SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  Fuller facts are set out in the reasons for judgment of Keane JA; I will only repeat what is necessary to disclose my reasoning.

2. Given the evidence as to what the police found at the camp site on 2 May 2001, including the photographs admitted into evidence, the jury would readily have concluded that a number of persons were involved in the production of the cannabis crop. The police apprehended Gardiner near the site at about 4.00 pm, and subsequently apprehended Butler there. Beale was arrested at his home on 10 May 2001, and Hodge in January 2005.

3. The police evidence was that as they approached the camp site an adult male was seen to run off into the scrub. It was the contention of the Crown that the person seen running into the scrub was the appellant. In his evidence the appellant denied even having been at the camp site.

4. Amongst numerous articles of a personal nature found at the camp site was a toothbrush which was subsequently found to contain traces of the appellant's DNA. In evidence the appellant admitted that he owned a toothbrush of the kind found at the camp site and proffered an explanation for its being there. The appellant suggested that Gardiner may have inadvertently taken the toothbrush either on an occasion when he had stayed overnight at Gardiner's residence or when Gardiner had stayed overnight at his residence.

5. A critical issue for the jury was the weight to be attached to the appellant's evidence, and that depended largely on the jury's assessment of his credibility. The jury was clearly entitled to place little or no weight on the appellant's evidence, and they were clearly entitled to reject his explanation as to how his toothbrush came to be at the camp at the crop site. If the appellant's evidence on that point was rejected then the jury was entitled to regard the finding of his toothbrush at the site as compelling evidence that the appellant had been at the site.

6. In order to place the appellant at the camp site on 2 May 2001 the prosecution relied heavily on use made of a satellite phone owned by Gardiner. The crop site was out of range for an ordinary mobile phone, and in consequence it was not surprising that Gardiner owned and used a satellite phone. When searching the camp site after the raid on 2 May the police located a cradle to be used when recharging the satellite phone; but they did not locate the phone itself.

7. In order to evaluate the prosecution contention that it was the appellant who used that phone in the period following the police raid on the camp site it is convenient at this stage to describe the person making use of that phone as X.

8. As already noted Gardiner was apprehended at about 4.00 pm and it was somewhere around 7.30 pm - 8.00 pm, when it was quite dark, that other police officers approached the camp site. It was then that the shape of an adult male was seen to run off into the bush. At all material times thereafter the site was secured by the police. At 10.48 pm on 2 May the first relevant call was made by X from the satellite telephone; it was a call which lasted for 297 seconds and was to the appellant's home number. At that time the appellant's wife, Narelle Anderson, was asleep in bed. Her evidence was that she then believed her husband was in the workshop about 20 metres from the house working on motorbikes. She believed he had another person there with him. She was awoken by the phone call - apparently hearing voices on the answering machine. Relevantly her evidence was as follows:

"I raced out to pick up the phone before it cut off which I managed to do and a caller who I don't recognise or didn't recognise asked to speak to Gensi.  . . . I remember when I answered the phone I presumed it was a - a friend - our friend Rod [Gardiner].  . . . a number of seconds after that I realised it was not actually Rod. . . . [b]ut not a voice I recognised . . . basically he wanted to speak to Gensi. . . .  I put the phone down and proceeded to the shed to tell him that there was a call. . . . I got to the shed, the lights were all on, he wasn't there, his vehicle was gone so I presumed he'd gone to work at his mate's place in town. . . .I got back to the phone, I said 'Gensi's not here.  Try again in the morning'."

9. The jury may well have considered it significant that she did not ask the caller to identify himself, nor give the caller her husband's mobile number. According to Anderson she then tried to phone her husband on his mobile but he did not answer. She then rang the appellant's parents' place but he was not there. She then tried to ring Carol Brandon, Gardiner's partner, at 11.12 pm "to see if she knew . . . what this call was and she didn't answer either so I gave up." The jury may well have wondered why Anderson may have thought Carol Brandon would have known what the call from the unidentified person was about. After the call to Brandon she went back to bed.

10. The next call by X from the satellite phone was to the appellant's home at 7.38 am on 3 May. According to Anderson she was getting ready to leave home and was in a hurry. On answering the phone she recognised that it was the same person who had rung the night before. She said she did not recall much of the conversation; she simply said "He's not here. I've got to go." Again the jury may have thought it strange that, although she recognised the call was from Gardiner's satellite phone, she did not ask who was calling, or give the caller her husband's mobile phone number.

11. X next used the satellite phone to again call the appellant's residence at 1.11 pm on 3 May; the call was for a duration of 77 seconds.  In her evidence Anderson said she could not recall receiving that particular call. 

12. To that point of time X had used the satellite phone on only three occasions and each call had been to the appellant's home. The next activity involving the satellite phone were incoming calls on 3 May at 1.46 pm lasting 157 seconds and at 6.38 pm lasting 115 seconds. The evidence does not indicate the source of either of those incoming calls to the satellite phone.

13. X next used the satellite phone at 7.52 pm on 3 May making a five second call to Anderson's mobile. One could readily infer that the call was not answered, and maybe a missed call was recorded. Less than a minute later X used the satellite phone at 7.53 pm to call the appellant's home number; again it probably was not answered as the call took a mere six seconds.

14. It must by then have been obvious to the jury that X knew at least the appellant's home number and Anderson's mobile number, and the only outgoing calls had been to those numbers.

15. Anderson recognised she had missed a call from the satellite phone and in consequence made a call from her mobile to the satellite phone at 8.36 pm on 3 May, a call lasting 124 seconds.  According to Anderson's evidence she spoke to the "same guy".  Her evidence as to the detail of the conversation is extremely vague, but she conceded she did not give X her husband's mobile phone number.  Her evidence was that she told X she had been unable to contact her husband; she did not say he was in Brisbane or on his way there.  Again she did not ascertain the identity of X.

16. The jury may well have thought it to be of some significance that the next use made by X of the satellite phone was to call the appellant's home number at 9.09 pm on 3 May, a call lasting 250 seconds.  Anderson does not really deal with this phone call in her evidence, though it may be the one where on her evidence she tried to give X the appellant's mobile phone number.  Again the jury may have thought it surprising that this was the fifth reasonably lengthy telephone call between X and Anderson, and yet Anderson has not taken any steps to identify the caller. 

17. The next use of the satellite phone was at 1.10 pm on 4 May, a call lasting 173 seconds. Counsel for the appellant made much of this call because it was made to the appellant's mobile phone. Counsel queried why the appellant would be ringing himself. That of course assumes that the appellant was then in possession of his mobile phone; that is a matter to which I will return later. But again, the jury may have thought it significant that X also knew the number of the appellant's mobile.

18. That call was followed almost immediately by a call at 1.14 pm on 4 May to the appellant's home. The call only lasted four seconds, so obviously it was a missed call. Anderson immediately returned that call from her mobile; it lasted 5 minutes 13 seconds. When asked about this call in chief she said:

"this is the day that I was leaving with the kids to - to go camping and I was also taking my mother-in-law to her appointment.  I made this call while I was waiting at her house and I made the call because I was going away, I thought I should let this person know that I hadn’t contacted Gensi yet because he didn’t - didn’t sound - something about the way he talked made me think I better let him know that he - I hadn’t passed on the message because … I hadn’t spoken to Gensi and I told him he was actually in Brisbane."

Under cross-examination Anderson said with respect to that call; "From memory that I hadn't been able to contact Gensi, he was actually in Brisbane.  Could have been that call I gave the number.  But I remember assuring him that I would keep trying and if I heard from him I would tell him … basically."  But again she made no attempt to ascertain the identity of X.

19. Still on 4 May there were two brief calls from the satellite phone at 6.04 pm and 6.05 pm; the first to Anderson's mobile, and the second to the appellant's home number. That was followed at 6.06 pm by a lengthy incoming call to the satellite phone from an unidentified source; that call lasted 544 seconds.

20. There was another 14 second call by X from the satellite phone to the appellant's mobile number at 9.05 pm on 4 May. At 9.07 pm X made a call from the satellite phone to Carol Brandon’s mobile lasting 167 seconds, and then another lasting 140 seconds at 10.06 pm. On the following morning at 7.59 am that phone was again used to contact Brandon’s mobile, a call lasting 57 seconds. So in addition to numbers associated with the appellant, X knew the number of Brandon’s mobile. It is not known who answered those calls but other evidence established that at the time, Brandon's mobile was on the Sunshine Coast where she and Gardiner had their residence. Then finally at 8.01 am on 5 May there was a 194 second call by X from the satellite phone to the appellant's home number. That does not appear to have been specifically dealt with by the witness Anderson in her evidence.

21. In summary then X used the satellite phone on 12 occasions between 2 May and 5 May to a number associated with the appellant; the appellant's home, his wife's mobile, and one call to his own mobile.  Indeed 11 outgoing calls were made to such a number between those dates before the satellite phone was used to dial any other number.  During that period there were five incoming calls to the satellite phone, two of which were from the appellant's wife.  There were also the three calls to Carol Brandon’s mobile.  Apart from the three incoming calls from an unidentified source the satellite phone was not otherwise used during that period.

22. Given the vague evidence from Mrs Anderson, which the jury may well have regarded as unconvincing, the jury could well have been at least very suspicious that X was in fact the appellant. The only piece of all the evidence relating to the use of the satellite phone tending to suggest otherwise was the call from the satellite phone to the appellant's mobile phone. I will return to that consideration later.

23. It is now necessary to consider the evidence of the appellant which essentially placed him travelling to Brisbane by car on 3 May, and being in Brisbane and at Gardiner's home on the Sunshine Coast on 4 and 5 May. But before doing so it is necessary to deal with the question whether or not in the circumstances a notice of alibi should have been given pursuant to the provisions of s 590A of the Code. That section provides that:

"[a]n accused person shall not upon the person's trial on indictment, without the leave of the court, adduce evidence in support of an alibi unless . . . the person gives notice of particulars of the alibi." 

