New South Wales Court of Criminal Appeal CITATION: Mouroufas v R [2007] NSWCCA 58 HEARING DATE(S): 27/02/2007 JUDGMENT DATE: 9 March 2007 JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 3 DECISION: Appeal upheld, conviction and sentence quashed. New trial to be held. CATCHWORDS: Conviction appeal - whether an "identification" direction required under s116 and 165 of the Evidence Act 1995 - appellant's counsel elicited evidence of the whole of the appellant's criminal record - whether unfairness resulted - whether any rational or reasonable explanation for eliciting this evidence - miscarriage of justice - whether "cultivation of not less than the commercial quantity of plants" requires the actual handling of that number of plants by an offender for the element of the offence to be made out. Criminal Appeal Rules 1912 LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Ali v The Queen (2005) 214 ALR 1 Dawson v The Queen (1961) 106 CLR 1 at 16 Dhanhoa v The Queen (2003) 217 CLR 1 Hall v Braybrook (1955) 95 CLR 620 at 629 Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514 Nudd v The Queen (2006) 225 ALR 161 CASES CITED: R v Bruno (CCA unreported, 19 June 1997) R v Demiroz [2003] NSWCCA 146 at [63] R v Giorgi and Romeo (1981) 7 A Crim R 305 R v Miletic (1977) 1 VR 593 Regina v Ruiz Avila [2003] NSWCCA 264 Seymour v R [2006] NSWCCA 206 TKWJ v The Queen (2002) 212 CLR 124 Wilde v The Queen (1988) 164 CLR 365 at 371-372 PARTIES: Jim Mouroufas - Appellant Crown - Respondent FILE NUMBER(S): CCA 2344/2006 COUNSEL: Ms A Francis - Appellant Mr P Barrett - Respondent Crown SOLICITORS: S O'Connor, Solicitor for Legal Aid Commission - Appellant S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0974 LOWER COURT JUDICIAL OFFICER: Hock DCJ LOWER COURT DATE OF DECISION: 12/01/2007 IN THE COURT OF CRIMINAL APPEAL 2344/2006 SULLY J BELL J HOEBEN J Friday 9 March 2007 Jim MOUROUFAS v REGINA Judgment 1 SULLY J: I agree with Hoeben J. 2 BELL J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence Between 28 November and 15 December 2005 the appellant stood trial with one Michael Nicolitsi before a judge and jury. On 15 December 2005 he was convicted of the offence that between 30 March and 7 April 2004 at Narrabri he did cultivate a number of prohibited plants, namely cannabis, which was not less than the commercial quantity applicable to that plant, namely 250 plants, contrary to s23(2)(A) of the Drug Misuse and Trafficking Act, 1985. 4 That offence carried a maximum penalty of 15 years imprisonment. On 10 March 2006 Hock DCJ sentenced the appellant to imprisonment with a non-parole period of 2 years commencing on 15 December 2005 and expiring on 14 December 2007 with a balance of term of 2 years to expire on 14 December 2009. The appellant has appealed from the conviction and from the sentence. Factual background 5 On 8 April 2004 police attended a property called "Valala" near Narrabri where they discovered a large cannabis plantation. A number of people were arrested on the site. The appellant was subsequently identified as a worker who had been on the property. He had come from Adelaide and had returned before the police raid. The total weight of cannabis collected from the property was approximately 2,700 kilograms. The evidence established that the growing area was divided into three crop sites, A, B and C. 6 The Crown case against the appellant relied upon the evidence of Saverio Multari and Penny Loisos, both of whom had been involved in the cultivation activity and both of whom had provided induced statements to the police. Both Ms Loisos and Mr Multari were sentenced on 4 February 2005, having entered a plea of guilty to one charge of knowingly take part in the cultivation of a prohibited plant being cannabis not less than the commercial quantity. Both were given a 60% discount for the plea of guilty and assistance to the authorities and they both signed an undertaking to give evidence against co-accused persons including the appellant. Ms Loisos received a 2 year suspended sentence and Mr Multari was sentenced to imprisonment with a non-parole period of 10 months and a balance of term of 1 year and 11 months. 7 The Crown called evidence from Qantas and Virgin Blue to demonstrate that the appellant and his son-in-law had flown from Adelaide to Sydney on 31 March 2004 and had flown from Sydney to Adelaide on 6 April 2004. After his arrest the appellant provided a buccal swab and fingerprints to the police but there was no match of DNA or fingerprints with anything obtained from the crop site. 8 On 21 January 2005 Mr Multari took part in a photo identification process and identified photograph 14 as being "Jim from Adelaide". Ms Loisos took part in a photo identification process on 24 January 2005 and she also identified the person in photograph 14 as being on the property and said "I think his name was Con from Adelaide". It was common ground that there was a person by the name of Con Spilotopoulos arrested on the property on 8 April 2004. 9 In her evidence Penny Loisos admitted that she did not tell the truth to police just after she was arrested because she was scared for her family and for other reasons. She gave evidence that she first went to the property in February 2004. At the time she was in a relationship with Bill Karagiannis, one of the co-accused, and had been in that relationship for 16 years. It was her job to prepare the meals, wash up and wash everyone's clothes. She said that about one or two weeks before being arrested, she met four new people at the property who said they were from South Australia. One of them was called Jim. She said that the person Jim (the appellant) arrived at the property with his son-in-law in a four wheel drive. The next morning they got up like everyone else and went to work at the crop site. The same day or the next day she saw Jim at the crop site. He was in the smaller of the two sheds, sitting on a chair with scissors, clipping the heads of the stem of the marijuana. She watched him do this for about five or ten minutes. She saw him doing this same job on two or three occasions. He was sitting down with scissors in his hand and clipping the buds and putting them in a bucket. 10 Ms Loisos remembered an occasion when she had a conversation with Jim. She said: "What is wrong. Why are you in the house?" He replied "I have a sore back". Ms Loisos said that he was in the house with her for about a day and a half. She said that shortly afterwards Jim and his son-in-law left the property one evening with Mr Nicolitsi. 