Skaramuca v Craft [2005] ACTSC 61 (22 July 2005)

Last Updated: 26 July 2005

IVAN SKARAMUCA v DAVID LEE CRAFT

[2005] ACTSC 61 (22 July 2005)

APPEAL - proof of joint criminal enterprise - whether prosecutor failed to present exculpatory evidence - whether sufficient for magistrate to reject and disregard evidence of prior convictions - whether necessary to abort hearing when magistrate has knowledge of prior convictions - whether magistrate misused evidence - admissibility of handwriting samples - evidentiary value of handwriting samples - co-conspirator rule - whether finding that witness lacked credibility was unfair, unjust or in error - whether false exculpation supports inference of guilt - right of defence to make final address

Drugs of Dependence Act 1989 (ACT), s 162

Criminal Code Act 2002 (ACT), ss 8,10,45

Evidence Act 1995 (Cth), s 104, s 112

Pure Food Act 1908 (NSW)

Magistrates Court Act 1930, s 116

Crimes Act 1900 (ACT), s 294

Human Rights Act 2004 (ACT), s 21

R v Tangye (1997) 92 A Crim R 545

Gabriel v R (1997) 76 FCR 279

Hall v Braybrook (1956) 95 CLR 620

De Romanis v Sibraa [1977] 2 NSWLR 264

Griekspoor v Scott (2000) 23 WAR 530

McEwin v Johns [1921] SASR 7

Klewer v Dutch (2000) 99 FCR 217

R v Soma [2003] 212 CLR 299

Tripodi v R (1961) 104 CLR 1

Ahern v R (1988) 165 CLR 87

R v Chang (2003) 7 VR 236

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3, 3 February 1999

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2004

Judge: Higgins CJ

Supreme Court of the ACT

Date: 22 July 2005

IN THE SUPREME COURT OF THE )

) No. SCA 31 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: IVAN SKARAMUCA

Appellant

AND: DAVID LEE CRAFT

Respondent

ORDER

Judge: Higgins CJ

Date: 22 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a decision by Magistrate Campbell of the Magistrates Court to convict the appellant in respect of a charge that he -

... on 15 November, 2002, did cultivate a prohibited plant, to wit 8 cannabis plants, for the purpose of sale or supply to another person.

2. That charge was laid against the appellant and another person named Alex Mileski; it was the prosecution case that the appellant and Mr Mileski were engaged in a joint criminal enterprise. Mr Mileski admitted to cultivating the plants, but denied that he intended to sell or supply the cannabis to any other person; Mr Mileski also denies that he was doing so in concert with the appellant. The appellant denied any knowledge of, or involvement in, the cultivation in question.

3. At the time the defendant was charged, s 162(3) of the Drugs of Dependence Act 1989 (ACT) (DODA) provided that -

A person shall not cultivate, or participate in the cultivation of a prohibited plant for the purpose of sale or supply.

4. The relevant penalty attracted was $1,000, imprisonment for five years or both.

5. At the time, s 162(5) DODA provided for a rebuttable presumption that, if more than five plants were involved, the purpose of the cultivation was "for sale or supply".

6. The Criminal Code Act 2002 (ACT) commenced 20 December 2002. The drug offences provisions did not commence until 6 September 2004 and 6 March 2005. However, certain provisions were applied immediately, even to offences created before 1 January 2003 (s 8(1)). They include s 45 (per s 10), which covers complicity and common purpose -

45 Complicity and common purpose

(1) A person is taken to have committed an offence if the person aids, abets, counsels or procures the commission of the offence by someone else.

(2) However, the person commits the offence because of this section only if--

(a) the person's conduct in fact aids, abets, counsels or procures the commission of the offence by the other person; and

(b) when carrying out the conduct, the person either--

(i) intends the conduct to aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person; or

(ii) intends the conduct to aid, abet, counsel or procure the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.

(3) To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.

(4) Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of the offence.

(5) A person must not be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person--

(a) ended his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(6) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.

(7) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

7. The circumstances surrounding the discovery of the eight cannabis plants were not themselves disputed.

8. On 15 November 2002, police executed a search warrant on premises at 8A Lawley Street, Deakin. The premises were owned by a Mr Lee. In May 2002 Mr Lee let those premises to a Ms Tully. Ms Tully, in turn, sublet the premises to Mr Mileski; she took the lease solely for that purpose.

9. Upon entering the premises, police found a "sophisticated" hydroponic set-up serving the eight plants. Four plants were located in one bedroom, two in another and the remaining two in a third bedroom. The plants were each quite large.

10. On 30 October 2002, whilst the premises were under surveillance, a vehicle registered to the appellant was seen to approach the premises; it was driven by the appellant. He entered the premises and after 48 minutes (as timed by Constable Craft) the appellant left with two unidentified male persons.

