R v Barrow[1999] QCA 56

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 184 of 1998

Brisbane

THE QUEEN

v.

ALLAN BARROW

(Applicant) Appellant

Pincus J A

Williams J

Muir J

Judgment delivered 5 March 1999

Joint reasons for judgment of Pincus J.A. and Muir J., separate reasons of Williams J. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - unlawful production of amphetamine - joinder of charges - whether proof of misconduct on one occasion can be used in a prosecution alleging commission of an offence on another occasion.

CRIMINAL LAW - duress - s. 31(1)(d) Criminal Code - evidence of threat of immediate death - need for some person "actually" present.

CRIMINAL LAW - corroboration - whether corroboration may be found in a collection of evidence - whether corroborative evidence consistent with both sides' case may nevertheless be corroborative of that advanced by prosecution - evidence corroborative of an accomplice - whether items suitable for commission of an offence may be corroborative even though capable of innocent use.

CRIMINAL LAW - fresh evidence - whether new trial justified.

CRIMINAL LAW - sentence parity - co-operation by accomplice - whether reduction in appellant's sentence justified - whether admission by appellant and threat to appellant justified reduction.

Criminal Code  ss. 31(1)(d), 567(2)

De Jesus (1986) 61 ALJR 1

Eade (1924) 34 CLR 154

Gallagher (1986) 160 CLR 392

Kalajzich (1989) 39 ACrimR 415

Kerim [1988] 1 Qd R 426

Le Blowitz [1998] 1 Qd R 303

Mickelberg (1989) 167 CLR 259

Perrier (No. 2) [1991] 1 VR 717

Pfennig (1995) 182 CLR 461

Pickard [1959] Qd R 475

R (C.A. No. 109 of 1997, 9 September 1997)

S P Thompson (1994) 76 ACrimR 75

W (1996) 90 ACrimR 297

Counsel: Mr C Hampson Q.C., with him Mr A Kimmins, for the applicant/ appellant.

Mrs L Clare for the respondent.

Solicitors: Ryan & Bosscher for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 4 November 1998.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND MUIR J.

Judgment delivered 5 March 1999

The appellant was convicted on four counts relating to the production of amphetamine.  There was a single trial before Helman J. of all four charges, during the course of which the appellant pleaded guilty to counts 2, 3 and 4;  as to count 1 the appellant persisted in his defence, but was convicted on that charge also.  There had been a previous, aborted, trial before Williams J., which is further mentioned below.  The notice of appeal challenges all four convictions, but the only point relating to the three in respect of which there was a plea of guilty was that the plea was, it was said, induced by an incorrect ruling by the trial judge as to the scope of the defence of duress created by s. 31(1)(d) of the Criminal Code.

Apart from the duress point, the grounds argued by Mr Hampson Q.C., who led Mr A Kimmins for the appellant, all related only to the conviction on count 1.

Count 1 charged that between 12 September 1994 and 31 October 1994 at Dayboro, the appellant unlawfully produced amphetamine, the quantity exceeding that specified in the Third Schedule of the Drugs Misuse Act 1986.  Although not stipulated in the indictment, it is the fact that counts 2, 3 and 4 had to do with amphetamine offences said to have been committed at Doggett Street, Brisbane.  Count 2 was a charge of production of amphetamine between 21 December 1994 and 9 February 1995.   Count 3 was a charge that on 8 February 1995 the appellant had possession of amphetamine, and count 4 a charge that on that date he had possession of laboratory apparatus used in connection with the production of amphetamine.  There was no dispute about the commission of the offences in counts 2, 3 and 4 which, on the Crown case, were committed at Doggett Street, Brisbane other than with respect to the point just mentioned, duress. 

Apart from that, the factual issues in the case arose under count 1.  The Crown alleged that during the relevant period the appellant was involved as a principal in the production of amphetamine at Dayboro, his role being that of the "cook", as it was put in argument;  whereas the appellant, who gave evidence at his trial, denied that he had any knowledge of or connection with production of amphetamine which, it was not disputed, took place in an organised way during the period alleged, at Dayboro.