11 Saverio Multari gave evidence. He said that as part of his duties he was required to count the plants in crop site C. He counted over 550 plants. He said that crop site A was about four times bigger than crop site C and that crop site B was about twice the size of crop site C. 12 Mr Multari said that in late March he met "Jim" and another person called "Michael". When he saw Jim and Michael they were working in the crop B shed sitting a few metres from where he was. He said that he saw Jim cutting the large bits of marijuana plants down into smaller pieces before they got dried. He was using scissors. He said that he was no more than two or three metres from him. 13 Mr Multari said he spoke to Jim on the first occasion he met him and knew he was Greek. He saw Jim working outside the shed for two or three hours cutting off branches. On the second or third day after Jim had arrived he disappeared one day after lunch. That night Jim complained to him about his back being sore. The next day Jim stayed at the house all day. 14 The appellant gave evidence that he worked as a qualified mechanic until he suffered a back injury when he was 22 or 23 and had suffered from that disability thereafter. He said that he drank alcohol socially and enjoyed smoking marijuana. He smoked at night to help sleep. He bought it from other people or sometimes was given it. He also tried to grow it in his backyard because he could not afford to buy it on the street. 15 The appellant said that he met a person in a club who told him about a short term job in the bush which would pay well. His son-in-law, Michael Romeo, was interested in going as well. The appellant was told that the job was for a couple of weeks, that the money was good and that he was not supposed to talk about it. The appellant said that it crossed his mind that the job might involve something illegal. 16 When the appellant confirmed with the person at the club that he and his son-in-law would be able to start the job, he was given $500 to buy airline tickets. He was told to go to a certain address when he arrived in Sydney. After he purchased the tickets he said to his son-in-law that he suspected that it could be an illegal job "like cannabis". He thought that it would be on a small scale with only a few plants. He had no idea how large the operation was at the time. 17 On their arrival in Sydney they were taken by four wheel drive to the property. He was told that they would be paid $5,000 each per week for working on the property. They arrived just before dark so that the appellant saw a house and surrounding area, but did not see any marijuana plants. Inside the house he met Penny Loisos and a number of other people. 18 The appellant's evidence was that the following day he was taken to the crop site. He saw the extent of the plants which were growing and the sheds where the cannabis was drying. The appellant was surprised because the operation was a lot bigger than he expected. He said he was frightened because of the trouble he could get into. 19 The appellant said that he feared for his safety as there may have been weapons and it would be almost impossible to leave. He thought he might get hurt trying to escape and he was fearful of a big gaol term. Because he did not want to participate in the operation, he decided to fake a bad back. When he got back to the house that evening, he asked Ms Loisos for pain killers and that night and the following day continued to fake having a bad back. The next day he stayed in the house with Ms Loisos and watched television. 20 The appellant said that the next day he again stayed at the house and faked a back injury. Occasionally he limped around outside. His evidence was that he did not in any way participate in the activities being carried on at the property. The appellant continued to feign a back injury until a car arrived and he was taken back to Sydney with his son-in-law. 21 In the course of his evidence in chief, the appellant was shown a record of his convictions by his own counsel. He was then taken through that record and gave evidence about all of the offences on it. The record comprised the following matters. A plea of guilty to one count of possess a controlled substance for supply and one count of producing a controlled substance. That matter was listed for sentence on 17 January 2006. The appellant had also pleaded guilty to other offences involving the growing of 15 marijuana plants in his backyard. He had a further entry on 17 April 2003 for producing a controlled substance. That offence involved 6 or 7 plants he had been growing in his backyard for his own use. On 26 March 2002 he had a conviction for manufacturing a controlled substance. This involved 6 or 7 plants he had growing in his backyard for his own use. On 27 June 2001 he had a conviction for producing a controlled substance which involved growing some plants in his backyard. 22 He was convicted of speeding on 21 February and 12 May 1997. On 15 October 1985 and 15 January 1987 he was convicted of gaming offences. On 16 June 1976 he was convicted of common assault. On 25 February 1972 there was an offence of unlawfully possess personal property and on 12 November 1970 there was an offence of indecent exposure. He had been charged after he urinated on a street corner. 23 The appellant was cross-examined by the Crown on his record of convictions. Conviction appeal Ground of Appeal 1: The trial miscarried by reason of the trial judge failing to adequately direct the jury in relation to the dangers of identification evidence as required by s116 of the Evidence Act 1995. 24 Section 116 provides: "(1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury." 25 "Identification evidence" is defined in Part 1 of the Dictionary to the Act as follows: "Identification evidence means evidence that is: (a) An assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw or heard at that place and time; or (b) A report (whether oral or in writing) of such an assertion." 