The expression "evidence in support of an alibi" is defined as meaning:

"evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission." 

Count 1 on the indictment (trafficking), as amended during the course of the trial, alleged the commission of an offence between 1 January 1998 and 3 May 2001, and count 2 (production) alleged the commission of the offence between 1 January 2001 and 3 May 2001.  Senior counsel for the appellant, both at trial and again before this Court, contended that it was inappropriate to give a notice of alibi for 2 and 3 May 2001 because the offence was not alleged to have been committed at that particular time.  I am by no means certain that is a valid argument because the prosecution was clearly relying on the alleged presence of the appellant at the site on 2 May as the most telling circumstance pointing to guilt.  But regardless of whether or not a notice of alibi was required with respect to counts 1 and 2, it was clearly required with respect to counts 3 and 4 because those counts alleged the commission of the offence on 2 May 2001.  If the appellant was to give evidence that he was somewhere else so that he could not have been at the camp site on that date then it was incumbent on him to give a notice of alibi.  It is conceded that no notice of alibi was given before the appellant gave evidence.  The first the prosecution knew of an assertion by the appellant that he was elsewhere at material times came when the defence case was opened to the jury.  He had not previously made any such statement to investigating police officers.

24. At the outset of day five of the trial, when the appellant's evidence-in-chief was partway through, the learned trial judge raised with counsel whether or not the circumstances required the giving of a notice of alibi. The Crown prosecutor indicated that the requirement for such a notice had not been waived. After further discussion involving the trial judge and both counsel, the prosecutor indicated that because the trial had already gone for four days he would not object to the evidence in question being given. The learned trial judge then allowed the matter to proceed; the only conclusion open is that impliedly he gave leave for the alibi evidence to be given. But, of course, the prosecution was effectively denied the opportunity of making the investigations which would normally have followed the giving of a notice of alibi indicating the alleged whereabouts of the appellant at the times in question. That, understandably, significantly hampered the prosecution when it came to cross-examining the appellant on the evidence he gave.

25. It follows, in my view, that in the particular circumstances of this case the appellant's evidence is not necessarily strengthened because it was not contradicted.

26. When asked about his movements on 2 May the appellant responded: "I think on that day I was working in the shed . . . I think my brother could've been there … at the time." When asked what he was working on he replied: "I think it was a bike". He thought his wife was at home on that day. He then said: "I worked in the shed for - up till about - probably 7 or 8 o'clock, and then I went into town and gave a friend a hand to get his bike going." He worked on the friend's bike until the "early hours of the morning and I ended up staying there that night." It is clear from the evidence of the appellant and his wife that the appellant did not tell his wife that he was going to his friend's place, nor was she aware that he was staying at his friend's place overnight. The appellant then said that on the morning of the 3rd he used his mobile to ring his home in order to speak to his wife. The record for the appellant's mobile disclosed that at 8.21 am on 3 May there was a call to his home lasting for 40 seconds. His wife had already left the home and in consequence he did not speak to her. He then said that he "got ready" to leave for Brisbane; he went home, had a shower, and then left. That was on Thursday 3 May, and the appellant acknowledged that the arrangement he had with his wife and children was that they would go camping the following weekend.

27. The jury may well have thought it somewhat strange that the appellant left for Brisbane without letting his wife know what he was doing, and in particular that the camping expedition was therefore off. The jury may well have thought it odd that he did not attempt to contact his wife on her mobile when he failed to make contact with her at home at 8.21 am. Anderson had her mobile with her because the records relating to that phone show that she used it to call a friend at 8.35 am on that day. She also used it to make some eight other calls in the course of that day.

28. The appellant's evidence was that the trip to Brisbane resulted from a friend ringing him from Brisbane and saying that he had "a couple of bikes he wanted [the appellant] to look at". The evidence from the appellant was that he drove to Brisbane in his Land Cruiser and stopped for a rest a couple of times. In evidence-in-chief his counsel then took him to a telephone call made from his mobile phone at 7.56 am on 4 May. The records show that that call emanated from Brisbane and was to the mobile phone of Carol Brandon. That was followed at 8.15 am by another call from the appellant's mobile to Carol Brandon. The first of those calls lasted 50 seconds and the second, 38 seconds. When asked his purpose in ringing Carol Brandon he said: "Just to let her know that I was in Brisbane and I was going to stop in in a couple of days, to see if she was going to be home." The appellant's evidence suggests that it was during one of those phone conversations that Carol Brandon informed him that Gardiner had been arrested in connection with a cannabis crop.

29. The next use of the appellant's mobile phone was at 9.06 am on 4 May when a call lasting 1 minute 48 seconds was made to the appellant's home number; again it was recorded as coming from Brisbane. If indeed it was the appellant who made that call then it was the first occasion since sometime in the afternoon of 2 May on which he actually spoke to his wife. If in fact it was the appellant who made that call and he was then in Brisbane, that would be the first occasion on which Anderson became aware that her husband was in Brisbane. The jury would have to evaluate the appellant's evidence that he left Townsville some time after 8.21 am on 3 May, drove to Brisbane with some rest stops, and made a phone call from Brisbane at 7.56 am on 4 May.

30. The appellant's evidence did not suggest he went to Jeff's place on the morning of 4 May - the alleged purpose of his visit to Brisbane.  After the call to the appellant's home at 9.06 am the appellant's mobile was next used at 11.54 am from the Sunshine Coast area to again call his home number - a call lasting 30 seconds.  The jury could well infer from the times that the person using that mobile phone travelled to the Sunshine Coast very shortly after making the three early morning calls.  There was certainly little time to conduct any business with Jeff.

31. One could readily infer that the call at 11.54 am to the appellant's home was a missed call. Thereafter on 4 May there were a series of calls between the appellant's mobile, Anderson's mobile, and the appellant's home phone; particulars are as follows:

• 11.54 am - appellant's mobile (Sunshine Coast) to home phone - duration 30 seconds

• 1.02 pm - appellant's mobile (Sunshine Coast) to home phone - duration 1 minute 15 seconds

• 1.24 pm - appellant's mobile (Sunshine Coast) to home phone - duration 32 seconds

• 1.49 pm -  appellant's mobile (Sunshine Coast) to home phone - duration 25 seconds

• 2.01 pm - Anderson's mobile (Townsville) to appellant's mobile - duration 7 minutes 32 seconds

• 2.33 pm - Anderson's mobile (Townsville) to appellant's mobile - diverted to 101

• 2.25 pm - Anderson's mobile (Townsville) to appellant's mobile - duration 6 minutes 25 seconds

• 2.23 pm - appellant's mobile (Sunshine Coast) to home phone - duration 30 seconds

• 11.34 pm - Anderson's mobile (Charters Towers) to appellant's mobile - diverted to 101

• 11.37 pm - Anderson's mobile (Charters Towers) to appellant's mobile - duration 1 minute 57 seconds

• 11.46 pm - Anderson's mobile (Charters Towers) to appellant's mobile - duration 2 minute 47 seconds

32. Each of the appellant and Anderson was questioned about those calls. According to the appellant on at least one, if not two, occasions a call to his home number was answered by his sister. Otherwise in evidence-in-chief he was extremely vague about those calls; indeed it could be said he was not able to give any particularity at all, despite the calls of 7 minutes and 6 minutes duration. According to the appellant's evidence-in-chief he left the Sunshine Coast "later on that afternoon", being 4 May, and went to see Jeff at Logan where he stayed overnight. But in evidence-in-chief he did not deal at all with the three calls made by Anderson from her mobile phone at Charters Towers to his mobile number late that night. Maybe the jury thought it of some significance that the appellant said he returned to Townsville on 7 May, and there were no calls made from his mobile phone after 4 May.  Further it should be recorded that there were two outgoing calls (at 2.23 pm and 3.28 pm) on 4 May from the appellant's mobile located on the Sunshine Coast to a phone number which in evidence the appellant did not recognise.

33. Understandably the appellant was cross-examined about when he became aware that his wife had received a series of telephone calls from an unknown person wanting to speak to the appellant. He said that he thought "on the 4th or something like that I was told" that someone had been after him. He went on: "I think my wife told me that someone had been trying to ring me, but I was travelling to Brisbane the following day, I think." Anderson's evidence does not support the proposition he was told before he left for Brisbane. When pressed about how and when he was told, he could not say whether it was in a call he made to his wife or in a call she made to him. When asked specifically where he was when he received that information he said "actually Sunshine Coast, I think."

34. The prosecutor cross-examined him about the call at 1.10 pm on 4 May from the satellite phone to the appellant's mobile phone. The appellant said that he answered that call. He was then asked who was calling and he responded: "a friend of Rod - Rod's, he said. I thought it was Rod's actually. . . . he did say a name but I didn't grab it. I couldn't catch it". In relation to the call at 9.05 pm on 4 May from the satellite phone to his mobile (lasting 14 seconds) the appellant said that he didn't answer that one. The prosecutor then returned to the earlier call at 1.10 pm that day. The appellant was asked to give some more particulars of that conversation. Relevantly his answers were as follows:

"He just said that he - he was a friend of Rod's - that I could work out - and that - that he needed a hand, and I started to explain to him that I was down at - at Rod's at the time. 

Q. So he needed a hand for what? - A. He didn't say.  Well, not that I could work out anyway.

Q. So a friend of Rod's says Rod needs a hand, but you can't get - catch the name of the friend? - A. No, he never said that Rod needed a hand, he said that he was a friend of Rod, and if I could give him a hand.

. . .

Q. Did he explain the nature of the hand that he wanted? - A. Not really, other than - than I thought he was broken down somewhere.

Q. I see. Well, you must've found out where he was because you declined help because you said you were somewhere else. Where - where - where did he say he was that you knew you couldn't help him? - A. I couldn't work it out.  I couldn't understand it."

