New South Wales Court of Criminal Appeal CITATION: Raso v Regina [2008] NSWCCA 120 HEARING DATE(S): 26/05/08 JUDGMENT DATE: 30 May 2008 JUDGMENT OF: Beazley JA at 1; Barr J at 2; Hoeben J at 54 DECISION: 1.The appeal against the conviction is dismissed. 2.The application for leave to appeal against the sentence is granted but the appeal is dismissed. CATCHWORDS: CRIMINAL LAW - knowingly concerned in the cultivation of a prohibited drug - whether verdict unreasonable - whether sentence manifestly excessive. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 CASES CITED : MFA v The Queen [2002] HCA 53 Azzopardi v The Queen (2001) 205 CLR 50 Green v The Queen (1971) 126 CLR 28 PARTIES: Joseph Raso Regina FILE NUMBER(S): CCA 2007/3005 COUNSEL: Self represented (Appellant) G Rowling (Crown) SOLICITORS: Self represented (Appellant) Solicitor for Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0066 LOWER COURT JUDICIAL OFFICER: Coorey DCJ LOWER COURT DATE OF DECISION: 06/03/07 IN THE COURT OF CRIMINAL APPEAL 2007 / 3005 BEAZLEY JA BARR J HOEBEN J 30 MAY 2008 JOSEPH RASO v R Judgment 1 BEAZLEY JA: I agree with Barr J. 2 BARR J: This is an appeal against a conviction that was entered in the District Court following a trial of the appellant, Joseph Raso, by jury. The charge was that between 7 April and 22 August 2003 at Eastwood he was knowingly concerned in the cultivation of a prohibited drug, namely 60 cannabis plants. The appellant was arraigned before the jury panel together with a co-accused, Angus Menniti. Menniti pleaded guilty and was in due course called to give evidence in the appellant's case. The appellant was represented by counsel at trial. 3 In April 2003 Northern Districts Developments Pty Limited, a company controlled by Menniti, purchased a house at 39 Norma Avenue Eastwood. The house stood on a battleaxe block and was invisible from the street. On 22 August 2003 police searched the house. The light and a radio were on but there was no one in the house. There were 60 cannabis plants growing in six of the rooms of the house. An extensive system had been set up to cultivate them, including an electricity meter bypass, lighting, ventilation and piping equipment, black plastic sheeting, pots and chemicals. There were an esky and documents bearing the name "P Deloris". 4 Fingerprints which were in due course matched with those of Menniti were found on pedestal fans installed in each of the rooms in which the plants were being grown, on a light frame and in other parts of the house. Footprints demonstrated to be those of Menniti were found on black sheeting in one of the rooms in which plants were being grown. DNA with a profile matching that of Menniti was found on a slipper and on a soft drink bottle in the kitchen. 5 Fingerprints which matched those of the appellant were found on doors and door frames of rooms in which the plants were being grown, on a pedestal fan in a room which plants were grown, on a mug found in the kitchen and on a lampshade in a room in which plants were grown. The soft drink bottle which bore DNA matching that of Menniti also yielded DNA with a profile matching that of the appellant. 6 Fingerprints were also developed which matched neither the appellant nor Menniti. 7 On 9 September 2003 police saw the appellant at the house. He identified himself and said that he was a friend of Menniti and worked for him. 8 Police searched official records in New South Wales but could find no record of any person called Peter Deloris. 9 It was the Crown case that there was no such person as Peter Deloris and that Menniti and the appellant were both concerned in the cultivation. 10 The appellant did not give evidence but called Menniti. He said that his company had purchased the property in April 2003 with vacant possession. He was intending to redevelop it. He and the appellant had worked on the house, removing doors, windows and floorboards. There were no cannabis plants in the house. Some three weeks after the purchase, a man calling himself Deloris had asked to rent it, offering to pay two months' rent in advance in cash. Menniti had agreed that Deloris could do so for three or four months. There was no written agreement. There was an occasion when he and the appellant went to the house to retrieve their tools. They found a good deal of equipment there, plastic in a roll and cut into squares, flower pots, things that looked like dog pellets, fans, boxes and big light globes. The side of the house was boarded up. Menniti thought that the occupant was trying to keep the house warm or perhaps maintain privacy. He thought that perhaps the occupant was getting a dog. He and the appellant had to touch the equipment in order to remove the tools and to search for a saw of Menniti's, which was missing. Menniti's boots were muddy and he removed them and his socks. In that way he may have put his foot on a slipper on which DNA was found. He said that soft drink bottles had been taken into the house while he and the appellant had been working there. The appellant also moved equipment as he searched for the missing saw. After this discovery Menniti continued to allow the occupant to stay there. He received rent from him on 1 July and 1 August 2003. 11 The Crown prosecutor cross-examined Menniti, suggesting that the story about Deloris was a lie and that there was no such person, and that he and the appellant had been involved in setting up the equipment to grow the cannabis plants. It was put that the appellant's fingerprints and DNA were present because of his involvement in the cannabis plantation. Menniti denied these things. 