New South Wales Court of Criminal Appeal CITATION : R v Watson [1999] NSWCCA 417 FILE NUMBER(S) : CCA 60732/98 HEARING DATE(S) : 7 September 1999 JUDGMENT DATE : 21 December 1999 PARTIES : Regina (respondent) Peter Malcolm Watson (appellant) JUDGMENT OF : Newman J at 1; Simpson J at 63; Hidden J at 63 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/11/0443 LOWER COURT JUDICIAL OFFICER : Mahoney DCJ COUNSEL : L M B Lamprati (Crown) J C Papayanni (appellant) SOLICITORS : Director of Public Prosecutions (Crown) Jeffreys & Associates (appellant) CATCHWORDS : CRIMINAL LAW - supply of amphetamines - adequacy of directions on joint enterprise - no question of principle ACTS CITED : Drug Misuse & Trafficking Act 1985 R v Tangye (1997) A Crim R 545 CASES CITED: R v Bulejcik v R (1994-5) 185 CLR 375 R v Smith [1984] 1 NSWLR 462 DECISION : Appeal allowed by majority; New trial ordered IN THE COURT OF CRIMINAL APPEAL 60732/98 NEWMAN J SIMPSON J HIDDEN J TUESDAY, 21 DECEMBER 1999 REGINA v Peter Malcolm WATSON JUDGMENT 1 NEWMAN J: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was originally indicted on two counts before the District Court. The first count was a charge that the applicant had supplied a prohibited drug not less than a large commercial quantity, the drug being methylamphetamine. The second being framed in the alternative being an allegation that he supplied a prohibited drug not less than a commercial quantity, the drug being the same. 2 In the event the jury found him guilty of the alternative count while not guilty of the first count. 3 The learned trial judge sentenced him to a minimum term of six years and an additional term of two years. The maximum penalty for the alternative count pursuant to s 25(2)/33(3) of the Drug Misuse and Trafficking Act 1985, is imprisonment for twenty years or a fine of 3,500 penalty units or both. 4 The Crown case may be summarised as follows: 5 An undercover police operation was initiated at the beginning of 1992. During this operation an undercover police operative who was known as "Neil Davies" approached the appellant's co-accused Dick Garner in relation to a purchase of a quantity of methylamphetamine. He met Garner in February 1992. Between February and 30 April that year Davies had several conversations (both in person and over the telephone) with Garner about purchasing drugs. The police obtained warrants to tape Garner's phone line at 1101 Alamein Avenue, North Albury. The telephone conversations between Garner and the appellant, as well as conversations between Garner and Davies were recorded by a telephone intercept and six of those tapes were tendered at trial. 6 In a conversation which took place on 1 May 1992 and was recorded on tape, Davies inquired about buying some "speed" and Garner responded that he would need "12 and a half" thousand dollars for a pound and added "you want three" meaning three pounds of speed. In another conversation on 3 May 1992, which was recorded on tape, Garner referred to the purchase price for three pounds, that is $37,500. The transaction was to take place on Wednesday, 6 May 1992. 7 On 5 May 1992 the appellant was observed in the Oak Hotel in the Albury area by Sergeant Ramsey, who also noted the presence of a red Corvette in front of the hotel. He heard the appellant being addressed as "Windy". 8 Davies gave evidence that on 6 May 1992 he went to the Wagga Wagga area where he met other police and was fitted with a listening device and a recording device. He was accompanied by another undercover operative "Tony Romano". At about 3.40 pm the two officers drove to Garner's premises at 1101 Alamein Avenue, North Albury in a red Holden Commodore. Once they arrived Davies met with Garner and went inside the house. He was taken to the bedroom and given a small bag containing white powder that served as a sample. 9 A short while later, both Davies and Garner were observed leaving the house and driving off in Davies' red Holden Commodore. While in the vehicle Davies showed the $37,500 to Garner, who then telephoned someone from Davies' mobile phone and handed the phone to Davies. Davies then had a conversation with a male person whose voice he was unable to identify. That conversation was also recorded, however only the voice of the undercover operative was audible. The mini audio tape of those conversations was tendered. 