R v Regazzoli[2000] QCA 326

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:   I agree with Chesterman J.

2. In my opinion the judge's discretion, as to the admission of the evidence discussed by Chesterman J, was correctly exercised. I would have taken the same view even if there had been no foreshadowed challenge to the evidence that there was a fingerprint of the appellant's on the paper in which the Russian plate was wrapped. Absent an admission making that course unnecessary, the Crown was entitled to lead the challenged evidence as additional support for its contention that the appellant was connected with the events leading to the presence of the plate on the site. I agree that the appeal and the application for leave must fail.

3. THOMAS JA:  I agree with the reasons of and orders proposed by Chesterman J.

4. CHESTERMAN J:  After a trial lasting six days the appellant was, on 3 April 2000, convicted of two charges against the Drugs Misuse Act 1986.  They were:

1. That between 29 August 1997 and 9 December 1997 at Minden he unlawfully produced cannabis sativa the quantity of which exceeded 500 grams; 

2. That on 16 January 1998 at Grandchester he unlawfully produced cannabis sativa the quantity of which exceeded 500 grams.

On 4 April 2000 the appellant was sentenced to a term of five years imprisonment on each count, the sentences to be served concurrently. 

5. There is an appeal against the convictions and an application for leave to appeal against the sentences which are said to be excessive.

6. The appellant, who appeared in person, advanced only one ground in support of the appeal against convictions. As formulated in his notice of appeal it was that:

“The learned trial judge permitted the introduction of prejudicial material which was alleged evidence from another matter yet to be determined by a court.  The effect of that alleged evidentiary material was so prejudicial that whether accepted or not . . . its . . . effect outweighed any probative value . . . it may have had . . .”.

7. The prosecution’s evidence established the existence of two cannabis plantations at the places and times identified in the indictment. In each case the plantation was on land which was relatively secluded, unoccupied grazing country. Both blocks were hilly, featuring gullies and ridges as well as gentler slopes. Both were fairly heavily timbered with thick undergrowth in parts though with scattered clearings.

8. The plantations were similar in preparation and layout. Cannabis plants had been placed in holes apparently dug by means of a powered auger. Imported soil and fertiliser had been placed into the holes. A system of irrigation had been installed. A network of pipes and drippers was connected to water tanks which had been concealed in undergrowth. The pipes had been buried.

9. Although there was incontrovertible evidence that cannabis had been produced, for the purposes of the Drugs Misuse Act, at the times and places alleged in the indictment the case that it was the appellant who had produced the drugs was circumstantial.  It is one of the circumstances adduced by the Crown to show a connection between the accused and the plantation at Minden (“the Minden land”) that is the subject of complaint in the appeal. 

10. The point arises in this way. The police who searched the Minden land found, in addition to the cannabis plantation, a cache of apparently valuable antiques, furniture and other articles. Some of the items were in boxes. A number of smaller items had been wrapped in white butchers’ paper. The antiques were on a part of the property a little removed from the cannabis plants and were hidden in scrub. Adjacent to them, on a pallet, was a part for a petrol engine-driven auger. One of the antiques was a china plate later identified by Ms Good, an antique dealer in Brisbane, as a Russian plate stolen from her premises on 19 July 1996. The paper in which the plate was wrapped was examined for fingerprints. One print was found and identified as being the appellant’s. There was also a palm print found on the paper which was identified as the appellant’s wife’s.

11. The appellant and his wife have, it seems, been charged with stealing or receiving the antiques found on the Minden property. Those charges have not yet been determined.

12. The existence of the appellant’s fingerprint on the wrapping paper was cogent, though not necessary conclusive, evidence that the appellant had been on the land on which the cannabis, the subject of count one, had been produced. The fact that it was found amongst articles of urban decorative art concealed in bushland might lead a jury to infer that the objects had been stolen and that the appellant was implicated in the theft. The evidence had, in addition to its probative effect, a real chance of prejudicing the appellant.

13. The point goes further. The prosecution called Ms Good who produced a video tape from the security surveillance system installed in her premises for the period during which the plate was stolen. On the film can be seen a man and a woman in the shop at the same time though not obviously in each other’s company. The two go upstairs and shortly afterward descend and leave the store. The plate was on display upstairs. Its loss was discovered almost immediately after the two people left the shop. Ms Good immediately left the store. She saw the man and woman about half a block away embracing. The woman was identified by police witnesses as Mrs Julia Regazzoli, the appellant’s wife. The jury was invited to conclude that the appellant was captured on the video as being present in the antique shop at the time the plate was stolen and, indeed, that he was involved in its theft. The relevance to the prosecution case was that, if the jury accepted that it was the appellant who, with his wife, took the plate, then it must have been he who put it, with the other items, at the site of the cannabis plantation.

14. The prejudice is obvious but so is the cogency of the evidence establishing the appellant’s presence on the land. Before considering the point further it is appropriate to digress in order to notice the other circumstances relied on as indicating that the appellant was implicated in growing the cannabis.