35. He was then specifically asked whether in any of the calls he actually spoke with Gardiner and he responded (presumably referring to 4 May): "At the end of that day I think he said he was going to be home - he rang Carol and said he was going to be home in a day or two."

36. Further, in cross-examination the appellant was asked whether he had made any enquiries of Gardiner to ascertain who was using Gardiner's satellite phone to phone him; he replied: "I think he told me it was someone that he knew had broken down with a broken axle, or something like that." He said that Gardiner may have given him a name but he could not recall it.

37. The jury may well have thought it strange that the appellant was unable to give any further particularity of the series of telephone calls he alleged he was associated with on 4 May. His evidence as to the critical call he allegedly received from the satellite phone may well have been considered unsatisfactory. Further, the jury may have thought it extremely odd that he was unable to give any particularity of the calls at 11.37 pm (lasting 1 minute 57 seconds) and 11.46 pm (lasting 2 minutes 47 seconds), from his wife's mobile (then located at Charters Towers) to his mobile phone.

38. It is now convenient to refer to the evidence of Narelle Anderson. I have already dealt with much of her relevant evidence when discussing the various phone calls; I will not repeat that here. Under cross-examination she specifically denied that the person she spoke to on the satellite phone was her husband. She also conceded she had not ascertained subsequently who was using that satellite phone.

39. During evidence-in-chief Anderson admitted to some confusion with respect to her movements on Thursday 3 May and Friday 4 May. The jury may, or may not, have considered that relevant to her credibility.

40. She was clear in her evidence that plans had been in place for some weeks for she and her husband to take the children camping on the May long weekend; the proposal was that they leave on Friday 4 May. Because of her confusion over days, it is not entirely clear what the relevant timeframe was with respect to the following questions and answers:

"Q.Had you heard from your husband at all?

…

A.No.  I was unhappy with him at the time, because he'd gone down to Brisbane, ditched the camping trip.

Q.Yes, and had he told you where he was going? – A. The day that he was working with his – with his mate or whatever when he was working, that was the day I remember that he decided to change his plans because his friend had rung to say he'd found bikes for him to look at, had to move quickly because they were a good buy and he was … "

41. Other answers given shortly thereafter and under cross-examination indicate that she was saying that she had been informed on Wednesday, 2 May that her husband intended going to Brisbane, but that is not entirely clear. But in at least the first two conversations with X she did not indicate her husband was going to Brisbane.

42. She was then asked when she found out that her husband had actually left for Brisbane. Her answer was extremely vague. In the course of one answer she said she "tried to contact him", but the phone records do not suggest any call either from the home number or her mobile to the appellant’s mobile on 3 May.

43. Her evidence was that the first time she spoke to the appellant after he left Townsville was when she made the call from her mobile to his mobile at 2.01 pm on 4 May. According to her evidence-in-chief it was in the course of that call that she learnt that Gardiner had been arrested. She maintained that, but with some uncertainty, under cross-examination.

44. Her evidence was that she had decided to go ahead with the camping trip notwithstanding her husband’s absence. According to her evidence Gardiner rang her sometime "between Gensi’s call and the time I left … for Charters Towers". She could not recall whether he rang on her mobile or on the home phone. The evidence does not clearly establish what she was referring to as "Gensi’s call", but it is probably the call around 2.00 pm on that day; she left on the trip "after 5 or 6" on that evening.

45. In that phone call Gardiner told her "his position, his dilemma. Not in great detail but I recall him saying you know, he was in a bit of a bind and I told him that Gensi was away. I don’t – don’t know if he knew that or not, and I mentioned that I was going camping and was about to leave that afternoon." She then went on: "When - he must have asked, or I volunteered that I was heading to the Fletcher, because he said, 'Go – go along the [Harvey] Range Road because it'll make your journey much much quicker.'" She also conceded in cross-examination she did not think to ask Gardiner who had been using his satellite phone.

46. The jury may well have thought it significant that she did not ascertain from Gardiner where he was when he made that call. The jury was obviously interested in this call because they asked for a redirection about when Gardiner had been released on bail. The learned trial judge then reminded them of the evidence of the police officer, Andrews, as follows:

"He was arrested sometime in the afternoon of the 2^nd of May about 4 o'clock we're told   …  I left Mareeba at approximately 3.00 am on the 3^rd of May and Gardiner and Butler were being transported to Atherton for court that morning and to the best of my knowledge Gardiner was released on bail that morning."

47. In other words Gardiner was released on bail on the morning of Thursday, 3 May. By late afternoon on 4 May he could easily have been back at his residence on the Sunshine Coast.

48. Anderson’s mobile phone records reveal a one minute 51 second call to Carol Brandon’s mobile at 5.10 pm that afternoon. She could not recall what she spoke about, but it may have been "the same thing".

49. Anderson then, according to her evidence-in-chief, set out sometime "after 5 or 6" on the evening of 4 May to travel to Fletcher River. She denied under cross-examination that this was a mission to rescue the appellant from near the camp site. Whilst travelling on the Harvey Range Road she punctured the sump of the car and ultimately had to seek towing assistance. The tow truck arrived from Charters Towers and took the vehicle, the appellant, and the children back to Charters Towers arriving somewhere around midnight. In evidence-in-chief she gave only sparse evidence of conversation with the tow truck driver, Gough; nor was she specific as to whether or not she wanted to get another vehicle that night. She said in her evidence-in-chief she obtained a hire car mid-morning the next day.

50. In evidence-in-chief she gave no detail of the phone calls at 11.34 pm and 11.37 pm from her mobile in Charters Towers to the appellant’s mobile.

51. Under cross-examination Anderson did concede that she "wanted to get a car that night" after the tow truck driver had picked up her broken down vehicle. The jury could well have been satisfied from that passage in the cross-examination that she had some interest in getting back on the road that night. She did agree that the tow truck driver advised her against driving further that night in a car.

52. Her cross-examination concluded with the prosecutor again putting to her that it was the appellant she had spoken to on the satellite phone. She again denied that. The questioning then went on:

"Q.  Subsequent to all these events happening nearly four years ago now, have you made any efforts to find out who that caller was? – A.   No.

Q.  Why not? – A.  I don’t know.  I just have not. 

Q.  Not just a tiny bit curious? – A.  No.

Q.  Not asked and not [been] told? – A.  No."

53. The jury may well have thought it curious that, notwithstanding her lengthy friendship with Gardiner and Brandon, she did not make any enquiries as to who was using Gardiner’s satellite phone on 3and 4 May 2001.

54. Finally, in order to evaluate the evidence of Anderson it is necessary to refer to the evidence of the tow truck driver, Gough. He received a call in Charters Towers at 9.00 pm on 4 May that a vehicle had broken down on the Harvey Range Road about 125kms out from Charters Towers. He set out to recover that vehicle. He located it about 35kms off the bitumen highway on the Harvey Range Road. That road was a dirt road and he described it as "pretty rough, a lot of corrugations". He confirmed that Anderson’s vehicle had sustained a hole in the sump which had drained all the oil. The vehicle was placed on the tray of his truck and returned to Charters Towers.

55. He referred to conversations he had with Anderson during that drive back to Charters Towers. According to him "she said she was going to Oasis, I think, for the weekend. … [s]he sort of wanted to - asked me if I could take her up to Oasis. I couldn’t do that, I had to take her back to … the RACQ depot. "

56. Road maps of the area were in evidence, and the jury would have been aware that the road junction at Oasis was relatively close to the site where police located the cannabis crop and saw a man run off into the scrub.

57. Gough also gave evidence that Anderson "was asking me to sort of organise a rent a car." He made a call to his depot but "they wouldn’t organise one for that night - too many animals on the road for insurance." When he told Anderson that she said she was "going to see about a friend’s car or try and hire one."

58. The jury may well have been satisfied by that evidence that Anderson was anxious to get another car and travel to Oasis that night.

59. The evidence of Gough, and other evidence before the jury, established that there was a bitumen road from Townsville to the Fletcher River. But Anderson did not take that route; she used Harvey Range Road which was a dirt road and heavily corrugated. The jury may well have wondered why, with two young children in the car, she decided to take the route which she did, rather than travel on the bitumen road.

60. The jury's assessment of the credibility of each of the appellants and Anderson would have been critical to their deliberations. They could well have rejected the appellant's evidence putting forward an explanation for the presence of his toothbrush at the camp site, and in consequence they could have readily concluded that there was evidence directly linking him to that site.

61. Then they would have had to consider whether the user of the satellite phone during the period 2 - 4 May, hereinbefore referred to as X, was in fact the appellant. In my view a reasonable jury would have been satisfied that indeed it was the appellant who made use of the satellite phone during that period. In arriving at that conclusion regard would have been had to the fact that the user knew relevant telephone numbers for the appellant's home and his wife's mobile, and the fact that the appellant's wife in numerous telephone conversations with that user did not seek to ascertain the identity of that person. The only rational conclusion open is that at all times she was fully aware of the identity of the person to whom she was speaking. Earlier in these reasons I have alluded to other considerations which support that conclusion; I will not repeat those matters here.

62. Counsel for the appellant relied on the phone call from the satellite phone to the appellant's mobile at 1.10 pm on 4 May as conclusively establishing that the appellant was not the user of the satellite phone. But given the critical importance of that phone call to the appellant's case his evidence with respect to it is unconvincing and unbelievable. There was no evidence, other than the assertion by the appellant himself, that he was in possession of his mobile phone at 1.10 pm on 4 May.  Mobile phones can readily be passed around, and in theory any number of people could have had that phone at the material times.  It would not be unrealistic for the jury to have considered the possibility that someone at Gardiner's residence on the Sunshine Coast had the appellant's mobile at that time.  One knows that Gardiner spoke to Anderson on 4 May, and the evidence also establishes that the appellant's mobile was then located at or near Gardiner's residence.