Between the last date mentioned in count 1 and the first mentioned in count 2 there is a substantial gap in time;  but it was the Crown case that the enterprise at Dayboro was in all essential respects the same as that at Doggett Street, the break in production and the shift in location being due to fear on the part of the participants, of discovery of their operation by the authorities, which fear was caused by an arrest in the State of Victoria.  To prove the appellant' s disputed connection with the first period of production, that at Dayboro, the Crown relied largely upon the evidence of one Vinall, but put forward in addition a number of circumstances to support Vinall's version of events.  One of the grounds pressed by Mr Hampson in argument was that the primary judge erroneously ruled that a number of circumstances were, taken together, fit for the jury's consideration as capable of supporting Vinall's evidence.  The question of corroboration was relevant because Vinall was an accomplice, being on the Crown case the other principal (apart from the appellant) in both the production at Dayboro and that at Doggett Street. 

It is necessary to deal in some detail with the question of corroboration, but we shall illustrate, at this point, the sorts of inferences the jury was invited to draw.  Exhibit 22, described as a batch book, admittedly contained records of production of batches of amphetamine.  It was also common ground that the appellant was involved in all the production recorded in the book.  Of those batches, numbers 1 to 11 were on the Crown case made during the period alleged in count 1, at Dayboro.  The appellant swore that although batches 1 to 11 were indeed records of production of amphetamine in substantial quantities and were in his handwriting the production recorded did not take place where or when count 1 said it did.  He gave evidence that Exhibit 22, insofar as it recorded batches 1 to 11, related to production in which the appellant was involved in Victoria in mid-1993, over a year before the Dayboro production started.  On the Crown.s version of events, but not on the appellant's, batches 1 to 11 were the first phase of a production process begun at Dayboro and continued at Doggett Street, where batches 12 to 42 were dealt with.  The process was put an end to by police intervention.  The appellant's case was that the production recorded with respect to batches 1 to 11 in the book had no substantial connection with that which took place, admittedly, from the end of 1994 at Doggett Street. 

Apart from the simple fact of the continuity of numbering in the book, the Crown relied upon circumstances including that which we shall now explain.  At the end of a summary of the results of batches 1 to 11 the book notes "material required to finish 500.5 kg.  33.36 Batches".  It was common ground that the 500.5 kg referred to a quantity of phenylacetone, a major component in the manufacturing process.  In each of the last six batches, of the first 11, 15 kg of the substance was recorded as having been used and it seems likely that the note that 33.36 batches were required to finish was the product of a calculation, dividing 15 into 500.5.  In what are admitted to be the records of the production at Doggett Street, immediately below mention of 15 kg of MBK, which is phenylacetone, there appears "total Batches to be completed = 33.36".  There follows a calculation of the consequence, in terms of quantity of amphetamine, which would ensue from running 33.36 batches.

The Crown suggested that this showed or illustrated the continuity of the enterprise, beginning with batches 1 to 11 at Dayboro and concluding at Doggett Street;  the appellant was questioned about this matter, but did not, as it appears to us, come up with any satisfactory explanation of the apparent coincidence.  More generally, it must be said that the Crown's version of events, with respect to the single ultimately contested count, appeared to be much more probable than that sworn to by the appellant;  it was not submitted by Mr Hampson that the evidence was insufficient to support the conviction.

Grounds 1 and 3

Ground 1 says the judge erred in allowing the charge relating to Dayboro to be joined with those relating to Doggett Street.  In the first, aborted, trial before Williams J., his Honour held that evidence relating to Dayboro could be admitted with respect to an issue, that of duress, raised on the Doggett Street charges.  Before Helman J. it was argued that the evidence concerning Doggett Street was inadmissible with respect to Dayboro and that therefore joinder was impermissible.

Mrs Clare, for the Crown, relied on s. 567(2) of the Code which permits joinder of charges if they "are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose".  It seems clear that if the inferences the Crown ultimately urged on the jury were drawn, there were two sets of offences forming part of a series of the same or similar character and also one committed in the prosecution of a single purpose.  In De Jesus (1986) 61 A.L.J.R. 1, the High Court expressed views about the provision in the Western Australian Code corresponding to our s. 567(2).  Gibbs C.J. held that, in cases of sexual offences, the section should not be used to permit joinder unless the evidence on one charge was admissible in relation to the other (2, 3).  Dawson J. said that there was no suggestion in the case before him that the evidence admissible on one count was admissible in proof of the other (10);  his Honour applied a similar view to that expressed by Gibbs C.J.  In De Jesus and cases such as R (C.A. No. 109 of 1997, 9 September 1997), in the same line, trials of sexual offences were regarded as being in a special category, the theory being that juries would in sexual cases (and perhaps some others) be unduly inclined to treat as probative of one charge evidence showing rather similar behaviour by the accused, on another occasion.  The matter was argued before us for the appellant on the assumption that the doctrine of De Jesus should be applied to cases of the present kind;  but even if that were so, the point would fail.  The matter is important enough to merit some discussion.