26 It was submitted that both Ms Loisos and Mr Multari gave evidence that the appellant was present at a place where an offence was committed and that he did an act connected to the offence. This activated the provisions of s116 of the Act. It was submitted that s116(1) is mandatory and required the trial judge to inform the jury of the special need for caution before accepting identification evidence and of the reasons for such caution, both generally and in the circumstances of the case. 27 It was common ground that no such identification direction was given by the trial judge. Specifically, her Honour did not direct the jury that a completely honest witness may be mistaken and that the "special need for caution" arose due to the court's experience where innocent people had been convicted on mistaken identification. 28 It was submitted that this identification evidence was fundamental to the Crown case so that the failure by her Honour to provide an identification direction such as was mandated by s116(1) meant that the trial had miscarried and that a retrial was necessary. 29 The appellant accepted that the appellant required leave to argue this ground of appeal since there had been no request for a redirection at trial and that rule 4 of the Criminal Appeal Rules 1912 applied. The Court was referred to R v Demiroz [2003] NSWCCA 146 at [63] where Carruthers AJ said: "63 I am satisfied therefore that regrettably his Honour (in the absence of assistance from counsel) overlooked the mandatory requirements of s116 of the Act and omitted to give the jury appropriate directions and warnings. An error of law has been established. This raises the question then whether the proviso to s6(1) of the Criminal Appeal Act 1912 should be applied. 64 In R v Bruno (CCA unreported, 19 June 1997) this Court (Gleeson CJ Powell JA Studdert J) declined to apply the proviso in a case not unlike the present. 65 The present case was a strong Crown case. However, one could not conclude that the omission to give appropriate identification directions and warnings did not deprive the appellant of a chance which was fairly open to him of an acquittal: see Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514. If the appropriate identification directions and warnings had been given, the possibility existed, in my view, that the appellant may have not been convicted." 30 A preliminary question arose as to whether in the circumstances of this case the evidence given by Ms Loisos and Mr Multari was in fact identification evidence. This is clear from the exchange between her Honour and counsel for the appellant at trial. The exchange took place in the context of an application by counsel that her Honour give a direction under s165 of the Evidence Act 1995 because the evidence given by Ms Loisos and Mr Multari was identification evidence. "COUNSEL: From line 7 near the top right down to the bottom of that page. Then the next page, all of the next page your Honour and then right up to page 326 down to line 28 where she gives the answer, "No". All of that I am relying on to form the basis of my application for a direction on identification. HER HONOUR: The confusion in her mind, it seems to me, to be about the name of the person, which is a different thing from identification. She picked out photo 14 as the person whom she identified as working on the crop site doing various things. Despite your cross-examination, the only evidence she gave that she had made any error was that at that time she said "I thought his name was Con", because it was a long time later. COUNSEL: That's all the more reason to give the direction. HER HONOUR: It's not identification evidence though. COUNSEL: Your Honour with respect it is. Because she is confronted with a photograph of a person on an electronic photograph. She says to the police photograph 14, and then she says "I thought his name was Con". She agreed that the only Con on the property was Con Spilotopoulos. That also came from Mr Multari and it also came from Mr Tedder. She denied that there was room for error and confusion, but her denial goes along with all the other evidence she has given. She denied telling lies and denied being dishonest. I submit on the basis that there was a long time lapse there is a possibility that she could have mistakenly believed that the photograph she was identifying was in fact the man Con who she did indeed witness working at the crop site. HER HONOUR: Was that put to her? COUNSEL: I put that to her. HER HONOUR: We haven't even seen these photographs. There is no issue that your client was there at the property. You dispute very much, I understand this, that your client was doing the things she says he was doing. COUNSEL: Yes. HER HONOUR: It does not seem to me to be a matter that requires a warning under s165 in terms of the identification part of s165. COUNSEL: Your Honour after all that time she agreed that her memory does fade after time. HER HONOUR: I will reread it. It seems to me her evidence is that she was mistaken about the name. COUNSEL: Because she was mistaken about the name she could also have been mistaken in that the person she identified in photograph 14 was the person she had seen working at the crop side but that person was Con and not my client. That is what I am saying and it's on that basis." (T.37-38 of 3 April 2006) 31 It is clear from the cross-examination of Ms Loisos and Mr Multari that the proposition was never put in terms that either one of them was or could have been mistaken in their identification of the appellant. What was challenged was whether the appellant was in point of fact performing the actions which Ms Loisos and Mr Multari asserted that they had observed. 32 The challenge to the evidence of Ms Loisos and Mr Multari was that they were not only unreliable but that they were not witnesses of truth. They were cross-examined extensively as to the lies which they had initially told to the police when interviewed and as to their participation in the cultivation activities. They were challenged about their motivation in making induced statements and in giving evidence against other accused such as the appellant. It is clear from their cross-examination that the challenge was not to their ability to identify the appellant but to their credit. It was never an issue at the trial that the appellant was present on the property and did many of the things described by Ms Loisos and Mr Multari, eg complaining of a bad back and spending time in the house. 