15. Mr and Mrs Marshall live further along the road which provided access to the Minden land. The road was of poor quality and was little used. Between September and November 1997 they observed vehicles using the road and stopping, unusually, in the vicinity of the Minden land. They made notes of the registration number of one of the vehicles and the dates on which they saw it. The vehicle was a white dual cab Toyota utility. Mr Marshall, with a neighbour, walked over the Minden land and observed the water tanks, some gardening equipment and fertilisers. As well he observed that the earth adjacent to and beneath the gate into the property had been spiked with small sticks which would be disturbed if anyone should open the gate. Other, similar, devices were observed by a police officer on tracks near the plantation itself.

16. The Toyota was proved to be the appellant’s.

17. Mr Marshall contacted the police to pass on what he had observed. An officer from the closest police station inspected the Minden land and found the plantation. He kept the road under surveillance intermittently over the following weeks. He too observed the Toyota. On one occasion the constable saw the driver clearly and identified him, from a photograph he had been shown, as the appellant. Mrs Marshall, too, was shown a photo-board of twelve photographs one of which was of the appellant. She identified him as the man she had seen in or near the vehicle in the vicinity of the Minden land.

18. Another neighbour, Mr Reinke, also observed the appellant’s vehicle driving up and down the road to the Minden land and, on one occasion, stopped in the vicinity of the entrance to it. On another occasion when Mr Reinke was working on his own property near the road the same vehicle drove past. It stopped and the driver told Mr Reinke that he was interested in buying the Minden land and that Mr Reinke could expect to see him around and about. Mr Reinke later identified the man from a photo-board as the appellant.

19. The Minden land had been listed for sale for some years with a real estate agent at Rosewood. In September 1996 the agent was contacted by a man who gave his name as Anthony Regazzoli. He inquired about purchasing the Minden land. He questioned the agent about what services were connected to the land and whether the vendor might provide financial assistance for its purchase.

20. A year later the agent received a phone call from a man who gave his name as Peter Marshall and who made much the same inquiries about the land as had the earlier caller.  Both men gave the agent a telephone number at which they could be contacted.  The numbers were identical.  Mr Marshall made two more calls about the land over the next few weeks.  He indicated he would make an offer for the land, but never did so.

21. Peter Marshall was proved to be an alias used by the appellant.

22. The land the subject of the second count, (“the Grandchester land”) was also listed for sale. In late 1997 the selling agent received a phone call from a man who wanted to know the asking price for the land and the size of the block. The agent suggested he should come to the office and be given a map identifying the land’s boundaries. Some days later a man of the appellant’s description went to the office and was given the map. The agent identified the appellant from the photo-board. He gave his name as Peter Marshall. Some time later he called again and offered to buy the land for the asking price but with no deposit and a delayed settlement date. The offer was never reduced to writing and nothing came of it.

23. Other evidence linking the appellant with the Grandchester land was that when the police searched it on 16 January 1998 they found a man by the name of Crew apparently tending the crop. Crew owned and drove a Ford Falcon which was observed by a number of witnesses on and about the Minden land at the same time as the appellant’s Toyota was seen. The appellant and Crew were together when the appellant was arrested on unrelated matters in December 1997. The appellant gave Crew the keys to his Toyota so he could return it to his wife. The Crown relied also on the similarities in the method of cultivation of the cannabis plants on the Grandchester land and the Minden land and the fact that a water tank observed by police on the Minden land was later seen on the Grandchester land.

24. It may be concluded from this review that the evidence against the appellant, though substantial, was not overwhelming. It was legitimate for the Crown to adduce as many circumstances as it could to prove a link between him and the unlawful activities on the Minden land and, therefore, the Grandchester land.

25. That proof that the appellant (and his wife) had stolen the plate and hidden it on the Minden land might prejudice the appellant was recognised by the prosecutor. The matter was raised with the trial judge who suggested that if evidence proving the appellant’s fingerprint was not challenged the item on which it was found could be given an anodyne description which would gloss over the unusual nature of the property. This tactic became unworkable when counsel for the defence intimated that his instructions were to challenge the accuracy of the fingerprint evidence, and to dispute that that evidence connected the applicant with the Minden land. In response to the intimation that the applicant’s presence on the land might not be proved by fingerprint evidence the prosecutor indicated his intention of adducing the evidence from Ms Good to show that the appellant was involved in the removal of the plate, found on the land, from her shop.

26. The trial judge ruled:

“Bearing in mind that the question in issue in this trial is the identification or the link between the accused . . .  and the marijuana plantation at Minden in respect of count one.  The prosecution wishing to lead evidence of property which was found on a Minden property because the wrapping paper contains fingerprints which on testing is said to be those of the accused, and because the accused proposes to challenge that those fingerprints are his fingerprints, then it seems to me the prosecution’s position has changed and it simply needs to go one step further, which (the prosecutor) says it can do, and associate the accused man with one of the objects which is wrapped with paper.  In that circumstance although there is prejudice to the accused in allowing the link between a criminal offence associated with this property and himself to be made, the probative value outweighs the prejudicial affect in my view.  I shall give the jury a direction with respect to what they can do with that evidence when the time comes.”