The leading case on the subject of proof of misconduct on one occasion being used in a prosecution alleging commission of an offence on another occasion is Pfennig (1995) 182 C.L.R. 461, the full impact of which cannot be appreciated unless one looks at the facts with some care;  they are set out at pp. 465-470.  In summary, in proof of a charge of having murdered a 10 year old boy on 18 January 1989, the prosecutor relied in substantial part upon the circumstances involved in the abduction and rape of a 13 year old boy on 30 December in the same year.  The facts relating to the later offence were treated as admissible as "similar facts".  That was done, however, by using a broader test than was applicable when De Jesus was decided.  The difficulty  for the prosecutor in Pfennig was that, as the principal judgment said with respect to the direct evidence concerning the murder:

". . . because the cause of Michael's disappearance cannot be established by direct evidence, the Crown case lacks direct proof of the details which might otherwise constitute a detailed pattern of striking similarity or underlying unity".  (488)

The subsequent discussion indicates that the aspects of similarity relied on were that "the appellant was present on each occasion, initiating conversation with the victim in close proximity to his van" and that in each case the victim was abducted;  however, as to the murder charge, the reasons point out (488) that the evidence of abduction there was "circumstantial and inferential".

As the High Court implied, proof of a "detailed pattern of striking similarity or underlying unity" was lacking in Pfennig.  The justification for admission of the evidence is in our view most clearly seen from the discussion at pp. 480-485.  One cannot, perhaps, do justice to this short of quoting the whole, but its essence may be contained in the following excerpts, part of which consists in quotation from earlier authorities.

"In this Court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged.  But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition.  It was also accepted that, in order to be admissible, propensity evidence must possess >a strong degree of probative force= or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity."

". . . the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.  In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged."

"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force . . . That strength lies in the fact that the evidence reveals >striking similarities=, >unusual features=, >underlying unity=, >system= or >pattern= such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."

". . . evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case.  That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect."

"Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics."

"Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more."

". . . the evidence of bad disposition should also have some >specific connexion= with the commission of the offence alleged.  That is because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect.  So the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it."

In W [1998] 1 QdR 197, Macrossan C.J. expressed views of the effect of Pfennig with which we are in respectful agreement;  his Honour said that Pfennig:

". . . should now be regarded as the governing authority in all cases where issues arise concerning the admission of similar fact or propensity evidence . . .

. . . the basis of admission has changed from one requiring identification of special categories justifying admission to a different broader principle which calls for a decision whether the probative force of the evidence in question outweighs the prejudice to the accused which the admission of it would involve". (198)

"At the beginning of the joint judgment in Pfennig it is noted that there is variability in the descriptions given to the evidence falling into the broad class where this particular problem of admissibility can arise.  It may be called similar fact evidence, relationship evidence, identity evidence, or something else because >[t]hose categories are not exhaustive and are not necessarily mutually exclusive=.  However, the joint judgment accepts that the evidence is always embraced within a class which can be described as >propensity= evidence". (199)

It was argued that there was no proof of striking similarity of operations in the present case;  but if that were so, as Pfennig shows, the ultimate question still remains whether the broader test of probative force which Pfennig enunciates is satisfied.  Resemblances between this case and Pfennig are that in each, evidence relating to a later offence was relied on in proof of a charge of an earlier one and, secondly, the evidence of the accused's involvement in the earlier offence was not direct but merely circumstantial.  But a closer comparison of the two cases  favours the view that evidence about the later operation was properly used in proof of the appellant's complicity in the earlier one;  in the present case the evidence relating to both Dayboro and Doggett Street points to, not two disconnected incidents as in Pfennig, but a single undertaking interrupted by a change of location and a gap in time of some 8 weeks.  Here, the points of similarity between the two phases of what the Crown says was a single undertaking are evident, whereas in Pfennig the only directly proven point of significant similarity was that there was evidence of a conversation, in each case, between the accused and a youth near the accused's van.

But it is in any event not the law that s. 567(2) has been judicially amended so as to confine its operation to instances in which each charge joined is probative of another.  The joinder in the present case was correct.  It was suggested here that the judge should have discharged the jury so as to prevent the evidence relating to Doggett Street being used in relation to Dayboro, but that has no substance.

