objective seriousness of the offences, including that the appellants had been at 14 Tennyson Street and had actually entered the house, that the house was wholly devoted to the cultivation of more than 500 cannabis plants, that the appellants had had access to the house through an electronically operated garage door and that there was no evidence that on 22 November 2007 the appellants had relieved any one else of the responsibility of caring for the premises or that anyone else had relieved the appellants of that responsibility, when the appellants left the premises.
It had been submitted on behalf of the appellants that their role in the cultivation had been limited to that of being merely caretakers of the premises for a short period on one occasion. The sentencing judge rejected this submission finding "that they (the appellants) occupied a position above the level urged upon me by their counsel". However, apart from finding that the appellants were "participants" in the joint criminal enterprise to cultivate the cannabis plants and stating that he was unable to find that the appellants were "principals", the sentencing judge did not further specify what had been "the position" of the appellants.
The sentencing judge found that the offences of the two appellants were below the middle of the range of objective seriousness for offences of this kind. Although his Honour did not expressly say so, it is apparent, when the non-parole period of each sentence is compared with the standard non-parole period, that his Honour found that the objective seriousness of the offences was considerably below the middle of the range of objective seriousness for offences of this kind.
In the remarks on sentence his Honour summarised the subjective features of the two appellants.
Ta was born in Vietnam in 1959. She came to Australia in 1983. She had three children and also cared for another child. At the time of the sentence proceedings three of those children were teenagers and Ta was their sole parent. Ta's only income was Social Security benefits. She lived in accommodation rented at a subsidised rent from the Department of Housing. She had no previous criminal history.
Nguyen was born in Vietnam in 1980. he came to Australia in 1994. His parents were divorced in 1995. All the members of his family, apart from his father with whom he had had little contact, lived in Melbourne. He had some limited employment history. He had some previous criminal history but the sentencing judge considered that this previous criminal history was not significant.
The sentencing judge found that a number of aggravating factors within s 21A(2) of the Crimes (Sentencing Procedure) Act were present. It will be necessary to refer to this part of his Honour's Remarks on Sentence in more detail later in this judgment, in considering some of the grounds of appeal against sentence.
The sentencing judge found that neither appellant had shown remorse and that he could not make a finding in favour of either appellant that the appellant was unlikely to re-offend or had good prospects of rehabilitation.
The sentencing judge found special circumstances in favour of Ta, in her being the sole parent of three teenage children, and in favour of Nguyen, in that all members of his family, apart from his father, were living interstate.
The grounds of appeal
The grounds of appeal against sentence were:-
Ta
1. The judge erred in the assessment of the role of the applicant in the commission of the offence.
2. The judge erred in finding that the offence was aggravated by reason of being committed:
(a) in company;
(b) without regard for public safety;
(c) as part of planned and organised criminal activity.
Nguyen
1. His Honour erred in finding that the offence was aggravated by reason of it having been committed in company.
2. His Honour erred in finding that the offence was aggravated by reason of it having been committed with little regard for public safety.
3. His Honour erred in finding that the offence was aggravated by reason of it having been part of planned or organised criminal activity.
It is apparent that Nguyen's three grounds of appeal are substantially the same as Ta's second ground of appeal. I will consider first Ta's first ground of appeal.
The sentencing judge erred in the assessment of the role of Ta in the commission of the offence.
A submission made by counsel for Ta in support of this ground was that in parts of his remarks on sentence the sentencing judge appeared to be treating as the offence for which he was sentencing the appellants, not the offence of knowingly taking part in the cultivation of cannabis plants which was the offence the appellants had been convicted of, but the offence of cultivating cannabis plants which the appellants had been charged with but of which they had, at his Honour's direction, been acquitted. It was further submitted that this focussing by his Honour on the wrong offence had influenced his Honour's assessment of Ta's role and of the objective seriousness of her offence.
I accept that there are parts of his Honour's remarks where his Honour describes the offence for which he was sentencing the appellants in language more appropriate to an offence of cultivating than an offence of knowingly taking part in cultivating. However, I consider it unlikely that his Honour, who of course had been the trial judge and who had directed the jury's verdict of not guilty on the charge of cultivating, was mistaken about the offence for which he was sentencing the appellants. In any event, his Honour's assessment of the role of the appellants was based on the circumstances he found had been established, which would have been relevant to sentencing for either an offence of cultivating or an offence of knowingly taking part in a cultivation.
Cultivating not less than the (large) commercial quantity of prohibited plants and knowingly taking part in the cultivation of not less that the (large) commercial quantity of prohibited plants are dealt with in the same provisions of the Drug Misuse and Trafficking Act and carry the same maximum penalty.
Another submission made in support of this ground of appeal was based on a part of his Honour's remarks on sentence in which his Honour noted that neither appellant had given evidence in the proceedings on sentence, in which his Honour then quoted extracts from the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 commencing at 227 and from the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen (2001) 205 CLR 50 at 74(64) and in which his Honour then proceeded to make certain findings.
