SUPREME COURT OF QUEENSLAND 

1. MUIR JA:  I agree with the reasons of Mackenzie AJA and with the orders he proposes.

2. MACKENZIE AJA:  This is an appeal against conviction and an application for leave to appeal against sentence.  The appellant and her de facto husband Cele Markovski were tried on an indictment charging him individually with counts of trafficking in cocaine and in ecstasy (counts 1 and 2), and a count charging both of them with possession of cocaine, the quantity of which exceeded 200 grams (count 3).  Verdicts of guilty were returned in accordance with each count. 

The Investigation

3. Prior to the appellant’s arrest, physical surveillance and telephone intercepts had been conducted in relation to Markovski’s activities. As a result of this, the police had reason to believe that he would meet a person at a particular service station on the Gold Coast in connection with drug dealing. Two police officers, Sergeant Frick and Constable Keys, followed the suspect vehicle to the service station and intercepted it as it entered the driveway. Markovski was driving it. After the interception occurred, Markovski was breath-tested and asked for his license by Constable Keys. Constable Keys took the license to the police vehicle to conduct a check on its status by radio. According to Constable Keys, while he was in the police vehicle, the appellant got out of the other vehicle carrying a child and a nappy bag.

4. Contemporaneously with Constable Keys’ activities, Sergeant Frick had got out of the police vehicle. He observed the appellant and the child who was about two years of age in the back seat of the suspect vehicle. Much of which happened subsequently was recorded on a field tape activated by Sergeant Frick. However, there are, as is commonly the case with field tapes, indecipherable passages. Also, the tape ceased to record during the course of the conversation with her. After some initial conversation about ownership of the car and the property in it between Sergeant Frick and Markovski, Sergeant Frick asked the occupants to get out of the vehicle and to leave everything behind so that the police could “have a look.”

5. Sergeant Frick’s recollection of the sequence of events in his evidence and what appears to be on the tape do not wholly coincide. However, the main elements relevant to the case against the appellant are not dissimilar. The appellant told Sergeant Frick that she had to change the child’s nappy and asked him if there were toilets. While there are a number of indistinct passages, there is evidence that there was a conversation about leaving the bag at the car. The tape records that Sergeant Frick asked Markovski to come under cover because it was raining; according to Sergeant Frick’s evidence, that related to moving into the carwash area.  Sergeant Frick once again said, apparently to the appellant:

“Leave your bag behind.”

She replied:

“It’s got his nappies and his baby wipes.”

Sergeant Frick then said:

“Come over here so that we can search your bag.”

She inquired what was wrong.  Sergeant Frick said they were searching the car for something that they should not have in the car.  The appellant inquired whether the police were allowed to search them and Sergeant Frick said:

“Do you have anything in the bag you shouldn’t have?” 

She replied:

“No it’s just baby wipes and his nappies.”

Sergeant Frick then asked if he could have a look. 

6. Shortly afterwards there is the sound of a zipper and, while there are some indistinct passages, Sergeant Frick asked if she could just let him do it. During the search there was small talk about the baby and there were some further indistinct passages of conversation during which Sergeant Frick can be heard saying:

“Just baby stuff is it?” 

And she replied:

“Yes I think so (indistinct).” 

Soon after, Sergeant Frick found a container (which was, on later examination, found to contain cocaine) but which had the words “caustic soda” on its label.  He said to the appellant:

“What is it, is it caustic soda in here is there?” 

She said:

“Pardon?” 

He said again:

“Is it caustic soda in here?” 

She said:

“I don’t know, my partner brought it in.  We bought it and he put it in the bag.” 

It would have been open to the jury to treat this as evidence that she knew, at least, that the container was in the bag.

7. In his evidence, Sergeant Frick explained that, rather than coming in under the carwash, the appellant began to walk away towards the main area of the service station where the toilets would be. At the point when the zipper noise was heard, he said that the appellant was apparently searching in the bag which caused him to say:

“Can you just let me do it?” 

He said that the container marked “caustic soda” which weighed about 2 kg was not hidden under anything and was easily located. 

8. Later that day the appellant engaged in a record of interview. During questioning about the container she said the following:

“Okay.  Can you tell me how that got into the baby’s backpack? -- No.  I -  I don’t know.

All right.  I think at the time you told me that Cele gave it to you and ----?-- No.  I said, Cele must have put it in the bag because I hadn’t seen it, I don’t know – I don’t know what it was.  I don’t know if he bought it or – I don’t know.  I don’t even know if he did buy it.  I just opened it and it was there.

Okay? -- Or you opened it, sorry, and it was there.”

It was open to the jury to treat this as contradictory of what she had said previously.

9. After some questioning about personal details and what the purpose of their being in the car was, the following passage of questioning occurred:

“Okay.  Why would this container be in your baby's nappy bag?-- As I said, I don't know.  I don't usually check his bag.  I usually know what's in the centre of the bag because whenever I take him out I take his bag because obviously it's got nappies, napkins and his - his drink so I just check the side pockets and underneath the front zip because there's two different zips so I just make sure he's got nappies because I know in the centre I don't usually put anything in there.

Okay?-- Because I know what's in there.  It's either usually a hat or just something minor, so -----

Okay? -- ----- I didn't know it was there.

Okay.  Do you agree at the time that I located this you were on your way into the service station public toilets?-- Yes, taking his bag because it's got his nappies in there.

All right.  What was the purpose of leaving the vehicle and going straight to the service station toilets?-- Because I thought he did - he went to the toilet because I could smell something so I wanted to change his nappy before he went to sleep.”

10. Shortly after that the following was said:

“Just to clarify, you're saying that you never had any idea it was even in your bag?-- No.

You had no idea that it was actually carrying what I believe to be heroin?-- No.  I didn't have any idea, no.

All right.  Okay.  How often does Cele use the baby's bag to carry - see to me, caustic soda is - if it was - if it is caustic soda is also a poison?-- I don't even know if he knew it was in there.  When you asked, I was - I was just in shock because I didn't know what - what was happening.  I've never been pulled over by, you know, police.  I've never been in this situation so I said well, I don't know someone must have put it in the bag because certain times of the day we've come to an agreement.  I look after Alek because I work from home and then I go into work and sometimes he looks after Alek so  if he takes Alek to the park, he'll take the bag and if I go out with Alek on an outing, then I'll take the bag.