Ground 2 -  Duress

The argument under this ground challenged a ruling made by the primary judge with respect to the application of s. 31(1)(d) of the Criminal Code.  That provision was amended by s. 13 of Act No. 3 of 1997, but the amendment does not affect the present case.  The trial judge held that, at best for the appellant, the evidence of duress which was called by the appellant was of a "threat of death to him and members of his family . . . at some indefinite future time and place" and so, the judge held, it did not constitute a defence under s. 31(1)(d) of the Code, whose form at the relevant time was as follows:

"A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say -

. . .

4. when the person does or omits to do the act in order to save himself or herself from immediate death or grievous bodily harm threatened to be inflicted upon the person by some person actually present and in a position to execute the threats, and believing unable otherwise to escape the carrying of the threats into execution".  

The provision attained this form by a process of revision authorised by the Reprints Act 1992, the date of the reprint being 26 March 1994, and its number being 1.  The words "himself or herself" appear to have been accidently omitted;  they should have been inserted after "believing".  In November 1994, Vinall offered the appellant $2 million to participate in what became the Doggett Street operation and then on 4 December Vinall told him that he (Vinall)-

". . . was under pressure from these people down in Melbourne and that he had to come up with a solution, and apparently he had dropped my name to these people and that, basically, if I didn't help them out - I am not sure whether it Vinall or them - but either way, they would kill my family and myself - my family first and then me". 

According to the appellant's evidence, on 21 December 1994 at Commercial Road, Brisbane a similar threat was made.  There was other evidence bearing upon this issue, but it is unnecessary to analyse it.

The Crown argued before the primary judge that the first act constituting the Doggett Street offence probably occurred on 5 January 1995, but it does not appear to us that one must examine the correctness of that contention;  it is clear that there was a substantial gap in time between the threat and the events constituting counts 2, 3 and 4.  It was held in Pickard [1959] Qd.R. 475, by the Court of Criminal Appeal, that:

". . . the word >immediate= qualifies the words >death= and >grevious bodily harm=.  . . . the word >immediate= obviously cannot mean some wholly indefinite future time and place.  It must be related to some very short time after the doing or the omission of the act.  Whether the length of the time depends on the nature of the threatened injury or whether the section is wholly inapplicable, if some appreciable length of time must elapse before the threat is carried out, need not be discussed further in this particular case on the particular facts". 

In the present case there was no evidence of threat of immediate death.  Unless the word "immediate" is treated as deleted from the section, the judge's ruling must be upheld, on the ground that there was no indication, either express or implicit in the situation, as to when the threat might be carried out.  Secondly, there was no threat of death or grievous bodily harm to be inflicted "by some person actually present".  There was no suggestion on either occasion that it was Vinall, the person actually present, who intended to kill or do grievous bodily harm to the appellant.  The word "actually" is intractable;  it cannot be stretched to mean that people physically remote from the place where the threat is made are referred to.  The requirement of actual presence may seem to modern readers an irrational one and is perhaps a product of simpler views of the technology available to cause injury than were appropriate, even in 1899.  Yet again, it is or rather was part of the section relied on and we have no right to ignore it.  We were given some authority as to the position under the general law;  but, unless the wording of the Code is to be altered by this Court in the interests of uniformity with other States, as well, perhaps, as other countries, it must be applied.

Although it is not directly relevant to the validity of this ground of appeal it should be noted that the factual basis of the duress case has some weaknesses.  As we have mentioned, the threats relied on were said to have been made on 4 December and 21 December 1994, after the manufacturing operation at Dayboro closed.  There was a substantial period of time between the second alleged threat and the beginning of the Doggett Street operation.  In the intervening period no further threat was alleged to have been made, nor did the appellant make any attempt to protect himself and his family, for example, by approaching the police.  A reason he gave for not going to the police with respect to the first threat was that he did not regard it as "immediately concerning" and he gave a similar reason for leaving his family behind when he travelled to China on the day after the first alleged threat.

Ground 4 - Corroboration

It has been argued on behalf of the appellant that none of the categories of evidence which the judge left to the jury as potentially corroborative fulfilled that description.  In answer to the appellant's contention an argument was put for the respondent that it is unnecessary that a piece of evidence in itself and without regard to any other evidence be incriminating.  The appellant's contention, on the other hand, appeared to be that each item put forward as corroborative must be able to stand on its own feet.

It is convenient, before dealing with the legal question, to explain the nature of the relevant evidence and the way in which it is said to support the Crown case against the appellant.  There are six items requiring consideration.