Notwithstanding the length of this part of his Honour's remarks, it is desirable to quote it in full. His Honour said:
"A question arises from the election of the offenders not to give evidence in the proceedings on sentence. As I have noted, the offender Ta gave evidence in the trial but the offender Nguyen did not. There was an explanation that came through one of the police officers however, and as I have already noted it must be that the jury have rejected what they each had to say.
In Azzopardi v The Queen (2001) 205 CLR 50 at para 64, the majority of the court explained what was said by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at p 227.
'There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.'
The reasoning in Weissensteiner v The Queen to which their Honours in Azzopardi v The Queen referred is found in the following passages commencing at p 227 of the judgment of Mason CJ, Deane and Dawson JJ in that decision.
'We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
Of course, an accused may have reasons not to give evidence other than that the evidence would not assist his or her case. The jury must bear this in mind in determining whether the prosecution case is strengthened by the failure of the accused to give evidence. Ordinarily it is appropriate for the trial judge to warn the jury accordingly.
Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.'
Although their Honours in both of those cases were concerned with comment to a jury upon the questions of fact for determination by a jury in a criminal prosecution, the reasoning may be applied to the determination of facts, or the findings of facts that I am required to make for the purposes of the sentencing of these offenders.
Evidence that might have been offered by the offenders I believe would be as to additional facts, namely, the precise role they had in the conduct of this plantation of cannabis plants. I am of the opinion that I may weigh their election not to give evidence in these proceedings on sentence when considering whether the propositions advanced by the accused's counsel are to be seen as appropriate and whether they are sufficient to displace the inference or inferences for which the Crown contends.
There is no burden of proof upon the offenders to show that they were mere caretakers for the short period of time that they were seen by the police at these premises. It is for the Crown to prove beyond reasonable doubt that the offenders were more than so in this enterprise. It may do so by way of circumstantial evidence if those circumstances taken together combined with sufficient force to lead to a conclusion as the only rational conclusion in the circumstances that the offenders were more than mere caretakers for a single finite period of time.
I am satisfied beyond reasonable doubt that for the reasons advanced by the Crown, drawing together the circumstances upon which the Crown relies, that the only rational inference to draw is that these offenders were participants in the joint criminal enterprise in the pursuit of which those engaged were cultivating by enhanced indoor means the 551 cannabis plants discovered in this house the use of which was solely committed to that endeavour.
I am unable to find that they were the principals in this organisation. The involvement of another person in the acquisition of the premises suggests at least the possibility, if not the probability, of others with an interest in this endeavour."
It was submitted by counsel for Ta that the sentencing judge had erred in employing the reasoning in Weissensteiner and that the sentencing judge should have determined the facts relevant to sentencing simply in accordance with the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in Olbrich v The Queen (1999) 199 CLR 270.
It is highly unusual for a sentencing judge to refer in remarks on sentence to the decisions of the High Court in Weissensteiner and Azzopardi and to seek to employ a process of reasoning discussed in Weissensteiner on the basis that it has been left open by the later decision of Azzopardi .
This process of reasoning is concerned with the acceptance of prosecution evidence and the drawing of inferences in favour of the prosecution on a matter on which the prosecution bears the onus and is to be distinguished from the commonly utilised process of reasoning whereby a sentencing judge, in the absence of evidence from or on behalf of the offender, declines to make a finding in favour of the offender about a matter (for example, remorse) which the offender bears the onus of establishing.
It is open to doubt whether the principles, and particularly the constraints, discussed in Weissensteiner and Azzopardi have any application in the sentencing of offenders. As the present sentencing judge himself pointed out, Weissensteiner and Azzopardi were cases on the giving of directions or the making of comments by trial judges to juries in criminal trials.
There appears to be a dearth of authority in New South Wales on whether Weissensteiner and Azzopardi (and the related High Court case of RPS v The Queen (2000) 199 CLR 620) have any application to sentence proceedings.
In the Queensland case of R v Miller (2003) QCA 404 Holmes J, who delivered the leading judgment with which the other members of the Queensland Court of Appeal agreed, after pointing to various differences between a criminal trial before a jury and a sentence hearing before a judge, said at [27]:-
"Because of these distinctions, I do not think that the constraints on comment and approach imposed by the Weissensteiner line of authority have any application to fact finding on sentence. There is nothing, in my view, which would constrain a sentencing judge from proceeding, as commensense dictates, more readily to accept prosecution evidence or draw inferences invited by the prosecution in the absence of contradictory evidence".
However, this conclusion by the Queensland Court depended partly on a provision of Queensland legislation which has no counterpart in new South Wales.
