SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: At the end of a five day trial a jury found the appellant guilty of carrying on the business of unlawfully trafficking in the dangerous drug cannabis sativa on dates unknown between 1 June 1997 and 30 September 2007.  The appellant was sentenced to imprisonment for eight years.  No parole eligibility date was fixed, so that the appellant will become eligible for parole after he has served four years in custody.  The appellant has appealed against his conviction and applied for leave to appeal against his sentence. 

Appeal against conviction

[2]  The respondent did not oppose the appellant’s application for leave to amend the grounds of the appeal against conviction in accordance with the appellant’s amended outline of submissions filed on 18 March 2011.  Under the amended grounds the appellant contended that a miscarriage of justice was occasioned by errors of law made by the learned trial judge in:

“(i)Allowing evidence to be led of the forensic analysis of a computer tower located at the Appellant’s residence;

(ii)Allowing evidence to be led of polypiping and associated irrigation equipment and growth pellets found on a cleared area of land at 199 Mount Mulgowie Road;

(iii)Failing to five [sic] the jury a ‘lies direction’ in respect of the evidence given by Detective Senior Sergeant Gough;

(iv)Failing to give an adequate direction to the jury concerning ‘circumstantial evidence’.”

The appellant also contended that:

“(v)A miscarriage of justice has been occasioned by the failure to call evidence in the defence case.

(vi)The Appellant seeks leave to rely upon new and/or fresh evidence in order to outline the evidence which he contends was available at trial and to explain why it was not called.”

[3] Before considering those grounds I will outline the evidence in the Crown case. 

Outline of the Crown case

[4] William Mackay occupied 178 Mount Mulgowie Road, Coominya at the relevant times.  He pleaded guilty to producing cannabis sativa at that property.  The Crown relied upon numerous circumstances to establish an inference that the appellant trafficked in cannabis produced at that property.

[5] The appellant formally admitted that he and his wife were the registered owners of 178 Mount Mulgowie Road at all material times after 11 June 1997 and that they were also the registered owners of 199 Mount Mulgowie Road between 12 February 1999 and 22 February 2007.  A nearby land owner, Mr Copeland, gave evidence that he met the appellant, who called himself “Robert Carr”, in October 2000.  Mr Copeland saw the appellant frequently riding his motorbike or quad bike backwards and forwards between 174, 175, 178 and 199 Mount Mulgowie Road.  Mr Copeland said that the sign on the gate at 178 Mount Mulgowie Road read “Bob Carr” and the appellant told Mr Copeland that he lived there.  The appellant told Mr Copeland that he was a farmer and, in January 2004, that “he had crops to take off.”  Mr Copeland observed that 199 Mount Mulgowie Road was used as a residence.  In cross-examination Mr Copeland agreed that the appellant said that the appellant’s son lived at or was associated with 174 Mount Mulgowie Road.  It was established that the appellant’s son, Carl Upson, owned that property.  Carl Upson pleaded guilty to producing cannabis sativa at that property.  Mr Copeland last saw the appellant attending the properties in August 2006. 

[6] The prosecutor adduced evidence of what the police found when they executed search warrants at 178 Mount Mulgowie Road, on 30 March 2006, 28 July 2006, and 7 December 2007.  The words “BJ Carr” were on a letterbox on the front gate.  In a shed there were shelves containing cannabis plant material.  The shelves were of a kind which might be used to separate the seeds from the part of the plant which was used for smoking.  There was equipment which might be used in the process of drying cannabis.  Four cannabis plants were growing under a lighting system.  There was a set of scales and a Cryovac sealing machine, which might be used to extract air out of packets containing cannabis.  Cannabis seeds were found near a microwave oven and three bags containing seeds were found in the oven.  One bag bore the writing “ours” and another bore the writing “Paul’s”.  Rolls of food saver plastic were inside a cupboard.  There were also disposable gloves, clip-seal plastic bags, scissors, and a box labelled “jiffy 7”.  In total, 11.2 kilograms of cannabis was found in the shed.

[7] In a cupboard in a tram car on the property the police found four clip-seal bags of cannabis seeds.  One bag was noted “Nirvana” and “AK48”, another was noted “F 6 foot ST/SK”, the third was noted “F 7 foot M big fat indica NL/SK/ST 3”, and the fourth was noted “F 8 foot BB/SS/SK”.  There were three publications about cannabis in the kitchen drawers.  A book entitled “The Kind Seed Company Catalogue”, which was apparently published in 2002, contained the appellant’s thumb print on page 10.  On the opposite page there was an advertisement for a variety of cannabis called “Chronic”.  A 2001 diary also found in the kitchen contained handwritten words “Chroic”, “Sweet Tooth”, “Blueberry”, and “Holland’s Hope”.  The last three names were references to varieties of cannabis, as was the word “Chroic” if it referred to “Chronic”.  The diary also contained the written word “Paul”.  The police also found personal property in Mr Mackay’s name and $21,100 in cash. 