1. The Batch Book

To some extent this point is dealt with above.  The book was found at Doggett Street and the Crown case was that batches 1 to 11 recorded operations at Dayboro in September and October 1994.  It is important to note that the dispute about batches 1 to 11 was not as to whether or not they recorded manufacture of amphetamine in which the appellant took part;  that was common ground.  The question the jury had to consider was whether they were satisfied that batches 1 to 11 were made at Dayboro in 1994 rather than, as the appellant swore, in Victoria in 1993.  A number of points are made by the Crown in support of the view that the batch book was corroborative, with respect to count 1;  but a simple answer to the appellant's argument, and a correct one, is that the book indicates that prior to the admitted process and manufacture at Doggett Street, a very similar process was recorded by the appellant as having taken place at some other, unidentified, location.  The book showed the earlier manufacture and was therefore corroborative of the Crown case with respect to that manufacture.  To attain that status the book did not have to prove the place or date of manufacture, but in truth its contents tended to show that all the batches in the book were manufactured as part of one enterprise and therefore tended to support the Crown case that the earlier manufacture recorded occurred at Dayboro, whence the operation was moved to Doggett Street.

2. Gap in Computer

The police found a computer in the appellant's possession at Doggett Street;  it had previously been used on the premises of Scotgem, a company controlled by the appellant.  The Crown argued that while there was a pattern of behaviour reflected in the computer's memory, of storing business documents in it, until production at Dayboro began, at that time the behaviour ceased.  The argument was that this tended to show that during the period when Dayboro production occurred the appellant, for some reason, ceased to work at the premises of his company, as he had previously done.  Further, there were found in the computer's memory documents relating to the purchase of chemicals, being some of those necessary for amphetamine production, shortly before Dayboro production began.

3. Importing Chemicals

The appellant went to China to buy MBK, formamide and acetone, chemicals used in amphetamine production, not long before the Dayboro operations started.  This in itself supports the proposition that he was involved in that operation, but the Crown case relevant to the importations did not rest there.  A drum found at Doggett Street with MBK in it bore an acetone label which had MBK written over it.  This gave some support to a part of the Crown case, which was that the appellant imported drums of chemicals labelled "acetone" to disguise the fact that he was importing substances necessary to make amphetamine.

4. Gas Masks

The Crown case included proof of an invoice for three helmets functioning as respirators, its date being 10 October 1994, during the period of the operations at Dayboro.  One of the helmets was found in the appellant's room at Doggett Street by the police and the other in a shed at Underwood which, according to the Crown case, was used to house some of the equipment from the Dayboro operation.  That those two respirators were connected with the Dayboro operation was supported by evidence that there was a substance found on them which had only been produced at Dayboro, not at Doggett Street.  This evidence supported the Crown case that the Dayboro and Doggett Street operations were in truth part of the one enterprise and that inference, if drawn, tended to incriminate the appellant.

5. The Appellant's Connection with Dayboro

There was clear evidence of such a connection and the argument that it is not corroborative is devoid of substance.  Not only did the appellant hold a lease over the premises when the production took place, but there was evidence that a Scotgem cheque paid for a truck hired by the appellant and Vinall on 26 September 1994;  the Crown case was that it was used to transport chemicals to Dayboro.  There was also evidence - disputed by the appellant - that he bought a truck for $33,000 to remove apparatus upon the termination of the Dayboro operation.

6. Residue on Light Fittings

The Crown relied upon analysis of residue found on light fittings which were said to be amphetamine the product of a process of production called the Leuckart Wallace process.  The Crown contention is that proof that the same process was used at the two places, rather than two different processes, tends to connect the two periods of production as part of the one enterprise and therefore to incriminate the appellant.

In our view all the six items of evidence held by the judge to be capable of corroborating the Crown case against the appellant were correctly so held.  We have arrived at that conclusion on the basis that the authorities establish the following propositions.

1. Evidence put forward as being corroborative may, although it consists of a number of disparate items, when appropriate, be considered as a whole, for the purpose of determining whether it is capable of supporting the Crown case.  This appears to us to be a point of particular practical importance;  in a complex case the task imposed on the trial judge is sometimes thought to be to identify individually each item of potentially corroborative evidence, whereas it may be necessary to do no more than indicate to the jury a collection of evidence or types of evidence which the judge considers fit for their consideration.  Some of the cases are usefully collected in Kalajzich (1989) 39 A.Crim.R. 415 at 427-429, where there is reference to a "chain of circumstances" being considered as corroborative (Fuhrer [1961] V.R. 500 at 509) and a quotation from King C.J. in Duke (1979) 22 S.A.S.R. 46 at 52:

". . . potential corroboration is to be found not in the items considered separately, but in the combined weight of the circumstantial evidence . . . " (429)

An earlier recognition of the truth that corroboration may be found in a collection of evidence is to be found in Eade (1924) 34 C.L.R. 154 at 158.  One of the items which, together with others, was held to be corroborative there was that the complainant in an indecent assault case bought some pies and that could hardly, in itself, point to the commission of any offence.