10 Observations at 313 Olive Street, South Albury commenced at about 2.45 pm on 6 May 1992. Snr Const Jones noticed the appellant standing in the driveway wearing a short sleeved black T-short and blue denim jeans. At 4.12 pm Det Sgt Cook who was conducting surveillance duties, observed a beige Statesman pull up opposite the house. Garner exited the car and entered the premises. At 4.30 pm a brown Ford sedan pulled into the driveway and a male person wearing a blue flanellette checked shirt and blue jeans came out of it and entered the premises. At around 4.50 pm the appellant and an unidentified male person came out of the house and entered the Ford and drive off in a southerly direction. The car was seen by Snr Const Gray driving into the bushland south of Olive Street. 11 Around 5.45 pm the brown Ford returned to Olive Street. The appellant and the unidentified male left the car and were joined by Garner. They went to the rear of the Ford sedan and the unidentified male walked towards the house and out of view. Const Walker gave evidence that he observed the appellant handing something to Garner, but conceded in cross-examination that he did not see Garner holding it when he was crossing the street. Snr Const Jones saw Garner returning to his car, which was parked opposite the premises at 313 Olive Street carrying a package. He described the package as "approximately the size of a house brick and … light in colour". This evidence was corroborated by Snr Const Gray. 12 Before starting the car Garner appeared to be interfering with the inside of the car door. He then drove his beige Statesman in a northerly direction. The car was followed to Alamein Avenue, North Albury, at which point Sgt Cook returned to 313 Olive Street. He noticed that the premises were in darkness and that both the red Corvette and the brown Ford were gone. Cook also gave evidence that at around 6.45 pm other police officers arrived at the scene. They conducted a search of the premises. At the time there was no one at home. 13 The observations made by the police officers who were involved in the surveillance operation were recorded in a "surveillance log", which was not able to be located at the time of the trial. 14 At about 5.52 pm on that day Davies received another call on his mobile phone from a male person who told him, "Dick's coming back with it now". At about 6 pm he returned to Garner's house, walked out of the car and went down the driveway where he observed Garner ducking down next to the boot of his beige Holden Statesman. Davies was handed a large clear plastic bag containing white powder, which Garner produced from the boot of his car. 15 At that point police officers attended the scene at Alamein Avenue and arrested Garner and the two undercover operatives. A search warrant was executed. Sgt Leckey took photographs of the inside of the Statesman where some traces of the white powder could still be seen near the kick plate of the driver's side and also beside the driver's side of the driver's seat. Snr Const Thompson, the exhibits officer, took possession of a big plastic bag containing white powder and took it to the Albury police station where the white powder was weighed, recorded and labelled. 16 On 11 May 1992 the powder was analysed and found to weigh 441 grams. A fingerprint examination was also conducted, but no identifiable fingerprints were found on the plastic bags. 17 On 11 February 1993 Det Snr Const Cole and Det Snr Const MacDonald, two officers from the Victorian Drug Squad, came to Sydney and were taken to the Telephone Intercept Unit of Sydney Police by Det Sgt Ramsey. These officers were asked to listen to the cassettes and identify any of the voices and in particular the voice of the appellant. They were able to recognise the voice of the appellant on four of those tapes. The transcripts of these tapes were tendered as exhibits. 18 Both MacDonald and Cole had spoken to the appellant on several occasions prior to February 1993. In his evidence MacDonald said that the subsequent contact with the appellant "reinforced to me that may identification of his voice on those tapes was correct." During cross-examination he described the appellant's voice as "a deep guttural type voice". In the course of cross-examination Cole characterised the voice as "sort of a dull sort of deep voice". Ramsey had listened to the tapes as well, however in cross-examination he conceded that he could not identify the voice of the appellant on them, despite the fact that he had heard him speak on 5 May 1992 at the Oak Hotel. 19 In 1993 the appellant was extradicted from Victoria and brought to Sydney by Snr Const Bradley. He was then charged with the abovementioned offences. 