CATCHWORDS Criminal law - appeal against conviction for conspiracy refusal to grant adjournment after withdrawal of legal representation - reception of inadmissible evidence - corroboration of evidence of accomplices - nature and extent of duty of trial judge in warning jury - whether miscarriage of justice has occurred. ROSS JOHN McINIYRE v. THE QUEEN N.T.G. No. 37 of 198yl Franki, Toohey and Fisher JJ. Perth 21 December 1982 Weette - IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NT G37 of 198 ) ) GENERAL DIVISION ON APPEAI, FROM THE SUPREME COURT OF THE NORTHERN TERRITORY ROSS JOHN McINTYRE Appellant AND: THE QUEEN Respondent ORDER CORAM: Franki, Toohey and Fisher JJ. DATE: 21 December 1982 WHERE MADE: Perth THE COURT ORDERS THAT: The appeal is allowed in respect of the conviction on the charge of conspiracy. The verdict on that charge is set aside, the conviction is quashed and a new trial on that charge is ordered. Otherwise the appeal is dismissed. IN THE FEDERAL COURT OF AUSTRALIA ) { NORTHERN TERRITORY OF AUSTRALIA ) NO. N.T.G. 37 of 198k DISTRICT REGISTRY GENERAL DIVISION ) On appeal from the Supreme Court of the Northern Territory BETWEEN: ROSS JOHN McINTYRE Appellant AND: THE QUEEN Respondent CORAM: Franki, Toohey and Fisher JJ. 21 December 1982 REASONS FOR JUDGMENT FRANKI J. Ross John McIntrye, the appellant, was convicted on 28 September 1981 of committing the following offences: (a) Conspiring to commit an offence against the law of the Northern Territory, contrary to s.53(1) of the Criminal Law and Procedure Act of the Northern Territory; (b) Prepare cannabis, contrary to s.6(2)(a) of the Prohibited Drugs Act. (c) Supply cannabis, contrary to s.6(2)(b) of the Prohibited Drugs Act. (a) Sell cannabis, contrary to s.6(2)(b) of the Prohibited Drugs Act. In respect of each offence McIntyre was sentenced to a term of imprisonment with hard labour, all sentences to be served concurrently. The period of imprisonment was for three years and ten months in relation to the first offence with a non-parole period of 16 months and 12 months with no non-parole period in respect of each of the other offences. An appeal was lodged to this Court against both the conviction and sentence and this was amended in June 1982 and further amended in this Court when the appeal against sentence was abandoned. The proceedings against the appellant were commenced by way of an indictment against six accused being, the appellant Ross John McIntyre, Leonard George Chidwick, Jacobus Cornelis Rombouts, Douglas Steven Joseph Rautoka, Joseph De Sousa and Leon Francis Clancey-. All six accused were charged with conspiracy to sell cannabis contrary to s.6(2)(c) of the Prohibited Drugs Act. The indictment also contaianed the other charges in respect of which the appellant was convicted and separate counts against Rombouts of preparing cannabis, of possessing cannabis for the purpose of sale or supply and of selling cannabis; against Rautoka of possessing cannabis for the purpose of sale or supply, of selling and of supplying cannabis and against De Sousa ef selling and of supplying cannabis and against Clancey of possessing cannabis for the purpose of sale or supply and of preparing cannabis. It appears that Rombouts and Rautoka had pleaded guilty before trial to various charges including that of conspiracy. De Sousa pleaded guilty to the charge of conspiracy and the other charges. Clancey pleaded guilty to four counts and a nolle prosequi was entered against him on the charge of conspiracy. The appellant and Chidwick were then tried together. The grounds of appeal which were pressed can be classified under the following heads: A. The refusal of the trial Judge to adjourn the trial. B. The failure of the trial Judge to allow the appellant to cross-examine witnesses on matters of relevance. c. The admission by the trial Judge into evidence of prejudicial evidence which was inadmissible. D. The trial Judge misled the appellant in relation to Matters which he said he would put to the jury. E. The failure by the trial Judge to warn the jury as to the caution to be exercised in giving weight to the evidence of the alleged co-conspirators. Mention was made of two other grounds; one being in relation to the unsworn statements to the jury by the appellant and by Chidwick and the other in relation to the rejection of a medical certificate. However, these grounds were not of sufficient substance to require separate mention. The appeal to this Court 1s pursuant to s.24 of the Federal Court of Australia Act 1976. Section 28 of that Act deals with the form of judgment. The Court has wide powers in the exercise of its appellate jurisdiction including to "give such judgment, or make such order, as, in all the circumstances, it thinks fit ...". The background against which these grounds of appeal should be examined is that if the conduct of the trial was ansatisfactory because errors occurred, the critical question is whether the error or errors were of such a nature that they could not reasonably be supposed to have influenced the result. If they could not no new trial need be ordered. The onus in this regard is upon the Crown. This question was considered in relation to an appeal to this Court from the Supreme Court of the Australian Capital Territory in Duff v. R. (1979) 28 A.L.R. 663, where the Court, at p-673, referred to a judgment of the High Court in Stokes v. R. (1960) 105 C.L.R. 279. The Court made reference to a passage at pp.284-285 where it was said: "In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that at could not reasonably be supposed to have influenced the result a new trial need not be ordered." 5. In referring to the strength of the evidence against the accused the High Court said that it was "... so great that no other verdict could reasonably be expected even after a summing up quite unexceptionable", It was common ground that there was no relevant provision in the law of the Northern Territory concerning appeals. Compare the legislation in Western Australia referred to in McInnis v. The Queen (1979) 143 C.L.R. 575. The position with regard to appeals from the Supreme Court of the Northern Territory is the same as from the Supreme Court of the Australian Capital Territory. Even where no one defect in the conduct of the trial is itself sufficient for a new trial to be ordered the appeal court should look at the overall result to decide whether the trial had miscarried so that a new trial should be ordered (The Queen v. Ireland (1970) 126 C.L.R. 321). I pass now to consider the particular grounds of appeal. Ground A. This question must be looked at in the light of what was said in McImis v. The Queen, supra. Barwick C.J., with whom Aickin and Wilson JJ. agreed, pointed out at p.579 that the accused does not have a right to be provided with counsel at public expense and that, where counsel withdraws at the last moment, it is appropriate for the trial Judge to consider very seriously whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay. His Honour also pointed out that the trial Judge must have in mind the interests of the Crown and of the witnesses and that the question of whether an adjournment should be granted was a matter of judgment. Wilson J., at p.593, pointed out that the question of the grant of an adjournment was one involving the exercise of judicial discretion. In the case before us counsel had appeared for the appellant when he was first arraigned at some date prior to the trial. At the very commencement of the trial counsel asked leave to withdraw and this was allowed by the trial Judge. The trial Judge did not enquire about the reason for the withdrawal buat the appellant asked for an adjournment, saying that he had had legal representation until that day, that he was not in a financial position to pay for his own solicitor and that legal aid had been refused although it had been offered 1f he pleaded guilty. The appellant pleaded not guilty to all charges and he was offered an adjournment until 2 o'clock that day, apparently to permit him to consider certain documents which had been given to him by the Crown that morning. The Crown stated that 28 witnesses in all were to be called, some having been brought from Western Australia and South Australia and some from Tennant Creek. The date for the trial had been faxed for some nh It was common ground considerable time. that there was no provision for any right of appeal from a refusal to grant legal aid in the Northern Territory. The accused did not hold out any hope that he could get legal aid and there was no reason to think that he could. It also appeared clear that the appellant did not hold