11. Approximately seven police took part in a search of the house; they observed a television set that was operating but no person was in occupation. The house was sparsely furnished; the bedrooms were entirely occupied by the cannabis plants and the hydroponic cultivating equipment. Power cords were apparent in the hallway leading to the bedrooms together with tubes and hoses. In the lounge room were some vehicle wheels, other heavy motor vehicle parts as well as a document headed "IVAN" "ALEX" with dates and figures on it (Exhibit 3).

12. In the bedrooms there were large lamps emitting bright lights. Some of the vehicle parts had been used to weigh down the branches of the cannabis plants; apparently, this was to protect the lights and to encourage a "bushy" growth. A box containing some parts had "IVAN" written on the side of it. Another part had "IVAN" and "JERICHO" written on it.

13. Some of the parts, though not labelled, were sourced to vehicles which had been registered in the appellant's name.

14. The figures on Exhibit 3 corresponded with a four weekly rental figure ($1,080) for the premises. The landlord's receipt of rent corresponded with the dates and the amounts shown on the document so found by police. The dates alternated between the columns headed "IVAN" and "ALEX".

15. Ms Tully gave evidence of knowing Mr Mileski. He had asked her to rent a house for him and she did so; it was, of course, the Lawley Street house.

16. Ms Tully reported that Mr Mileski had told her that he intended to live in the house with a friend named "Ivan"; she did not meet "Ivan".

17. The premises, the relevant equipment and a knife were examined for DNA and fingerprint evidence; the knife was found in bedroom one.

18. The fingerprint evidence identified the appellant as the source of a fingerprint on the blade of the knife. It also identified him as the source of a fingerprint on the underside of two of the light shades used in connection with the hydroponic set-up.

19. The appellant gave evidence in his defence.

20. The appellant admitted knowing Mr Mileski; they had a mutual interest in drag racing with Mazda RX3s. That interest involved considerable modification of such vehicles and gave rise to a number of discarded spare parts, such as those found in the Deakin house.

21. In 2001 the appellant had given Mr Mileski some "hydroponic gear". The appellant had used it before, he said, to "grow my own cannabis"; he had given up smoking cannabis when he started work in the family hairdressing business. He said that the equipment seized by police was consistent with the equipment he had given to Mr Mileski. He had also given Mr Mileski the box of car parts with the name "Ivan" on it.

22. The appellant agreed he had visited the Deakin house between five and 10 times before it was searched by police; he claimed that those visits were mostly spent in the kitchen.

23. The appellant also conceded that he had resorted to the premises to use steroid tablets; he had used the knife found with his fingerprint on the blade to cut the tablets.

24. Indeed, neither the presence of steroid tablets found on the premises nor the position of the appellant's fingerprint on the knife, are inconsistent with that assertion.

25. The appellant agreed that the car parts found on the premises had been his before he "gave them to Alex".

26. He denied any authorship or knowledge of the piece of paper, Exhibit 3.

27. Over objection, the appellant was permitted to assert that he was aware that, if each defendant had conceded ownership of four of the eight plants, the maximum penalty was a $100 fine.

28. In cross-examination, the appellant claimed that he did not know what Mr Mileski was going to do with the hydroponic equipment that he, the appellant, had given him. The appellant denied involvement in growing the cannabis for supply. The prosecutor then put to him -

So if your - if a police record records that you were convicted of selling ...

29. That was objected to as an attempt to elicit character evidence. Her Worship upheld that objection but declined to disqualify herself. The prosecutor, Mr Morters, then stated -

Now your Worship on the voir dire, I say that I'm entitled then to put to him [the appellant] that he was convicted of an offence of selling cannabis on 13 October 1999 and that's inconsistent with the evidence that he's given that he was not involved about that time in - I'm sorry your Worship, 2 June 1999 was the offence date.

30. Mr Morters purported to rely on s 104 Evidence Act 1995 (Cth) claiming that the question he proposed went to credibility rather than character. Argument followed.

31. Her Worship, correctly in my respectful opinion, declined to permit the proposed cross-examination; her Worship stated that she would disregard the prosecutor's assertion that the appellant had the prior conviction.

32. The appellant was asked to write "IVAN" and "ALEX" on a piece of paper. It was then suggested to him that "IVAN", as so written, was identical with that word as it appeared on Exhibit 3.

33. Despite his not infrequent visits to the Deakin house, the appellant denied that he noticed anything that indicated the presence of cannabis plants or the use of the premises for cultivation of plants rather than as a residence.

34. On 12 March 2004, her Worship ruled that the document written in court by the appellant was admissible but she pointed out that, absent expert evidence, it would not support an adverse inference against the appellant. Again, in my respectful opinion, her Worship was undoubtedly correct in that ruling.