33 It seems to me that the observations by the High Court in Dhanhoa v The Queen (2003) 217 CLR 1 which dealt specifically with s116 of the Act are determinative of this issue: "[19] If read literally, and apart from its statutory context, s116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute. That would be absurd. If a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence. The common law principle, expressed in the passage from Domican quoted above, contains the obvious qualification that the warning is to be given where the reliability of the evidence of identification is disputed. The same qualification is implied in s116; if it were otherwise the provision would offend common sense." And at [23]: "[23] … However, as the Court of Criminal Appeal pointed out, in the light of the appellant's evidence, the only question was whether the man in photograph No 8 was still there when the attack occurred, or whether he had left shortly before. It was not the reliability of the identification that was in dispute; it was the reliability of the account of the conduct of the person identified, and, in particular, of the evidence that such person remained with his three companions at all material times." And at [53]: "[53] The obligation imposed by s 116 must be read in the context of the adversarial system of criminal justice. It is not to be supposed that, in enacting that section, the legislature intended that juries be given directions concerning identification evidence when identification was not an issue. It is not to be supposed that the legislature intended a trial judge to give a direction that was not relevant to the issues in the case. Not only would it be a waste of curial time and effort but the giving of an irrelevant direction would be likely to confuse the jury who understandably would be puzzled as to what significance the direction had." 34 In accordance with the analysis in Dhanhoa there was no issue as to the "identification" of the appellant and there was accordingly no need for a direction in accordance with s116. Although s116 was not specifically raised by counsel for the appellant at trial, there was a similar direction sought in relation to identification evidence under s165 of the Act. Accordingly, I would grant leave to the appellant to rely upon this ground of appeal. For the reasons set out above, however, the ground of appeal has not been made out. Ground 2: The trial miscarried by reason of the trial judge failing to adequately direct the jury in accordance with s165(1)(b) of the Evidence Act 1995. 35 This ground of appeal raises the same issue as ground 1, ie that identification evidence was given and that in the circumstances of the trial an identification direction should have been given. That issue has been disposed of when dealing with ground 1. 36 I do not understand ground 2 to challenge any of the other directions made by her Honour under s165. No written or oral submissions were directed to such a challenge. It seemed to be common ground that the other directions given by her Honour as to the unreliability of the evidence of Ms Loisos and Mr Multari were comprehensive and appropriate (T.240, SU13.2-15.4, SU28.8-30.5). 37 This ground of appeal has not been made out. Ground 3: The conduct of counsel admitting the entirety of the appellant's criminal record gave rise to a miscarriage of justice. 38 It was submitted that it was unfair of counsel for the appellant at trial to elicit the entirety of his criminal record. The level of unfairness was such that a miscarriage of justice had occurred. 39 The evidence in chief concerning the appellant's criminal record took up more than nine pages of transcript. The tone of some of the evidence is illustrated by the following: "Q. Next month. Can you tell the ladies and gentlemen of the jury those two offences to which you pleaded guilty, what did they involve, what did you do to attract those two convictions? A. Like I said before I tried to grow some cannabis myself for my use. On 2004 was one of the times that I tried to, and this particular time I think I had fifteen plants on my back yard. One of them was separate and I started to clean it up because I didn't have any to smoke and this particular plant was ready, it was mature. As I was cleaning it or almost finishing cleaning it, the police came to my house, and this particular cannabis I had cleaned was just over two kilos wet. The police, as I understand it, there's law that if a person gets caught with two kilograms or more of cannabis it becomes an indictable offence. In other words, it's a serious offence, as I understand it. But, this cannabis was just cleaned, wet. We later, myself and the Crown in South Australia, agreed to an amount of 400 grams dry. Had I been caught with 400 grams dry cannabis in Adelaide, I would have been only charged as a minor offence. The other offence is for growing nineteen plants. The other plants were not big like this one and they were in a separate place, they were nowhere near the big and as I understand this comes on a category of nineteen or less which will be a maximum fine of $500." (T.552-555 on 12.12.05.) 40 In relation to the charges of common assault, the evidence was as follows: "Q. Could you tell the ladies and gentlemen about those two offences, what did they involve, what did you actually do? A. The first one I was drinking with a friend at a pub and I felt drunk and told my friend that we should go to the Greek Club which was opposite the road and have a coffee and sober up a little because I wasn't feeling well, so he agreed with me, and we came over to the pub. Whilst we were walking out of the pub we were speaking Greek, and of course being a little drunk, I don't know what I might have said, there were two ladies there and they said something like that "speak English you wog" or something like that. And being drunk, I think I brushed one of them with my hand, I didn't actually hit her, just brushed her a little bit. She went in and called some guys, one of them was her husband I believe, and he came out and he wanted to have a fight with me because I talked back to his wife. And my friend intervened and he said "he is drunk, if you want to have a fight, you fight with me", and the bloke says "all right" and before the other person said anything, my friend punched him in the face and he fell backwards and hit his head and actually fractured his head on the footpath while he fell backwards. Now, my friend ran away and I was confronted with some other people and there was a bit of scuff. An aboriginal wanted to fight with me and