out any prospect of being able to get legal representation in the future as appeared that the appellant had not known u a result of his own efforts. Although it ntil the morning of the trial that legal aid was not to be availlable to him he had been on bail. antil 2 o'clock. The appellant refused the offer of an adjournment In my opinion the trial Judge was entitled to reach the decision which he reached. Although it is accused should be unrepresented during the charges it is difficult to see how the Judge ndesirable that an hearing of serious could have reached i any other conclusion than that to which he came. Ground B. I have transcript to which we were referred. In my carefully considered the passages in the opinion they do not indicate that anything unsatisfactory occurred. Ground C Reference was made to four matters ground. heroin in some of the evidence. Only one warrants mention and that No charge was in relation to this is a reference to brought, or suggestion made, against the accused in relation to heroin. It was submitted that reference to heroin was prejudicial to the appellant. presented by the Crown was being given abo between Rombouts with the appellant and The mention of heroin occurred when evidence ut the first meeting Chidwick. Rombouts conceded in his evidence that he had been a fiser of heroin. The appellant in his cross-examination of Rombouts and examination of Clancey asked questions about heroin. Whilst I think it would have been desirable that no thention had been made of heroin at the trial I do not think that any real significance. Ground D No significant argument was put on satisfied that there is no substance in ait. Ground E. This ground has given me some concern. this was a matter of this ground and I am The learned trial Judge warned the jury that it had to treat the evidence of Rombouts and Rautoka, who were charged as "cautiously and anxiously". He also phrased ways, fellow conspirators, his warning in other for example, he said that the jury had "to look critically and carefully at the evidence of Rombouts and Rautoka and Brenda Collins". had been arrested initially but was granted Brenda Collins was apparently living with Rombouts and immunity on the understanding that she would give evidence for the Crown. ° The learned trial Judge made it clear to the jury that it was necessary to treat the evidence of co-conspirators with i special care. However, no specific warning was given to the jury that it was dangerous to convict an accused gn the uncorroborated evidence of an accomplice nor was the jur question of what evidence fell into corroboration. It is clear that a Judge has a duty iy instructed on the the category of properly to warn the jury concerning the uncorroborated evidence of an accomplice. The question then arises whether, in a dase where a _ proper warning has not been given, the conviction should be quashed and a new trial ordered. In Davies v. Director of Public Prosecutions [1954] A.c. 378 Lord Simonds L.C., with whom the other members of the House of Lords concurred, said, at p.399, that he accepted the following propositions: "First proposition: In a criminal trial where a person accomplice gives evidence on beh prosecution, it is the duty of th warn the jury that, although they anless it is corroborated. Second proposition: who is an lf of the judge to Nay convict upon his evidence, it is dangerous to do so I | This rule, although a rule of practice, now has the force of a rule of law. Third proposition: 10. Where the jadge fails to warn the jury in accordance with this rule, the conviction will be quashed, even 1f in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to section 4(1) of the Criminal Appeal Act, 1907. The rule, it will be observed, applies only to witnesses for the prosecution." Section 4(1) of the Criminal Appeal Act 1907 contained the following proviso: "Provided that the Court may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred." In R. v. Teitler [1959] V.R. 321 Lowe and O'Bryan JJ., at pp.329-330, expressed the view that the rele explained in Davies v. Director of Public Prosecutions, supra, was not one of law in Victoria but only one of practice. Sholl J. at pp.339- 340 took the view that the rale should be reconsidered and the Court should consider whether if there had been a proper direction, a reasonable jury, as distinct from a perverse Jury, would undoubtedly have convicted. A somewhat similar question in connection with the a corroboration of the evidence of a witness for the prosecution in a trial of rape was considered by the High Court in Kelleher v. The Queen (1974) 131 C.L.R. 534. It was decided by a majority woe TT Le ee ll. that a conviction for rape will not be quashed on the ground of the failure of the trial judge to warn the jury of the danger of acting on the word of the prosecutrix alone if there was in fact substantial corroboration of her evidence. Jacobs J. at pp.565-6 dealt with Peacock v. The King (1911) 13 C.L.R. 619 where the test applied was whether substantial corroboration did exist and as I read his Honour's judgment he regarded the rule as one of practice and not of law. It is also important to note that the test provided by the High Court in Stokes v. R., supra, applies even in a case of an error of law. Appeals from the Supreme Court of the Northern Territory, as with those from the Supreme Court of the Australian Capital Territory, have to be determined according to the provisions of the Federal Court of Australia Act. If the Court proceeds upon the basis that the test provided in Stokes v. R., supra, is to be followed, the question is whether any other verdict than guilty could reasonably have been expected had the summing ap, and the other conduct of the case, been without blemish. There is much to be said for the view that the propositions set out in Davies wv. Director of Public Prosecutions, supra, must give way to the test enunciated in Stokes v. R., Supra. Kelleher v. The Queen, supra, was not a case dealing with the question of the evidence of accomplices. I do not find 2n the judgments in that case authority for the proposition that 12. a conviction has to be quashed and a new trial granted where the test provided in Stokes v. R., supra, is applicable and an appropriate warning has not been given in relation to the evidence of accomplices and there is no- substantial corroboroation of that evidence. Peacock v. The King, supra, as read by Jacobs J., in Kelleher v. The Queen provides support for the proposition that, if substantial corroboration exists, an Appeal Court will not necessarily quash a conviction. Gibbs J., as he then was, at p. 555, however pointed out in relation to the application of Davies v. Director of Public Prosecutions, supra, that it was necessary for the trial Judge to give a warning notwithstanding that there was evidence capable of amounting to corroboration. It seems to me that at least where no warning was given and there was ample corroboration the test laid down in Stokes v. R. should be applied. Indeed, in the present state of the law in relation to an appeal from a conviction in the Supreme Court of the Northern Territory, I do not consider that, even in a case where there was no ample corroboration of the evadence of accomplices and no warning was given, it necessarily follows that the conviction should be quashed and a new trial granted. Rombouts and Rautoka had pleaded guilty to the charge of conspiracy and each had been sentenced before the trial commenced. Miss Collins had certainly received some privilege which might have affected her evidence. De Sousa was not called. 