20 In response the appellant made an unsword statement and called no other evidence. In his statement he said: "I am not guilty of this charge. On 5 May I left Melbourne to go to Sydney to a party. On the way I picked up Brian Gibbons from Olive Street. We stopped at a hotel on the way, went to Sydney. The next morning, on 6 May, we left Sydney, returned back to Albury. When we returned, we had some sleep, then had a barbecue in the afternoon. After that, I left Albury and went back to Melbourne. At no stage did I hand a parcel to anyone. I knew Garner through Brian Gibbons, I was introduced by him. My wife's family are from Albury. I work for John Bell, and everything he said was true. And I ask of you to find me not guilty. Because I am not guilty. Thank you." 21 The appellant raised seven grounds of appeal. I shall deal with them seriatim. Ground 1: The trial judge erred in law in misdirecting and/or failing to direct the jury adequately or properly as to the essential ingredients of the offence. Ground 3: His Honour erred in law in failing to direct the jury adequately or properly as to (a) common purpose; (b) joint enterprise; (c) the ordinary meaning of "supply"; (d) the evidence relied upon by the Crown as to supply (e) the facts upon which certain inferences set out on pp 31-32 were to be made. 22 It is because of some inter-weaving of submissions that it is convenient to deal with these grounds together. 23 To assist the jury his Honour had prepared a document entitled "Essential Elements" which he distributed to the jury. The document encompassed both counts in the indictment. It was in the following form: "'SUPPLY' - can mean either offering to supply or agreeing to supply as well as actual suppling . UNDER COUNT #1: 1. Time and place of the alleged offence. 2. Identify of the offender. 3. Correct name of the white powder (methylampheramine). 4. Existence of an agreement to supply that white powder to Neil Davies. 5. The weight of the powder which the offender agreed to supply was one kilogram more. ALTERNATIVELY UNDER COUNT #2: 1, 2 and 3. The same as for Count #1. 4. An actual supply of that white powder to Neil Davies. 5. The weight of the white powder actually supplied to Neil Davies was 441 grams. BY OPERATION OF LAW UNDER COUNT #2: If not satisfied beyond reasonable doubt that the weight of the powder actually supplied was 441 grams but satisfied beyond reasonable doubt that it weighed 250 grams or more then guilty on the alternative basis under Count #2." 24 It was submitted that his Honour failed to give a clear direction in relation to count 2 in the manner in which the concepts of common purpose and/or joint enterprise could apply or in which way either of these concepts could apply. 25 Reliance was placed upon what had fallen from Hunt CJ at CL in R v Tangye (1997) 92 A Crim R 545 at 556. There his Honour said: "The Crown needs to rely upon a straightforward joint criminal enterprise only where - as in the present case - it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, See, for example: Stokes (1990) 51 A Crim R 25 at 35-37; Clough (1992) 28 NSWLR 396 at 400, and it is a pity that in many trials no heed is taken of what has been said. So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amount to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The present of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission." 26 It was submitted that there was no presence of the appellant and no evidence of any agreement. 27 His Honour in directing the jury as to inferences upon which the Crown relied said: "One of them is that Garner and the accused, Mr Watson, were involved in a joint enterprise, namely having this common purpose, to supply the speed. You might say to yourselves 'Well, that's a serious allegation to make. Why can't we have any better evidence than just drawing an inference?' You use your common sense again. If it be the case that they were partners in this common enterprise you might say to yourself 'It might be pretty hard, actually, to get direct evidence of it', so the Crown says it is asking you to draw the inference that they were in this group of at least two to carry on this sort of activity." 28 His Honour, earlier in his summing up, had directed the jury in terms of the burden of proof relating to the second count as follows: "If the Crown has proved beyond reasonable doubt the first four essential elements under the second count but not the fifth but you are satisfied beyond reasonable doubt that the weight of the powder was two hundred and fifty grams or more then he is guilty under the second count, so that if you find him not guilty under the first count you turn to the second count. If the Crown proves the five essential elements under the second count the answer is guilty." 