2. Allegedly corroborative evidence which is to some extent consistent with both sides' case may nevertheless be corroborative of that advanced for the prosecution:  we refer to Kalajzich (above) and the Queensland cases discussed in it.  Connected with this doctrine there is authority that an accused cannot neutralise potentially corroborative evidence by admitting it and giving non-incriminating explanations:  see Harris, South Australian Court of Criminal Appeal, 17 September 1992, per King C.J.  This consideration is particularly applicable to the records of production of batches 1 to 11;  on the face of them these records were plainly corroborative of the Crown case and could not be deprived of that quality by the fact that the appellant admitted that they recorded amphetamine production in which he was involved, but attributed that production to a time and place other than that alleged by the Crown.

3. It is not correct that, in considering whether evidence is corroborative of an accomplice, one must necessarily ignore what the accomplice has said in evidence.  The point is lucidly explained by Macrossan J. (as his Honour then was) in Kerim [1988] 1 Qd.R. 426:

"It is well understood that the corroborative evidence need not, by itself, have the effect of proving guilt but what will be expected of it and the area in which it must operate will depend on the issues at the trial and the respective versions contended for by the prosecution and defence . . ." (447) 

". . . the evidence of the party to be corroborated may be looked at to provide the setting and to yield a statement of the circumstances of the offence which is alleged.  In this sense, the evidence of that party may invest with significance the details of the evidence which is offered as corroboration but still the corroborative evidence must have some independent capacity to implicate the accused in the commission of the offence which has been committed in the detailed circumstances which have been described". (447)

Therefore, in the present case, in determining whether the collection of evidence mentioned was capable of being corroborative, the judge was entitled to take into account the extent to which it proved facts reconcilable with the version of events given by Vinall and the extent to which they were irreconcilable with the competing account, sworn to by the appellant.

4. The purchase of items suitable for the commission of an offence may, although such items are also capable of an innocent use, be corroborative.  An example is to be found in the decision of this Court in Le Blowitz [1998] 1 Qd.R. 303.  There, corroboration was found in evidence of the purchase of items said to be for use in drug production, although all those items were capable of innocent use;  Trevilyan, Supreme Court of South Australia, 2 November 1990, is a similar decision.

The judge's ruling with respect to corroboration was correct and this ground therefore fails.

Ground 5 - Fresh Evidence

The appellant argues that evidence available from residents of China who were not called at the trial shows that the conviction was a miscarriage of justice.  It could hardly be said that the new evidence shows that it is likely that the jury's verdict was incorrect, since the Crown case was, as it seems to us, very strong.  But there is authority suggesting that it is enough if there is thought to be a "significant possibility" that the jury would have acquitted if they had known of the new evidence:  Gallagher (1986) 160 C.L.R. 392 at 402; cf. Mickelberg (1989) 167 C.L.R. 259 at 273, 275, 288 and 301.  It is sought to call evidence from two people, residents of the city of Yang Zhong in Jiang Su province, to the effect that in August 1994 the appellant bought 11.5 tons of acetone filling 72 barrels of which only 11 tons was allowed to be exported.  The appellant argues that the new evidence would contradict what Vinall said about the appellant's importations at the relevant time.  The argument is that whereas MBK, formamide and acetone were said to have been brought from China to make amphetamine, acetone only was imported.  There are documents referred to which are said to support the version given in the new evidence.

There is no doubt that the appellant went to China in June 1994 and bought sets of reaction vessels and associated equipment and also contracted to buy chemicals which could be used for production of amphetamine.  It was common ground that in August 1994 the appellant ordered 90 acetone labels which he took to China.  The appellant admitted that he went to buy MBK, but he did not take any labels for that substance, or for formamide, with him to China.  As we have mentioned, drums containing MBK were found at the Doggett Street factory and each had MBK handwritten in red over the "acetone" label.  The appellant said at the trial that he wrote "MBK" on the drums to distinguish them from the drums containing formamide and that formamide got into acetone drums by being poured in after the acetone was poured out.  This seems improbable, but more generally, the inference that the appellant falsely labelled the drums containing MBK as acetone when importing them from China appears to us overwhelming.  Another difficulty, as to one of the proposed witnesses, is that as Mrs Clare pointed out for the Crown, the appellant himself regarded that witness as a dishonest person, saying so in Exhibit 127, a document dated 11 July 1994 and signed by the appellant, which says among other things:

". . . we know that you are lying, you are cheating us".