Ultimately, I have concluded that it is unnecessary for this Court to determine whether Weissensteiner , Azzopardi , and RPS have any application to sentence proceedings. I have reached this conclusion because, although the sentencing judge referred to Weissensteiner and Azzopardi and said that those authorities enabled him to "weigh" the appellants' election not to give evidence, his Honour, on my reading of the remarks on sentence, did not ultimately use the failure of the appellants to give evidence for the purpose of strengthening an inference that might, but not necessarily would be, drawn in favour of the Crown, but for the purpose of holding that there was no evidence to "displace" the inference in favour of the Crown, which, in his Honour's opinion, was the only rational inference to draw. In other words, the sentencing judge ended up not actually using the process of reasoning referred to in Weissensteiner which might have been left open by Azzopardi.
In my opinion, the sentencing judge's assessment of the role of Ta in the commission of the offence was open to his Honour.
I would reject Ta's first ground of appeal.
The trial judge erred in finding that the offence was aggravated by reason of being committed (a) in company (b) without regard for public safety (c) as part of planned and organised criminal activity.
As previously noted, this ground of appeal by Ta is substantially the same as Nguyen's three grounds of appeal.
The grounds of appeal were based on a part of his Honour's remarks on sentence in which his Honour said:-
"The relevant aggravating and mitigating factors to be drawn from s 21A subs (2) and subs (3) of the Crimes (Sentencing Procedure) Act are as follows. The offence was committed in company. I am also of the view that the offence was one that had little regard for public safety. The increasing burden of the use of cannabis on the community is becoming more obvious to this court. I take that into account as an aggravating factor. The offence was part of planned and organised criminal activity. No other conclusion can be drawn from the nature of these premises, the quantity of the plants and the sophistication of this enterprise."
It was submitted on behalf of the appellants that the sentencing judge was not entitled to take into account as aggravating factors any of these three matters. Counsel for the Crown did not really make any submission to the contrary.
It has been established by a series of cases in this Court that a factor should not be taken into account as an aggravating factor to which additional regard can be had in sentencing, if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence. See for example Elyard v R (2006) NSWCCA 43. A factor which is an inherent characteristic of the kind of offence for which the offender is being sentenced can be taken into account as an aggravating factor to which additional regard can be had, only if its nature or extent in the particular case is unusual.
In the present case it was submitted on behalf of the appellants, and not disputed by the Crown, that it is an inherent characteristic of an offence of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants, that the offence is committed in company, that the offence is committed without regard for public safety and that the offence is part of a planned or organised criminal activity.
The sentencing judge in his remarks did not refer to any matter which would have distinguished the appellants' offences from other offences of this kind. In finding that the offence was committed without regard for public safety his Honour merely referred to the increasing burden on the community of the use of cannabis. In finding the offence was part of a planned or organised criminal activity his Honour referred to the premises, the quantity of plants and the sophistication of the enterprise. However, it would be impossible for an offence involving the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants to be committed, without there being quite elaborate planning and organisation, including the utilisation of premises and lighting and watering systems. The number of cannabis plants being cultivated was not unusual for a large commercial quantity.
It is unnecessary in the present case to discuss some other questions which were mentioned in argument, including the range of offences for which it can be an aggravating factor that the offence was committed "in company" and whether it can be an aggravating factor that an offence was part of a planned or organised criminal activity, if the particular offender took no part in the devising of the planning or organisation,
I would allow Ta's second ground of appeal and Nguyen's three grounds of appeal.
Having allowed a ground or grounds of appeal of each appellant, it is necessary for this Court to determine under s 6(3) of the Criminal Appeal Act whether some less severe sentence is warranted. In making this determination this Court has to decide whether it would impose a less severe sentence; Baxter v R (2007) 173 A Crim R 284.
The objective facts of the offending and the subjective features of the appellants have been set out earlier in this judgment and I will not repeat them.
The sentencing judge found that the role of the appellants was higher than that of being mere caretakers of the premises for a short period on one day (a finding which I would accept). However, the only conduct on the part of the appellants actually proved was that they were at the premises at which the plants were being cultivated for a period of just over an hour.
I consider that the offence of each of the appellants was very considerably below the middle of the range of objective seriousness for offences of the relevant kind and this is a sufficient reason for departing, and departing substantially, from the standard non-parole period.
Like the sentencing judge I would find special circumstances in the circumstances identified by the sentencing judge and I would preserve approximately the same ratio of the non-parole period to the head sentence.
In my opinion, somewhat lesser sentences than those imposed by the sentencing judge would be warranted and should be imposed.
I consider the following orders should be made in the case of each appellant.
1. Leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Quash the sentence imposed by the sentencing judge.
4. In lieu thereof, sentence the appellant to a non-parole period of 3 1/2 years commencing on 27 September 2009 and a balance of the term of 2 1/2 years. The earliest date on which the appellant will be eligible for release on parole will be 26 March 2013.
HALL J: I agree with James J.
PRICE J: I agree with James J.
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