35. Mr Mileski then gave evidence. That evidence was admissible both in his case and that of the appellant.

36. Mr Mileski claimed that he rented the house at Deakin to grow marijuana for his own use, saving himself the expense of buying it "off the street". It had been costing him $150 per week to buy it in that way. He had believed, he said, that growing marijuana was "decriminalised" in this Territory.

37. He agreed that he had obtained the car parts and some of the hydroponic equipment from the appellant. Mr Mileski said that the piece of paper, Exhibit 3, represented the dates for "monthly" amounts of rent. (In fact, it was four-weekly).

38. Mr Mileski said that the heading "IVAN" represented dates on which he had borrowed money from the appellant to pay rent. He said that he had borrowed varying amounts. The terms of the document are clearly inconsistent with that assertion.

39. Mr Mileski denied having told Ms Tully that he and the appellant was intending to reside in the house. He also was asked to write "IVAN" and "ALEX" and certain of the dates and figures appearing on Exhibit 3; he denied that the appellant had written any of Exhibit 3. Mr Mileski denied that the statement represented a borrowing of exactly $1,080 on each occasion recorded. Mr Mileski agreed with a suggestion put by counsel for the appellant that the document, Exhibit 3, was written prior to 7 May 2002, as a prospective record of monies due. Again, that assertion did not seem consistent with the form of Exhibit 3.

40. In submissions, Mr Parkinson (for the appellant) pointed to the appellant's name on the car parts. That he submitted, was inconsistent with a criminal's desire for anonymity. The fingerprint evidence, he said, was supportive of the appellant's evidence that he had used the knife to cut steroid tablets. The appellant had admitted prior ownership of some of the lights and their shades. He submitted that Exhibit 3 was not a list of payments (or liabilities) shown to be authored by the appellant; instead, it represented whatever Mr Mileski had intended. Also, even if the appellant had knowledge of Mr Mileski's activities, that was insufficient to establish complicity.

41. For present purposes, the submissions for Mr Mileski do not need to be referred to in any significant detail. He simply denied the presumed intent to supply.

42. Mr Morters, the prosecutor, relied heavily on Exhibit 3 as a kind of "contract" between the appellant and Mr Mileski rather than the fanciful explanation of it given by Mr Mileski. He also stressed Mr Mileski's deception in the course of arranging the lease of the premises. Then he pointed out the improbability of Mr Mileski investing large sums of money out of his meagre income with no prospect of a cash crop.

43. Mr Morters then focussed on the appellant. The appellant was linked to the crop by his fingerprints and the car parts that were used to weigh down the cannabis branches. Mr Mileski had told Ms Tully that "Ivan" was to be a co-occupier; in context, the reference to "Ivan" was, clearly enough, a reference to the appellant. He was seen at the premises by Constable Craft and "there is a list found in the premises which Mr Mileski confirms refers to Mr Skaramuca and Mr Mileski".

44. That evidence, according to Mr Morters, "could lead to no other conclusion" than that the appellant was involved in cultivating the cannabis plants.

45. Further, there was the knife. Mr Morters did not dispute the use the appellant said he put it to; rather he submitted that it betrayed knowledge by the appellant that there was no cutlery in the house. Why else would he need to bring a knife onto the premises? There was no furniture save for a TV set and an upended wardrobe.

46. In reply, Mr Parkinson emphasised that Exhibit 3 had no provable connection with the appellant save that Mr Mileski had written it and used the appellant's name.

47. On 5 April 2004, her Worship ("her Honour" as from 1 June 2005) delivered her decision.

THE DECISION

48. Her Worship directed herself in relation to joint criminal enterprise by reference to the decision of the New South Wales Court of Criminal Appeal in R v Tangye (1997) 92 A Crim R 545, at 556 - 7 per Hunt CJ at CL -

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 amounting to an agreement 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 the 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 presence 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.

49. In fact, the requirements for proof of a joint criminal enterprise are now contained in s 45 of the Criminal Code 2002. It was necessary to prove joint responsibility for all eight plants to enable the prosecution to have relied on the sale or supply presumption (s 162(5) DODA).

50. Her Worship accepted that it was not established that any person other than Mr Mileski was responsible for Exhibit 3. It was also apparent to her that Mr Mileski's explanation for the document could not be accepted as truthful.

51. She concluded that such evidence as he gave was -

... simply a fabrication created in an effort to negate the possibility that Mr Skaramuca was involved in meeting some of the financial outlay in relation to the premises.

52. Her Worship was not impressed with the appellant's credibility. In essence, her Worship found it unbelievable that the appellant could have visited the house as regularly as he conceded that he had done without noticing either the lack of signs of habitation, or the presence of signs of cultivation of marijuana. Her Worship did acknowledge that -

It may be that Mr Skaramuca's involvement was more along the lines of having provided the equipment and shared the costs in relation to the cultivation.