12 As the case was left to the jury, there were two possibilities. Either the appellant, like Menniti, was knowingly involved in the cultivation or the cultivation was entirely the work of a tenant called Deloris. Given the control Menniti had as owner, no third possibility was open. 13 The trial judge directed the jury in appropriate terms about the elements of the offence charged and told them that the Crown had to prove each of them beyond reasonable doubt. No complaint was made on appeal about the directions. 14 The first ground of appeal was that the verdict was unreasonable. 15 The question raised by this ground is whether the court thinks on the whole of the evidence that it was open to the jury as judge of the facts to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; MFA v The Queen [2002] HCA 53. This Court must assess the nature and quality of the evidence, its reliability and credibility. The Court must pay full regard to the fact that the jury was the body entrusted with the primary responsibility of determining guilt and had the benefit of seeing and hearing the witnesses, a benefit that this Court lacks: MFA v The Queen. 16 I have read a transcript of the evidence. It seems to me that the evidence of the appellant's fingerprints, which were not merely on the doors and door frames of the rooms where the plants were being grown but on items of equipment that appeared to have been set up for the express purpose of the cultivation, was capable, in combination with all the other evidence, of proving the case advanced by the Crown. Of course, the jury could not find the appellant guilty unless it rejected the explanation put forward through the evidence of Menniti. It could not be said, I think, that Menniti's evidence contained internal inconsistencies. If accepted literally, it was capable of explaining how the fingerprints and DNA of the appellant came to be detectable at the scene. However, I do not regard as plausible Menniti's explanation of how his and the appellant's fingerprints and DNA came to be deposited or his explanation that having formed the suspicion (he called it a "95 percent inkling") that the cultivation of cannabis was about to begin, he closed his eyes and continued to collect rent for the next two months. I have come to that view without seeing or hearing Menniti. That was an advantage the jury had, and I am not persuaded that they were obliged to give his evidence any credence at all. 17 A number of other complaints were made by the appellant in written submissions. They may be conveniently dealt with under this ground. The first relates to a question asked by the jury not long after they retired. In a note they said this - How much doubt is reasonable doubt? Please define reasonable doubt. 18 His Honour drew the note to the attention of counsel and there was discussion about it. With the concurrence of counsel his Honour gave the jury this further direction - Ladies and gentleman, thank you for your note. How much doubt is reasonable doubt. Ladies and gentleman, the first point I must say is that I cannot answer the question, I am not able to answer the question. All I can say to you is this, that you are the judges of the facts and you decide what is reasonable doubt. It is exactly a matter for you. Reasonable doubt, beyond reasonable doubt, the words are everyday words and the law is very clear that you, the judges of the facts, you alone decide what is a reasonable doubt. If you the judges decide, that you have a reasonable doubt then you have a reasonable doubt, it is strictly for you, and as I say it is not a question I can answer. You decide it. It is entirely a question for you. If you say I have a reasonable doubt, then you have a reasonable doubt. It is a matter in your province and no person can ask you, no person can ask you why you come to a decision because you are independent judges and to be truly independent it has to be your decision, with no input from on this particular matter. I am sorry about that but that is it, it has to be you decide it. If you say yes I have a reasonable doubt, then you have got a reasonable doubt, if you say no I have not reasonable doubt then you have not. Nobody has the right to ask you any further. I cannot say why do you think this or why do you think that. You are the judges, as much as I am a judge, when you make your decision full stop, that is it, I accept your decision. 19 The complaint on appeal was that his Honour ought to have reminded the jury that he had told them in his opening remarks that even if they thought that the accused had committed the crime but were not satisfied beyond reasonable doubt that they must find him not guilty. It was submitted that the jury must have had some doubt, otherwise they would not have asked the question. The submission went on to state: "I think any amount of doubt is reasonable". 20 In my opinion the trial judge was correct in directing the jury that they were the judges of what was reasonable and that no further definition of the expression "beyond reasonable doubt" could be given: Green v The Queen (1971) 126 CLR 28. There was no call for any reminder of what his Honour had said to the jury in his opening remarks. The jury were entitled to a plain answer to their question and that is what the trial judge gave them. 21 I do not think that it can be correct to say that any amount of doubt is reasonable. If that were so, juries would not have to be directed in terms of the word "reasonable" at all. 22 The appellant may be correct in his assertion that the jury had some doubt. However, the verdict, given after full and proper directions of law, is seen to be based upon a finding of proof beyond reasonable doubt. 