13. Clancey was called by the appellant and, in cross-examination, gave certain evidence which was not at all favourable to the appellant's case. He was originally indicted as a co-conspirator. Chidwick was a co-accused, who was tried at the same time, and he chose to call no evidence but to make a short unsworn statement to the jury in which he denied the charge of conspiracy. If the jury had been properly instructed and they had decided to accept the evidence of either Rombouts or Rautoka they could have had little doubt about the appellant's guilt. I think it unlikely that the evidence which Rombouts, Rautoka and Clancey gave was influenced by any opportunity to place blame on the appellant. There appear to be some practical difficulties for a trial Judge in warning a jury about accepting evidence of a co-conspirator when he had been called by the person being tried. In Davies v. Director of Public Prosecutions, supra, it was specifically stated that the rule applied only to the evidence of persons called by the Crown and I consider that is the approach which I should adopt. Rombouts gave evidence concerning an occasion in May 1981 when he and Clancey visited the appellant at Howard Springs and bought one pound of cannabis for $1,000. He said that he was allowed credit and that he took this cannabis to Tennant Creek and made it into sticks which were ultimately seized by police. iF) 14. This evidence appears to have been corroborated sufficiently by the evidence of Clancey. He gave evidence to the effect that Rombouts has bought cannabis from the appellant at Howard Springs and that he had gone there to buy cannabis for resale in Tennant Creek. Rombouts and Clancey did not have any cannabis in balk with them on arrival at Howard Springs. Although Clancey's evidence was not very clear he said that he was introduced to "Ross" there. Clancey said that when he and Rombouts left Howard Springs they did not go on to Darwin as they had intended, but returned to Tennant Creek and they had in the car about a pound of cannabis which was sampled by Clancey. During the appeal counsel did not deal with the evidence with the object of arguing whether there was substantial corroboration from any witness in respect of whose evidence the warning ought to have been given. It is always necessary to look at the nature of the offence and the nature of the evidence which may constitute corroboration. In order to convict upon the charge of conspiracy the jury had to be satisfied beyond reasonable doubt that there was an agreement between the appellant and at least one other of the persons charged with conspiracy to sell cannabis contrary to s.6(2)(c) of the Prohibited Drags Act, in this case, to another person. It is not necessary to show that the persons charged came together and actually agreed 1n terms to what they had determined to do. 15. The essential feature is that of common design. Proof of the existence of a conspiracy is usually a matter of unference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. See generally Archbold "Criminal Pleading, Evidence and Practice", 39th Edn. para. 4076. Although I do not regard ample corroboration of the evidence of Rombouts or Rautoka as critical it is necessary to examine that question. As I have said I treat the evidence of Clancey as being evidence in respect of which no warning is required. It as necessary to consider what is required for corroboration. I need do no more than cite The King v. Baskerville [1916] 2 K.B. 658 in this regard. The Court of Criminal Appeal at p.667 said in relation to corroboration: "We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." I am satisfied that Clancey's evidence provides adequate corroboration of that of Rombouts in relation to the transaction at Howard Springs resulting in the acquisition of a 16. pound of marijuana. I consider that this amount of cannabis must surely be regarded as a commercial amount. In my opinion, this is an incident which provides strong circumstantial evidence that the appellant was engaged in a transaction in the nature of an illegal joint enterprise with Rombouts for the sale to other persons of cannabis. It is informative to examine the matters which were put in issue by the appellant when he cross-examined Rombouts and Rautoka. One must bear in mind the fact that the appellant was appearing for himself but, nevertheless, in his statement to the jury and on other occasions, he gave the impression that he might have been expected to challenge a lot of the evidence of Rautoka in particular and, to a lesser extent, Rombouts had he felt that the evidence which they gave was untrue. His cross-examination of Rautoka was very short. His cross-examination of Rombouts was more detailed but again it appeared, in relation to the conspiracy charge, to concentrate on matters which were not essential. In his unsworn statement to the jury, the appellant Genied the conspiracy but conceded that cannabis seeds had been found on his premises in a small bottle which he said Rautoka had found buried in the ground. He said that his wife was Asian and part of the Asian diet was marijuana so he had kept the seeds. He admitted that traces of cannabis had been found in his caravan and he explained this in the same way by saying that his wife chopped up some cannabis and used it in cooking. He said that this cannabis had also been obtained from Rautoka. The police 17. gave evidence of finding traces of cannabis in the appellant's vehicle and in two drums found on the appellant's premises. There was also police evidence that pieces of silver foil with traces of cannabis on them similar to that used on cannabis sticks was found in the appellant's stove alcove. There was also evidence that cannabis plants were growing in pots near the appellant's caravan. There was evidence that some $3,000 in cash was found on the appellant's premises. As to $980 the appellant explained that it was left over from a loan. The rest, he said, was part of the proceeds of the sale of a car and that he had been retaining it in cash at his caravan for 5 or 6 months whilst awaiting the arrival of some parts for a yacht. It appears that the loan referred to was one which Chidwick had previously obtained from Custom Credit Limited. According to police evidence certain denials given by the appellant to the police did not agree with the statement made by the appellant at the trial. On 14 May 1981, the day the appellant was arrested, the police evidence was that he said he had "never heard of .." Rombouts. When asked whether he knew other people who lived on the block where he lived at Tennant Creek the appellant said "No, I keep pretty much to myself". In fact Rautoka lived on that block. The appellant's wife was not called to give evidence. 18. In my opinion, to use the words used in Stokes v. R., supra, there were no faults 1n the conduct of the trial of such a nature that they could reasonably be supposed to have influenced the result. The parties did not seek to differentiate between any of the convictions and I do not think it is appropriate that I should do so. Neither party asked for any order as to costs and the only order I would make would be to dismiss the appeal. Reasons fer J udgmont herein of hee eenom ; 1c e rates : pS. ) IN THE FEDERAL COURT OF AUSTRALIA )NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 37 of 1982 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREIE COURT OF THE NORTHERN TERRITORY No. $.€.C. 248-251 of 1982 BETWEEN : ROSS JOHN McINTYRE Appellant AND: THE QUEEN Respondent CORAM: Franki, Toohey and Fisher JJ. DATE: 21 December 1982 REASONS FOR JUDGMENT TOOHEY and FISHER JJ. On 28 September 1981 the appellant was convicted in the Supreme Court of the Northern Territory of the following offences. These particulars are taken from the certificate of conviction. 1. Conspiracy to commit an offence against the law of the Territory, contrary to s.53(1) of the Criminal Law and Procedure Act. 2. Prepare cannabis, contrary to s.6(2)(a) of the Prohibited Drugs Act. 3. Supply cannabis, contrary to s.6(2)(b) of the Prohibited Drugs Act. 4. Sell cannabis, contrary to s.6(2)(b) of the Prohibited Drugs Act. For those offences respectively the appellant was sentenced to imprisonment with hard labour for three years and ten months with a non-parole period of 16 months; imprisonment with hard labour for 12 months with no non-parole period; imprisonment with hard labour for 12 months with no non- parole period; imprisonment with hard labour for 12 months with no non-parole period, All sentences were ordered to be served concurrently. Although the notice of appeal is formulated as an appeal both against conviction and sentence, the Court was asked to deal with the matter as one of appeal against conviction only. The notice of appeal contains many grounds Several were abandoned and as to some the appellant made no more than formal submissions. As the appeal emerged, the grounds upon which the appellant relied with any enthusiasm may be summed up in this way. 1. The learned trial Judge erred in refusing the appellant an adjournment of the trial when his counsel withdrew. 2. The learned trial Judge failed to'allow the appellant to cross-examine witnesses on relevant matters. 3. The learned trial Judge erred in allowing evidence ted that was inadmissible and prejudicial to the appellant. 