I became a little bit more sober and I started sparring with him, like fighting, so we went down a back lane. He started, I became the better of the two, so I chased him down the lane. He jumped over a fence, which I couldn't do, I had marks on my hands trying to jump it. So I came back from the lane towards the pub and there was already a police car there, and they said to me "Were you at the pub before?", "Were you fighting?" and I said "Yes sort of". They said "Did you hit the bloke which later hurt his head?" I said "No my friend hit him". They brought the two ladies in front of me and they said "Was he the man that hit your husband?" and she said "Yes" so the police arrested me because apparently the other bloke went with an ambulance to hospital. They arrested me they put me in prison and being a young lad in those days, I gave a wrong name to the police. I think I said my name was Moros instead of Jim Mouroufas. I had no intention to go to court the next day because firstly I had in my thought I didn't actually hit the bloke and this is the reason that I … anyway the police caught up to me a few months later through my gambling offences. One of them went to court and I had a warrant for my arrest for $20. The police came to my house. I had been at a party the night before and came home late and I was sleeping. The police asked me if I had $20 and I didn't have $20 on me. I had something like $15. I said I didn't have the $20. I asked them if they minded waiting for my mother to come from the shops and she would have the money to pay for it. They said no. So I got arrested, had my fingerprints taken again, which matched up with the previous of Mr Moros, therefore I got taken to gaol and I wasn't allowed bail because of my false name that I gave. I stayed in the Remand Centre for four days. Meanwhile I was trying to tell the police and the gaol people that it wasn't really me that assaulted the person it was my friend. "What is your friend's name?" I knew him by Arthur. I didn't know his surname. Anyway, I got out fourteen days after and I went and approached some people who were at the Club to come as witnesses and one of them were willing to come as a witness. The other people had five witnesses as I recall. It was only two, two ladies and the husband but they say they had five witnesses to say that I was the one." (T.557-558 on 12.12.2005.) 41 The Court was taken to part of the cross-examination by the Crown of the appellant as to his criminal record: "Q. I am just showing mfi 59. That's your criminal record is that correct? A. Yes. Q. And that relates to offences in South Australia? A. Yes. Q. And you were asked questions initially about this offence that occurred on 28 March 2004, is that correct, from your record? Is that right? A. Well, I'm not on that particular page. Q. Look at the right hand side? A. Which one? Q. The front page? A. Yes. Q. Can you see offence dated 28.3.04? A. Yes. Q. So you were charged in relation to something or when the police came to your place on 28 March 2004 is that right? A. Yes. Q. And you left for Narrabri on 31 March 2004 did you? A. Yes. Q. So only two or three days after this offence you decided to go to New South Wales is that right? A. Yes. Q. And were you on bail for this? A. Yes. Q. And this offence that you pleaded guilty to, you have told us that it related to, I think you said, from your recollection about fifteen cannabis plants? A. Yes. Q. And in relation to that particular offence, the cannabis plants, were they in a shed at the rear of the place, weren't they, rear of your house? A. Yes. Q. Was that the house that you lived in with your wife? A. Yes. Q. This particular shed that these drugs were in that was a locked shed wasn't it? A. Yes. Q. You had padlocks to that shed didn't you? A. Yes. Q. When the police came and spoke to you on this occasion on 28 March 2004 inside the shed there were two rows of cannabis plants weren't there? A. Yes. Q. Each of these cannabis plants was between 6 to 7 feet tall wasn't it? A. Could have been. I don't think they were that tall. Q. So these cannabis plants did you used to fertilise them and water them? A. Yes. Q. You said from your recollection one of them you decided to cut up? A. Yes. Q. And the police found that in the back of the shed or the back of the house, a cut up plant? A. Yes. Q. I think you said it was over two kilograms in weight when it was wet is that right? A. Yes. Q. Did that come from one plant? A. I also said that we estimated and we both me and the prosecution in Adelaide estimated it will be 400 grams dry. Q. So after that arrangement you pleaded guilty is that what you are saying? A. Yes. Q. But at the time the police executed the search warrant – was it a search warrant or did they ask you to come in? A. Of course they had a search warrant. Q. At the time they exercised the search warrant this amount of cannabis was in a tablecloth, wasn't it? A. Yes. Q. How long before had you just cut this particular plant? A. It was that day. I started cleaning it from some time in the morning until the police came." (T.594-595 on 12.12.2005.) 42 The trial judge was so concerned about this evidence that she raised the matter specifically with counsel for the appellant as follows: "HER HONOUR: But this is what has been exercising my mind. You notice in the second sentence there [referring to the bench book]. It says "this has been given in evidence because", what is the reason it has been given in evidence? COUNSEL: Okay. The reason it has been given in evidence your Honour is because it was necessary for me to attack the two witnesses, Ms Loisos and Mr Multari. And by raising their character, I necessarily had to raise my own. And by putting their character in issue, I made character an issue in the trial and I was obliged to put my client's character in as well. YOUR HONOUR: Why were you obliged to do that? COUNSEL: Well once character is raised, once I cross-examined the character of a prosecution witness, on character, on previous criminal convictions, I put my own character in issue. That was my understanding of the law your Honour. HER HONOUR: It was my understanding before the Evidence Act, I'm not sure that that's still the case. It certainly was my understanding before the Evidence Act, but I'm not sure that it's still the case. If you look at the relevant section. I mean the Crown prosecutor would have needed leave