Mmm-hmm?-- So, that's what I said, I don't know.  Cele - Cele must have put it in there maybe, I don't know.  That's why I said maybe he bought it, I don't know.”

11. Then, as Sergeant Frick reached the end of what he wanted to ask at that time, the appellant raised the possibility that someone other than herself or Markovski may have put the container into the bag. To understand the tenor of what she said it is desirable to set out the full passage:

“Okay.  All right.  Well we've still got to make some further inquiries in relation to this stuff -----?-- Yes.

-----So, we're asking you to be patient and - while we make those inquiries?-- Lots of times when we go out our bags, like we - like when we go for a swim in the ocean, or something like that, Alek's bag, we just keep it next to our towel so I don't know.  I don't know if that's a - it's probably a silly thing to say, I don't know, people slip things in your bags or what, but -----

So are you alleging that someone slipped this into your bag?-- Oh, no. I don't know, but I - it's just very strange.  It's - it's - I certainly don't know and if Cele said he certainly doesn't know, then I really don't know how it can get in there.  That's the only thing.  Like, we always go up to Lamington National Park and you know, we go for bush walks and then we might leave a bag there and go off and, you know, have a look around, so -----

When was the last time you used that bag?-- I use it every day.  Every day when we go - we usually try and go out once a day.

So you're saying if someone slipped this into your bag, when would that be possible?-- I don't know.  It could have been today.  I don't - as I said, we have a routine.  I take Alek out a certain time of the day and he's in a full routine so maybe when I took him down to have a play at the park it could have happened.  You know, I always leave the bag there with other things and that's what most mothers do and if I go into the toilet, you know, where it's and Cele's there, or Cele's pushing him on the swing, it's not like we keep our eye on it constantly, unless we carry our purses and – something there, but we usually don't.  We usually carry our wallets on us.

That's a fair weight.  I would suggest that if that was slipped in your bag you'd know about it?-- Oh, sometimes I take Alek's toys in his bag - it depends how far we go on what I take.  Sometimes it's - it's extremely heavy because I take his toys, his books to read, I take extra clothing, just to keep him occupied while we're driving or wherever we are.  Sometimes it's heavy, sometimes it's light.  So I haven't - I haven't looked in my bag for a few days because I -----

Have you ever seen this before?-- -----Caustic soda?

No, this - this package here?-- No.

All right. Well, when I opened your bag up and you pulled the nappies out and the - I think it was the tissue things out, it was sitting smack, bang in the middle of your bag, at that stage you never said, "Oh, what's that"?-- Oh, because I thought maybe Cele got it because sometimes Cele puts things in there for Alek or for himself, his books, his business card holders and I think, oh yeah, this is - this is just some of Cele's things so I just ignore it.”

12. It was common ground between counsel before us that the Crown case had been conducted solely on the basis of actual possession by the appellant and that resort to s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) was not part of the Crown case.  There was also a formal admission at trial that,although the appellant had spoken on the telephone, about seven months before the events to which her conviction relates, to an alleged drug trafficker to whom Markovski often spoke, the prosecution did not suggest that that telephone call in any way indicated any guilty knowledge on the part of the appellant.  (In that call she conveyed, to the alleged drug trafficker, information, inferentially conveyed to her by Markovski shortly before, that Markovski had been pulled over by the police with money in his possession).  Apart from that call to which the admission related, there had been other telephone calls with the alleged drug trafficker in which the appellant was involved.  Some involved no more than the appellant answering the call and passing the handset to Markovski.  In one, about six days before the arrest, she had given him directions to their house.  The Crown case was said, in various ways throughout the trial, to be based on what she did and said on the day of the interception.  It therefore depended on the jury drawing an inference beyond reasonable doubt from what happened at the scene and what she subsequently said that the appellant was in possession of the cocaine in the relevant sense.

Grounds of Appeal

13. Leave was sought, without objection from the Crown, to amend the grounds of appeal to permit the following issues to be argued:

“1.Count 3 (possession) as alleged against the appellant was improperly joined on the same indictment as counts 1, 2 and 3 against Markovski.

2.The learned trial judgeserred in declining to order a separate trial.

3.The learned trial judge erred in directions as to how the Crown could establish the offence of possession against the appellant.

4.The learned trial judge erred in the giving of an Edwards direction.

5.The verdict was unsafe and unsatisfactory.

6.The sentence proceeding miscarried.

7.The sentence imposed was manifestly excessive.”

Aspects of the grounds of appeal in the original Notice of Appeal not falling within those categories were not argued orally. 

14. As will be seen below, the point sought to be made in ground 1 was that there should have been separate counts alleging possession of cocaine because it was not a case of joint possession of the drug by the appellant and Markovski, with an associated issue of whether joinder of the count against her in the same indictment was permissible. The reference, in the plural, to “judges” in ground 2 is a reference to a judge of the Trial Division, Fryberg J, who refused the application that Jovic be tried separately from Markovski and to the trial judge, Skoien AJ, who, prior to the jury being sworn, declined to re-open the issue of a separate trial on the ground that no “special reason” had been articulated enlivening the discretion to do so under s 590AA(3) of the Criminal Code Act 1899 (Qld) (“the Code”). 

Ground 1: Separate Counts

15. Section 7(1)(a) of the Code provides that every person who actually does the act which constitutes the offence may be charged with actually committing it.

16. Section 567 is concerned with joinder of charges. If a person has committed more than one indictable offence, charges against that person may be joined in the one indictment if the charges:

1. Are founded on the same facts;

2. Are or form part of a series of offences of the same or similar character; or

3. Are committed in the prosecution of a single purpose. 

While no direct concession was made, Mr Walker SC for the appellant acknowledged that s 567(2) was a basis upon which joinder of the three counts against Markovski might be made. 

17. On the other hand, s 568 is concerned with a variety of situations. The important ones for present purposes were said to be those in s 568(11) and (12). Section 568(11) allows any number of persons charged with committing the same offence, although at different times, to be charged with substantive offences in the same indictment. Section 568(12) authorises joinder of any number of persons charged with committing different or separate offences in the same indictment if:

1. The offences arise out of substantially the same facts or closely related facts; and

2. A substantial part of the facts is relevant to all charges.

18. As previously mentioned, the underlying assumption of the appellant’s argument is that joint possession was not the basis of the prosecution case. Its validity requires some analysis. Two things may be said at the outset. Firstly, since particulars were not sought of count 3 against the appellant and Markovski, there is no formal definition of the ambit of the Crown case to assist in resolving the issue. Because of that, whether the allegation that there was no basis for joinder because there were separate offences and not a joint offence depends on analysis of the conduct of the trial, of which the Crown’s statements about the basis of the charges is one element.