63. The evidence of Anderson as to the events on the evening of 4 May is also unconvincing, if not unbelievable. Why leave at night with young children to travel on a rough, corrugated road when there was an alternate sealed road readily available? What was the reason for her anxiety to get to Oasis at night, if the virtually unchallenged evidence of Gough was accepted? A reasonable jury could have been satisfied to the requisite degree that the purpose of the trip was to "rescue" the appellant.

64. I have also had the advantage of reading the reasons for judgment prepared by Keane JA and I agree with all his reasoning therein. In particular I agree with his reasoning on all aspects of the case which I have not touched upon in these reasons.

65. I have ultimately come to the conclusion that the verdicts of the jury were reasonably open on the evidence, and further I am satisfied that it has not been established that the conduct of the trial was unfair to the appellant.

66. It follows that I would dismiss the appeal against the convictions.

67. On the question of sentence, I agree with all that has been said by Keane JA and with the variation to the sentence which he proposes.

68. I agree with the orders proposed by Keane JA.

69. KEANE JA:  On 1 March 2005, the appellant was convicted by the verdict of a jury after a trial conducted in the Supreme Court of Queensland on one count of unlawfully trafficking in the dangerous drug cannabis sativa between 1 January 1998 and 3 May 2001, one count of unlawfully producing the dangerous drug cannabis sativa between 1 January 2001 and 3 May 2001 with the aggravating circumstance that the quantity of the drug exceeded 500 grams, one count of unlawful possession of the dangerous drug cannabis sativa on 2 May 2001 with the aggravating circumstance that the quantity of the drug exceeded 500 grams, and one count of having in his possession on 2 May 2001 equipment used in connection with unlawfully producing a dangerous drug.

70. On 2 March 2005, he was sentenced to concurrent sentences including nine and a half years imprisonment in respect of the production count, and eight years in respect of the trafficking charge. On the possession count, the appellant was sentenced to four years imprisonment; on the possession of equipment charge, he was sentenced to two years imprisonment.

71. The appellant seeks to have the convictions set aside. He also seeks to appeal against the severity of the sentences for the production and trafficking offences.

72. It is convenient to deal first with the challenge to the convictions. In that regard, there were a number of grounds of appeal but they were developed as two themes running through the appellant's submissions, namely that the verdict of the jury was unreasonable and that the conduct of the trial was unfair to the appellant. The submissions were advanced in a way which tended to conflate these two themes.

73. It should also be noted that, in the appellant's original written outline of argument, it was foreshadowed that the appellant would seek to adduce fresh evidence on appeal. This would have called the jury's verdict into question by discrediting evidence that the appellant's DNA was found on a toothbrush located at the site where the cannabis the subject of the production charge was being grown. The appeal came on for hearing on 25 October 2005. On that occasion, questions as to the reliability of the DNA evidence led at trial were referred to Atkinson J as a Commissioner appointed pursuant to s 671B(d) of the Criminal Code.  Those questions were set down for hearing on 5 December 2005.  On the morning of that hearing, Atkinson J was informed by counsel for the parties that there is no evidence now available which would contradict the evidence given at the trial, that the DNA taken from the toothbrush matched the DNA typing of the appellant at eight alleles.  Accordingly, the argument foreshadowed in the appellant's original outline of argument has now been abandoned.   

74. Before addressing the appellant's arguments, it is convenient to summarise the case advanced at trial by the Crown, and the appellant's case in response.

The Crown case at trial

75. At the beginning of May 2001, police officers located a cannabis crop site on Canyon Station, an abandoned station between Forsayth and Einasleigh in far north Queensland. The site had the appearance of having recently been harvested. Approximately 753 kilograms of dried cannabis leaf was found at the site. There was equipment at the site including a bulldozer, pumps and an irrigation system with grey piping.

76. A number of personal items were found at a nearby camp site. There was a purple toothbrush which was found to contain traces of the appellant's DNA. There was also a videotape of the crop site which showed the profile of a male person, said by the Crown to be the appellant; the date on which it was made was not established.

77. Police officers apprehended Rodney Gardiner near the crop site at about 4.00 pm on 2 May 2001. Subsequently, a search was conducted of the area, and at the camp site near the plantation. In the course of this search, Jeffrey Butler was apprehended by police at about 8.20 pm.

78. At about 9.00 pm, the police officers saw in the distance a person who ran off into the scrub. The Crown case was that this person was the appellant, and that he had been associated with Gardiner and others in the production of cannabis at the site for a number of years.

79. The indictment originally presented against the appellant charged that he had engaged in trafficking and production of cannabis between 25 August 1994 and 3 May 2001.  In evidence addressed at the trial, Dr Stocker, a botanist, gave evidence for the Crown that the earliest date that production of cannabis at the crop site could have started was in 1998.  The earlier date had originally been chosen because the appellant had been observed near the crop site by a local police officer on 25 August 1994.  On that date, Gardiner, with whom the appellant was then in company, was issued with a traffic infringement notice for failing to wear a seat belt.  The Crown was allowed to amend the indictment to conform with the evidence of Dr Stocker.  This occurred at the instigation of counsel for the appellant at trial expressly in order to limit the evidence of unexplained cash receipts by the appellant and his wife to the period after 1998.  The appellant did not seek to have the jury discharged because of this narrowing of the Crown case.

80. The Crown relied on evidence that after Gardiner had been apprehended at 4.00 pm on 2 May 2001, a satellite phone which had been bought by Gardiner was used to make telephone calls to the appellant's residence at Nome near Townsville. No satellite telephone was found at the crop site, but a charging device for a satellite phone was found there by police. The Crown contention was that the person using the satellite phone to make those phone calls was the appellant. From the telephone records it appeared that:

1. at 10.48 pm on 2 May, there was a 297 second phone call from the satellite telephone to the appellant's home number ("the home number");

2. at 11.05 pm on 2 May, there was a two minute phone call from the mobile phone of Ms Narelle Anderson (the appellant's wife) to the appellant's father's phone number;

3. shortly after, on 2 May, there was a 14 second call from Ms Anderson's mobile to the landline phone number of Carol Brandon (Gardiner's de facto wife);

4. at 7.38 am on 3 May, there was an 85 second phone call from the satellite telephone to the home number;

5. at 8.21 am on 3 May, there was a 40 second call from the appellant's mobile phone to the home number;

6. at 1.11 pm on 3 May, there was a 77 second call from the satellite phone to the home number;

7. at 7.52 pm on 3 May, there was a five second call from the satellite phone to Ms Anderson's mobile phone;

8. at 7.53 pm on 3 May, there was a six second call from the satellite phone to the home number;

1. at 8.36 pm on 3 May, there was a 124 second call from Ms Anderson's mobile to the satellite phone;

10. at 9.09 pm on 3 May, there was a 250 second call from the satellite phone number to the home number;

(k)at 7.56 am and 8.15 am on 4 May, there were calls from the mobile phone, which the appellant said was in his possession, to Carol Brandon.  The call was recorded as having been made from the Brisbane area;

(l)at 9.06 am on 4 May, there was a 108 second call from the appellant's mobile to the home number.  The call was recorded as having been made from the Brisbane area;

(m)at 11.54 am on 4 May, there was a 30 second call from the appellant's mobile to the home number.  The call was recorded as being made from the Sunshine Coast area;

(n)at 1.02 pm on 4 May, there was a 75 second call from the appellant's mobile (Sunshine Coast) to the home number;

(o)at 1.10 pm on 4 May, there was a 173 second call from the satellite phone number to the home number;

(p)at 1.14 pm on 4 May, there was a four second call from the satellite phone to the home number;

(q)at 1.14 pm on 4 May, there was a 314 second call from Ms Anderson's mobile phone to the satellite phone;

(r)at 1.24 pm on 4 May, there was a 32 second call from the appellant's mobile (Sunshine Coast) to the home number;

(s)at 1.49 pm on 4 May, there was a 25 second call from the appellant's mobile to the home number;

(t)at 2.01 pm on 4 May, there was a 452 second call from Ms Anderson's mobile to the appellant's mobile;

(u)at 2.23 pm on 4 May, there was a call from Ms Anderson's mobile to the appellant's mobile which was diverted to 101 (the message bank);

5. at 2.25 pm on 4 May, there was a 385 second call from
   Ms Anderson's mobile to the appellant's mobile;

(w)at 2.33 pm, there was a 30 second call from the appellant's mobile (Sunshine Coast) to the home number;

10. at 6.04 pm on 4 May, there was a 19 second phone call from the satellite phone to Ms Anderson's mobile phone;

(y)at 6.05 pm on 4 May, there was an 11 second call from the satellite phone to the home number;

(z)at 6.06 pm on 4 May, there was a 544 second call to the satellite phone from an unidentified number;

(aa)at 9.05 pm on 4 May, there was a 14 second call from the satellite phone to the appellant's mobile;

(bb)at 9.07 pm on 4 May, there was a 167 second call from the satellite phone to Carol Brandon's mobile;

(cc)at 10.06 pm on 4 May, there was a 140 second call from the satellite phone to Carol Brandon's mobile;

(dd)at 8.01 am on 5 May, there was a 194 second call from the satellite phone to the home number.

81. On Friday 4 May, Ms Anderson and two of their children set out from Townsville and drove towards Canyon Station. The Crown contended that Ms Anderson was engaged on a mission to rescue the appellant who was stranded in the bush near the camp site on Canyon Station. Ms Anderson's car broke down on Harvey Range Road, and she eventually returned to Townsville.

82. Police located a quantity of grey pipe in the shed at the appellant's residence at Townsville. The piping was of the same dimensions as that found at the crop site and it bore the same extrusion marks. One end of the piping found at the appellant's house had a plastic fitting attached to it. The fitting was externally threaded. Part of a pump found at the crop site had an internal thread. The first three threads of the fitting at the appellant's house were clear of grease, as were the first three threads of the internally threaded piping found at the crop site. The two threads fitted together. Mr Tony Peter, a forensic scientist, gave evidence that grease samples from the piping and pump parts at the crop site and grease from piping taken from the appellant's shed could have shared a common origin.