29 His Honour had also directed the jury in terms of how they should deal with the various elements as follows: "… go back and work on what you might regard as the more substantial matters in dispute between the accused and the Crown such as whether or not Watson is tied up in this, namely essential element number two. Also, whether or not there was a common purpose or a joint enterprise between Watson and Garner. In other words essential element number four." 30 He also directed the jury: "The Crown asks you to say if you accept that, if you come to that conclusion it is part and parcel or hand in glove with that proposition that Garner, in collecting the bag of white powder from Mr Watson at Olive Street, did so, as the lawyers say, in furtherance of a common purpose or as we might say in every day language as part and parcel of his joint enterprise or common purpose with the accused, and the Crown is saying to you, in effect they want a conviction. They want you to be satisfied beyond reasonable doubt of the essential elements in the particular charge they are relying on and they are saying that the net effect of that is they want you to be satisfied beyond reasonable doubt that Watson and Garner, and there might have been others, but Watson and Garner certainly, had this - if I can use the every day expression - had this thing going about the supply of speed, and on 6 May they took a particular step to get hold of it to give it from Watson to Garner and for Garner then to give it to Davies in the expectation that he was going to get twelve and a half thousand dollars there and then, back at Alamein Avenue." 31 It must be borne in mind that in Tangye, Hunt CJ at CL commenced his analysis of what needs to be said to the jury in directions concerning joint criminal enterprise by stating that the Crown needs to rely upon a straightforward joint criminal enterprise when it cannot establish, beyond reasonable doubt, that the appellant was the person who physically committed the offence charged. 32 His Honour in his directions clearly indicated that the Crown needed to prove, beyond reasonable doubt, that for the appellant to be convicted the Crown must establish that it was he who had handed the subject package to Garner and that Garner, in turn, handed it to Davies. 33 In these circumstances his Honour did not err in failing either to direct the jury as to essential elements of the offence or in the relevant sense as to the concepts of common purpose or joint enterprise. 34 In relation to the question of supply his Honour adverted to the definition contained in the document entitled "Essential Elements" and reminded the jury that supply could either mean offer to supply or agreeing to supply as well as actually suppling something. 35 In the circumstance in this case I am of the view such a direction was entirely adequate and his Honour did not fall into error. Accordingly I am of the view that the appellant has failed to make out grounds 1 and 3. Ground 2: (a) His Honour erred in admitting into evidence all or certain of the audio tapes - Ex D (telephone intercepts) and Ex G (listening device tapes) (b) His Honour erred in failing to direct adequately or properly as to the tapes Ex D and Ex G. 36 Here it was submitted that evidence given by two policemen purporting to identify the voice of the appellant failed to establish: (a) that they were sufficiently familiar with the appellant's voice; (b) failed to identify any distinctive features of the voice recorded on the subject tapes; and (c) that too long a lapse of time had occurred between the last time either officer had heard the appellant's voice and the time when they listened to the subject recording. 37 In Bulejcik v R (1994-95) 185 CLR 375 McHugh and Gummow JJ observed at 405-406: "Since Smith, courts in New South Wales have held that evidence of voice identification is admissible only when the witness is very familiar with the voice or the voice of the accused is very distinctive. R v Brownlowe (1986) 7 NSWLR 461 at 466; R v Corke (1989) 41 A Crim R 292 at 296; R v Brotherton (1992) 29 NSWLR 95. 38 In R v Smith, [1984] 1 NSWLR 462 at 477, O'Brien CJ Cr Div said: "evidence of the voice of a person present at a crime as being the same as the voice of the accused can only amount to positive identification where the witness is very familiar with the voice before hearing it at the crime, or that the voice heard at the crime was very distinctive, which means that the witness need not have heard the voice before the crime but heard it as the voice of the accused for the first time after the crime and then noted it to have the same very distinctive features as had the voice at the crime." 