before he could have … COUNSEL: I see. Well what I did. HER HONOUR: … cross-examined your client as to his character. But anyway I don't want to burden the jury with legal reasons, but COUNSEL: Yes. I don't think we need to give them a reason your Honour. I simply … HER HONOUR: Well what is the reason that you put that before the jury the fact that your client wanted to demonstrate his entire history to the ladies and gentlemen? COUNSEL: Yes. And it was important also to show that he had some knowledge of marijuana. And because he had that knowledge of marijuana, by way of growing some plants in his back yard and knowing what sort of penalties those small amounts of drugs attracted when he went up to the property and saw what a huge operation it was, that's what enabled him to realise that this would attract serious gaol time. It's for that reason your Honour. It was his limited experience of marijuana that enabled him to realise the jeopardy that he was now in when he realised how big this plantation was. HER HONOUR: The danger with that of course is the jury may well think it's his limited experience with cannabis that made him a precise person to be recruited to the plantation. COUNSEL: But your Honour has to warn the jury that they must not use that reasoning to get to a verdict of guilty by virtue of the fact that he's committed previous offences. HER HONOUR: I understand that. I understand that. COUNSEL: That can in no way be used as evidence against him that he's committed this offence, and that's why we need that direction. HER HONOUR: No, no but my comment wasn't directed to that. My comment was directed to, if they don't believe your client, they may well think the very reason old Bill asking to go to the plantation, was because he was the sort of person who would do such a thing. COUNSEL: Well it's a two edged sword. Certainly the edge of the sword I'm relying on is because of his limited experience with smaller plants and the limited penalties he'd attracted in the past, he knew the moment he lay eyes on this huge operation, he knew that this was really serious, and he wanted out then, wanted to have nothing to do with them. So I agree it's a two edged sword, but the edge that I'm relying on is stronger than the other edge." 43 In those circumstances it was necessary for her Honour to sum up to the jury in relation to the admission of the appellant's criminal record. She did this at SU32.9: "HER HONOUR: Because the evidence of Mr Mouroufas' criminal history was placed before you, it is important that I warn you that you must not reason that because he has some criminal convictions, he must be guilty of this offence simply because you might think he is the sort of person who would be likely to commit this offence. That is a prohibited line of reasoning and my formal direction to you is that you must not allow it to enter into your deliberations. The relevance of that evidence is limited to the circumstances in which Mr Mouroufas came to be on the property and his decision to leave the property. And it was relevant to his evidence that because he had previous experience with cannabis growing on a small scale, he knew that was a large scale operation that that on his evidence was why he decided not to participate. Of course it is entirely a matter for you whether you accept the evidence, but what you must not do is, as I say, work through a process of reasoning that because he does have convictions in South Australia for cannabis cultivation, that he must be guilty of this offence." 44 Relying upon the decision of Seymour v R [2006] NSWCCA 206 the appellant submitted that even though counsel for the appellant at trial made the decision to place his criminal history before the jury, this decision could not be regarded as rational or reasonable. It could not be regarded as such because the first reason offered by counsel for the appellant involved a misunderstanding of the law. Just because Ms Loisos and Mr Multari were cross-examined as to their previous convictions, did not give a right to the Crown to similarly cross-examine the appellant. For the Crown to have been entitled to cross-examine the appellant about the entirety of his criminal record, leave would have had to have been granted pursuant to s104(2) and s192 of the Evidence Act. It was submitted that in the circumstances of this case, it was most unlikely that leave would have been given to the Crown to so cross-examine. The appellant submitted that the other reason offered for leading the appellant's criminal record was also neither rational nor reasonable. There was no reason for leading evidence in relation to the appellant's assault conviction. The prejudicial effect of the evidence concerning the appellant's previous convictions for cannabis cultivation far outweighed any support this evidence may have given to the appellant's explanation for how he came to arrive at the property and his subsequent departure from it. 45 The appellant's submissions on this ground are correct. The rambling and exculpatory explanation by the appellant of his assault conviction did nothing to assist his case and could only have prejudiced it. The danger inherent in his detailed description of his convictions for cannabis cultivation was cleverly exploited by the Crown in its cross-examination of him. It would not have been lost on the jury that the very activity of cutting up a cannabis plant was that which Ms Loisos and Mr Multari said that they observed the appellant performing while he was at the property. This evidence gave rise to a substantial risk that it would be misused by the jury in a way unfair to the appellant. 46 The problems in leading such evidence were summarised by Hunt AJA in Seymour v R [2006] NSWCCA 206 at [19]: "19 It is now accepted that a trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted his defence: TKWJ v The Queen (2002) 212 CLR 124 at [25], [28], [31], [75], [97], [101], [103]; Ali v The Queen (2005) 214 ALR 1 at [9], [99]; Nudd v The Queen (2006) 225 ALR 161 at [2], [12] – [15], [24] – [25], [62], [81], [151]. These three cases may conveniently be referred to collectively as the recent High Court trilogy (as did Kirby J in Nudd v The Queen at [40]). 20 It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel's conduct, in the sense that there has been a loss of a chance of acquittal which was fairly open to the accused. … An appellant carries a heavy burden: R v Miletic (1977) 1 VR 593 at 597 (cited by McHugh J in TKWJ v The Queen at [74]). 