83. The Crown led evidence from an accountant, Mr Nolde, who gave evidence that a study of the appellant's accounts showed that he had received unexplained cash payments in the period between 1998 and 2001.

84. Mr Nolde analysed voluminous financial records of the appellant and Ms Anderson which were seized by the police relating to 20 separate banking accounts and approximately 8,000 transactions. Mr Nolde was aware of the appellant's income from the restoration of motor cycles. He was not, however, aware that the appellant also earned money from the restoration of antique tools or from manufacturing furniture. Mr Nolde had not seen the records of Alchemy Imports, a business conducted in partnership by Ms Anderson and Carol Brandon. The appellant had been subjected to a tax audit by the Australian Taxation Office in 1997. After that audit, the appellant had on hand cash totalling $91,670. Mr Nolde said that, over the period to 2001, the appellant received cash payments and made purchases with cash from unidentified sources totalling $109,000.

85. The Crown called Mr William Gough, who drove the tow truck which picked up Ms Anderson's vehicle from the point where it had stopped.  Mr Gough said that this was about 125 kilometres from Charters Towers on the Harvey Range Road.  During the trip back to Charters Towers, Ms Anderson told Mr Gough that she was going to Oasis for the weekend.  Oasis is on the road to Einasleigh, and in a different direction to the camping ground on the Fletcher River.  Ms Anderson asked Mr Gough if he could take her to Oasis.  When he said that he could not do that because he had to take her back to the RACQ depot in Charters Towers, she asked him to organise a rental car for her.  He rang the depot on his UHF radio to ask about her request, but they would not organise a rental vehicle that night.  It was close to midnight when they arrived back at Charters Towers.  Mr Gough's evidence was not challenged in cross-examination.  Nor was it contradicted in any way when Ms Anderson gave evidence.

The appellant's case at trial

86. In the course of the further cross-examination of Mr Price, senior counsel for the appellant established that, in the course of the investigation of the activities at the crop site, medication in the name of Peter Carton was found at the camp site. The appellant's counsel also elicited from Mr Price that Dominic Hodge was also identified by police as having a connection with the crop site and had recently been arrested.

87. Mr Mark Andrews was a police officer who had been engaged in the search for the person who was thought to have decamped from the crop site on 2 May 2001. In the course of cross-examination of Mr Andrews, senior counsel for the appellant elicited that Mr Andrews had arrested Hodge early in 2005 in relation to the crop site. Senior counsel for the appellant also elicited from Mr Andrews that Peter Carton lives in a de facto relationship with Jeff Butler's mother, and that Carol Brandon was the de facto wife of Gardiner and the mother of Hodge.

88. Senior counsel for the appellant also elicited, in the course of cross-examination of Detective Senior Constable Brown, another of the police officers involved in the investigation of the activities at Canyon Station, that prescription ointment in the name of Jeff Butler was found at the camp site as well as a box of Panamax tables in the name of Donald Beale.

89. The appellant gave evidence he was a carpenter who has worked in his trade since the mid-1980s. For 15 years he had also restored motor cycles for money, making up to $5,000 on a motor bike for which he was paid in cash. He also made furniture and restored antique tools for money. He provided details of these earnings to an accountant, Mr James Kern, who was called to give evidence with a view to allaying the inference that might otherwise be drawn by the jury that the source of the unexplained income identified by Mr Nolde was the proceeds of trading in drugs.

90. The appellant said that he had known Gardiner for close to 20 years. Gardiner's wife, Carol Brandon, and the appellant's wife were partners in a shop, Alchemy Imports, in Townsville during the 1990s. Gardiner moved to McIntyre Lane on the Sunshine Coast. The appellant used to visit Gardiner from time to time to look at motorcycles. He occasionally stayed overnight at Gardiner's place, Gardiner occasionally stayed overnight with the appellant, and they went hunting and fishing together.

91. The appellant also gave evidence that Gardiner's wife had a son of a former marriage, named Dominic Hodge, who was 25 or 26 years of age in May 2001, and six feet tall. This evidence was thought to be apt to negative the identification of the appellant as the person in the videotape found at the crop site. Hodge was also arrested in relation to the activities at the crop site in January 2005.

92. The appellant said that on 2 May 2001 he was working in the shed at his residence at Nome. At about 7.00 or 8.00 pm he went into town to give a friend, John Morrow, a hand to get his bike going. He stayed the night at Morrow's place. On the morning of Thursday 3 May the appellant telephoned his wife "to see if she was still home". He and his wife had planned to take their two children camping that weekend to the Fletcher, a river outside Charters Towers. The appellant went home, had a shower and left for Brisbane where his friend Jeff, of Jeff's Local Salvage at Logan, had a couple of motor bikes he wanted the appellant to look at.

93. The appellant said that he drove to Brisbane in his Land Cruiser motor vehicle. On 4 May he telephoned Carol Brandon from Brisbane on his mobile telephone to tell her that he was in Brisbane and that he "was going to stop in in a couple of days". As a result of that conversation he went to the Sunshine Coast to see her. He then telephoned his sister at his home phone number. He went to Logan and stayed for either one or two nights. He returned to Townsville on 7 May.

94. The appellant said that he used his mobile phone to make the calls from Brisbane and the Sunshine Coast. The telephone records tendered by the Crown showed that this mobile telephone was used to make calls in the morning and afternoon of 4 May. These records also showed that this mobile phone made a call at Townsville to the appellant's home at 8.21 am on 3 May.

95. From 7 to 10 May 2001, he was working at home. On 10 May, the police came and executed a search warrant.

96. The appellant denied committing any of the offences with which he was charged.

97. In cross-examination, the appellant admitted that he had known Gardiner for about 20 years. They had fished and hunted together, visited each other's homes, and their wives were friends who had been in business together for years. The appellant also admitted that he knew Jeffrey Butler as a friend of Gardiner's, and that he had met Butler "probably 10 times" and had spoken to him on the phone "a few times". He admitted that he had heard Gardiner speak of a man named Donald Beale. The appellant said that he may have met Beale once, but Beale had never visited his house. Beale was another man linked by other evidence to the activities at the crop site, including by a bottle of prescription medicine with his name on it found at the camp. The appellant also admitted that he knew Dominic Hodge, who was Carol Brandon's son, and that he had known him for a number of years.

98. The appellant said that he first knew Gardiner had been arrested at the crop site when told of it by Carol Brandon.

99. The appellant said that Gardiner had never told him what Gardiner was doing at Forsayth. He said that he had never been to the property. He said he had driven through Forsayth about "half a dozen times" on fishing trips, and on three or four of these occasions he was in company with Gardiner.

100. The appellant agreed that he had done "some extensive irrigation" on his property at Nome; he had grown up on a farm. He denied that the pump part taken from the crop site had ever been in his possession.

101. The appellant admitted that he has owned an Oral-B toothbrush of the kind found with his DNA at the camp site. He denied leaving the toothbrush at the camp site. He suggested that Gardiner may have taken the toothbrush from the appellant's house during one of Gardiner's visits.

102. He was shown the videotape and denied that he was shown on the tape. The appellant gave evidence that he was five feet seven inches tall.

103. The appellant was cross-examined about the telephone records. As to the call of 297 seconds' duration made on Gardiner's satellite phone at 10.48 pm on 2 May to the appellant's Nome landline telephone, the appellant denied that he made the call. He said that he was in town at the time. He said that his wife rang him some time later at the Sunshine Coast and told him that someone had been telephoning for him. He denied the suggestion that he had used Gardiner's satellite telephone to call his wife to arrange for his rescue.

104. As to further telephone records of calls from the satellite phone to his home number and two calls to his mobile telephone number, the appellant said that he took the first call to his mobile phone and was told that the caller identified himself as "a friend of Rod's ... He did say a name, but I didn't grab it. I couldn't catch it." The duration of this call was 173 seconds. The message was that the caller "needed a hand". The appellant said that he was "down at Rod's". The appellant said that he could not understand the message, but that as a result of speaking to Gardiner subsequently he believed that the caller had "broken down with a broken axle, or something like that". The appellant said that he did not take the second call.

105. The appellant was asked whether Gardiner had told him the name of the caller. The appellant admitted that he had actually asked Gardiner. He said that Gardiner may have given him "a name", but he could not recall it.

106. Ms Anderson gave evidence that she was a school teacher by profession, but that from 1994 to 1999 she operated a gift and homeware store "Alchemy Imports" in partnership with Carol Brandon. In 1996, Carol Brandon and Rod Gardiner moved to the Sunshine Coast. Once there, Ms Brandon suggested she and Ms Anderson purchase another business - known as "Café Kokomo" - in Noosa. Thereafter, their partnership operated the two businesses; Ms Anderson did the bookwork for the business "Café Kokomo". The partnership continued until the "Alchemy Imports" business closed in 1999. Ms Anderson received $15,000 to $20,000 on the sale of the business. The "Café Kokomo" business had closed before the "Alchemy Imports" business closed.

107. Ms Anderson said that on 2 May 2001, the appellant was working in his shed with "at least one person". She said that she went to bed at about 9.00 pm and was woken up "very late" by a phone call. She woke up "hearing voices" from the answering machine. She realised that the call was from Gardiner's number, but the caller was not Gardiner. The caller was a male who wanted to speak to the appellant. The caller did not identify himself. She went to the shed to get the appellant, but he was not there and so she presumed that "he had gone to work at his mate's place in town". She returned to the phone and told the caller that the appellant was not there, and to "try again in the morning".

108. Ms Anderson said that she tried to ring the appellant but he did not answer. She then rang his mother, and he was not there. She then rang Carol Brandon "to see if she knew … what this call was"; but Carol Brandon did not answer. Ms Anderson then went back to bed.