27. What happened in fact was that no discernible challenge was made to the police officers who gave evidence of finding and photographing the fingerprints and the results of the comparison between the print found on the paper and the appellant’s prints obtained when he was arrested. The cross-examination of those witnesses was perfunctory.

28. The evidence which is the subject of complaint, if accepted by the jury, was prejudicial, apart from its probative force in tending to show that the appellant used the Minden land for his own purposes, in that it tended to raise the collateral issue that he was a thief. If satisfied that he had stolen the plate the jury might impermissibly reason that because the appellant was a thief it was likely he was involved in the production of the cannabis.

29. There is no doubt that the trial judge had a discretion to exclude the evidence if satisfied that its prejudicial effect in raising this collateral issue would have been unfair to the appellant. See eg Scott v The Queen [1989] 1 AC 1242 at 1256-1257.  The usual formulation of the principle is that there is a discretion to exclude admissible evidence where its prejudicial effect outweighs its probative value:  R v Edelsten (1990) 21 NSWLR 542 at 552 quoting R v Merritt & Roso (1985) 19A Crim R 360 at 377.  The

“. . . proposition . .  . is usually stated in relation to similar fact evidence, but . . . flows from the duty of the trial judge when trying any charge of crime to set the essentials of justice above the technical rules if the strict application of the latter would operate unfairly against the accused.”

Per Hunt J in R v Gidley (1984) 3 NSWLR 168 at 173. 

30. The appellant necessarily asks this court to disturb the exercise of the trial judge’s discretion. Though exercised in the context of a criminal trial the discretion will not be disturbed except in accordance with the established principles identified in House v The King (1936) 55 CLR 499.  See Edelsten at 552. The discretion exists for the purpose of ensuring that the reception of admissible evidence against an accused is not, nevertheless, unfair.  The appeal will not succeed if the appellant shows only that the discretion might have been exercised in his favour.  He must demonstrate that the discretion was wrongly exercised. 

31. As events turned out Ms Good’s evidence was not necessary to establish the appellant’s presence on the Minden land. The fingerprint did that more convincingly. Having viewed the security video tape it is far from clear that the appellant may be positively identified in it. It was for the jury, who had the appellant before them for five days and who could view the video tape during their retirement, to determine if the appellant was in the shop. Of course, if the jury were not satisfied that the appellant was identified on the video tape there was no evidence he stole the plate and therefore no relevant prejudice. If the jury thought it was his image on the video tape then the possibility of prejudice was distinctly raised.

32. The most pertinent consideration is, in my opinion, that the evidence would not have been led but for the appellant’s counsel’s declaration, made it was said on express instructions, that the appellant challenged the persuasiveness of the fingerprint evidence thereby intimating that the circumstantial case against the appellant would be considerably weakened. To guard against that eventuality the Crown sought to adduce another circumstance linking the accused to the Minden land. The appellant expressly declined the opportunity to withhold that evidence by accepting the fingerprint evidence. The evidence in question, with its attendant prejudice, was admitted only because of the appellant’s deliberate forensic tactic.

33. The reception of the evidence has to be judged by reference to the adumbrated position of the appellant that the Crown could not rely upon the fingerprint to prove the appellant’s presence on the land. Given that hypothesis, for which the appellant was responsible, I can see no error in declining to exercise the discretion to reject the evidence which was a cogent means of proving that presence. Its probative value was significant. The prejudice associated with it did not “out weigh” its probative value. The jury was clearly instructed what limited use to make of it. The trial judge gave the jury a clear and careful direction that the evidence could be used by them only for the purpose of establishing a connection between the appellant and the Minden land. Her Honour specifically warned the jury against reasoning that because the appellant was or might have been a thief he was guilty of the offences charged.

34. There is no merit in the application for leave to appeal against sentence. The appellant was forty-four years of age when sentenced. He had a substantial criminal history starting when he was nineteen. It consists mainly of offences of dishonesty but includes a conviction for trafficking a dangerous drug for which he was imprisoned to three years and six months. The offence charged in count one of the indictment began during the operative period of a suspended sentence for breaking entering and stealing. The history suggests the appellant is an incorrigible criminal.

35. The offences reveal a considerable amount of planning and deliberation. Unoccupied land in inaccessible areas was sought out, on occasions by the appellant using a false name and by means designed to provide an innocent explanation for his presence near the land. Considerable effort was employed in selecting sites for the crop and its husbandry as well as concealing its cultivation. A relatively elaborate system of irrigation and fertilising was employed. It is clear that the enterprise was a commercial one. There was no demonstrated remorse or cooperation with prosecuting authorities.

36. If a comparable case is necessary it may be found in R v Scarfo CA No 487 of 1996, 4 March 1977 in which the appellant was fifty-three years of age with no previous conviction.  His offence was that he had, with others, produced a cannabis crop on a property in north western Queensland. He pleaded guilty and was sentenced to six years imprisonment with a recommendation for parole after two years. Scarfo’s application for leave to appeal against sentence was refused. 

37. I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.