19. To put the appellant’s submission into context, it was conceded by Mr Walker SC in his oral submissions that if the Crown could make good the submission that the Crown case was that the appellant and Markovski were in joint possession at the time they were intercepted, it would be detrimental to his position. However, he submitted that the use of the phrase “at the time they were intercepted” in the Crown’s written submissions before us narrowed the ambit of the case to consideration only of control of the bag at the service station, and not at any prior time. The “evidential route” to conviction of the appellant was significantly different and more restricted than that available in the case of the co-accused. He questioned whether there was any point at which those two evidential routes touched each other. Independently of this, he seized on a submission by the Crown Prosecutor, when re-directions on what the Crown had to prove were being discussed, that the jury should be told that the only evidence the Crown relied on, or which they could use, was what she did and said at the service station.

20. In his opening, the Crown Prosecutor said:

“Markovski was driving and a nappy bag was being carried by Danica Jovic, his de facto partner, was cocaine, in excess of $100,000 worth of cocaine, nearly half a kilogram of cocaine. 

By their pleas of guilty, each of the two accused want you to believe that it wasn't their drugs.  They say it wasn't their drugs.”

21. After the slip of the tongue concerning the plea was corrected, the Crown Prosecutor continued:

“Well, here's the evidence you will hear in this trial that will prove that they are guilty: the drugs were theirs (emphasis added). You see, the first thing that Danica Jovic did when the police pulled them over was she tried to move away from the police. They told her to leave the bag inside the car, but she didn't, she took the bag out of the car with her. They told her to stay where she was - to stay with them, but she tried to walk away and she said it was to go and change the baby and they had been pulled over by the police at night-time in their car.

Well, the police obviously didn't let her walk away. Despite them telling her to stay, she kept trying to walk away, but eventually, they made her understand that she needed to stay there and they had a look inside the nappy bag and when they opened up the nappy bag, they saw inside of it a shopping bag - a plastic shopping bag inside of which was appeared to be a two kilogram container of caustic soda. It had a red and white label on it which said that it was caustic soda and that container was still sealed around the top with one of those plastic white strips that you sometimes have to pull off around containers to open them up.

Now, Jovic claimed, when they found that container inside of the nappy bag, that she had no idea what it was, but she went on to say - and this is important because as you will hear, she later changed her story, so at least at that stage, she said that her partner, Markovski, had put the container in the bag and you will hear her say that because the police were recording the conversation that they had then.

Less than an hour later, Jovic did an interview with the police. That was recorded on video and you will see that video during the course of this trial and you will see how her story evolves, how she tries to distance herself further from the cocaine she was carrying. Now, she says not that Markovski put it in there, but in fact, she actually had no idea where it had come from, that perhaps somebody else had slipped it inside of the nappy bag when she was at the park there earlier in the day with a nappy bag while her back was turned.

Well, that's the case against Jovic, but apart - but what about Markovski, how does the prosecution say that Markovski is tied to the container? He wasn't carrying the bag. What ties him to it? Well, it's not just that he was driving the car because you will see later on police conducted a fingerprint examination and that container, which had the caustic soda label on it, but, of course, which was packed with cocaine - cocaine powder and high grade cocaine powder as well.”

22. The fingerprints referred to were found on the bottom of the container, on the plastic bag in which it was wrapped and on the adhesive side of the caustic soda label on the container, which the Crown hypothesised had come from a caustic soda container, without a label, found at the family home.

23. The evidence led with regard to Markovski’s activities was not admissible against the appellant, but it is important in understanding the nature of the Crown case for joinder purposes. The submissions made by the Crown Prosecutor immediately before he moved on to Jovic’s case in his address invited the jury to consider Markovski’s act of going to the service station in the context of recent conversations he had about going there and about the purpose of going there, to meet another man. He invited them to consider whether it was credible that Markovski was going to deliver a two kilogram container of caustic soda to the man and whether there was really a need to have the clandestine meeting at night time at the service station to hand over such an item. He concluded by saying:

“You might think it obvious that he knew that he was there for a drug transaction.” 

He then continued that Markovski was:

“ … actually found with half a kilogram of cocaine in a plastic container just as he said he was going to hand over at [the] service station to the driver.”

24. The appellant advances a very restricted view of the nature of the possession by attempting to draw a clear distinction between Markovski’s possession and the appellant’s possession. Construing the various things said in the transcript in that literal way without regard to the context in which they were said is not compelling. On a proper understanding of what was said by the Crown Prosecutor about the case against the appellant, the Crown case was not restricted to consideration only of events after she left the vehicle. In context, when the Crown Prosecutor, during the discussion of re-directions, expressed the limits of the Crown case by reference to what the appellant did and said at the service station, that seems to have been said to exclude any notion that anything she had done prior to that day, such as participating in telephone conversations, was evidence that they could use against her. It was not intended to and did not preclude the jury from drawing inferences, from what she did and said after she alighted from the vehicle, about her antecedent state of knowledge about the contents of the bag on that day.

25. The bag was undoubtedly in the vehicle with the two accused. So far as Markovski was concerned, he was, on the evidence against him, exercising control over the bag in the sense that it was being conveyed to the service station for the purpose of furthering the drug deal. So far as the appellant was concerned, she manifested her control of the bag by removing it from the vehicle. Proof of different acts and circumstances showing the exercise of control by the two accused in a situation where an inference might be drawn that each knew (in the relevant sense) when they arrived at the service station that the package contained a dangerous drug is not incompatible with joint possession. In the case of the appellant, her actions in trying to take the nappy bag containing the cocaine away despite being told to leave it to be searched cannot be viewed in a vacuum. On the Crown case, her persistence in trying to remove the bag from scrutiny by the police after alighting from the vehicle was explicable on the basis that she had prior knowledge that what was in the bag in the vehicle in which each of the offenders had just been travelling was a dangerous drug, and that they were in joint possession. Control and knowledge of the drugs in Markovski’s case was proved by resort to the telephone intercepts about his intention to go to the service station to meet a man to do what might be inferred from the conversations to be a drug deal. For the purpose of alleging joint possession and drafting count 3 as presented, there was a sufficient evidentiary basis to treat the presence of the bag with the drug in it in the vehicle in which both accused arrived at the service station as joint possession.