4. The learned trial Judge erred in failing to give the jury adequate warning of the caution they should exercise in giving weight to the evidence of co~conspirators 5. The learned trial Judge erred in admitting evidence concerning a substance said to have been heroin, which evidence was not relevant to any charge in the indictment and was of a highly prejudicial nature. We propose to deal with these grounds largely in the order in which they were argued. First however it is necessary to provide some background against which they may be considered. All charges related to cannabis. Three were of specific breaches of the Prohibited Drugs Act, said to have been committed at Howard Springs on different dates during 1980 and 1981. The major charge, that of conspiracy, was that between 1 January 1980 and 18 May 1981 at Darwin, Katherine, Tennant Creek "and at other places" the appellant together with Leonard George Chidwick, Jacobus Cornelis Rombouts, Douglas Steven Joseph Rautoka, Joseph De Sousa and Leon Francis Clancey, con- spired to commit an offence against the law of the Territory, namely to sell cannabis contrary to the Prohibited Drugs Act. Chidwick was tried together with the appellant and he too was convicted of conspiracy. Before the trial of the appellant and Chidwick began, De Sousa pleaded guilty to the charge of conspiracy and to other charges relating to cannabis; a nolle proseaui was entered against Clancey in respect of the conspiracy charge and certain other charges, he having pleaded guilty to other charges in turn, Rombouts and Rautoka had earlier pleaded guilty to the charge of conspiracy and to other charges relating to cannabis. Rautoka and Rombouts were witnesses for the Crown against the appellant as'was Brenda Jean Collins who was living with Rombouts at relevant times and who participated in activities giving rise to the charge of conspiracy and to certain of the other charges. No action was taken against her. Refusal to grant an adjournment When the appellant was arraigned on 21 September 1981 and before the jury was empanelled, his counsel made the following statement. "If your Honour pleases, at the last arraignment, I appeared for the accused, McIntyre, but regrettably I must advise that I seek leave to withdraw from acting for Mr. McIntyre". A similar application was made by counsel for Chidwick. His Honour gave both counsel leave to withdraw. His Honour then pointed out to the appellant that he had pleaded not guilty to conspiracy to commit an offence but that the Crown wished to add three counts, one of preparing, one of supplying and the third of selling cannabis at Howard Springs. In answer to a question whether he was in a position to plead to the additional counts, the appellant said: "I would prefer not to, your Honour. I feel I am entitled to legal repres- entation, and I would prefer legal representation. I have got no desire whatsoever to represent myself in this matter." The appellant then commented that the reason his counsel had withdrawn was because legal aid had been refused except on the basis that the appellant plead guilty. The Crown pointed out that some 28 witnesses had been subpoenaed to give evidence, that they had come from Western Australia and South Australia as well as within the Northern Territory, and that the first the Crown had learned of a possibility the appellant might not be represented was about 9 o'clock on the morning of the trial. His Honour then said to the appellant and to Chidwick: "Yes, well, I note your applications for adjournment, but I will direct the trial may proceed". There was some further discussion between the Bench and the appellant, the latter complaining that he was not happy with the situation and that he had no qualifications to cross-examine witnesses. To this his Honour said: "Very well. You will have to do your best. I will give you what help I can. In the meantime, the Crown, which has prepared this case which has been in the list for weeks and weeks and weeks, was advised this morning that you would not be legally represented, and as far as I am concerned, I believe in this particular case it is in the interests of the admin- istration of justice that the matter should proceed". Sse ot The matter did proceed, the trial occupying 21, 22, 23, 25 and 28 September 1981. It is possible to distil several propositions from the argument advanced by counsel for the appellant. To the extent that one of those propositions was that the appellant was entitled to be represented by counsel, the decision in McInnis v. R. (1979) 143 C.L.R 575 is against the appellant. There is no absolute right to legal aid In that respect the right is no more than "to have the procedures of the Legal Aid Commission Act duly followed, including of course the hearing of an appeal and review if these are sought" (Barwick C.J in McInnis at p.579). Apart from the fact that the appellant had been represented until the morning of his trial and that he told the learned trial Judge that legal aid had been refused him in the case of a plea of not guilty, neither the Supreme Court nor this Court was given any information about the appellant's application for legal assistance. In McInnis the appellant had not pursued all avenues of obtaining legal aid to their conclusion and he sought an adjournment expressly so that he might do so. As we read the judgments of the majority of the Court, that consideration led their Honours either to conclude or to assume for the purpose of argument that the adjournment had been wrongly refused In the present case we have no reason to assume other than that the appellant had done all he could to obtain legal aid and that legal aid "AN ~ v ASTER a A ee Me me eer et mn ee -- had been refused. The appellant did not suggest that an adjournment might allow him to renew his application for legal assistance or that it might enable him to secure representation in some other way Asked by the learned trial Judge whether he was asking for an adjourn- ment, the appellant replied: "I would, your Honour, because I am in no financial position to pay for my own solicitor. The reason my solicitor had to withdraw, because Legal Aid refused assistance". To the extent that the appellant was contending that in all the circumstances the learned trial Judge had erred in refusing an adjournment, it is apparent from McInnis and indeed from earlier judgments of the English and Australian courts that, in considering an application for an adjournment of a trial, a judge is called upon to exercise a judicial discretion. He must have regard to the interests of the accused but is entitled to look as well to the wider interests of justice. In the words of the learned trial Judge, this matter had been in the list "for weeks and weeks and weeks". It was a trial likely to last some days and a large number of witnesses, from within and without the Territory, were present to give evidence. It is of course an entirely unsatisfactory situation when on the morning of a trial counsel for an accused withdraws his representation. It raises quite basic questions about the role and duties of counsel. The learned trial Judge might have adopted the "practical ee RE A ee eee ee solution" referred to by Murphy J. in McInnis at pp.585-586. He might have asked counsel to continue to represent the appellant "to avoid both the public inconvenience which would arise if the trial were not to proceed and the injustice to (the appellant) if it were". However his Honour did not take that course. Notwithstanding the very difficult position in which the appellant was placed, we are not persuaded that his Honour erred in the exercise of his discretion when he decided that, having regard to the length of time for which the trial had been fixed, the number of witnesses and no doubt the very considerable difficulties of obtaining a further date and securing the attendance of witnesses, the trial should proceed. If we were persuaded that his Honour did err in this respect, it would then be necessary to consider whether by reason of that error a miscarriage of justice had occurred. That assessment requires a consideration of matters which were not before the learned trial Judge when he made his decision that the trial should proceed. It requires an assessment, in retrospect, of the strength of the case against the appellant and the credibility of his defence. Because of the viewwe have taken that his Honour was not in error in refusing an adjournment, it is unnecessary to make this assessment However we do make it at a later stage of these reasons when considering other grounds of appeal. ett Lawn oe ee ek ee eee ee ee tee sree In our view, unsatisfactory though the situation was, the appeal cannot succeed by reason of the refusal of an adjournment. Failure to allow the appellant to cross-examine The appellant contends that the learned trial Judge failed to allow him to cross-examine witnesses on matters of relevance. Implicit, though not explicit, in this ground of appeal