[8] Police found two crop sites which had been cleared of natural vegetation, ploughed into furrows, and surrounded by a wire mesh fence.  One site contained 30 cannabis plants and the other site contained about 100 cannabis plants.  Most of the plants had been stripped of their buds, but those which had not been stripped had abundant buds, were very healthy, and some were up to nine feet tall.  Police found numerous jiffy pellets.  (Jiffy pellets are cylinders designed for the germination and growth of seedlings.  After germination, the pellets can be placed directly into the soil.)  A supplier gave evidence that the appellant purchased 7,000 jiffy pellets in five transactions between July 1999 and November 2001.  The supplier recorded the appellant’s address as 199 Mount Mulgowie Road.  One shipment was dispatched to a residence in Loganholme which the appellant and his wife owned.

[9] Both crop sites were irrigated from a creek which ran through the back of 178 Mount Mulgowie Road.  Police found a pump near the creek.  The proprietor of Lowood Irrigation gave evidence that the appellant purchased that pump from his shop on 12 February 2004, paying for it with $1,800 cash and an eftpos transfer of $233.95. 

[10]  The crops were irrigated using poly piping running down the furrows.  One segment of the poly piping was marked with a date of manufacture of 12 October 2002.  An employee of an irrigation company in Gatton gave evidence that the appellant had been a customer of the business since 2002.  About three or four times a year the appellant arrived at the premises, sometimes accompanied by a man calling himself “Billy Carr” (who was identified by other evidence as William Mackay) and a younger man the employee thought was the appellant’s son.  The appellant purchased poly piping, sprinklers and electrical products.  The employee gave evidence that all of the sales to the appellant were for cash, and he estimated that the appellant paid the total sum of about $8,000 to $10,000.  Some of the poly piping found at 178 Mount Mulgowie Road was similar to the poly piping purchased by the appellant.

[11]  The police found poly piping with a manufacturing date of 19 June 2003 and a rotary hoe in and around one of the sheds.  Cannabinol and tetrahydrocannabinol was found on a chipper which the police seized from 178 Mount Mulgowie Road.  A shop owner gave evidence that the appellant purchased such equipment from him.  The address the appellant gave was 199 Mount Malgowie Road.  In about 2000 the appellant purchased a ride-on mower from the shop, and on 17 February 2003 the appellant traded that mower in and purchased a ride-on mower and chipper for $9,300 in cash.  The shop owner provided after sales service and spare parts to the appellant on 6 June 2003 and 2 February 2006.  On four or five occasions the appellant had visited his shop in company with “Billy Carr” (William Mackay).  The shop owner gave evidence that the mower and chipper which the police identified as having been seized from 178 Mount Mulgowie Road were similar to the items he had sold to the appellant. 

[12]  Some of the plants had apparently been trimmed with a sharp implement and the police found scissors near a crop site.  A chainsaw was located at the entrance to a crop site and there were four aprons hanging on a clothesline.  (There was evidence that resin would adhere to the clothes of people who harvested cannabis). 

[13]  Mr Lees gave evidence that the appellant was a customer of his business, Lockyer Mowers and Motorcycles, and had come to the business premises five or six times every year since the 1990s.  On 7 February 2003 the appellant purchased a Kawasaki brush cutter from the business for $819.  He believed that the appellant paid cash as that was his usual method of payment.  Mr Lees gave evidence that the Kawasaki brush cutter which the police seized from 178 Mount Mulgowie Road was similar to one he had sold to the appellant.  Mr Lees gave evidence that on 26 September 2002 the appellant traded in a Yamaha bike and bought a new Kawasaki 4-wheel bike.

[14]  When police searched the appellant’s Loganholme house on 12 September 2007 they found a notepad in a bedroom containing the handwritten words “chronic”, “600 grams”, and “high yield”.  There were photographs of Mr Mackay and another man (possibly Paul Lee), a receipt for the purchase of the Kawasaki brush cutter, and a record of a $100 deposit into Mr Mackay’s account at Borallon Correctional Centre on 9 September 2007.  Food saver bags were found in the kitchen cupboard. 