26. While the issue of the appellant being tried separately from Markovski was raised at the pre-trial hearings, no question of improper joinder was raised. Had that issue been raised, the question would have fallen to be decided under s 572(1), and in particular, that part of it which permits amendments to include any count that ought to have been included in the indictment which has been omitted. If, consequent upon that, the matter did not fall to be decided under s 568(11), it would then fall to be decided under s 568(12). However, that is academic since the matter was not raised at trial. The current state of the law in Queensland is that if the joinder of offenders or offences is not in compliance with either s 567 or s 568, that does not result in a nullity.  In a case where the matter has gone to trial on an indictment that may have been challengeable on the grounds of improper joinder, the test is that, if there has been no miscarriage of justice, the conviction should not be quashed (R v Phillips and Lawrence [1967] Qd R 237).  It is convenient to deal with that question in conjunction with the discussion of ground 2. 

Ground 2 – Separate Trials

27. There was a pre-trial application for a separate trial which was refused. Fryberg J refused the application. It had been submitted that the applicant would suffer unfair prejudice because of the risk that the jury might well make conclusions drawn from the evidence admissible only against Markovski against her. There was an associated submission that she may be found guilty by association. Fryberg J concluded that the evidence appeared to be capable of fairly clear division and that there should not be any particular difficulty in the trial judge being able to direct the jury clearly about what evidence was admissible against which accused person. He said that he was satisfied that there was no substantial likelihood of her suffering any injustice by reason of a joint trial.

28. There was a separate argument based on the potential duration of the trial. It was part of this application that the appellant had recently left Markovski. It was submitted that if there were to be a joint trial, there would be added expense in funding her defence and inconvenience in relation to arrangements concerning her child. The argument was based on the possibility that the trial might last for two weeks as a joint trial as opposed to about three days for a trial of the appellant separately. Fryberg J held that the evidence was insufficient to establish how long the trial would take. He was prepared to accept that the extra time did disadvantage the applicant in the ways suggested but balanced that against the desirability of having co-offenders tried together. He concluded that the balance fell in favour of not ordering separate trials.

29. Fryberg J’s approach to the application and his conclusions were not affected by any error. In any event that is not the real question at this stage of proceedings. It is whether any miscarriage of justice has occurred. When the commencement of the trial was imminent, an application was made again for a separate trial principally on the basis that there was a concern based on the possibility that evidence might be called in Markovski’s case, that the trial might take longer than had been thought when the matter was before Fryberg J. It was submitted that this justified re-opening his ruling because it was a “special reason” under s 590AA. After the trial judge, Skoien AJ, satisfied himself that there was nothing relied on except that, he refused the application holding that it did not constitute a “special reason”. As it turned out, once the trial commenced before a jury, the verdict was returned on the sixth day and the sentencing occurred the following day. Prior to the trial commencing before the jury, about half a day was spent in the further pre-trial hearing, one of the issues in which was the renewed application for a separate trial.

30. With regard to prejudice, the issue raised on behalf of the appellant is that there was a miscarriage of justice warranting appellate intervention because notwithstanding the:

“...strong reasons of principle and policy why persons charged with committing an offence ought to be tried together” (Webb v The Queen (1994) 181 CLR 41 at 89)

there was a very real possibility of prejudice or significant and unjustified prejudice (R v Crawford [1989] 2 Qd R 443 at 448 and 463) by reason of the trial being a joint trial, which could not be adequately dispelled by a judicial direction.  It was said that the pivotal issue in the appellant's trial was her knowledge of what was in the bag as she carried it away from the vehicle towards the service station toilets.  By contrast with the evidence against her, which was limited to what she did and said on the day of the interception, the evidence against Markovski covered about eight months of drug related conversations and activities.

31. It was submitted that this would have provided an irresistible but inadmissible basis for the jury to infer the requisite knowledge on the appellant’s part, because of her relationship and contact with Markovski. The risk was compounded by evidence of the telephone calls involving the appellant, but not admitted in evidence against her in which the alleged drug dealer was the other party. There had been a formal admission that no inference was to be drawn against the appellant in connection with one of these calls, which happened about seven months before the interception. However, it was submitted that despite the Crown’s formal disavowal of any reliance on it and unexceptionable directions by the trial judge, it would not have been possible for the jury to segregate that evidence from the evidence admissible against her. With regard to the second call, six days before the interception, and other occasions when the appellant had merely answered the phone before passing it to Markovski, there had been no formal admission or direction.

32. A submission was also made that, despite the Crown Prosecutor saying that he would not be relying on any telephone evidence against the appellant nor imputing any of Markovski’s knowledge or actions to her, he had invited the jury to infer that the appellant had knowledge of Markovski’s unlawful activities in his closing address. The passage complained of is the following:

“…the evidence against her is relatively discrete and it arises out of the interception at Newman's Service Station.  For a start, they are pulling into Newman's Service Station and the police activate their lights and maybe their sirens as well for a short period of time.  Do you really think - they are not going towards the bowsers, remember, they are parking over towards the car wash, before these people pull in behind them.  What was Jovic to think they were doing stopping at a car wash at a quarter past 7 at night.  Did she know nothing of what was going on, no reason why they were there.  Was Markovski just going to get out all on his own and take the bag and deliver the drugs himself and Jovic knew nothing about it.  You might think that just doesn't stand to reason.”

33. There was also a passage where the Crown Prosecutor pre-emptively developed an argument that concerned cross-examination about her not being a target. He submitted that, just because the police thought they were at the service station in connection with Markovski, it did not mean that she did not know what was in the bag. She became of interest when the police saw her trying to make away with the bag with the drugs in it. She also declared, when the police commenced to search the house, that there was cash in the house.

34. One of the complaints raised about this was that her knowledge of the cash had not been opened nor referred to in legal argument about the Crown case against the appellant. That of itself would not be sufficient to taint the trial. The main thrust of the complaint was that what was said by the Crown Prosecutor may have induced the jury to consider matters that could not legitimately be considered against her. I am not persuaded that what was said was impermissible. What the Crown Prosecutor was doing was to invite the jury to consider whether it was inherently improbable that she would persist with her apparent intention to take the bag away from the scene and question the right to search it if she did not have knowledge of what was in it. This is consistent with the way he concluded his address, by saying the following:

“The Crown doesn’t rely here on guilt by association just because Jovic is with Markovski or just because she is his de facto wife.  We don’t rely on guilt by association we rely on the evidence in this case, the evidence that she tried to make off with that bag of drugs despite repeated attempts by the police to stop her.”