is the submission that he suffered a miscarriage of justice in the sense that he thereby lost a chance of acquittal. See Herbert and Others v. R. (unreported decision of the Federal Court delivered 30 July 1982 per Toohey and Sheppard JJ. at pp.31-32). Asked to be more specific as to the appellant's complaint in this regard, his counsel answered: "He generally allowed him to ask questions, but his Honour's handling of the cross-examination, in my submission, amounted to a failure to fully allow him to cross-examine the witnesses in that he did not give the accused sufficient guidance in the cross-examination of witnesses". The Court was taken to various passages in the transcript of the trial. In our view in none of these can any support be found for the appellant's complaint. Indeed his Honour, with considerable patience, sought to assist the appellant by eliciting from him what he wished to establish by cross-examination, per- mitting him considerable latitude in his cross-examination Oe a A EN Cen Se - and from time to time questioning the witnesses himself. The learned trial Judge was under a duty to see that the appellant received a fair trial. That duty included seeing that the appellant was given every reasonable opportunity to question witnesses, with some guidance from the Court as to how questions might most usefully be put, and without undue interruption.Our reading of the transcript of the trial leads us to conclude that no complaint may reasonably be made of his Honour's actions in this regard. Prejudicial evidence wrongly admitted The appellant complains that on several occasions the learned trial Judge permitted the Crown to adduce evidence which not only was inadmissible but was prejudicial to the appellant. Put in a summary way, this evidence related to heroin, to a photograph, to hashish oil and to the apprehension of Chidwick, the man who was tried with the appellant. The evidence regarding heroin arose in this way. Brenda Jean Collins gave evidence that Rautoka took her and Rombouts to see the appellant, the reason being that "they wanted Koos (Rombouts) to try some heroin to see how strong it was". Collins testified that at a meeting with Rombouts, Rautoka, Chidwick and the appellant, in Darwin, the appellant unscrewed the back of a clock and removed a quantity of heroin, some of which Rombouts injected into himself. Similar evidence was given by Rautoka and Rombouts. we nen TED Oe ee en ee The appellant had not been charged with any offence relating to heroin. For what reason and on what basis then was the evidence adduced? The meeting in question began at Bees Creek, a few miles x out of Darwin, and then moved to a unit in the Esplanade Lodge in Darwin itself. In that wit, according to Rombouts, he obtained 20 bags of cannabis on credit while he, Collins, Rautoka, Chidwick and the appellant were all present, That evidence went no further than to establish that Rombouts obtained cannabis from Rautoka. It did not implicate the appellant in any such transaction. Rautoka gave evidence that Rombouts wanted Marihuana : "He wanted to score - buy some marihuana. So I introduced him to Ross (the appellant) and Lennie (Chidwick)... I don't know how many bags he bought off them, or got it on credit. I'm not quite sure". In answer to a leading question by counsel for the Crown; "So Mr. Rombouts bought some cannabis off the accused at Bees Creek in your presence on that occasion, is that what you are saying?" Rautoka answered ; "Yes. Not at Bees Creek. We came back to Esplanade, and he got it from there" The Crown conceded that it was in some difficulty over this ground of appeal but sought to justify admissibility of the particular evidence on the ground that the appellant and Chidwick were the principals of a distribution ring A eee ee ee ee for cannabis, that they had been supplying Rautoka in Darwin and that he in turn supplied Rombouts in Tennant Creek. The volume of cannabis being sold was such that Rautoka could no longer supply Rombouts with all he required and therefore it became necessary for Rombouts to meet the appellant and deal directly with him. The submission continued that the action 'of Rombouts in injecting the heroin was a natural one so that he might establish his bona fides, as it were, as a drug taker and so rebut any suggestion that he might be an "undercover agent". Accepting all of this for the purposes of argument, we can findno basis upon which any of the Crown witnesses should have been permitted to give evidence that the appellant produced heroin at the unit in Darwin. There was a suggestion that the evidence was admissible as part of the res gestae. But if the trans~ action under consideration was the sale of cannabis, we are unable to see that the production of a quantity of heroin by the appellant, there being no evidence of any commercial transaction in that regard, was part of the transaction. If we are wrong in that respect, the evidence was highly prejudicial and inour respectful view should not have been allowed, the extent of prejudice to the appellant far out- weighing any probative value the evidence might have had. The question which must be answered later in these reasons is whether as a result thereof a miscarriage of justice occurred. e Miss Collins gave evidence concerning a photograph which she produced and which later was tendered in evidence. It showed Rombouts lying on a bed with a number of $50 bills laid out in front of him. Miss Collins had taker the photograph and on the back had written a date "July 1980". She testified that the money belonged to the appellant - "It would have been the sale of cannabis" ~ but then later she said that the money was Rombouts'', from the sale of cannabis. The only reconciliation possible between these statements is that the money had been obtained by Rombouts from the sale of cannabis which he had purchased from the appellant and that he was therefore bound to account to the appellant for the proceeds. Counsel for the appellant then submitted that according to the evidence Collins and Rombouts did not meet the appellant until sometime in September 1980. Collins herself agreed in cross-examination that the date may have been inaccurate. In our view evidence about the photograph was admissible through Collins. It may in the end have proved to be the case that the photograph related to a time when Rombouts had not met the appellant. In that event the jury should have been told to attach no weight to Collins' evidence in that respect. But it does not follow that her initial testimony and the photograph were inadmissible. In the course of his evidence in chief, Rautoka was asked whether earlier this year he recalled getting some hashish oil. He answered that he did so reeall and that he had got it from Chidwick and the appellant. It was in small packages. The shcrt answer to the appellant's com- plaint about the reception of this evidence is that hashish oil falls within the definition of "cannabis" in the Prohibited Drugs Act. Section 4 of that Act defines "cannabis" to mean "a plant or a part of a plant of the genus Cannabis, an extract, resin or tincture of such a plant or a preparation or substance containing part of such a plant or such an extract, resin or tincture". Since hashish is from the top leaves and tender parts of hemp and hemp is Cannabis sativa, hashish oil is at least an extract of a plant of the genus Cannabis. Given the nature of the allegations against the appellant, evidence of dealing in hashish was admissible. Fabio Fabro, a customs officer in Western Australia, gave evidence that in June 1981 he was . on duty at Perth airport and there apprehended the appellant's co-accused Chidwick. Chidwick had just arrived from the United Kingdom by British Airways. A search of Chidwick's clothing revealed a clear plastic bag which Chidwick said contained "speed" and another plastic bag which Chidwick said was "hash oil". The Crown then sought to tender the black substance described as hash oil. His Honour commented "It is suggested, is it, by the Crown, that this was something in furtherance of the common design of conspiracy?" Counsel for the Crown answered "Yes". This incident occurred outside the period alleged in the indictment. In the argument before this Court, counsel for the Crown said that it was his understanding er eR te em ae eee ee ee id and that of counsel for the appellant "that the hash oil that Chidwick was in possession of when he landed at Perth Airport was, in fact, hash oil that he had originally obtained from McIntyre". However there was no evidence of this and in our view Mr. Fabro's testimony should not have been permitted. It remains to consider later in these reasons whether a miscarriage of justice occurred by reason of the admission of this testimony. Admissibility of evidence relating to heroin Although the last ground of appeal mentioned earlier in these reasons, it is convenient to deal with this matter now. The notice of appeal formulated as a separate and independent ground a challenge to the admissibility of the evidence relating to heroin. But the appellant's argument in this respect went no further than it did in relation to the more general ground alleging the admission of evidence that was both inadmissible and prejudicial. It is therefore unnecessary to say anything more about it at this stage. In the end 1ts strength depends upon the likelihood that a miscarriage cf justice occurred. Evidence of co-conspirators This ground of appeal reads: "The learned trial Judge erred in not warning or not adequately warning the jury as to the caution to be exercised in giving weight to the evidence of alleged co-conspirators including an alleged co-conspirator in respect of whom the Crown had given an immunity from prosecution". 