21 Relevant to the existence of a miscarriage of justice in the particular trial are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that trial and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel's conduct are relevant but not necessarily decisive considerations. … 26 What must therefore be examined in this case is what counsel who appeared for the appellant at the trial did, and whether there could be a rational (or reasonable) basis for what he did. 27 The specific conduct of the appellant's counsel identified as causing the trial to be unfair was the introduction of his criminal history into evidence. This introduction was deliberate, as the appellant gave written instructions on the day the first trial commenced authorising his legal representatives to raise the issue of character and to introduce his criminal record into evidence. The document is obviously the work of his legal representatives, and it may safely be assumed that it was preceded by advice to the appellant that such a course was in his best interests. It has not been suggested that the appellant had himself sought to have the issue raised. 28 The proposed course of action was raised before the Crown case was opened at the first trial. The Crown prosecutor informed the judge that he would be opening the conversation when the complainant pleaded to be let go, to which the appellant responded "I just got out of gaol five days ago, you'll dog me into the cops" (more fully described in para [9] supra). He said that counsel appearing for the appellant was aware of that statement and "is happy for that evidence to be given". The judge asked counsel whether that was so, and counsel affirmed what had been said, adding: "This is one of those cases in which we will admit the prior record". He said it was relevant to the defence. The Crown prosecutor proceeded to open his case – that the complainant was a prostitute, that she had accompanied the two men to the apartment at Warwick Farm, the events of which she would give evidence, including the promise not to tell and the appellant's response to it." 47 In Seymour evidence of the appellant's record was elicited by way of cross-examination as follows: "35 Counsel for the appellant raised in his client's criminal record with Det Sen Const Draper, who had been brought back to the witness box at his request in order to do so. The cross-examination was as follows: Counsel For Appellant : Q. Detective, as officer-in-charge you've familiarised yourself with Mr Seymour's record? A . That is correct. Q. A fair amount of reading involved in that you'd agree? A . I would agree. Q. The reason he was in gaol was because he'd been convicted of shoplifting and imprisoned for 14 days, is that right? A. That is correct. Q. As you've looked across his career it's fair to say that he's been involved in stealing and riding cars and I don't wish to necessarily denigrate those sort of offences, but none of them, with the exception of three I'll come to, have any relationship to violence, is that right? A . Yes, they're more due to property related offences. Q. He's a failed crim you might say or not a very successful crim? A. In some terms, yes. Q. However he has got three assault cases against him. One was assault police at the same time he was charged with resist arrest and disorderly conduct and I think he got a $400 fine for that, are you aware of that? A. Yes I am aware of that. Q. On another occasion I think in Perth again there's a whole lot of street offences. He was convicted of common assault and fined $500 along with a number of offences, breach of bail, false bail undertaking, street drinking, you've seen that record? A. I'm aware of the New South Wales, unaware of the Western Australian. Q.Perhaps I might show you the Western Australian. Over the page you'll see that line of offences. A. Yeah of course. Q. Could that be returned. A. I am aware of that. Q. The other assault is in fact again during the unsuccessful commission of an offence, this time I think he hopped in a car that wasn't his with someone else and the owners came out and chased him and bailed him up and there was a bit of a fracas over that and he was convicted for assault over that? A. Yes I am aware of that. Q. There's no sign in this fairly extensive record of any, if I can use the term — I'll put it this way, violent behaviour against women? A. No there's nothing in the record that indicates that. Q. And nothing of a domestic nature that would indicate that he's been in any trouble for domestic disputes or matters of that nature? A. No there is nothing there. When asked by the judge to make it clear why the issue had been raised in this way, counsel for the appellant said that his intention was "just to demonstrate there's no previous record [of] violence [against women] or offences against women." 48 Having referred to what was said by Dixon CJ in Hall v Braybrook (1955) 95 CLR 620 at 629 and Dawson v The Queen (1961) 106 CLR 1 at 16 Hunt AJA observed: "50 But I can see no possible rational or reasonable explanation at all for the tender of virtually the whole of the appellant's criminal record. Proof that the appellant had no record of violence against women did not require the other details of what his record contained. It would have been sufficient to have asked Det Sen Const Draper whether, in the course of his investigations, he had found that the appellant had no record of convictions for violence against women. Nor can I see any possible rational or reasonable explanation for the extraordinary emphasis counsel placed in his cross-examination of Det Draper, and in his final address to the jury, on (i) the length of the appellant's record ("a fair amount of reading", "this fairly extensive record" and "a very long document containing his record"), (ii) his lack of success in crime ("a failed crim"), (iii) his propensity for "street offences" and (iv) his description as a "property crim". … 52 Whatever value the evidence may have had, however, it was of little if any benefit to the appellant in the light of the other material brought out by his counsel. Section 110(3) permitted the appellant to raise his character in only one particular respect if he wished to do so, and the effect of the other material brought out by counsel for the appellant was to swamp whatever small benefit the absence of convictions for violence against women may otherwise have had. Moreover, the effect of that benefit was seriously reduced by the fact that Det Sen Const Draper was unable to confirm the absence of such convictions in Western Australia, where it appeared that the appellant had spent some time, a fact to which counsel gave unnecessary emphasis in his final address (see par [37] supra ). The judge, with the agreement of the parties, went as far as he could go in his directions to the jury in saying that the effect of the officer's evidence was, "as far as Det Draper knows", the appellant had no such convictions in Western Australia." 