35. I am satisfied that no miscarriage was caused by joining the appellant with Markovski in the same count or by refusing her application for a separate trial.

Ground 3 – Direction about Possession

36. The learned trial judge’s initial direction with regard to possession was as follows:

“Now, if the defendant you're considering at the moment had possession of the drug, that possession was not lawful.  There is nothing here that would render such possession lawful.  The central issue therefore concerns possession.  Possession, members of the jury, means some sort of physical control or custody of a thing with knowledge that you have it in your control or custody.  You don't possess a thing unless you know you have it and you can actually exercise control over it.”

37. After giving them a direction concerning the difference between ownership and possession and as to joint possession he continued:

“Now, it is for the prosecution to prove beyond reasonable doubt the knowledge of the particular defendant of the thing which contained the drug. Not actually, as you will hear, the drug itself. It is not necessary for the prosecution to establish that the defendant knew that the substance was cocaine. In other words, the prosecution doesn't bear the burden of showing that the defendant knew the nature of the substance inside the container. It is enough for the Crown to prove, directly or by inference, that the defendant knowingly possessed the thing, actually possessed it inside it. Because, you see, if you're satisfied that the particular defendant you are considering knowingly had possession of that container, then this is one of the few cases in which a duty or an onus of proof is cast upon the accused person. 

If you are satisfied that a person has a container which in fact contained a dangerous drug, then that's sufficient unless the defendant satisfies you that that person honestly and reasonably believed it to be something legal. So, really, all the Crown has to do is to show that the accused person physically had control of the container in which the dangerous drug lay. 

Now, here, of course, we have not heard any evidence going to prove an honest and reasonable belief that it contained something else. The dispute really was the denial of possession, a knowing possession of the container which contained the drug.”

38. Immediately following that, he reminded the jury in some detail of the evidence, particularly in the field tape upon which the prosecution relied as proof of knowledge of the item and of possession.

39. Mr Walker SC directed several criticisms at this direction. He submitted that this case was more like the situation in He Kaw Teh v The Queen (1985) 157 CLR 523 than Tabe v The Queen (2005) 225 CLR 418, because the drugs were inside a sealed container that in turn was inside the nappy bag held by the appellant.  Firstly, it was submitted that the direction the prosecution was only required to prove knowledge of the “thing which contained the drug” was imprecise and apt to confuse.  Secondly, it was said that the trial judge then merged the facts so as to suggest the prosecution need only prove the appellant’s knowledge of the presence of the “container” rather than requiring proof of knowledge that the container had something in it which was in fact a drug.  In addition it was submitted that the passage omitted the requirement that the Crown had to show that the accused person had “knowing” physical custody or control. 

40. Thirdly, it was submitted that the comment that the jury had not heard any evidence going to prove an honest and reasonable belief that it contained something other than drugs did not take into account her statements to the police which demonstrated that she honestly and reasonably believed that there were no illicit drugs in the nappy bag.

41. Fourthly, it was submitted that when stating what the Crown must prove separately against Markovski and the appellant, it was not made clear that there were two separate possessions being alleged and that the appellant’s liability for her possession was limited to her movements away from the car and her responses when the container was found in the nappy bag.

42. After the summing up had been completed, there was a discussion about what was the appropriate direction with regard to the possession alleged by the Crown. For reasons given during the applications for re-directions (AR 610 et seq) the Crown Prosecutor explained why he was not relying on s 129(1)(c) of the Drugs Misuse Act 1989 (Qld);  the prosecution had proceeded on the basis that the applicant had actual possession of the drug.  It was submitted by Mr Walker SC that neither counsel appreciated that the original summing up did not rely on s 129(1)(c) but was based on s 129(1)(d) as interpreted in R v Clare [1994] 2 Qd R 619 and in Tabe.  It was submitted that the application was therefore completely misconceived.  That is not without merit, since the direction originally given, which did have some problematical aspects, was not concerned with the presumption under s 129(1)(c).

43. Nevertheless, in light of the submissions, the trial judge re-directed in brief, direct and explicit terms which were the following:

“Now, I think you should write this down. In relation to the offence of possession you should disregard and ignore what I said to you before. This is the direction on which you should act. The Crown must satisfy you beyond reasonable doubt that the accused person: (A) had possession of the container, (that means control or dominion over it) and; (B), that the accused knew that the contents of the container were a dangerous drug without having to prove the precise nature of the drug. Right, now that's important, you'll have that before you when you are talking about the charge of possession.”

44. The starting point for criticism of that direction is the assertion that it meant that the jury were being instructed to ignore all that the trial judge had previously said about the subject of possession. It was submitted that the result was that the jury were left with no instruction about how to approach the evidence at all. It was submitted that the cumulative effect of what the jury heard from the trial judge was, firstly, a detailed explanation of what was involved in actual possession of a dangerous drug, with reference to a reversal of onus to rest upon an accused. Then after about 45 minutes of retirement, they were told, in the terms of the re-direction, to “disregard and ignore” what had been said before.  The direction given in substitution was concerned only with the bare elements of the offence of possession.  It was submitted that there was a failure to apply the re-direction on the law of possession to the issues for the jury to decide, which made it wholly inadequate (R v Mogg (2000) 112 A Crim R 417 at 427, 430, 432).

45. Mogg was a rather different case where the complaint was that there had been no assistance in the summing up as to how the law applied to the facts and issues in the case.  But as a general proposition, the principle is well understood.  In Mogg, Thomas JA, at 430, said the following:

“A trial judge’s duty under s 620 of the Code will rarely if ever be discharged by presenting in effect an abstract lecture upon legal principles (Holland (1993) 68 A Crim R 176 at 183-184 per Mason CJ, Brennan, Deane and Toohey JJ) followed by a summary of the evidence.  It is “of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them . . . (this was Sir Leo Cussen’s view in Alford v Magee (1952) 85 CLR 437 at 466)”.

The statement just quoted is the first part in Alford v Magee referred to as “Sir Leo Cussen’s great guiding rule” (at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ).  The High Court in that case held that the law should be given to the jury with an explanation of how it applied to the facts of the particular case (at 466).  Of course “whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence”: Domican at 561; 172 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The consensus of the longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken: Alford v Magee at 466; Jellard at 902; Nembhard (1982) 74 Cr App R 144 at 148; Holland at 200-201.”