39 In my view his Honour in finding that the police had an adequate familiarity with the appellant's voice did not fall into error. Not only that, in two of the conversations recorded the person whom the Crown alleged to be the appellant made reference, on inquiry from the other person to the state of his father's health, this reference as it happens and was established in evidence, referred accurately to the state of health of the appellant's father at the relevant time. When this factor is coupled with the voice identification evidence given by two Victorian police officers there existed a situation in my view where sufficient identification of the subject voice had been made to enable the evidence to go before the jury. 40 The evidence was relevant because the subject conversations shows a preconcert between the parties to the conversations to commit the very offence with which the appellant was charged. This ground must also fail. Ground 4: His Honour erred in failing to put as an entity the Crown case and/or the defence case in respect of the second count. 41 It was alleged here that in the summing up his Honour failed to put the appellant's case as an entity. See R v Piazza (1997) 94 A Crim R 459. 42 The criticism involved his Honour's method in referring to the appellant's case when dealing with what he described as an overview of the appellant's case. The appellant had called no evidence but had made a statement from the dock in which he conceded an association with Garner but denied any involvement in the subject offence. 43 His Honour read that statement to the jury and identified the issue which it raised together with other challenges made to the Crown case in evidence. In my view his Honour put the defence case adequately to the jury. No complaint was made by counsel at the trial to the manner in which his Honour dealt with the appellant's case and on reading his Honour's summing up such absence of complaint does not surprise. In my view the appellant has failed to make out this ground. Ground 5: His Honour erred in law in misdirecting and failing to direct the jury adequately or properly and separately as to visual identification and voice identification. 44 It was submitted that his Honour failed to direct the jury in accordance with the High Court's decision in Bulejcik. It was submitted that his Honour failed to identify the jury's need to consider the distinction of the appellant's voice; the time which had elapsed between the last time the witnesses had heard the appellant speak prior to listening to the subject tapes; whether sufficient was heard for either witness to be familiar with the voice and other matters relating to the witnesses ability to identify the voice in question. 45 No such objection was taken at the trial. His Honour in directing the jury told them that they needed to take great care in dealing with the voice identification evidence. He told them that they needed to consider: - (a) how often the identifying witness had actually been exposed to the sound of the voice which he claimed to identify in the witness box; (b) how long it was since the witness had last heard the subject talking; (c) whether or not there was any particularly distinctive features in the voice that was being identified; (d) whether it was actually the sound of the voice that was being identified or whether the witness was in effect concentrating on the words being spoken. 46 In my view the directions given were adequate and that this ground also fails. Ground 6: The verdicts of the jury as to counts 1 and 2 were inconsistent. 47 Here it was put that the because the jury acquitted the appellant on the first count they must have found that there was no agreement as to the supply of the subject drug. However when one considers the Crown case it was open to the jury to find that they were not satisfied that the appellant was not a party to the agreement with Garner to supply 3 lbs of the subject drug. 48 However, it was also open to the jury to accept the evidence of Davies and the listening devices and surveillance evidence relating to the actual supply of the drug in question. That being so it was open to the jury to convict on count 2 while acquitting on count 1. Ground 7: There was a miscarriage of justice in that the verdict of the jury was not supported by the evidence and was unsafe and unsatisfactory. 49 This ground was propounded principally on the accumulative effect of the other six grounds. In view of the fact that none of those grounds have been made good this ground must also fail. 50 Accordingly the appeal against conviction in my view should be dismissed. Ground 8: Sentence 51 His Honour sentenced the appellant to a minimum term of six years with an additional term of two years. As I have already mentioned, the maximum penalty is a fine of 3,500 penalty units or imprisonment for twenty years or both. 52 The co-accused, Garner, had been sentenced by another judge for a charge which corresponded to the first count on the indictment presented against the appellant. Garner had received a sentence of five years constructed as to a minimum term of one and a half years and an additional term of three and a half years. 