'The co-conspirators were Rautoka, Rombouts and Collins. As already mentioned Rautoka and Rombouts were among those charged with conspiracy. Collins was not charged. The evidence of these three witnesses clearly was vital to the Crown's case against the appellant. In the course of his charge to the jury the learned trial Judge described Rombouts and Rautoka as "persons who have admitted they were involved in the criminal conspiracy alleged against these men". Speaking of the evidence of fellow conspirators, his Honour said: "It is of course always evidence that you will treat cautiously and anxiously". Later he said "And ladies and gentlemen, where you get co-conspirators called for the Crown, of course, you will look carefully at their evidence". Referring to the testimony of Collins his Honour commented: "Ladies and gentlemen, in a different way, the same caution must be exercised about the evidence of Rombouts' girlfriend, Brenda Collins who you know was originally arrested, but was granted immunity on the understanding that she would give evidence for the Crowm... So I ask you, ladies and gentlemen, to look critically and carefully at the evidence of Rombouts, Rautoka and Brenda Collins". Although counsel for the appellant did not say so in precise terms, it is apparent from his argument that he sought to place co-conspirators in the category of accomplices and to contend that the authorities relating to the obligation of a trial judge to warn the jury of the danger of convicting on the basis of the evidence of an accomplice if that evidence is uncorroborated were equally applicable. Lord Simonds L.C. pointed out in Davies v. Director of Public Prosecutions (1954) A.C. 378 at p.400 - "There is in the authorities no formal definition of the term 'accomplice''". In a judgment with which the other members concurred, Lord Simonds sought to categorize those persons who, if called as witnesses for the prosecution, have been treated as falling within the category of accomplices. His Lordship listed first - "On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term 'accomplice''". It is unnecessary to refer to all the Australian authorities in which Davies v Director of Public Prosecutions has been considered. Rautoka and Rombouts were clearly participes criminis in respect of the offence of conspiracy with which the appellant was charged and the Crown did not suggest otherwise. Nor did the Crown suggest that the evidence of Collins was in any different category. She accompanied Rombouts on a number of trips from Tennant Creek to Darwin to pick up cannabis from the appellant and, according to her evidence, she was also with Rombouts in Tennant Creek when the appellant brought cannabis for the purpose of sale. It may be that she Was present on these occasions primarily because of her personal association with Rombouts; nevertheless there is sufficient evidence to regard her as at least an accessory and as someone in respect of whose evidence the customary warning should have been given. As to the three charges under the Prohibited Drugs Act ~ that of preparing cannabis alleged conduct at Howard Springs over a time; that of supplying cannabis related to a transaction between the appellant and Rautoka; that of selling cannabis concerned a transaction between the appellant on the one hand and Rombouts and Clancey on the other. All trangzactions were so closely involved with the acts said to evidence a conspiracy that the warning should have been given in regard to any evidence of Rautoka, Rombouts and Collins bearing upon any of the four charges against the appellant. Three propositions have the authority of the House of Lords in Davies v. Director of Public Prosecutions. They are - 1. In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the Judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. 2. This rule, although a rule of practice, now has the force of a rule of law. 3. Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court considers that no substantial miscarriage of justice has actually occurred. A somewhat broader and less peremptory approach was taken in the majority judgment of the Victorian Full Court in R. v. Teitler (1959) V.R. 321. At p.330 Lowe and O'Bryan JJ. said: "In our opinion, the practice of the Court is to quash a con- viction where part of the evidence against the accused has been that of an accomplice and when no proper warning as to the use of that evidence has been given, unless there was, apart from the evidence of the accomplice, sub- stantial evidence implicating the applicant and upon which the jury could properly have convicted the applicant even if they had disregarded the evidence of the accomplice". We are of the opinion that in the present appeal this Court should follow Davies in so far as it held that the presence of corroboration does not cure a failure to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice. The relevance of the proviso concerning miscarriage of justice is a matter we shall consider later. Davies was referred to by the members of the High Court in Kelleher v. R. (1974) 131 C.L.R. 534, an application for special leave to appeal from a con- viction of rape. The majority (Gibbs J. dissenting) held that a conviction of a sexual offence obtained on the evidence of the prosecutrix will not be quashed because of a failure by the trial judge to warm the jury of the danger of acting on the word of the woman alone, if there is in fact substantial corroboration of her evidence. Some members of the Court had reservations about transposing what had been said in Davies about accomplices into cases of sexual offences (see Barwick C.J. at p.542 and Mason J. at p.560). But Kelleher does not question the authority of Davies as to the warning required where accomplices are concerned and the consequences if there is no warning; indeed Gibbs J. (as he then was) commented: "I can see no reason why the propositions laid down in Davies v. Director of Public Prosecutions should be regarded as inapplicable to the corroboration of the complainant in sexual cases. In my opinion it was necessary for the learned trial judge to give a warning in the present case, notwithstanding that there was evidence - capable of amounting to corroboration, and notwith- standing that the question was not raised on behalf of the defence" (at pp.555-556). It is quite clear that the learned trial Judge did not give the requisite warning to the jury. True he spoke of the need to treat the evidence of Rombouts and Rautoka "cautiously and anxiously" and to exercise "the same caution" about the evidence of Collins. But nowhere in his charge to the jury did his Honour speak of the danger of convicting upon the evidence of an accomplice (in this case a co-conspirator) unless that evidence was corroborated. Nor did he point out that one accomplice may not corroborate the evidence of another, at least if both are called as witnesses for the prosecution. Although it may not be essential for a trial judge to use the word "corroboration", it is not enough simply to stress the need for care in accepting the evidence of co-conspirators. There must be something said to bring home to the jury the need to consider whether there is "independent testimony which affects the accused by connecting or tending to connect him with the crime' (R. v. Baskerville (1916) 2 K.B. 658 at p.667). No mention of corroboration appears in his Honour's charge to the jury, either expressly or by implication. It is necessary to consider the consequences of this omission. Miscarriage