109. Next morning, she received a further telephone call from the same person. She did not recall much of the conversation except that she said "He's not here. I've got to go." She said that on that day, Thursday 3 May, she took her mother-in-law to an appointment with the podiatrist. On the Thursday evening, she saw that she had missed a telephone call and rang the number. She said she was sorry she had been short in the morning but had still not heard from her husband. The phone was cut off and the other person rang straight back. She then repeated what she had said earlier. She had not heard from her husband. In her evidence, she said that she was unhappy with the appellant because he had "ditched the camping trip", this decision having apparently been made the day before by the appellant who had decided to go to Brisbane to look at bikes.

110. Ms Anderson gave further evidence that the day she took her mother-in-law to her appointment was the same day she took her children camping, ie Friday 4 May. She called Gardiner's satellite telephone number to let "this person know that" she had not contacted her husband yet. She told him he was in Brisbane. This phone call occupied 313 seconds. Ms Anderson recalls asking the caller who he was and "What's it all about?" She said that the answer was "fairly vague. Something about some drama had unfolded and he needed to speak to Gensi." She then subsequently spoke to the appellant on his mobile to tell him that she had been getting "these calls", and that they were "proceeding to leave". In this call, the appellant told her that Gardiner had been arrested. After that she called Carol Brandon "to see if she was okay".

111. Some time earlier that afternoon, Gardiner had telephoned her. It is apparent from other evidence that this call was made after he had been released on bail. He said that he was "in a bit of a bind" and she told him that the appellant was away. The other evidence established that Gardiner was then on bail. She told him she was about to go camping to the Fletcher, and Gardiner told her to "Go - go along the [Harvey] Range Road because it'll make your journey much much quicker."

112. On the trip, she punctured the sump of her vehicle. She stopped when the oil light came on. Some pig hunters came along and stopped to see if she needed help. The RACQ was called and Ms Anderson and her children went back to Charters Towers where they stayed the night with a friend. Next day, she hired a car and returned to Townsville.

113. On 6 May, Ms Anderson spoke on the phone to Carol Brandon. Ms Anderson said that she was unable to get through to her husband's mobile phone. She said that she spoke to someone on the home landline, but she did not say to whom.

114. In cross-examination, Ms Anderson denied that the phone calls made from Gardiner's satellite phone were from her husband. She also denied that she had driven out to Charters Towers in an endeavour to rescue her husband. She admitted that while she was in the tow-truck after her car had broken down, she tried to arrange a hire car and that she "wanted to get a car that night". She denied, however, that this was because she wished to continue her attempted rescue of her husband that night. She admitted that she had not ever made any attempt to establish the identity of the person who telephoned her from Gardiner's satellite phone.

115. Mr James Kern, an accountant, gave evidence that he performed an assets betterment assessment (an assessment of the kind formerly used by the Australian Tax Office ("the ATO") to detect tax avoidance) to seek to identify undetected income of the appellant having regard to the financial documents provided to him by the appellant and Ms Anderson. Mr Kern did not agree with Mr Nolde's evidence that between 1998 and 2001 the appellant received unexplained funds of $109,000.

116. Mr Kern had seen the records which Mr Nolde had seen. Mr Kern also had the records of Alchemy Imports, and the benefit of interviews with the appellant and Ms Anderson. There was no attempt to quantify the appellant's income from furniture making and antique tool restoration except to the extent of about $8,000.

117. Mr Kern was cross-examined. He acknowledged that the assets betterment approach is no longer used by the ATO as a method of financial analysis. The assets betterment approach looks at comparisons of net assets at a consistent date over a period of years, rather than tracking income and outgoings which may not be reflected in the net assets at the comparison date. In cross-examination, Mr Kern acknowledged that in respect of one sum of $45,000 which was spent on improvements to the matrimonial home, only $22,500 was taken into account by him. He said that this was appropriate because Ms Anderson's mother owned a half-interest in the house.

The appellant's contentions on appeal

118. The appellant submits that on the whole of the evidence it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.^[1]  As I mentioned at the outset, however, the appellant's submission in relation to the unreasonableness of the jury's verdict also includes complaints about the conduct of the trial, and the learned trial judge's directions to the jury.  It is convenient to address the appellant's submissions by reference to the particular aspects of the evidence to which attention was directed by the appellant.

The video tape

119. The appellant's first point concerns the use of the videotape found at the camp site. In the prosecution case, Mr Price, one of the police officers who investigated the Canyon Station camp site, gave evidence that he identified the appellant as the person shown in the videotape. Senior counsel for the appellant at trial made no objection to this evidence. There was further evidence in the Crown case from Mr Piper who attempted to determine the height of the person depicted in the video by a technique described as "reverse projection".  This technique suggested that the figure in the video was between five feet 10 and a half inches and six feet one and a half inches tall.  That estimate, of course, could not describe the appellant, who is five feet seven inches tall.

120. The learned trial judge subsequently ruled of his own motion that that evidence of Mr Price was inadmissible; and directed the jury to ignore the evidence of Mr Price's opinion.  The learned trial judge also directed the jury that they would "probably not [be] assisted by Mr Piper's evidence".  Further, his Honour gave the jury a special warning about the dangers involved in attempts by them to determine whether the appellant was the person who appeared in the videotape.

121. On appeal, the appellant complains that the direction to ignore the evidence of Mr Price's opinion came too late and that there was no direction to the jury that, by virtue of the "reverse projection" evidence of Mr Piper, the person in the video was not the appellant so that the jury should have no regard at all to the video.

122. It is most unlikely that the jury were irreparably prejudiced against the appellant by Price's opinion evidence of identification. The "reverse projection" evidence of Mr Piper may have been of little value to the Crown case, but it must inevitably have provoked scepticism in the jury in relation to Price's evidence.  The jury could see the appellant, and it must have been evident to them that he could not possibly fit the man described in Mr Piper's evidence.  In any event, the direction given by the learned trial judge to ignore Mr Price's evidence was sufficient to ensure that the jurors realised that they should not defer to Mr Price's identification of the appellant rather than acting upon their own appreciation of what was depicted in the videotape.

123. As to the use which the jury might make of the videotape, in the course of his directions to the jury about this aspect of the Crown case, the learned trial judge said:

"Identification by use of photographs is really something you should not attempt to do.  The more so here where there's no depiction of facial features or physical peculiarity like scars or tattoos.  You are simply left with a video of a male of a particular height and build.

  It's a matter for you whether you think the defendant fits that description, but if so it would fit a great many number [sic] of - of men.  It does not identify the defendant personally, nor is that what the prosecution is seeking here.  Its approach is to rely on the combination of a number of circumstances and to ask you by your acceptance of these other circumstances to come to the conclusion that the person in that video is indeed the defendant.

  Before you can use the video in any way you have to be satisfied beyond reasonable doubt that it is indeed a depiction of Mr Kerma, using all of that other evidence …"

124. The effect of this direction was to ensure that the jury could not use the videotape to establish the appellant's presence at the site unless they were satisfied beyond reasonable doubt that it was indeed the appellant who appeared in the videotape. This direction may well have been more stringent than was necessary in the sense that the jury may have taken the view that the appearance of the male person in the video was consistent with the appearance of the appellant as one strand of reasoning in the circumstantial case which the Crown was seeking to construct. However that may be, the trial judge's direction ensured that the appellant was not prejudiced by the use which the jury made of the videotape. As a result of the trial judge's direction, the jury would have understood that they could use the videotape as evidence of the appellant's guilt only if they were satisfied beyond reasonable doubt that it was the appellant who was depicted. It may be that the videotape was of little evidentiary value. On the other hand, having regard to the directions given to the jury, and the jury's own common sense, there is no reason to think that the jury accorded the video tape greater significance than it deserved.

125. For the judge to have gone further and directed the jury to disregard the videotape altogether would have been to trespass into the province of the jury as the tribunal of fact.

The appellant's association with Gardiner, Butler, Beale and Hodge

126. The appellant's next contention is that nothing adverse to the appellant might legitimately be inferred from the appellant's association with Gardiner, Butler and Beale because the existence of this association was not opened as part of the Crown case. As a result, so it is said, the trial judge's direction to the jury was apt to impute to the prosecution an argument which it did not, and was not entitled to, make in relation to the evidence of this association.

127. It is clear that one of the circumstances on which the Crown ultimately relied to make out its circumstantial case was the defendant's association with Gardiner, Butler, Beale and Hodge, not by way of "guilt by association" with known criminals, but by linking the appellant with persons linked by other evidence to the activities at Canyon Station. In this regard, the learned trial judge said to the jury:

"The circumstances are, the defendant's association with Gardiner, Butler, Beale and Hodge.  Gardiner, Butler and Beale have already been dealt with by the Courts for their part in this case and Mr Hodge, as you've heard, has been charged for his involvement. 

   The prosecution relies on Mr Kerma's association, particularly with Gardiner, which included fishing and hunting, which brought him into the area of the crop site.  His association with Hodge, being the son of Mr Gardiner's partner and the son of the defendant's wife's friend.  In those circumstances the prosecution contends that Mr Kerma's claim that he was not aware of the crop cannot be believed."

128. On the hearing of the appeal, senior counsel for the appellant complained that this direction was apt unduly to prejudice the appellant by lumping him in with the others so as to suggest that he was the only associate in the enterprise at Canyon Station yet to be dealt with by the courts. The appellant also complains that in this direction, the trial judge was making a point for the Crown which it did not make and which it was not entitled to make because the personal links between these various individuals was not opened by the Crown as an aspect of the circumstantial case which it sought to make against the appellant.