[15]  Police seized a computer tower from the residence.  Sergeant Camilleri, a forensic computer analyst, gave evidence that the operating system in the computer had been installed on 26 June 2006.  Only one user account, in the name of “Robert”, had been set up.  Only one password was required to gain access to the computer, and it had not been changed since 26 June 2006.  Sergeant Camilleri gave evidence that from 26 June 2006 (and possibly before then, though that was fairly unlikely) the computer had been used to access various websites connected with cannabis, including a site concerning “Chronic” seeds and another similar site.  Sergeant Camilleri agreed in cross-examination that the password was only “as good as how quiet you keep it”.  Some of the sites were accessed whilst the appellant and his wife were overseas and whilst their son Carl Upson was living in the house (the relevant dates of travel were the subject of formal admissions), and only one site was accessed after Carl Upson was incarcerated on 27 August 2007.  That site was accessed on 3 September 2007.  There was no evidence regarding the substance of what was accessed, save that it involved a search of articles concerning drug offences on an ABC news site. 

[16]  Police searched 199 Mount Mulgowie Road on 30 March 2006 and 28 July 2006.  There was a fenced area of cleared land surrounded by bush some distance from a house and an open sided shed large enough to accommodate machinery.  Beyond the cleared land, about 100 metres into the bushland, was an area of land surrounded by a wire mesh fence and strands of fencing wire.  It appeared that the area had once been cleared but that the natural vegetation had regrown.  There was poly pipe bearing the date of manufacture of 19 November 2001 and sprinkler attachments.  On 7 December 2007, after the appellant had ceased to be the owner of the land, the police again entered the land and took possession of black plastic sprinkler stakes, sprinkler heads, and a decomposed jiffy pellet.

[17]  The prosecutor adduced evidence to the effect that during the charged period the appellant earned in excess of $1.3 million for which there was no apparent source other than from the sale of cannabis produced on the properties.  The investigating police officer gave evidence that the appellant did not lodge any tax returns for the years following 1997 to 2007.  Mr Allen, an investigative accountant, was provided with extensive documents gathered during the police investigation, including records of bank accounts held by the appellant and his wife in Australian and New Zealand, tax returns for the period 1993 to 1998, invoices for cash purchases, records about properties held by the appellant and his wife, and an affidavit prepared by the appellant dated 8 August 2007.  Mr Allen conducted an extensive analysis of the appellant’s financial affairs between 1 January 1997 and 13 September 2007.  He gave evidence that over that ten year period there was more than $1.3 million in unsourced income available to meet the appellant’s expenditure.  Mr Allen also gave evidence that nearly all of 347 deposits of cash totalling $1,282,943.93 made by the appellant were under $10,000 (the point at which financial institutions were required to report cash deposits) and there were 27 deposits of between $9,000 and $9,999. 

[18]  Mr Allen responded to criticisms made in a report by Mr McKinnon, an accountant commissioned by the defence (“the McKinnon report”).  Mr Allen rejected the proposition that his methodology was in error.  He conceded that there was some validity in one of Mr McKinnon’s criticisms (concerning the period analysed) but said that his concession would involve a reduction in the unsourced income of only around $68,000.

[19]  Detective Senior Sergeant Gough gave evidence that on 10 August 2006 he went to the Arthur Gorrie Correctional Centre to see Mr Mackay to ask him to look at a document containing a list of property found on property occupied by Mr Mackay.  As Detective Gough left the centre he saw the appellant and his son, Carl Upson.  Detective Gough spoke to the appellant, who looked at the document.  The appellant indicated that he owned only two items of property on the list: a ride-on lawn mower and a generator.  Defence counsel put to Detective Gough a different version of events.  Counsel suggested that: Detective Gough showed the appellant the document and asked the appellant if he owned any of the items; the appellant said he did not have his glasses with him; Detective Gough read out a number of the items and suggested to the appellant that he owned the two items Detective Gough had mentioned in evidence in chief.  Detective Gough disagreed with that suggestion.

[20] In summing up to the jury, the trial judge referred to seven primary circumstances upon which the Crown relied for the inference that the appellant had trafficked in cannabis: the appellant owned the property where cannabis was produced; between 1997 and 2006 the appellant purchased items of agricultural equipment, some of which were found by the police at 178 Mount Mulgowie Road; the appellant had unexplained income of $1.3 million; his thumbprint was in the cannabis seed catalogue; the written notes about the cannabis (which the prosecutor had asked the jury to find were written by the appellant); the crop sites were similar; the computer at the appellant’s residence was used to access information about cannabis and cannabis production.