of justice? As the Federal Court pointed out in Duff v. R. (1979) 28 A.L.R. 663 at p.671 "The powers of a court of criminal appeal to set aside a jury verdict turn upon the statute creating the appellate jurisdiction". The Court then referred to what it described as "a common form statute governing appeals against criminal convictions". The language of such a statute is generally in terms that the appellate court shall allow the appeal if it thinks that on any ground there was a miscarriage of justice, with a proviso that the Court may, notwithstanding that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The existence of such a statute, including the proviso, underlies many of the authorities relating to corroboration, both in Australia and in England. It forms part of the several propositions approved by the House of Lords in Davies v. Director of Public Prosecutions. The jurisdiction of the Federal Court to hear appeals against judgments of conviction entered in the Supreme Court of the Northern Territory is conferred by s.24 of the Federal Court of Australia Act 1976. In the exercise of that jurisdiction the court may set aside the verdict and judgment in a trial on indictment and ordei a verdict of not guilty or other appropriate verdict to be entered; or it may grant a new trial (s.28). or Sean e Duff v. R. was concerned with an appeal against a judgment of conviction entered in the Supreme Court of the Australian Capital Territory but the reasons for judgment are equally applicable to this appeal. What is sought here is a new trial consequent upon the setting aside of the convictions entered against the appellant. There is no "common form statute" applicable to the present appeal which must therefore be taken to be governed by the common law rules as to the granting of new trials. These were expressed in Stokes v. The Queen (1960) 105 C.L R. 279 at pp.284-285 as follows "In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered". This approach was endorsed by the Federal Court in Duff. To the extent that the appellant's grounds of appeal concern the admissibility of evidence or the way in which the trial was conducted, there is no difficulty in applying this test and reaching a conclusion that any error in this respect could not reasonably be supposed to have influenced the result. A consideration of the evidence, to some of which we shall refer, leaves one in no doubt about the strength of the Crown case against the appellant Insofar as the appellant ern Ma we te ee a ee ee ee complains of the learned trial Judge's refusal to grant him an adjournment, the admission of evidence regarding heroin and the testimony of Mr. Fabro, we are satisfied that no miscarriage of justice occurred. But the strength of the Crown's case against the appellant involved to a crucial extent the evidence of the co-conspirators. The question which we think is raised by this apnveal is -in considering whether a miscarriage of justice may have occurred, is it appropriate to look at the entirety of the evidence or must there in any event be substantial corroboration of that evidence in respect of which a warning was called for? It seems to us that in the matter of corrob- oration of the evidence of accomplices special rules have emerged, whether or not the "common form statute" is present. It is not enough to look at the evidence in general; it is only if there was in fact ample or substantial corroboration that it can be proper to consider whether a miscarriage of justice has occurred. That approach is dictated directly by Davies and indirectly by Kelleher. See also the recent decision of the Court of Criminal Appeal in Western Australia in Mederaft v. R. (1982) W.A.R. 33. Because there are grounds of appeal that go beyond the issue of corroboration,we propose to look at the evidence in general and then with particular reference to the matter of corroboration. Evidence of co-conspirators There is no doubt that the evidence of Rombouts, Rautoka and Collins heavily implicated the appellant in transactions relating to cannabis, including the preparation, supply and sale of that drug. There is little doubt too that the evidence of those witnesses demonstrated an agreement on the part of those named in the conspiracy indictment to join together in the commission of an offence viz. the selling of cannabis. Collins gave evidence that between September and November 1981 Rombouts obtained supplies ef cannabis from the appellant, that the cannabis was in small bags, and that on occasions the appellant and Chidwick brought con- signments from Darwin to Tennant Creek, usually in quantities of 50 bags. She recalled five or six visits by the appellant to see Rombouts in Tennant Creek for this purpose. When Rombouts sold the cannabis he would either wire the money to the appellant or wait until the next visit. She also gave evidence of journeys made with Rombouts from Tennant Creek to Howard Springs where the appellant was living and that on one occasion on their arrival the appellant was making up sticks of cannabis, some of which Rombouts and she took back to Tennant Creek On the occasions the appellant visited Tennant Creek he was either on his own or in company with Chidwick. Collins also gave evidence of the delivery by the appellant to the flat in Tennant Creek, where she and Rombouts were living, of sachets of hashish oil for each of which the appellant was to be paid $30. ee ee ee ee ee ee - -erle | ee nat Rautoka gave evidence that he met the appellant and Chidwick about 18 months earlier, that he was introduced to them because he was looking for cannabis and that they or one or other of them gave him, on credit, 10 or 20 bags of marihuana The arrangement was that Rautoka was to pay the appellant and Chidwick $30 for each bag of cannabis sold. Rautoka saw the appellant on a number of occasions thereafter; he got more cannabis from the appellant and Chidwick, and from time to time he paid the appellant or Chidwick for that cannabis. Sometimes he obtained the cannabis while at work; on other occasions he drove to Howard Springs where the appellant was living in a caravan and there picked up bags of marihuana for which he later paid the appellant. When Rautoka first met the appellant he (Rautoka) was living at Nightcliff. Later Rautoka moved to Bees Creek and while there he introduced the appellant and Chidwick to Rombouts. According to Rautoka, he had been supplying Rombouts with marihuana but Rombcuts required rore than he was able to deliver so in the end he introduced him to the appellant. On the occasion that has already been mentioned, when the appellant produced heroin at a unit in Darwin, Rombouts apparently obtained cannabis from the appellant. The arrangement between Rautoka and the appellant was that the former gave the latter $30 for each bag of cannabis he sold, retaining any profit for himself. While he was living in Darwin, Rautoka worked for Burns Philp & Co. Ltd. He spoke of occasions when the ne ae appellant saw him at work, either to drop off bags of cannabis or to collect money or both. Rautoka also spoke of getting hashish oil from the appellant and from Chidwick for which again he paid at the rate of $30 a sachet when sold. Rautoka gave evidence of a trip made during Easter 1981 by him and the appellant. They drove to Elizabeth near, Adelaide and to a house where the appellant gave a man money. After the appellant and Rautoka left the house a man came up to them with a bag which he threw into the boot of the car and drove off. The bag contained marihuana. The appellant and Rautoka then drove back to Darwin and went to Rautoka's mother's place and made up bags of cannabis to sell. Again the arrangement was that the appellant supply Rautoka with cannabis on credit. Rautoka also gave evidence that just before he was arrested he obtained cannabis from the appellant in the form of "bullets", under the usual arrange- ment for credit except this time he was to pay the appellant $12 for each bullet, retaining any profit he made. Rautoka's evidence was that when he obtained cannabis from the appellant's premises at Howard Springs, sometimes it would be from the caravan in which the appellant was living and sometimes from a shed nearby. Rombouts' evidence was that he came to the Territory in 1978 and went to Tennant Creek. In 1979 he met Collins with whom he formed a de facto relationship. Over a time he obtained supplies of cannabis from Rautoka and then was introduced by Rautoka to the appellant and Chidwick. The appellant came to Tennant Creek and met Rombouts who paid him for the 20 bags of cannabis handed over at the unit in the Esplanade Lodge. The appellant