46. The underlying assumption of this submission, which starts with the proposition that juries are presumed to follow the directions of the trial judge (Gilbert v R (2000) 201 CLR 414), takes an unrealistically literal view of the matter.  The possibility that, because of the terms of the re-direction, the jury would not have remained aware of or had regard to the evidence upon which the Crown case was based, simply because it related to the issue of possession, is so remote as to be fanciful.  They could not have found her guilty without doing so.  Further, although there was no reference to the possibility of an accused person discharging the reverse onus to prove the existence of an honest and reasonable but mistaken belief in a state of things that would have made the connection with the drugs innocent, it is difficult to see how, in the circumstances, that could have worked to the disadvantage of the applicant. 

47. Mr Walker relied in oral submissions on a passage in MacKenzie v The Queen (1996) 190 CLR 348 at 374-376 where it was held that a re-direction substituted in that case for one that was acknowledged to be deficient had left the identified deficiency unrepaired because no substitute or different direction about its relationship to the facts had been given.  In my view, the present case is somewhat different.  The re-direction here merely redefined the elements of possession by clarifying the degree of knowledge without introducing any new and additional concept which needed to be related to the facts afresh; as has been said above, the factual issues relevant to possession had always been at the heart of the case. 

48. It was also complained of the re-direction that, while the Crown was entitled to disavow reliance upon the presumption under s 129(1)(c), the same could not be said about s 129(1)(d), which could not be avoided by agreement or prosecutorial election. In support of this aspect of the argument, Mr Walker SC sought to revisit an issue argued in Tabe, whether s 129(1)(d) involved only an evidential onus on an accused or a reversal of onus requiring the accused person to establish, on the balance of probabilities, an honest and reasonable but mistaken belief in a state of things under which the possession would have been innocent.  For this purpose, he particularly relied on the dissenting reasons of Hayne J in Tabe at 447.  However, the majority judgments in Tabe (Gleeson CJ, and Callinan and Heydon JJ) preferred the view that the identical provision then in force (s 57(d)) required the accused to bear the onus of proof of any relevant honest and reasonable but mistaken belief.  In the light of that, it is unnecessary to consider that issue further.  Tabe and R v Clare [1994] 2 Qd R 619 at 638 – 639, upon which Gleeson CJ expressly based his construction, represent the current state of the law in Queensland.

Ground 4 – Edwards direction

49. The subject of an Edwards direction was raised, during submissions before addresses, by the appellant's trial counsel.  It may be inferred that the subject had been referred to previously although not on the record (AR 464 – 466).  After dialogue between him and the trial judge in which he objected to such a direction being given, the Crown Prosecutor intervened to say that he did not think he could effectively close without inviting the jury to reason that there had been a lie because of consciousness of guilt (AR 466).  However when the Crown Prosecutor addressed the jury, he did not do so in terms requiring an Edwards direction to be given.  He referred to the appellant's attempts to give false explanations and to her story changing, in the context of reminding the jury of various statements made by her about her state of knowledge of the container with the drug in it.  He concluded that part of his address by saying:

"Now Mr Di Carlo is going to try and convince you on Ms Jovic's behalf that there is a chance that this was entirely innocent, that it was all just a big misunderstanding but she lied.  She lied in that interview with the police and tried to give a false explanation saying she had no idea how it had ever got in there when you know, when she was first found with it, she said that she did have knowledge." (AR498 – 499)

50. When the appellant's trial counsel addressed, he attributed to the Crown Prosecutor a submission that the jury could infer that she had lied because she was conscious of her guilt. He invited the jury not to regard what the appellant had said as lies, and suggested possible explanations of a kind ordinarily referred to in an Edwards direction in support of that submission (AR 529, 531).

51. Despite the form of the Crown Prosecutor’s submission during his address, the trial judge also attributed to him a submission that the appellant had lied, which showed she had a guilty conscience.  Summarising his direction, he prefaced it by referring to the importance of the statement which, according to the Crown, suggested that she knew that she had the container in the bag and her later expression of diminishing degrees of knowledge of it.  He referred to the contrast between her statement, "I don't know, my partner brought it in.  He bought it and he put it in the bag", and her later attempts to explain away the knowledge implicit in that statement.  The trial judge gave directions that the jury must be satisfied that the appellant had told deliberate untruths.  He told them that mere rejection of the account she had given did not mean that she was lying.  He initially gave a rather abbreviated direction to consider factors that may suggest that what was said was not deliberate lying.  However, shortly afterwards, he expanded on the subject in terms which were sufficient.  He also gave appropriate directions as to the necessity for the lie to be concerned with some circumstance or event connected with the offence and as to the need to be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate her in the commission of the offence of possession of the dangerous drug, and no lesser offence.  He told the jury that the lie must be told because of a consciousness that the truth would convict her. 

52. Counsel’s submissions had been based on the proposition that the first statement, to the extent that it demonstrated prior knowledge of the package in the bag, was true, and that the other subsequent explanations that resiled from that position were given out of a consciousness that the truth, that she knew that the container had earlier been placed in the bag at the time she removed it from the vehicle, would be detrimental to her. Since the subject of use of lies as consciousness of guilt had been embarked on by the appellant's counsel at trial, the trial judge could not realistically have ignored it. In practical terms, contrary to Mr Walker’s submission that such a direction should not have been given, it became incumbent upon him to give an explanation of the care that must to be taken in using lies for that purpose. The cautionary statement in Zoneff v The Queen (2000) 200 CLR 234 at 244 relied on by the appellant contains practical advice but could not have been intended to be exclusive of the present situation.  The trial judge’s misapprehension as to who raised the issue directly in a form that raised consciousness of guilt has no material effect on the question; once it was raised, it could not be allowed to pass without an appropriate direction.

53. Mr Walker SC submitted that there was no independent proof of the truth of her initial statement or of the falsity of her later statements. But if it were to be established that statements, one inculpatory and the other exculpatory, were made by an accused person and were irreconcilable, it is difficult to see why it would be contrary to principle to give a direction of the kind given, at least in a case where the issue arose as it did in this case. While such a direction might not be appropriate if it could not be proved that the only inference reasonably open was that the initial statement was an admission of the offence or of an element of it, and the others lies told to diminish the effect of the admission, in my view it was open to the jury to conclude beyond reasonable doubt that her initial statement was a statement against interest showing pre-existing knowledge of the container being put in her bag, and to infer that the subsequent explanations were lies told for the purpose of nullifying its effect. It was open to the jury to infer from her apparent inclination to remove the bag from scrutiny, despite being asked not to do so, that she knew that the contents were of a character that would bring her within the scope of the law relating to drug offending.