23 As I have said, the appellant did not give evidence. The jury were given a full direction according to Azzopardi v The Queen (2001) 205 CLR 50 and no complaint is made about that direction. Even so, it was submitted that the appellant's reason for not giving evidence was because of confusion and memory loss experienced following upon a motor vehicle accident. It was submitted that the jury should have been told about that so that they understood why he had decided not to give evidence. 24 Whatever may be said about the wisdom of any attempt to justify an accused person's not giving evidence, the simple fact is that the jury were directed not to speculate why the appellant did not give evidence. They were told that there may be many reasons why an accused person might not give evidence. On the authority of the Azzopardi v The Queen itself, that direction was sufficient to ensure that the jury should not speculate or draw any inference adverse to the appellant from his not having given evidence. 25 A complaint was made that because of lack of resources, the case against the appellant was not dismissed in the Local Court, as it ought to have been. According to the submissions, the case was adjourned on a number of occasions because of the absence on stress leave of one of the arresting police officers. That does not seem to me to be a matter capable of throwing any doubt on the reliability of the jury verdict. 26 The next submission was that on the morning on the first day of the trial the charges were changed and Menniti pleaded guilty. Menniti was the appellant's principal witness. He entered his plea in the presence of the jury panel, so the jury knew that he was guilty. That "could have been a major factor swaying the decision of the jury". A new jury should have been empanelled. 27 The very tenor of Menniti's evidence was that, in the limited way he was prepared to admit, constituted by his having closed his eyes to the cultivation he strongly suspected was being carried by others, he was guilty. Plainly Menniti could not have given the evidence the appellant wanted him to give without disclosing that he was guilty. His plea of guilty in the presence of the jury panel told the jury no more than his evidence did. As counsel for the appellant informed the trial judge, there was not likely to be any embarrassment from Menniti's plea of guilty. In my opinion events took place in an eminently sensible and efficient way. No unfairness resulted and there was no need for the empanelment of a fresh jury. 28 The first ground of appeal has not been made good. 29 The second ground of appeal complained that the trial was held as if Menniti was on trial, rather than the appellant himself. 30 The complaint was that the Crown kept asking Menniti questions about himself, rather than about the appellant. Menniti should have been asked, it was submitted, more about the appellant's work at Menniti's premises and how he came to enter them. It looked as though Menniti, not the appellant, was on trial. He was hardly mentioned. 31 As I have observed, the case against the appellant was circumstantial. If the combination of circumstances was capable of proving the Crown case beyond reasonable doubt, the jury could convict only if they thought that there was no reasonable possibility that Menniti might be telling the truth. In that way there was a stark contrast between two bodies of evidence. The Crown was entitled to attack as incredible the explanation given by Menniti. If Menniti were believed, the jury had an exculpatory explanation of evidence which would otherwise point to the guilt of the appellant. The appellant and his counsel must have realised the importance of Menniti's evidence and must have realised that it would come under strong attack at trial. What happened was entirely proper. 32 This ground of appeal has not been made good. 33 The third ground of appeal was that important defence matters were not mentioned or only briefly only touched upon. 34 In written submissions it was asserted that it was not stressed at trial that the majority of the appellant's fingerprints were on doors and door frames, a fact explained by the action of the appellant in looking at the doors and frames and window frames preparatory to removing them as part of the demolition of the property. It was submitted that the appellant's fingerprints were on "less than one percent" of the equipment found. Those matters were not mentioned. It was submitted that it was not made clear to the jury that Menniti had called him inside the house to look at things that Menniti thought were strange. It was not made clear that the appellant had been to the property on a number of occasions. 35 In my opinion, defence counsel conducted the case for the appellant in an efficient manner, putting before the jury evidence which would, if believed, exculpate the appellant. In the circumstances the real question was whether Menniti was to be believed. Emphasis on one or other of the several pieces of evidence, and even the omission of the kind of detail pointed to on appeal, was not likely to weigh in the jury's consideration of the central issue. 36 The next submission was that the appellant did not believe that his solicitor had his best interests at heart. He could have presented a better case. He did not use instructions which were given to him. 37 In the absence of particulars it is impossible to evaluate this submission. 38 Further complaints were made about the conduct of the appellant's solicitor in the Local Court and at trial. I will say no more about the Local Court. At trial the question of the failure to explain why the appellant did not give evidence was again raised. It seems to me that solicitor and counsel took a tactical decision not to explain why the appellant was giving evidence. Nothing put before the Court on appeal suggests to me why that was not a proper decision that fell within the responsibilities of trial counsel. I have explained why no miscarriage of justice resulted from a failure to disclose the reason. 