Ground (i): allowing evidence to be led of the forensic analysis of a computer tower located at the appellant’s residence

[21]  The appellant submitted that the evidence of the forensic analysis of the computer tower should not have been admitted because its prejudicial effect outweighed its probative value; its probative value being significantly diminished by the facts that Carl Upson had access to the computer whilst he was living at the house and a number of the sites were accessed whilst the appellant was overseas.

[22]  The appellant did not submit that the evidence was not admissible in the Crown case.  It was plainly relevant and admissible.  Defence counsel did not object to its admission or seek its exclusion.  Rather, defence counsel relied upon the evidence in the appellant’s defence.  In cross-examination of Sergeant Camilleri, defence counsel elicited, in effect, that the appellant was overseas when all but two of the relevant sites were accessed.  In a subsequent discussion about the relevance of the evidence, defence counsel remarked that he understood the trial judge’s comment that he “can quite understand why there was no objection to its reception and now it’s in the jury may consider it for any proper … logical purpose … [i]n relation to dates …”.  In summing up to the jury the trial judge referred to defence counsel’s submission that Carl Upson’s activity could explain the prosecution case, and reminded the jury that defence counsel submitted that Carl Upson was likely to have accessed the computer at the appellant’s house on the occasions when the appellant was overseas.  His Honour referred to defence counsel’s argument that there was a case that Carl Upson and Bill Mackay were involved with cannabis, but the evidence did not implicate the appellant.

[23]  Defence counsel is not obliged to object to all evidence which is inadmissible or which might be excluded by the trial judge in response to an objection.[1]  On an objective analysis, defence counsel’s failure to seek the exclusion of this evidence was a rational forensic decision.  It is appropriate to take that into account in deciding whether the evidence produced any miscarriage of justice.[2]  It is also relevant that so much of this evidence as supported the Crown case was not especially significant in the context of an otherwise powerful Crown case.  If, contrary to my own view, the admission of the evidence was irregular in any respect, that irregularity did not produce any miscarriage of justice.  I note also that the appellant did not seek to cross-examine defence counsel on his evidence (adduced in relation to ground (v)) that the appellant gave him express instructions to take no objection to this evidence. 

Ground (ii): allowing evidence to be led of poly piping and associated irrigation equipment and growth pellets found on a cleared area of land at 199 Mount Mulgowie Road

[24]  The appellant argued that the evidence that the police found equipment and jiffey pellets at 199 Mount Mulgowie Road was equivocal, of dubious probative value and highly prejudicial, in that it invited the jury to infer that the appellant had engaged in cultivating cannabis on that property and independently of any involvement by Mr Mackay.  The investigating police officer agreed in cross-examination that the poly piping was of a kind commonly used in farming and he had no idea when it was purchased.  He also did not enquire whether the appellant had ever sold produce in legitimate market places in the area.  For those reasons the appellant submitted that the evidence should not have been admitted.

[25]  I accept the respondent’s submission that the evidence of what was found at 199 Mount Mulgowie Road was admissible.  In light of the evidence that the appellant owned 178 and 199 Mount Mulgowie Road and that he had been seen moving regularly between those properties, evidence of the irrigation system found at 199 Mount Mulgowie Road which was similar to that found at 178 Mount Mulgowie Road made it more likely that the appellant had participated in the installation of the irrigation system at 178 Mount Mulgowie Road.  That was the basis upon which the trial judge considered that the evidence was relevant.  Defence counsel made it clear that his objection was only to the use of the expression “old crop site” in relation to the cleared area found at 199 Mount Mulgowie Road, and the prosecutor conceded that the Crown would not lead evidence to that effect.  Defence counsel then did not object to the evidence concerning the equipment found at 199 Mount Mulgowie Road.

[26]  There is no ground for thinking that the admission of this evidence gave rise to any miscarriage of justice.

Ground (iii): failing to give the jury a “lies direction” in respect of the evidence given by Detective Senior Sergeant Gough

[27]  The appellant referred to the evidence that the appellant had purchased numerous items of equipment found at 178 Mount Mulgowie Road and submitted that the jury might have inferred that the appellant lied to Detective Gough when he claimed ownership of only two items of equipment on Detective Gough’s list.  On that premise, the appellant argued that the trial judge made an error of law by declining to direct the jury in accordance with Zoneff v The Queen.[3]

[28]  At the trial defence counsel disavowed the need for any such direction, presumably for a good forensic purpose.  In a discussion in the absence of the jury at the end of the fourth day of the trial, the prosecutor asked the trial judge “whether it might be instructive to tell the jury about Zoneff lies”.  Defence counsel made the point that Detective Gough did not identify the items on the list other than the two items of which the appellant claimed ownership.  The prosecutor made it plain that she did not intend to ask the jury to find that the appellant had lied to Detective Gough.  In response to a proposition that the jury might take such a view, defence counsel submitted that such a view was not open in the absence of evidence of what other equipment was on the list. 