129. Senior counsel for the appellant at trial did not seek any redirection in relation to this direction. Senior counsel for the appellant argued that no redirection was sought in this regard because of an apprehension that any further direction by the trial judge may have been more unfavourable to his client. This apprehension was said to be based on the view that the trial judge's summing-up was unduly adverse to the appellant. It is necessary to say at once here that, in my respectful opinion, that view was without foundation. A perusal of the trial judge's summing-up shows that it was scrupulously fair to the appellant. That having been said, there was, in my view, no substance to the appellant's complaints.

130. The Crown plainly did rely upon the personal links between the appellant and others whose connection with the site had been established by other evidence. The circumstances of that association were one aspect of the reasoning whereby the Crown sought to establish the appellant's involvement with the activities at the crop site and the implausibility of his denial. The Crown Prosecutor had opened that the Crown intended to rely on circumstances of the appellant's association with Gardiner as an aspect of the case. To the extent that Butler, Hodge and Beale were identified as persons linked to the criminal activities at Canyon Station, that evidence was elicited by the appellant's own counsel; and it is not said that in taking this course senior counsel for the appellant at trial was acting so incompetently as to have caused a miscarriage of justice.^[2]   

131. Nor could any such suggestion have been made. Senior counsel for the appellant may well have elicited the evidence that Hodge, Beale and Carton were connected to the activities at the camp site in an attempt to raise a suggestion that the person who used the satellite telephone on the evening of 2 May 2001 was a person other than the appellant. That would have been a sound forensic tactic.

132. In the course of the cross-examination of the appellant, the learned Crown Prosecutor made it clear that he was challenging the truth of the appellant's assertion that he was unaware of the activities at Canyon Station conducted by Gardiner and his associates, and had not himself been involved in those activities. Of course, when the Crown Prosecutor opened the case for the prosecution, he could not have known that the appellant would give evidence. Nor could he have anticipated the forensic tactics of counsel for the appellant.

133. In summary, the appellant's credibility was clearly in issue in respect of his evidence that he did not have any connection with the criminal enterprise at Canyon Station. The use by the Crown of the evidence which emerged during the trial at the instigation of the appellant's counsel was not unfair to the appellant as is demonstrated by the absence of any request for a redirection on this aspect of the trial judge's directions to the jury.

The evidence of piping and irrigation equipment

134. The third point made by the appellant concerns the evidence of the piping and irrigation equipment found at the appellant's house. The appellant's complaint was that the evidence which was led on this point fell short of the Crown Prosecutor's opening that the piping found at the appellant's house matched that at the crop site "down to the grease or the lubricant that was on the piping". In the event, the evidence was that the piping was similar but commonly available, and the grease from the piping and pump parts located at the crop site could have shared a common origin. The learned trial judge described the circumstance that similar equipment was found at the crop site and the appellant's house as "not particularly conclusive evidence".

135. It may readily be accepted that this evidence was not decisive of the appellant's guilt, but that was not the basis on which it was able to be used by the jury. It was, at least, relevant to the circumstantial case which the Crown sought to construct in that it was consistent with a conclusion that the appellant had the means to engage in the offences charged.

The "rescue mission"

136. The fourth point made by the appellant relates to Ms Anderson's trip from Nome to Charters Towers on the afternoon of 4 May 2001. The first complaint by the appellant in this regard in his written submissions was that the learned trial judge should not have told the jury that they might infer from the fact that Ms Anderson told Mr Gough, the tow-truck driver, that she was going to Oasis that, in truth, she was not going to the Fletcher. But the evidence from Gough was unchallenged in cross-examination, and Ms Anderson did not seek to contradict it at all. This evidence was inconsistent with Ms Anderson's evidence that she was intending to go to the camping ground on the Fletcher. That camping ground was in the opposite direction to Oasis, which was on the way to Canyon Station.

137. The appellant complains that the prosecution did not put to Ms Anderson the suggestion that she had told Gough that she was going to Oasis. But Mr Gough gave this evidence in the Crown case, and he was not challenged on the point in cross-examination. Nor did Ms Anderson give any evidence at all about her conversation with Gough. It was not incumbent on the prosecution to put Mr Gough's evidence to her when she had given evidence which did not suggest that she disputed Mr Gough's evidence in any way.^[3]

138. The principal contention advanced by senior counsel for the appellant in oral argument was that the theory advanced by the prosecution, namely that Ms Anderson was engaged in a rescue mission to pick up the appellant who had decamped from the crop site on 2 May, had been "exploded" by evidence from the telephone records relating to the appellant's mobile phone and the satellite phone.  These records showed that on 4 May 2001, there were calls between these phones, and that the appellant's mobile phone was at Brisbane and the Sunshine Coast.  It is not clear whether the appellant takes this argument so far as to contend that the trial judge should have directed the jury that the Crown's rescue mission theory had been "exploded" by this evidence, but I am respectfully of the opinion that this submission cannot be accepted.

139. The submission depends on the proposition that the appellant was, on 4 May 2001, in possession of his mobile phone. That proposition, in turn, requires that the appellant's evidence to that effect be accepted. The trial judge reminded the jury that there was no evidence that the appellant was not in possession of this mobile phone, but the appellant's credibility was clearly in issue and it was open to the jury to reject his evidence.

140. Further, it is apparent from Mr Gough's evidence that Ms Anderson was anxious to hire a car on the evening of 4 May. At this time she had told him she was going to Oasis. Next morning, she hired a car at Charters Towers, but returned to Townsville. That does not "explode" the rescue mission theory. That Ms Anderson may have changed her mind about travelling on in the direction of Oasis (and Canyon Station) as a result of information that the appellant no longer needed to be rescued, which information she received in phone calls late in the evening of 4 May, was not established by the Crown as a fact, but neither was it shown to be beyond the realms of possibility. To say this is not to cast an onus of proof upon the appellant: it is simply to observe that the appellant had not demonstrated by irrefutable evidence that he was in Brisbane and at the Sunshine Coast on 4 May 2001.

Cash transactions

141. The fifth submission advanced by the appellant relates to the evidence of the appellant's cash transactions. The appellant's principal complaint here is that the appellant was prejudiced by the terms of the Crown's opening which, because at that stage the prosecution charge related to the period from 1994 to May 2001, referred to the appellant and his wife having unexplained cash of the order of $400,000 over that period. After Dr Stocker's evidence was given, the indictment was amended to refer to the period from 1998 to May 2001, and the evidence of Mr Nolde was confined to that period. The jury were instructed to confine their attention to the evidence relating to that narrower period.

142. The appellant complains that he was prejudiced by the mention by the Crown of the details of the police investigation of a larger number of files and transactions than were relevant after the amendment of the indictment. It is difficult to see that the appellant's prospects of an acquittal were adversely affected by what had been opened in relation to the Crown case before the amendment of the indictment. It was made clear to the jury that the prosecution's case was that the unexplained cash transactions involving the appellant was limited to $109,000. It is significant in this regard that the appellant did not seek the discharge of the jury on the basis that his prospects of a fair trial were irreparably damaged. Counsel for the appellant argued that the absence of an application for the discharge of the jury reflected an appreciation on his part that because of the delay in bringing the matter to trial, an application for the discharge of the jury would have been unlikely to succeed. In my respectful opinion, however, the fact that an application for the discharge of the jury was not made was entirely consistent with the absence of any reason to fear that the jury would not be able to focus its attention on the evidence in accordance with the directions of the trial judge.

143. The appellant also complains that the learned trial judge effectively reversed the onus of proof in relation to the cash transactions by suggesting that the issue was whether they accepted the evidence of Mr Kern. But it is clear that his Honour told the jury that it was a matter for them as to which of the experts they wished to accept, and indeed that they might decide to "accept the opinion of neither of them, it's for the prosecution to convince you of these matters".

144. It was open to the jury to prefer the evidence of Mr Nolde to that of Mr Kern. Mr Kern's evidence depended upon the reliability of information provided to him by the appellant and Ms Anderson.  Further, the method employed by Mr Kern was less likely to bring into account cash received and expended in the period between assets betterment "snapshots".  Thirdly, the jury may have been disposed to scepticism in relation to Mr Kern's independence and expertise by the revelation in cross-examination that he thought it appropriate to disregard $22,500 of a sum of $45,000 expended on improvements to the matrimonial home because the home was half owned by Ms Anderson's mother.  In relation to this last point, counsel for the appellant argued that this evidence was irrelevant because it related to a receipt outside the 1998 to 2001 time frame.  But the point was relevant to Mr Kern's credibility and the value of his evidence in relation to the 1998 to 2001 time frame because of the doubt which it cast upon his competence or willingness to provide independent expert evidence regarding the quantification of unexplained cash sums received by the appellant.

145. It was conceded by the respondent that the trial judge failed to remind the jury that it had been agreed between the parties that the amount of the appellant's unexplained cash receipts had to be reduced by a sum of approximately $13,000. The appellant contended that a further sum of approximately $20,000 should also have been deducted from the appellant's unexplained cash receipts, but this contention was not put to Mr Nolde in cross-examination, and whether this sum was a true reduction in the appellant's cash receipts depends on the acceptance of the evidence of Ms Anderson and the appellant.

146. In the upshot, it appears that the trial judge's direction overstated the Crown case, in relation to the amount of the appellant's unexplained cash receipts established by the evidence of Mr Nolde or agreement between the parties, by $13,000. Bearing in mind the purpose for which this evidence was adduced, that is to show that the appellant had access to sums of cash consistent with his involvement in illicit business activities, this difference was in no way apt to prejudice the appellant's prospects of an acquittal.

Unreasonable verdict

147. One may now address the appellant's submission that the jury could not reasonably have concluded beyond reasonable doubt that the appellant was guilty of the charges against him.^[4] 

148. The evidence of the appellant's DNA on the toothbrush found at the site was an important piece of evidence. It tended to establish that the appellant had been at the site, and so had had the opportunity to commit both the offence of production and the offence of trafficking.