53 At the time of committing the subject offence the appellant was on bail in Victoria in relation to a charge of trafficking in drugs of dependence (including amphetamine). This, of course, is an aggravating feature of the offence and properly should be reflected in any sentence passed. 54 Garner, unlike the appellant, pleaded guilty and was thus entitled to receive leniency following such a plea. 55 Sentence statistics presented to this Court by the Crown indicate that the sentence passed by his Honour upon the appellant was a very high one indeed. 56 While his Honour in his remarks on sentence adverted to the need to take into account parity considerations between Garner and the appellant, the penalty in fact imposed upon the appellant is so far in excess of that imposed upon Garner for a more serious offence that, ex facie, principles of parity in sentencing as adumbrated in the High Court in R v Lowe (1984) CLR 606 per Mason CJ at 610 have been contravened. 57 However, as I have mentioned the fact that the appellant's offence was committed in circumstances of aggravation and the fact that Garner pleaded guilty are matters which should be taken into account in imposing a sentence upon the appellant. It must also be borne in mind that drug trafficking is an offence which does demand condign punishment. 58 The sentence imposed upon Garner even taking into account the most favourable of subjective circumstances is, ex facie, an extremely lenient one. So lenient that it should not be taken as a yard stick for the proper sentence to be imposed upon the appellant. 59 It must also be borne in mind that the appellant's part in the transaction in question was a significant one. It was he who brought the drug to Garner. 60 Even taking all these matters into account I am of the view that the sentence passed particularly having regard to the statistics provided to the court is too severe and thus error has been established. 61 For myself I am of the view that a head sentence of six years should be imposed consisting of a minimum term of four years six months and an additional term of eighteen months is appropriate in this case. 62 Accordingly I propose the following orders: 1. Application for leave to appeal granted. 2. Appeal upheld 3. Sentence imposed on 20 November 1998 quashed and in lieu thereof a sentence consisting of a minimum term of four years six months commencing from 20 November 1998 and expiring on 19 May 2003 when the appellant will be eligible for release on parole and an additional term of eighteen months commencing on 20 May 2003 and expiring on 19 November 2004. IN THE COURT OF CRIMINAL APPEAL 60732/98 NEWMAN J SIMPSON J HIDDEN J 21 December 1999 Regina v WATSON Judgment 63 SIMPSON & HIDDEN JJ: We have had the benefit of reading in draft the judgment of Newman J, in which the relevant facts are set out. 64 We are unable to agree with his Honour's disposition of grounds one and three (pars 22 ff of the judgment). The document supplied to the jury, setting out the essential elements of each offence, is reproduced at paragraph 23. It refers to an agreement (between the appellant and Garner) to supply in relation to the first count. However, there is no reference to any such agreement, or to any common purpose or joint enterprise between them, in relation to the second count. Clearly, the existence of a joint enterprise was an essential element of the case against the appellant on that count. 65 It is not clear whether the passage from the summing-up quoted in par 27 of the judgment of Newman J refers to the first count, the second count or both. It must be said that his Honour's directions tended at times to blur the distinction between them. What is clear is that the passage set out at par 29 was referable only to the first count. 66 It is true that the next passage quoted (at par 30) correctly expresses the basis of the appellant's liability for the second count, albeit somewhat laconically. The problem remains that the notion of joint enterprise did not find its way into the written outline of directions, which the jury had with them in the jury room. In those circumstances, we could have no confidence that the jury were aware of all the elements necessary to establish that offence. It must not be forgotten that it was the second count of which the appellant was found guilty. 67 It may be that there was abundant evidence from which the jury could have found joint enterprise in relation to that count. However, as it was not referred to in the written directions, it cannot be said that there was no substantial miscarriage of justice. We would allow the appeal and order a new trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.