[29]  In my respectful opinion, the trial judge was right to accept defence counsel’s submission.  The jury would not reason from Detective Gough’s evidence that the appellant had told a lie, particularly in the absence of any submission by the prosecutor to that effect.  In those circumstances the trial judge did not err by failing to direct the jury about the significance of any such lie.[4]

Ground (iv): failing to give an adequate direction to the jury concerning “circumstantial evidence”

[30]  The appellant submitted that the trial judge erred in two respects when giving directions to the jury concerning the circumstantial nature of the Crown case.  First, the appellant submitted that the trial judge erred by failing to direct the jury that they could not convict the appellant unless the Crown had excluded any reasonable hypothesis consistent with the innocence of the appellant.  In fact the trial judge did give just such a direction:

“Importantly, in this essentially circumstantial case, if there is an inference reasonably open which is adverse to the accused - by that I mean one pointing to his guilt - and an inference in his favour - that is one consistent with his innocence of the charge - you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.

…

To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.

If there is any reasonable possibility consistent with innocence, it [is] your duty to find the accused not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.”

[31]  The appellant also submitted that the trial judge erred by failing to direct the jury that they could not convict unless they were satisfied beyond reasonable doubt of the existence of the facts from which they were invited to draw inferences.  Such a direction is only required in relation to proof of a fact which constitutes an indispensable link in a chain of reasoning towards an inference of guilt.  It is not required where the evidence consists of “strands in a cable rather than links in a chain”.[5]  The Crown case was in the former category, as appears from the outline of the Crown case, including the summary of the prosecutor’s address to the jury, set out in [20] of these reasons.  The direction contended for by the appellant was not necessary or appropriate. 

Ground (v): a miscarriage of justice has been occasioned by the failure to call evidence in the defence case

[32]  In support of this ground of appeal the appellant filed an application for leave to adduce evidence in the appeal.  The application identified four witnesses, but in the course of the hearing the appellant confined the application to evidence of the appellant and Professor Coyle.  The new evidence also included some documents attached to the appellant’s solicitor’s affidavit which mainly concerned preparation for trial, but they were not referred to in submissions.  The appellant’s evidence was contained in an affidavit and he also gave oral evidence and was cross-examined.  Professor Coyle’s evidence was contained in a report obtained for the appellant.  He too gave oral evidence and was cross-examined.

[33]  The appellant deposed that he gave clear instructions to his lawyers that he wanted to give and call evidence in his defence.  He deposed that he carried out a legitimate but ultimately unsuccessful farming operation at 178 Mount Mulgowie Road and that he had given clear instructions to his lawyers that he could give detailed evidence of innocent explanations of the circumstances relied upon by the Crown to prove guilt.  He identified what he deposed were legitimate sources of income not taken into account in the Crown’s financial analysis.

[34]  The appellant elaborated upon his statement that he wanted to give evidence.  He deposed that: he recalled defence counsel advising him that he would leave the decision to the appellant whether or not to give evidence; the issue was revisited on numerous occasions during the trial; the appellant reminded defence counsel of numerous pre-trial meetings where the appellant gave instructions that he wanted to give evidence; and defence counsel indicated that he would consider the matter and discuss it with the appellant’s solicitor.  The appellant deposed that when he made it clear that he really wanted to give evidence and he was beginning to get frustrated, he was “advised that I could not give evidence as I would not be able to appeal the matter if we lost the trial.”  The appellant commented upon handwritten instructions apparently signed by him which purported to record his decision not to give evidence:

“I can say that the hand writing contained in the body of the document is not mine.  I can also say that I cannot recall reading this document and I can say that I have ever [sic] had the contents of it explained to me … I can say that the signature eon [sic] the last page appears similar to mine.  I remember that at the time that this document was allegedly signed I was very upset and distressed with the conduct of my trial.”

[35]  Professor Coyle’s curriculum vitae set out his qualifications as a psychologist.  When objection was taken on behalf of the respondent to aspects of his evidence, the appellant’s counsel adduced evidence from Professor Coyle that his academic studies had focused upon “physiological psychology”, meaning the interaction between psychology and physiology.  His Doctor of Philosophy was in psychopharmacology (the study of the effect of drugs upon behaviour) and his thesis was supervised by a Professor of psychopharmacology who was also a chemist.  Professor Coyle gave further evidence of academic and consulting experience in mental health, psychology and psychopharmacology.