54. There was also a submission that because some of the conversation at the scene had not been recorded, it became necessary to give a McKinney direction.  In support of the submissions Mr Walker SC utilised an adaptation of a proposition in McKinney v The Queen (1991) 171 CLR 468 at 475, relating to the risk that a jury, not having the full facts before them, might determine guilt or innocence on the basis of a judgment as to peripheral matters.  The context in which the original statement appears in McKinney  is quite different from that in the present case.  Apart from that, an attack on the police officer’s veracity was not the focus of the conduct of the case.  The issue pursued was whether the alleged statement against interest, which was recorded, was qualified in conversation that occurred after the field tape ceased to function.  Since the appellant certainly said in her formal record of interview that she did not know that the container was in the bag before the police officer located it, the issue was whether she had also modified the statement relied on by the Crown shortly after the alleged statement against interest, but prior to the record of interview being conducted, and whether, if so, that shed a different light on its cogency as a statement against interest.  The jury was aware that the police officer said in cross-examination that he did not have an existing recollection of the missing part of the conversation and conceded the possibility that she had said what had been put to him in cross-examination about the content of her statements.  The jury was reminded of the issue.  In my view it is neither a case where a McKinney direction was necessary, nor one where a miscarriage of justice may have occurred because of the absence of any more than was said by the trial judge. 

Verdict Unsafe and Unsatisfactory?

55. The basic submission was that the cumulative effect of the matters addressed under the categories of improper joinder, the unfairness associated with the joint trial with Markovski, the directions concerning the offence of possession and the direction as to use of evidence as proof of guilt as discussed in the Edwards direction section rendered the verdict unsatisfactory.  The starting point of the submission was that there was no direct forensic connection between the appellant and the cocaine.  Without the statement relied on by the Crown as evidence of her prior knowledge of the presence of the container in the nappy bag, there was insufficient basis to find that she had any such knowledge.  It was conceded on her behalf that the effect of it and her contextualisation and explanation of it were ultimately jury questions.  However, it was submitted, there were reasons why the statement was not sufficiently cogent or reliable to permit a jury, properly instructed, to be satisfied beyond reasonable doubt of the appellant’s guilt (M v The Queen (1994) 181 CLR 487). 

56. For the reasons already given in para [54], the issues relating to the absence of evidence of the latter part of the conversation with the appellant at the service station were fully exposed to the jury. There were two aspects to this, one of admissibility and the other of cogency, because of incompleteness of the record of the conversation. With regard to admissibility, the reasoning was that, given the terms of s 436(4) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”), its purpose is to ensure that, if the confession or admission was electronically recorded, the whole of the surrounding questioning is recorded rather than only the confession or admission (R v Smith [2003] QCA 76).  Because the whole of the conversation had not been recorded, a question of admissibility of the statement relied on by the Crown arose.  That issue was not raised at trial.  In any event, the primary obligation in s 436(2) PPRA is that any questioning of a “relevant person” must, if practicable, be electronically recorded.  It may well have been thought by counsel at trial that any prospect of having the recording excluded for failure to comply with s 436 was limited, since the police officer had complied with the requirement until the recording ceased for reasons that were not alleged to be deliberate on his part.

57. It is unnecessary to repeat what has previously been said in regard to the other matters relied on. For the reasons given, the cumulative effect of them does not, in my view, render the conviction unsafe and unsatisfactory. The case was a circumstantial one peculiarly within the province of the jury, which chose to draw the necessary inference beyond reasonable doubt that her conduct upon alighting from the motor vehicle established the necessary elements of possession of the dangerous drug. There was a sufficient evidentiary basis to do so.

58. There was one other matter raised under this heading. It was that failure to warn her of her rights, in circumstances where the police officer thought she was “acting suspiciously”, should have led to the exclusion of that evidence. No application was made at trial to have the evidence excluded. The submission is founded on s 431 PPRA.  It is clear that the police had reason to suspect that there might be drugs in the vehicle when it was intercepted.  The question whether the appellant was a “relevant person” within the meaning of s 415 need not be finally determined.  It is noted that a “relevant person” is a person in the company of a police officer for the purpose of being questioned:

“… as a suspect about ... her involvement in the commission of an indictable offence.”

59. Whether or not the appellant’s situation had got to that point is open to argument. In any event, no application was made at trial to have the evidence excluded because there had been non-compliance with s 431, or under common law principles (s 10 PPRA).   Unlike the sanction imposed on a failure to comply with Part 2 Division 7, in which s 436 is located, admissibility of the evidence, in the event of a contravention of s 431, does not depend upon special circumstances of the case showing that admission of the evidence would be in the interests of justice being established by the prosecution.  Ordinary principles of discretionary exclusion apply to the failure to give a warning in a case where a warning would be necessary.  In my view the prospect of having the statement relied on by the Crown excluded, had an application to do so been made at trial, would have been slight and it is not a ground of appeal here that counsel’s conduct in not making an application to do so was of a quality that might have led to a miscarriage of justice. 

Conclusion – Appeal against Conviction

60. For the reasons given I would dismiss the appeal against conviction.

Application for Leave to Appeal against Sentence

61. The applicant was sentenced to four years imprisonment. The amended grounds of appeal are that the sentence was manifestly excessive and that the sentencing proceeding miscarried. Markovski was sentenced to six years imprisonment for the possession, which was treated by the trial judge as an adjunct to his offences of carrying on the business of trafficking in cocaine and ecstasy, for which he was sentenced to 15 years imprisonment.