In our opinion the proposed new evidence cannot justify an order for a new trial.

Sentence

The primary judge sentenced the appellant to 20 years imprisonment on counts 1, 2 and 3 and to 15 years on count 4.  His Honour made findings of fact relevant to the attack on those sentences which were principally:

"You may not have been the only instigator of the enterprise but you were most certainly one of the instigators . . . you were threatened by Vinall . . . you may have been threatened more than once, but . . . you continued in the enterprise at Doggett Street not because you had been threatened but willingly because your greed again got the better of you".

The main point taken in the application for leave to appeal against sentence was that the co-offender Vinall was sentenced to 12 years imprisonment with a recommendation for parole after 5 years.  It was said that this gave rise to a justifiable sense of grievance in the appellant, particularly since Vinall was convicted of trafficking.  Further, it was argued that admissions made by the appellant should have been taken into account in his favour. 

The appellant was born in 1952 and had no prior convictions.  Some might think that Vinall was too leniently treated, as he was at least as culpable as the appellant;  that is not, however, our view, for it has become evident that it is necessary strongly to encourage co‑operation by accomplices willing to take what may be the substantial personal risks involved in revealing offences of this kind.  Vinall's co-operation with the police was extensive, and risky for him.  The matter was discussed by the Victorian Court of Criminal Appeal in Perrier (No. 2) [1991] 1 V.R. 717, where a heroin courier helped in the detection of his principal.  McGarvie J. thought that if the courier's co‑operation resulted in the conviction of the principal offender that person pleading guilty "might well have the period of sentence reduced by about two-thirds" (726).  That and some similar cases were discussed by this Court in S P Thompson (1994) 76 A.Crim.R. 75, where what would otherwise have been a 20 year sentence was brought down to 12 years because of co‑operation in relation to other offenders.  The same reduction was made here and there was added a recommendation for parole after 5 years.

Of course, it is not the case that there is a standard 40% reduction for such co‑operation;  the degree of the offender's co-operation (which is often hard to assess from scanty information supplied to the court) as well as other circumstances such as the difficulty which might otherwise have been experienced in obtaining a conviction against a non‑co‑operating offender, and the risk run by the co-operator, must be taken into account.  It seems clear that in the present case the judge was right in thinking that the appellant had to receive a much heavier sentence than Vinall, who had pleaded guilty and exhibited remorse.

A more difficult point is whether the appellant should have received some reduction or parole recommendation on account of his admissions and the threats to which the judge alluded.  His Honour was faced with a problem in doing so, in that there was an enormous quantity of amphetamine involved - over 300 kg - and it was worth many millions.  The appellant was, according to Vinall's evidence, to receive over $3 million for his work.  The judge accepted that the appellant was threatened by Vinall, but was not prepared to make any allowance to him on that account;  we are unable to be satisfied that his Honour erred in taking the course he did, which was to impose the maximum penalty.

We dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 5 March 1999

I have had the advantage of reading the joint reasons for judgment prepared by Pincus JA and Muir J and I agree with all that they have said therein. I only wish to add a few brief observations of my own.

It is instructive to note the circumstances in which it came to be argued that the verdict of guilty on count 1 (production at Dayboro) should be set aside because the trial on that  count was wrongly heard together with the trial with respect to the counts relating to Doggett Street.

As a result of submissions made to the judge in charge of the criminal list by the legal representatives for the appellant, he directed that the Doggett Street counts be tried separately from the Dayboro count. As noted by Pincus JA and Muir J the trial of the Doggett Street counts came before me. (There was no objection to my sitting as a member of the Court of Appeal.)  At a very early stage in that trial counsel for the appellant intimated that all facts necessary to support the Doggett Street charges would be admitted, and that the only issue would be the defence of duress in the particulars set out in the joint reasons of Pincus JA and Muir J. The Crown, understandably, in order to meet that defence wished to lead all of the evidence in relation to the prior production at Dayboro. If the jury accepted facts such as that the appellant had visited China for the purpose of obtaining chemicals to be used in the production of amphetamine at Dayboro, that he had acquired premises and equipment necessary for the production of amphetamine at Dayboro, that he had been the cook at Dayboro, and that the production of amphetamine both at Dayboro and Doggett Street was by the appellant in conjunction with Vinall, that would have seriously weakened, if not destroyed, the defence of duress. The appellant's legal representatives conceded that the evidence relating to the Dayboro production sought to be relied upon by the Crown was at least admissible on the Doggett Street counts once the defence of duress was raised. That meant that the first trial had to be aborted.