[36]  In his report, Professor Coyle stated that Prozac was “Fluoxetine-a selective serotonin reuptake inhibitor”.  The critical passages in Professor Coyle’s report were as follows:

“15.Fluoxetine causes significant anxiety/arousal in some 12% of individuals taking 20 mg/per diem. In situations such as Mr Upson faced during the course of the trial it would be extremely unusual for an individual not to be anxious considering the psychological stressors operating within the curial environment. In my view, having regard to basic psychopharmacological and psychological principles, these two factors would be most likely to be synergistic and not merely be additive. While I am unaware of any research literature precisely on this point, Mr Upson’s inability to recall anything that Mr Morgan said when he signed the critical document on 18 January 2011 whereby he agreed not to give or call evidence is of import. It is consistent with very high stress levels, which have been repeatedly demonstrated to impair cognitive performance generally, and executive functioning/memory more particularly.

…

17.Applying Occam’s Razor, it is then not necessary to invoke any more complex phenomena (such as a dissociative process or state) to explain why [Mr Upson’s] capacity to understand the import of the document he was signing would have been very seriously compromised. The conjoint operation of a well known side effect of taking Fluoxetine, his heightened arousal as part of the curial process, his limited intellect and the fact that a critical document was pressed upon him to sign on the last day of the Crown case in the trial, considered within the context of the completely well established Yerkes-Dodson Law provides a solid scientific explanation for his failure to comprehend the significance of the legal arguments being expounded by his legal representatives and the significance of him signing the relevant document.

…

19.In my opinion, Mr Upson did not understand the import of the document that Mr Morgan avers that he signed after Mr Morgan explained this document to him waiving his right to give and call evidence in his defence. His failure to understand this was due, in my opinion, to the conjoint operation of a number of factors, including the side effects of medication, which neither Mr Morgan nor Mr Nolan could have been expected to appreciate.”

[37]  The respondent replied to the appellant’s evidence with affidavits by defence counsel, Mr Nolan, and Mr Morgan, a solicitor who instructed Mr Nolan during part of the trial.  Senior counsel for the appellant indicated that the appellant did not require either deponent for cross-examination.

[38]  Mr Nolan deposed that before the trial the accountant retained for the appellant, Mr McKinnon, said that there was unexplained income of the appellant for which Mr McKinnon could find no records or connection with any legitimate enterprise of at least about $600,000.  Mr McKinnon told Mr Nolan that despite requests for paperwork to support the legitimacy of the appellant’s instructions about the source of that income, none had been provided.  Mr Nolan explained to the appellant that this presented a problem, because if the accountant was called and the Crown elicited that evidence the jury might have little difficulty in finding that the appellant was connected with trafficking.  Mr Nolan explained to the appellant, and he seemed to understand, that if the jury heard that he had $600,000 worth of unexplained income that would be detrimental to his case.  He also explained that if the appellant testified himself but did not call Mr McKinnon, then the Crown might seek an adjournment and subpoena Mr McKinnon with a view to having him testify.  Mr Nolan advised the appellant not to give evidence but informed him that it was a matter for him.

[39]  Mr Nolan deposed that he explained to the appellant that if he testified and it went badly, or if the Crown got Mr McKinnon into the witness box to disclose that there was unexplained income, that would probably destroy any prospect the appellant might have of arguing on appeal that the evidence was unsafe and unsatisfactory.  Mr Nolan took some time to explain this, because he felt it was complicated, and the appellant seemed to understand it.  He deposed that, before the trial started, he asked the appellant what his decision was and told him that he might be better not giving evidence but it was “always up to him.”  The appellant “seemed quite relieved and indicated he did not wish to give evidence.”  Mr Nolan thought that a typed instruction confirming the appellant’s instructions not to give evidence had been prepared, but when none was provided to him during the trial he asked Mr Morgan to write one out.  That was done and Mr Nolan deposed that he was present and saw the appellant sign the instruction.