62. When sentencing the applicant, the sentencing judge said that she must have known that “all was not above board” in the household from the number of phones, the cash, the constant enigmatic discussions, the absence of any appearance that Markovski was engaged in serious legitimate employment and the phone call in which she had spoken to the alleged drug dealer about Markovski’s interception by the police some seven months before the events at the service station. The applicant’s submission that the sentencing process had miscarried was essentially that the trial judge went beyond the proper limits in fact finding. Mr Walker SC relied on Cheung v The Queen (2001) 209 CLR 1 in submitting that the sentencing judge was bound by the manner in which the jury, by its verdict, expressly or by necessary implication decided an issue when the degree of culpability was an element of the offence charged (Cheung, 9).  He also accepted that there was no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which was most favourable to the offender (Cheung, 13, 55).  The submission was summarised by him as one that the sentencing judge unfairly and improperly took into account evidence concerning Markovski’s trafficking and her involvement in phone calls, and should not have made the finding that the purpose of the appellant’s handling of the bag established that she intended to dispose of the drug. 

63. There was also a subsidiary submission that drawing the conclusion that she must have known for some time that Markovski was engaged in activities that “were not above board”, having regard to the conduct of the case and in circumstances where she had not been put on notice that the trial judge was intending to make that finding, led to the sentencing discretion miscarrying.

64. In relation to the sentence being manifestly excessive, it was submitted that there was no parity between her conduct and that of Markovski. The Crown case against the applicant was limited to transitory or opportunistic possession for a short time. In addition, the Crown Prosecutor had submitted that her possession was not for a commercial purpose. With that concession in place, it would not be proper to sentence the applicant on the basis that she was somehow involved in Markovski’s commercial dealings. He submitted that one available basis for the applicant’s culpability, following the verdict, was that she acquired the relevant knowledge of the presence of the container in the nappy bag at the onset of the journey which ended at the service station and that she took possession of the bag when she left the car, knowing that the container held an illicit substance. Another possibility, he submitted, was that she was told of the existence of the container in the nappy bag when it became apparent that the police were about to search the car. He submitted also that the evidence raised the possibility that Markovski prevailed upon the applicant to take possession of the bag when intercepted by the police, despite her reluctance to do so.

65. In his oral submissions, the respondent’s counsel made some concessions. One was that while her knowledge that an illicit substance was in the container in the bag had been proved, her knowledge of the kind of drug had not. Another was that the differential between the two sentences was not great, subject to the submission that Markovski’s sentence for possession may have been light, having regard to the circumstances of his possession.

66. The respondent’s counsel also accepted that the trial was not conducted on the basis that the applicant must have known that Markovski was engaged in drug dealing. The case was limited to her state of knowledge and her actions on the day of the interception. Mr Fuller did, however, submit that the trial judge was entitled, on sentence, to place into context her actions on that day. In doing so he could take into account the basis of the evidence upon which Markovski was convicted.

67. No truly comparable sentences were found. Having regard to the way in which the case was conducted, it was open to the trial judge to sentence on the basis that the applicant knew that the nappy bag had in it the container which contained an illicit substance, and that she tried to remove it with a view to avoiding scrutiny by the police. The observation that the obvious reason for wanting to go to the toilets was to dispose of the contents did not go beyond proper bounds. Disposal of it by some means, had she gained the opportunity to take it away, is an inevitable inference. But the Crown case, as conducted, remained one that the appellant had possession of the drug, in circumstances where an inference of prior knowledge of the nature of the contents of the container could be drawn beyond reasonable doubt, but without her involvement in Markovski’s larger drug trafficking activities. It was non-commercial possession but with an element of attempting to prevent inspection of the contents of the nappy bag to frustrate the police investigation. Mr Fuller was prepared to accept that there was a dearth of comparable sentences, and that a range of perhaps 18 months to three years might apply in a case of possession where there was not a specifically commercial purpose.  But in this case, while it was not clear that the applicant knew that it was a Schedule 1 drug, it was not for personal use, the quantity was relatively large and there was the element of attempting to remove it from police scrutiny.

68. In the circumstances, I am satisfied that the sentence of four years is manifestly excessive. It does not bear appropriate parity with Markovski’s sentence, against which there is no appeal. In addition, in the particular circumstances of the case, and without stating the proposition any more widely than that, the trial judge’s attribution to the applicant of a greater degree of connection with Markovski’s drug offending than that upon which the Crown’s case was based was erroneous and requires the applicant to be resentenced as well.

69. The trial judge’s methodology was to impose a head sentence which allowed for the applicant’s previous good character, the fact that she had become involved that evening in Markovski’s more serious offending and, “to a minor extent”, the fact that the child, who by the time of trial was six years of age, would be deprived of both parents. He acted on the basis that the information before him did not establish that the arrangements made for the child would not give him adequate care. He said he would reduce the sentence below the range submitted for by the Crown but not further mitigate it to allow for early eligibility for parole. In principle, allowing for matters of mitigation by reducing the head sentence and not allowing a further reduction by way of early eligibility for parole in a case where the matter has gone to trial is an orthodox approach.

70. It was submitted on the applicant’s behalf that a head sentence in the vicinity of two years with immediate suspension would be appropriate.  The claim to immediate suspension was based on the propositions that the applicant has served almost six months in prison since sentence, and that allowance should be made for the fact that she is unlikely to re-offend because, prior to trial, she had separated from Markovski.  It was also submitted that the trial judge had not approached the issue of the child’s needs appropriately.  It was submitted that the consequences of the state of health of the applicant’s parents was a factor that rendered the case exceptional.  It was said that the trial judge had wrongly applied R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399.  The principles are discussed in that authority and in a number of other Queensland authorities including R v Tilley (1991) 53 A Crim R 1, R v Le [1996] 2 Qd R 516, R v MP [2004] QCA 170 and R v Chong; ex parte A-G (Qld) [2008] QCA 22.  In D’Arrigo, the effect of the authorities was described as follows:

“The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment...

Indeed the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances.”

I am not persuaded that the case falls into an exceptional or extreme category.

Conclusion – Sentence

71. Taking into account the issues discussed in the previous section a sentence of two years imprisonment is appropriate in the unusual circumstances of the case.  That recognises the matters in the applicant’s favour sufficiently.  The matter went to trial and in view of the methodology with regard to the head sentence, reduction of the period of actual custody from the statutory period of 50 per cent is not called for.  A parole release date of 4 March 2009 should be fixed. 

Orders

1. The appeal against conviction is dismissed;

2. The application for leave to appeal is granted; the appeal is allowed and a sentence of two years imprisonment, with a parole release date of 4 March 2009 is fixed.

72. DAUBNEY J:  I respectfully agree with the reasons for judgment of Mackenzie AJA both in relation to the appeal against conviction and the application for leave to appeal against sentence, and with the orders his Honour proposes.