39 It was submitted that the appellant had handed his solicitor, which must, I think, mean counsel, a list of things to mention in his closing address. None of them was mentioned to the jury. One of them was the lack of fingerprints on the actual equipment as opposed to the doorframes, where the majority of prints were found. In fact there was no lack of fingerprints on the equipment used.Then it was submitted that the jury were not told that the fingerprints were explained by work the appellant had done at the house from time to time. 40 In my opinion none of these complaints is justified. Defence counsel adduced from Menniti such evidence as would exculpate the appellant if believed. A concentration on the kind of detail now brought forward by the appellant might, in the view of counsel, have detracted from the thrust of Menniti's evidence, which was, first and last, that the appellant had been to the house in circumstances which he explained and had left fingerprints in circumstances which he explained but that the appellant knew nothing of the cultivation of the plants and was not concerned in it. 41 This ground of appeal has not been made good. 42 The final ground of appeal against conviction was that the appellant should never have been charged. It was submitted that he was eventually charged only because he went back to the premises to take up the floorboards on the day that the police called in and asked him to identify himself in September 2003. According to the appellant, it was then that the police checked for any criminal record of the appellant, found one and matched fingerprints then held on file with those recovered at the premises. 43 There is a difference between saying that but for those events the appellant would or might not have been charged and that he ought not to have been charged. In my opinion the evidence which the police had demonstrated that there was a case against the appellant and that they were justified in pursuing in. 44 This ground of appeal has not been made good. 45 The appellant seeks leave to appeal against the sentence. 46 On 6 March 2007, his Honour, having heard submissions and received evidence on sentence, decided to sentence the appellant to two years' imprisonment but wholly to suspend that period under the provisions of s12 Crimes (Sentencing Procedure) Act 1999. After his Honour had done so, the solicitor then appearing for the Crown informed his Honour that he was required to set a non-parole period. That information was incorrect. Section 12(3) Crimes (Sentencing Procedure) Act provides that Part 4 of the Act, which, inter alia, requires the fixing of non-parole periods, does not apply where a sentence is suspended under s12. Accepting the submission, his Honour fixed a non-parole period of 12 months and a balance of term of 12 months. Later on, after the appellant had left the Court, his Honour was informed of the error. He revoked the portion of the order which had imposed a non-parole period. The result was a wholly suspended sentence of two years' imprisonment without a non-parole period. 47 Two complaints are made on appeal. The first relates to what is said to be the harshness of the sentence imposed. At first sight a suspended sentence of two years' imprisonment is unduly lenient for the criminality contemplated in at least setting up the equipment for such a substantial cultivation program. His Honour heard evidence of the effects upon the appellant of the motor vehicle accident that I have mentioned. His injuries were serious and he was in hospital between December 2003 and June 2004. He resulting orthopaedic disabilities were substantial and he needed a good deal of help to carry out the simplest of tasks in the maintenance of his personal life. I have mentioned also the confusion which the appellant said he felt from time to time. 48 His Honour accepted all those things. Notwithstanding the substantial criminal record of the appellant, including repeated convictions for drug offences, including the supply of drugs, his Honour decided to deal with him in the way I have outlined. In my opinion no complaint could properly be made that the sentence was manifestly excessive. 49 The second complaint related to his Honour's amendment of the sentence in the manner I have described, removing the non-parole period. It was submitted that the amendment happened in the absence of the appellant and that if he had been present he might have been able to obtain a better result. 50 The amendment was necessary because the imposition of a non-parole period was, as I have explained, contrary to the requirements of s12(3) Crimes (Sentencing Procedure) Act. The amendment was permitted by s43 of the same Act which in general terms gives the Court power to reopen proceedings to correct sentencing errors. 51 The necessary correction was not a matter which entitled his Honour to exercise any judicial discretion. There could have been no different result if the appellant had been present. His Honour dealt with the matter appropriately in the absence of the appellant and took steps to ensure that the appellant was informed of the amended order. That was a sensible approach. Nothing but the expenditure of further time and expense would have been achieved by adjourning the matter and requiring the appellant to be present. 52 In my opinion neither of the criticisms levelled at the sentence is justified. 53 I propose the following orders - 1. The appeal against the conviction is dismissed. 2. The application for leave to appeal against the sentence is granted but the appeal is dismissed. 54 HOEBEN J: I agree with Barr J. ********** 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.