[40]  Mr Morgan deposed that on 18 January 2010 (the fourth day of the trial), at Mr Nolan’s direction, he wrote out the three page instruction he understood was to be given by the appellant.  He sat down with the appellant and reviewed each clause of the instruction with him.  The appellant signed the instruction.  Mr Morgan counter-signed as a witness and dated the instruction.  Mr Morgan considered that the appellant understood the instruction and appreciated its import.  He deposed that after execution of the instruction, the appellant did not indicate at any time that he wished to change his instructions or present evidence.  The handwritten instruction was in the following terms:

“TRIAL INSTRUCTIONS

1.My rights, and the advantages and disadvantages of giving and or calling evidence in my case have been fully and carefully discussed with me, including:

a)the onus of proof of guilt and onus of proof of any relevant defence;

b)that some previous convictions may be placed before the jury by the Crown;

c)the need for evidence of a version or defence not led or raised in the Crown case;

d)the jury hearing my denial of guilt and my version of events tested on oath; and

e)the order of Counsels’ addresses to the jury.

2.I fully understand the advice given to me and that at the end of the Crown case I may:

A)give evidence myself and call evidence;

B)give evidence myself but not call other evidence;

C)call evidence but not give evidence myself; or

D)neither give nor call any evidence.

3.I understand that I may change this decision at any time until I am called upon by the Court, but that any change may affect the way my Counsel has to tactically put my case to Crown witnesses, or to comply with the rule in Brown v Dunn. 

I instruct that I will elect to:

NEITHER GIVE NOR CALL EVIDENCE”

[41]  Although the appellant deposed that he could not recall reading that instruction and that the only document which he had a clear recollection of signing during the course of the trial was a “power of attorney”, in cross-examination he quickly agreed that he signed the instruction on the fourth day of the trial in the afternoon, after he had spoken to Mr Nolan and before the Judge’s associate asked him whether he intended to give or call evidence. 

[42]  The appellant’s evidence was not easy to reconcile with his failure to speak out when Mr Nolan told the trial judge in the absence of the jury that he “thought that a written instruction had been obtained on the not giving or calling of evidence, but it hasn’t, and although they don’t take very long, nevertheless, there’s paperwork to write out” and that “he will say he doesn’t want to give evidence.”  Subsequently, the trial judge commented:

“I mean, here’s a man who is shown on the accounting evidence to have $1.3 million worth of unsourced income. He chooses not to go into the witness box and give an account of where the money has come from and yet those facts must be within his knowledge. Oh, dear.”

When questioned as to why he did not speak out, the appellant said that: he told Mr Nolan that he did want to give evidence; Mr Nolan responded that he could not give evidence; and Mr Nolan added that if he did so he would not be able to appeal.  The appellant said that was the last thing he remembered and he was distraught.  Inconsistently with that evidence, however, the appellant went on to give evidence that another man (inferentially, Mr Morgan) pulled him aside and “[w]hen he sat down, he had one bit of paper like that – of foolscap paper.  I never, ever saw three bits of paper.”  The appellant then confirmed that he remembered sitting down.  He gave evidence that he could positively remember that the contents of the instruction were not explained to him, which is not consistent with his earlier evidence that he did not remember anything after Mr Nolan advised him not to give evidence.

[43]  The appellant agreed that when the trial resumed after lunch that afternoon he was asked by the Judge’s associate whether or not he wished to adduce evidence in his defence and that Mr Nolan answered for him that he would neither give nor call evidence.  The appellant said that he attempted to answer the question but when Mr Nolan answered for him he “just collapsed and sat down.”  Even if that is so, it does not explain why the appellant remained silent if, as he contended, he was determined to give evidence.  That is particularly so in light of the trial judge’s comment earlier that day (which the appellant said he could not recall) about the appellant having chosen not to go into the witness box to explain the alleged unsourced income of $1.3 million.

[44]  The appellant also agreed in cross-examination that Mr Nolan told him that an accountant retained for the defence, Mr McKinnon, had undertaken an exercise of trying to find a source for the appellant’s unsourced income and that, although Mr McKinnon disagreed with the level of that unsourced income being $1.3 million or $2 million, his view was that the appellant had $600,000 in money or cash for which he could find no source.  Yet in answer to the next question the appellant denied that Mr Nolan told him that and said that he had read it in a report.  Furthermore, although the appellant gave evidence in cross-examination that Mr Nolan never discussed an appeal with him, he deposed in his affidavit that Mr Nolan advised him that he could not give evidence as he would not be able to appeal the matter if he lost the trial.  When that was put to him, he agreed that Mr Nolan did give him that advice.

[45]  In re-examination the appellant indicated that Mr Morgan was present when he signed the “trial instructions” document, but he added that he could not recall signing it and had sat down beside Mr Morgan because he was stressed and felt like he was having a heart attack.  That was not reconcilable with his earlier evidence that he had no recollection of the events at that time.