dropped off about another 50 bags. Again the arrangement was that Rombouts would sell the cannabis and then pay the appellant a fixed price, keeping the balance for himself. The appellant, either by himself or with Chidwick or with Rautoka, came to Tennant Creek six or eight times to provide Rombouts with cannabis. It was in quantities of 50 to 100 bags. According to Rombouts, over a period of ten months or so he was dealing with the appellant and Chidwick, he sold on their behalf approximately 1,000 bags of cannabis. On one occasion Rombouts received a telegram which read "ring 81-8877 urgent Ross". On receipt of that telegram which he tendered in evidence, Rombouts rang the telephone number and spoke to the appellant who was concerned whether money due to him from the sale of cannabis had been sent to him. Rombouts spoke of an occasion when he went to the appellant's premises in Howard Springs where they weighed a pound of cannabis for which Rombouts was to pay the appellant $1,000 on credit. Rombouts also gave evidence of obtaining hash or hashish oil from the appellant under an arrangement by which he (Rombouts) sold each block of hash for $35, keeping $5 for himself and paying $30 to the appellant. Rombouts testified that when he visited the appellant at Howard Springs cannabis was taken from a black cylinder or drum which was kept in the caravan. While it would be unreal to expect anything in the nature of a skilful cross-examination of any of these witnesses by the appellant, it is fair to comment that such questions as the appellant asked scarcely carried any challenge to the principal tenor of the evidence of Collins, Rautoka and Rombouts that there was an arrangement whereby the appellant and Chidwick supplied Rautoka and Rombouts with cannabis on credit. Still, absence of cross-examination is no corroboration of that witness' evidence. Independent evidence The appellant called as part of his case Leon Francis Clancey, one of those named in the con- spiracy indictment but against whom a nolle prosequi was entered in respect of that charge. Since Clancey was called by the appellant a direction regarding corroboration may not have been required, though it was desirable. See Cross on Evidence 2nd Aust. ed. 9.17. In cross-examination Clancey was referred to a record of his interview with police officers, the import of which was that he had gone to the appellant's place with Rombouts who there obtained from the appellant a quantity of cannabis. The Crown also relied upon other evidence said to link the appellant with commercial transactions involving cannabis. In part this related to statements made by the appellant to police officers which, it was said, had been shown to be false. There was for instance a statement made by the appellant to Det. Sgt Taylor on 14 May 1981. When asked whether he had been to Adelaide since a visit some six months earlier to buy a car, the appellant answered no. Yet there was evidence to support Rautoka's account of a journey with the appellant to Adelaide at Easter. Constable Jeffs gave evidence that on Friday 17 April 1981, while on highway patrol north of Alice Springs, he stopped a Datsun sedan registered N.T. 19861 travelling south to Alice Springs. This vehicle had earlier been identified by Rautoka as belonging to him and as the vehicle in which he and the appellant drove to Adelaide. Constable Jeffs said that he spoke to the driver (whom he identified in Court as the appellant) because he was not wearing a seat belt. The driver identified himself as Ross John McIntyre of Lot G Westall Road, Howard Springs, stating that he was a butcher working for Boros Meats and was "on route to Adelaide on holidays". The police officer described the other person in the vehicle as "either of Aboriginal descent or a coloured race". It is apparent that Rautoka answered that description. When Det. Sgt. Taylor interviewed the appellant on 14 May 1981, he asked him whether he had ever met anyone named Koos Rombouts and the appellant answered "Never heard of him". Asked whether he knew other people who lived on the block where he lived, the appellant answered "No. I keep pretty much to myself". Yet Rautoka was one of those who lived on the block. There was evidence from police officers that they found traces of cannabis in the appellant's caravan, in a drum on the appellant's premises, and in a vehicle belonging to him. In his unsworn statement to the jury the appellant expressly denied by specific references that he was guilty of the conspiracy charge. He made no such denial in relation to the three other charges. He admitted that the police found a small bottle of cannabis seeds on his premises but said thet plants were used by his wife, who was Asian, in her cooking. Incidentally it is apparent from his statement that the appellant did know Rombouts and Rautoka. The Crown did not direct this Court to any other evidence that might constitute corroboration of the testimony of the co-conspirators. Indeed the Crown did not direct the Court's attention to any such evidence nor did it argue that corroboration existed. Conclusion Reference has already been made to the passage from the judgment of the Court of Criminal Appeal in R. v. Baskerville that identifies evidence in corroboration as "independent testimony which affects the accused hy oN connecting or tending to connect him with the crime" with which he is charged. The appellant was charged with four offences. In arguing this appeal, neither counsel for the appellant nor counsel for the respondent sought to draw any relevant distinction between the charge of conspiracy on the one hand and the charges of preparing, supplying and selling cannabis on the other. For the purpose of determining the sufficiency of independent testimony connecting the appellant with the charges, it is however necessary in our opinion to differentiate between those under the Prohibited Drugs Act and that of conspiracy. At the appellant's trial there was certainly independent testimony that linked the appellant with possession of cannabis. But that was not an offence with which he was charged. He was charged with the preparation, supply and sale of cannabis and principally with being part of a conspiracy to sell that drug. In our view there was sufficient independent ewidence connecting or tending to connect the appellant with the three offences under the Prohibited Drugs Act. Clancey's replies in cross-examination were vague, perhaps deliberately so, but they did link the appellant with the supply to Rombouts at Howard Springs of a considerable quantity of cannabis. The jury would be justified in drawing the inference that the supply was a commercial transaction. The appellant's denial of knowing Rombouts or Rautoka was, once rejected by the jury, capable of corroborating the evidence of those witnesses that they knew the appellant. The appellant's denial of a wisit to Adelaide around Easter 1981, once accepted as false, was corroboration of Rautoka's evidence that such a visit took place. There was in our opinion sufficient corroboration in the evidence of Clancey and in the evidence of the polace officers to conclude that no miscarriage of justice occurred so far as the three charges under the Prohibited Drugs Act are concerned. We are not satisfied that there was, in Clancey's evidence or otherwise, sufficient corroboration of the evidence of Collins, Rombouts and Rautoka implicating the appellant in the conspiracy charge. In particular Clancey's evidence was in our opinion inadequate to link the appellant with a joint enterprise of reselling the cannabis bought from him at Howard Springs by Rombouts. The strength of the Crown case lay mainly in the evidence of those three witnesses and, once it is accepted that the learned trial judge was bound to direct the jury that it was dangerous to convict the appellant upon that evidence unless it was corroborated, and once it is accepted that there was no sufficient corroboration of that evidence, it is not possible to say that no miscarriage of justice occurred. Or, put another way, it is not possible in the circumstances to say that the absence of a warning could not reasonably be supposed to have influenced the result of the trial on this charge. In the result, the verdict of the jury on the charge of conspiracy must be set aside and the conviction of the appellant on that charge quashed and a new trial ordered. Otherwise this appeal is dismissed. I certify that this and the thirtytwo preceding pages are a true copy of the Reasons for Judgment herein of thezr Honours Mr. Justice Toohey and Mr. Justice Fisher 21 December 1982 ° Marian M. Podobnik Associate