49 The considerations identified by Hunt AJA in those paragraphs apply even more forcefully to the facts of this case. There was no conceivable rational or reasonable explanation for the tender of the whole of the appellant's criminal record. As his Honour so neatly put it, the overwhelmingly prejudicial effect of the evidence of the appellant's previous convictions was to swamp whatever small benefit was thought to be gained from it. In my opinion there was no rational or reasonable explanation for the conduct of counsel for the appellant in eliciting the appellant's criminal record, in the way in which he did and this conduct necessarily caused the trial to be unfair. This conduct on the part of counsel viewed objectively, lost to the appellant a chance fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514, Wilde v The Queen (1988) 164 CLR 365 at 371-372. There was consequently a miscarriage of justice and this ground of appeal has been made out. Ground 4: The trial judge erred by not directing the jury that they had to be satisfied beyond a reasonable doubt that the appellant in fact cultivated in excess of 250 plants to be guilty of the offence of cultivate commercial quantity. Ground 5: The verdict is unreasonable in light of the insufficient evidence that the appellant in fact cultivated in excess of 250 plants. 50 Leave was sought on behalf of the appellant to rely upon the above two grounds of appeal which were raised for the first time at the hearing of the appeal. In seeking leave, counsel for the appellant made it clear that ground 5 was restricted to whether there was evidence capable of establishing that the appellant cultivated not less than the commercial quantity of plants, ie 250. Counsel for the Crown indicated that he was able to meet the two new grounds. It was common ground that neither of those matters had been raised at trial and that rule 4 of the Criminal Appeal Rules 1912 applied. 51 Because the Crown was able to meet these additional grounds, the Court allowed them to be raised and for submissions to be made in relation to them. 52 It was submitted on behalf of the appellant that the Crown had to prove more than that the appellant was "involved" in crop site B. It was submitted that the Crown had to prove that the appellant cultivated in excess of 250 plants. It was not sufficient that the plants he tended to were plants that originated from a crop site that contained within it a commercial quantity. It was submitted that the Crown had to establish that the appellant had in fact cultivated (in this case harvested) in excess of 250 plants. It was insufficient that he was "involved in" or participated in or worked on a crop that had within it in excess of 250 plants. Since there was insufficient evidence to establish that proposition, the Crown had failed to make out the elements of the offence. 53 In my opinion grounds of appeal 4 and 5 are misconceived. The appellant was convicted of the following offence: That between 30 March and 7 April 2004 at Narrabri in the State of New South Wales he did cultivate a number of prohibited plants, namely cannabis, which was not less than the commercial quantity applicable to that plant namely 250 plants – contrary to s23(2)(A) of the Drug Misuse and Trafficking Act . 54 It was alleged that the aspect of cultivation with which the appellant was involved was harvesting. 55 Section 3 of the Drug Misuse and Trafficking Act defines "cultivate" to include to "plant grow tend nurture or harvest" a prohibited plant. It seems to have been common ground at the trial that the only term of that definition applicable to this case was "harvest". The concept of harvesting was considered by this Court in Regina v Ruiz Avila [2003] NSWCCA 264 which approved the definition in R v Giorgi and Romeo (1981) 7 A Crim R 305. That case considered the meaning of the word "cultivate" in the context of South Australian legislation which did not provide a statutory definition. When considering the concept of harvesting, the court held that "the harvesting" aspect of cultivation would include not only the actual removal of the plant or portion thereof from the soil but also the ancillary activities of laying out, stacking, removal to nearby sheds and placing in those sheds. The question of whether cutting the cannabis plants is part of the harvesting process is a question of fact to be determined in the light of the circumstances of each case. In my opinion, cutting down the cannabis plants was clearly a part of the harvesting process on the facts of this case. 56 In that context it is not necessary for the Crown to prove that the appellant actually harvested the whole crop or actually handled in excess of 250 plants. It is sufficient if the Crown proves beyond reasonable doubt that the appellant carried out an act involved in the harvesting of a crop which comprised in excess of 250 plants. The evidence of Mr Multari was clear that crop site B comprised a crop of this kind. There was evidence of the appellant cutting and clipping cannabis plants from crop site B over a number of days. In my opinion that evidence, if accepted by a jury, was sufficient to establish the elements of the offence. These grounds of appeal have not been made out. 57 The appellant sought leave to appeal against the severity of his sentence. In view of the outcome of the conviction appeal, it is not necessary to deal with that question. The appellant has succeeded on ground of appeal 3. It follows that his conviction must be quashed. 58 The orders which I propose are as follows: (1) The appeal is upheld and the conviction and sentence are quashed. (2) A new trial is to be held. ********** 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.