[46]  I accept the evidence of Mr Nolan and Mr Morgan.  The appellant’s evidence was improbable, in many respects inconsistent, and unpersuasive.  I would not be prepared to rely upon any of his evidence where it was not corroborated by other, reliable evidence.  The opinions expressed in Professor Coyle’s report should not be accepted because they were based nearly entirely upon information provided by the appellant.  (I note in passing that there was also no proof of the information given to Professor Coyle about the medication the appellant was taking.)

[47]  There was a real prospect that if the appellant gave evidence he would not have been able to satisfactorily account, and it would have emerged that his own accountant could not satisfactorily account, for a substantial amount of his income.  The evidence in his case might simply have corroborated that aspect of the Crown case.  I conclude that the appellant made a considered decision in his own interests not to call or give evidence after having the benefit of advice from his counsel.  It is an important consideration that the decision which the appellant now resiles from was capable of producing a significant forensic advantage.[6]  In these circumstances I think it clear that the appellant’s failure to call or give evidence did not produce any miscarriage of justice.

Application for leave to appeal against sentence

[48]  The trial judge sentenced the appellant to eight years imprisonment on the footing that his trafficking was on a “substantial scale”.  The trial judge found, consistently with the financial analysis adduced in the Crown case, that there was unexplained income of the order of $1.3 million.  The trial judge was satisfied that this figure represented the profits of the appellant’s cannabis trading business.  The trial judge remarked that the business consisted of both production and distribution and that the appellant had established a “relatively sophisticated crop site.”  The trial judge referred to the evidence of cultivation, the drying shed, the mechanisms for weighing and packaging the product, and the fact that the appellant took some care to achieve high-yielding varieties.

[49]  The trial judge found there was only one mitigating circumstance, namely, that there had been a measure of cooperation in the conduct of the trial itself: the defence case was conducted efficiently, with admissions which saved resources and spared inconvenience to others. 

[50]  The ground of the application for leave to appeal against sentence is that the sentence is manifestly excessive, but that sentence was within the range of sentences for which defence counsel contended.  The appellant’s senior counsel also conceded at the hearing of the appeal that the sentence was within the sentencing discretion on the basis of the trial judge’s findings.  It is therefore not necessary to elaborate upon my conclusion that the sentence was not manifestly excessive.

[51]  After the new evidence was adduced and submissions had been made for the appellant in relation to the appeal against conviction, the appellant sought leave to amend his notice of appeal to permit him to rely upon that evidence in his application for leave to appeal against sentence.  The appellant contended that he should be sentenced on the footing that he profited from the trafficking only to the extent of $600,000 (as assessed by Mr McKinnon), rather than $1.3 million.  The respondent opposed the application for leave to amend.  I accept the respondent’s submission that the new evidence was not challenged in cross-examination at the hearing of the appeal because that evidence was adduced only in the appeal against conviction, it not being relevant to the only ground of the proposed appeal against sentence.

[52]  The Court has a discretionary power to admit new evidence in a sentence appeal if it reveals that there has been a miscarriage of justice, but such evidence will generally not be admitted where it was known to the appellant at the sentence hearing and not adduced.[7]  That reflects the general approach that litigants are bound on appeal by the conduct of their litigation at first instance.  There is no ground in this case for departing from that general approach, and the following discretionary factors are opposed to such a departure:

(a) The new evidence is inconsistent with the evidence adduced at the trial with reference to which the trial judge made findings in the sentence hearing.

(b) I have concluded that the appellant made a conscious decision in his own interests not to adduce the evidence at the trial and he did not advance any explanation as to why the new evidence was not adduced at the sentence hearing. So far as the Court can tell, the appellant may have decided not to adduce the evidence at the sentence hearing because he perceived that it might be to his disadvantage in any appeal against conviction or in any re-trial. That would accord with the evidence that defence counsel advised the appellant that it might prejudice an appeal if he adduced evidence in his defence at the trial.

(c) The application to adduce the new evidence in the sentence application is very late, it being made only towards the end of the hearing of the appeal.

Orders

[53]  In my opinion, the appropriate orders are:

1.The appeal is dismissed.

2.The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence, and to amend the application for leave to appeal against sentence, are refused.

3.The application for leave to appeal against sentence is refused.

[54]  WHITE JA: I have read the reasons for judgment of Fraser JA.  I agree with his Honour’s proposed orders for those reasons.

[55]  ATKINSON J: I agree with the reasons for judgment of Fraser JA and the orders proposed by his Honour.