149. The jury were entitled to infer that the person who used Gardiner's satellite telephone to call Ms Anderson was the appellant. The first of these calls was made one hour and 15 minutes after police saw someone decamping from the site into the bush. Whoever made the calls knew the appellant's home phone number. The caller was calling from somewhere in the bush, and there is no record of any call to Directory Assistance. The calls to the appellant's home from the satellite phone were numerous, but the satellite phone was not used to make calls other than to or from the appellant's home, Ms Anderson's mobile, the mobile phone which the appellant said was in his possession, or Carol Brandon's mobile phone. If the maker of the calls from the satellite phone was someone other than the appellant who needed assistance, it beggars belief that the satellite phone was not used to seek assistance elsewhere.

150. Ms Anderson professed not to know who the caller was at the time and not to have subsequently discovered the identity of the caller. The jury were entitled to reject that evidence because whoever was calling Ms Anderson knew the appellant's home phone number and Ms Anderson was sufficiently well disposed to the caller to call him back. It is clear that the caller could not have been Gardiner or Butler. They had been apprehended at the camp site where the cradle for the satellite telephone was found. If the caller was Hodge, it beggars belief that Ms Anderson would not have recognised him. He was the son of her close friend and business partner, Carol Brandon. Having regard to the appellant's evidence of the tenuous links between Carton and Beale on the one hand, and the appellant on the other, there was no reason to think that Carton or Beale would have known the appellant's home number.

151. The presence of the cradle at the camp site suggested that whoever was using the satellite telephone had been at the camp site. The toothbrush DNA evidence was apt to establish that the appellant was a person who had been at the camp site. In the absence of a rational and reasonable basis for a hypothesis that some person, other than the appellant, had been at the camp site before the arrival of the police, was still at large on the evening of 2 May, and knew the appellant's home phone number at Nome and was known by Ms Anderson, the jury were entitled to conclude beyond reasonable doubt that the appellant was the person using the satellite telephone to call Ms Anderson.

152. There was no evidence linking the use of the satellite telephone on 2 May with telephone numbers associated with anyone other than the appellant. The jury were entitled to regard the association between the appellant and Beale and Carton as too tenuous to raise a real possibility that it was one of these men who was making persistent use of the satellite phone to call the appellant's home on 2 and 3 May 2001. The jury may well have regarded the appellant's inability and Ms Anderson's continuing inability to identify the caller as excluding the possibility that it was a truly close associate such as Hodge.

153. Further, having regard to the established links between the appellant, Gardiner, Beale and Carton, if the man using the satellite telephone to call Ms Anderson and the appellant on his mobile telephone was one of these men, then knowledge of that fact must have been within the knowledge of the appellant and Ms Anderson, at least by the time of trial. The inability of Ms Anderson or the appellant to identify the user of the satellite telephone as one of these men, even at the date of trial and after the appellant had discussed the point with Gardiner, means that the hypothesis that it was one of them was not rational or reasonable. As Mason CJ, Deane and Dawson JJ said in Weissensteiner v The Queen:^[5]

"[I]n 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."

154. Once it was established that the appellant had been at the camp site, his possession of the piping and irrigation equipment tended to establish that he had the means to commit the offence of production.

155. The evidence of the unexplained cash receipts tends to prove both motive for illicit drug trafficking and production, and the means to do so.

156. The jury were entitled to reject the evidence of both the appellant and his wife as to his whereabouts between 2 and 4 May 2001 on the basis that it was not worthy of belief. The evidence of the numerous satellite phone calls to the appellant's wife on 2 to 4 May 2001 from the satellite phone entitled the jury to conclude that Ms Anderson's assertion that the mystery caller on the satellite phone was, and remains, a person unknown to either Ms Anderson or the appellant was testing their credulity too far.  The evidence of the appellant's sudden disappearance from home before the planned camping trip may also have been thought unsatisfactory, if for no other reason than the absence of any clear explanation of how and when the appellant explained his decision to abandon the planned camping trip to Ms Anderson.  The jury may also have been impressed by Ms Anderson's initial confusion as to the day on which she took her mother-in-law to the appointment with the podiatrist.  The jury may have regarded this confusion as a bungling by Ms Anderson of a carefully crafted story.  Finally in this regard, the jury may have regarded Ms Anderson's evidence of Gardiner's solicitous phone call - made after his arrest and release on bail - for no reason other than to ensure that she take the quickest route to the Fletcher camping ground as risible.

157. The jury were entitled to regard the appellant's evidence, that he could not recall Gardiner's advice as to the name of the person who had called him using the satellite phone, as an insult to their intelligence. It must have been clear to the appellant that this name was of critical importance because the Crown case was that it was the appellant himself who was using the satellite phone.

158. The jury were entitled to reject the suggestion that telephone records showing that calls were being made from the appellant's mobile phone from the Sunshine Coast on 4 May established that the appellant was not at the camp site on 2 May. The jury were entitled to regard the suggestion that the appellant was in possession of his mobile phone as no more reliable than they regarded the appellant's evidence generally.

159. In my respectful opinion, it was reasonably open to the jury to infer the appellant's guilt of the offences charged beyond reasonable doubt.

The trial judge's directions

160. I have already referred to the appellant's criticisms of the trial judge's directions. As I have indicated, I consider the criticisms to be without substance.

161. I have had the advantage of reading in draft the reasons for judgment prepared by Williams JA. I agree with his Honour's reasons.

Sentence

162. The appellant was born on 2 August 1959. He was 46 years of age when he was sentenced.

163. He was convicted in August 1986 of cultivating a prohibited plant, namely cannabis, and possession of a dangerous drug. He was sentenced to two years imprisonment, and was paroled after nine months. In September 1986, he was fined for the possession of an unlicensed firearm.

164. The criminal enterprise in which the appellant was involved was substantial. The potential yield to the venturers might have been of the order of $5,000,000, but the learned sentencing judge made it clear that he was not prepared to act on that assumption.

165. Gardiner pleaded guilty to producing and trafficking charges on 21 September 2005. He was sentenced to eight years imprisonment on the producing charge. The appellant's principal complaint is of a lack of parity between his sentence and that imposed on Gardiner.

166. In this regard, the period of trafficking to which Gardiner pleaded guilty was from 1994 to 2001. Thus the period of trafficking for which Gardiner was sentenced was more extensive than the period of the trafficking of which the appellant was convicted. Further, Gardiner's criminal history was more serious in that in August 1985 he was sentenced to seven years imprisonment for producing and possessing cannabis. Gardiner was 58 years of age when he was sentenced.

167. On the other hand, Gardiner admitted his responsibility and pleaded guilty.

168. The prosecution contended that the appellant and Gardiner were equally culpable and that a sentence of eight years imprisonment for each was warranted. The learned sentencing judge would have faced a difficulty in accepting that submission because of the absence of evidence that the appellant was an equal partner with Gardiner in the production or trafficking of the drug crop; but senior counsel for the appellant accepted that eight years was an appropriate head sentence for the appellant.

169. It may be noted that in R v Panichelli & Petrosanec,^[6] this Court upheld a sentence of imprisonment for eight years, with a non-parole period of two and a half years in relation to the principal cultivator of a crop of 12,500 cannabis plants.  The offender pleaded guilty, and it does not appear that he had any criminal history.

170. Further, in R v Wittwer,^[7]  an offender was sentenced to 10 years imprisonment after pleading guilty to trafficking and production of cannabis on a large scale.  He had previous convictions for the production and supply of drugs.  On appeal to this Court, the sentence was reduced to eight years to reflect the offender's plea of guilty to an "ex officio" indictment but it is clear that "a head sentence of about 10 years (disregarding the factor of the plea of guilty) would have been about the appropriate level".^[8]

171. In the light of these decisions, and having regard to the appellant's criminal history and the circumstances that the appellant proceeded to trial, a head sentence of the order of 10 years for the appellant could not be said to be excessive. Nevertheless, an issue of parity does arise having regard to Gardiner's undoubted role as a principal in the criminal enterprise and his significantly more serious criminal record, and especially bearing in mind that there was no basis established for treating the appellant as equally culpable with Gardiner as a principal in the enterprise.

172. The appellant also sought to argue that the learned trial judge erred in penalising the appellant for proceeding to trial.^[9]  This complaint is misconceived.  His Honour was, as he emphasised, not able to make any allowance by way of reduction of sentence in favour of the appellant in comparison with Gardiner because the appellant had not co-operated with the administration of justice and had shown no remorse for his offending.  In my respectful opinion, the real aspect of concern with the sentence is the issue of parity.

173. The difference between the appellant's sentence and Gardiner's sentence was said by the respondent to be attributable to Gardiner's plea of guilty and his co-operation with the administration of justice. It may be observed here that if one assumes a notional head sentence of 10 years, the reduction in Gardiner's sentence was less than the discount of 20 per cent to 30 per cent^[10] which is the usual order of recognition of a guilty plea and co-operation with the authorities.  That may be due to the circumstance that, in Gardiner's case, he was caught red-handed at the crop site and so, as the case against him was overwhelming, the recognition to be accorded to his plea of guilty was significantly less than in a case where the offender's guilt was likely to be difficult to prove.  The fact that Gardiner's criminal history was more extensive than the appellant's may also help to explain why the difference in sentences was not greater.

174. Nevertheless, having regard to the absence of a clear factual basis for treating the appellant as equally culpable with Gardiner in relation to the criminal enterprise in which the appellant was engaged, and the appellant's significantly less serious criminal history, the requirements of parity suggest that the learned sentencing judge should have accepted the submissions of senior counsel for the prosecution and the appellant on this point, and imposed a sentence of eight years imprisonment in relation to the production charge.

Conclusions and orders

175. The appeal should be dismissed.

176. The application for leave to appeal against sentence should be allowed, and the appeal against sentence upheld to the extent only of substituting a sentence of eight years imprisonment on the production charge.

177. DOUGLAS J:  I have had the advantage of reading the reasons for judgment of Williams and Keane JJA, agree with their Honours and with the orders proposed by Keane JA.