On the trial before Helman J the prosecution proceeded on all the counts on the indictment. If the argument of the appellant is correct then the jury was entitled to hear all of the evidence relevant to the production at Dayboro for the purpose of determining whether the defence of duress was made out with respect to the production at Doggett Street, but was not able to consider that evidence from the point of view of determining whether or not the appellant was guilty of the production of amphetamine at Dayboro because their consideration of that issue was tainted by their receipt of evidence relating to the Doggett Street production. In other words having had a trial at which all the evidence relating to Doggett Street and Dayboro was before the jury, that jury could only consider a verdict with respect to the Doggett Street counts, and there would have to be a further trial, at significant public expense, before a different jury of the Dayboro charges.

That is a proposition which would cause concern to all in the community except those who adhere to the view that all evidence incriminating an accused is inadmissible.

Fortunately, as the analysis by Pincus JA and Muir J of Pfennig (1995) 182 CLR 461 demonstrates, that absurd result is not required by application of accepted legal principle.  Because of the close association, if not unity, between the alleged criminal activity at each centre,  as is amply demonstrated by the facts discussed by Pincus JA and Muir J, the various charges on the indictment could be heard together. All the events could be regarded as the one criminal enterprise resulting in a number of separate charges appearing on the indictment.

Against that background reference should also be made to what can only be described as a cynical tactical move by counsel for the appellant at trial. The prosecution closed its case after leading all available evidence with respect to the events at Dayboro and Doggett Street. Then the appellant gave evidence denying any involvement in the production at Dayboro and admitting production at Doggett Street but raising duress (in the particulars set out in the joint reasons of Pincus JA and Muir J).  At the close of the defence case the learned trial judge made the ruling that the evidence was not sufficient to allow the defence of duress to go to the jury.  In the light of that ruling the appellant then entered pleas of guilty to the Doggett Street offences. Thereafter counsel submitted that there should be a retrial of the Dayboro offence because the minds of the jurors had been contaminated by the evidence they had heard relating to Doggett Street. The learned trial judge, correctly in my view, refused to discharge the jury. The proposition that the jury should be discharged from giving a verdict on the Dayboro offence in those circumstances, and that there should be a retrial, is reasoning of the type which brings the law into disrepute in the minds of all rational citizens.

An accused person has, of course, a right to a fair and proper trial, but that does not mean that lawyers have the right to play forensic games at public expense.

This was the strongest of prosecution cases; the appellant was caught red handed at Doggett Street. Once the defence of duress was not made out the Crown case was overwhelming, and the decision in Pfennig amply demonstrates that the various counts on the indictment could be heard together.

There are two further brief comments I would make.

Firstly, the construction placed on s.31(1)(d) of the Code, quoted in the joint reasons of Pincus JA and Muir J, by the decision in Pickard [1959] Qd R 475 namely that the word immediate therein cannot mean some wholly indefinite future time and place, has not been altered although the Criminal Code has been subjected to a number of major reviews since that decision. That construction of the provision has been accepted for so long that legislative intervention would be required to alter it.  The 1997 amendment liberalised the section by deleting the requirement that the person threatening immediate death or grievous bodily harm be actually present, but that does not alter the requirement that the threat must be of immediate death or grievous bodily harm. The learned trial judge was clearly correct in ruling that the evidence here was not capable of establishing such an immediate threat.

Secondly, one of the items of fresh evidence the appellant wished to place before the court was said to be an ΑInspection Certificate ≅ relating to the export from China to Australia of chemicals arranged by the appellant. The document placed before the court bears the number 3211/98 W 020 and is dated 15 July 1998. The chemicals in question were exported from China and imported into Australia in 1994. It is immediately clear that the document placed before the court is not an original document created in 1994. Further, there was a deal of evidence given at the trial, by the appellant in particular, about the quantity and nature of chemical involved. The particulars appearing in the 1998 Certificate do not accord with the evidence. In those circumstances the document shown to this court adds nothing to the evidence which was before the jury. There is certainly nothing about the document which would cause this court to conclude that the verdict of guilty on the Dayboro count could  not stand.

As noted above, I agree with the orders proposed by Pincus JA and Muir J.