53. Her Worship found the evidence of Mr Mileski exculpating the appellant to be "unreliable". There was a relationship between the two which would explain that evidence. Her Worship continued -

... Exhibit 3, the schedule of rental payments in my view clearly indicates both defendants as having an equal obligation in making the rent payments.

54. However, her Worship also made it clear that Exhibit 3 was not essential for her conclusion that the appellant was a co-offender in the cultivation of the cannabis plants. However, though Exhibit 3 was created by Mr Mileski, her Worship was satisfied that it was created in furtherance of the joint enterprise; hence it was admissible to support her conclusion as to his guilt.

55. Her Worship, having heard submissions as to sentence, then sentenced the appellant to 36 weeks imprisonment to be served by way of periodic detention.

56. The appeal was instituted on 23 June 2004. There was no complaint as to the sentence. Indeed, in the circumstances, the sentence could not be regarded as other than lenient.

57. The notice of appeal complained of four matters. First, the disclosure of the appellant's prior record for "selling cannabis". Second, receiving evidence against the appellant, even though it was only admissible against Mr Mileski. Third, it was contended that, absent those errors, there was no sufficient evidence to dispel a reasonable doubt as to the guilt of the appellant. Finally, it was said that, in all the circumstances, the conviction was unsafe and unsatisfactory.

SUBMISSIONS ON APPEAL

Prior Convictions:

58. There is no doubt that the prosecutor erred in cross-examining the appellant and suggesting prior criminal conduct without notice and without seeking leave.

59. Section 112 of the Evidence Act 1995 (Cth) is quite peremptory -

A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part [that is, character or an accused or co-accused] unless the court gives leave.

60. It is sufficient to refer to Gabriel v R (1997) 76 FCR 279 to illustrate the point that, had this been a jury trial, the jury would have been discharged to avoid a miscarriage of justice.

61. The respondent does not dispute that the prosecutor erred in cross-examining the appellant as he did. However, the Crown points out that her Worship correctly disallowed that line of questioning and formally refused leave to permit it. Her Worship stated that she would disregard the suggestions put by the prosecutor.

62. The prosecutor's suggestion had not been limited to a general aspersion upon the defendant's character. In a circumstantial case, where cultivation of cannabis for sale or supply was in issue, the fact that the appellant had been found guilty of prior similar conduct was enormously prejudicial.

63. Was it sufficient for her Worship simply to propose disregarding the prosecutor's unlawful revelation of that information?

64. Reference was made to Hall v Braybrook (1956) 95 CLR 620. The appellant in that case had been charged with theft; both parties requested that the matter be disposed of summarily. The bench (a stipendiary magistrate and a justice of the peace) refused that request on the basis that, earlier that day, one of them had convicted the appellant of another theft.

65. Dixon CJ adverted to the general rule that (at 627) -

... a tribunal of fact passing upon the guilt or innocence of a defendant should not be informed of the defendant's criminal record or bad character or antecedents before the tribunal pronounces a finding of guilt.

66. There was no dissent from that principle; all the justices agreed with it. However, the majority considered that the relevant statute had authorised the bench to be told of prior convictions when deciding whether to proceed summarily or to commit for trial.

67. Williams J addressed the obvious dilemma (at 641) -

...The justices need not be embarrassed because, if they fear that they may be prejudiced against the accused, they can refuse to dispose of the charge summarily. In many cases evidence that the accused was of good character might assist them in deciding to hear the charge summarily. And it should not be an impossible task for them to disabuse their minds of any prejudice against an accused person because of his antecedents if they decide to try him summarily.

68. Fullagar J (in dissent with Dixon CJ) adverted to the difficulty involved in disclosing the prior convictions of the accused before the completion of the trial (at 648) -

... If, on the trial of an offence punishable summarily, the person charged is permitted to be cross-examined as to character or prior convictions, his conviction cannot stand, even though the justices say that they have been in no way influenced in their decision by the evidence as to character.

69. Kitto J agreed that the justices could enquire as to character to determine whether or not to proceed summarily. However, choosing so to proceed would preclude a summary trial unless the defendant had consented to the justices proceeding to determine his guilt notwithstanding their knowledge of his prior convictions. His Honour found that the appellant had given such consent. However, absent that consideration, his Honour observed (at 659) -

In some circumstances the proper view would doubtless have been that they were in such a position of embarrassment that they ought to proceed no further, and should leave the whole case, including the selection of the appropriate form of proceeding, to be dealt with by other justices.

70. That position was further explained in De Romanis v Sibraa [1977] 2 NSWLR 264. The Pure Food Act 1908 (NSW) provided for higher penalties for a second and successive offence of a similar kind. The information, contested by the defendant, averred prior convictions. Also, the defendant's wife was cross-examined on that topic. The Court of Appeal held that the statute did not authorise or require the proof of prior convictions as an element of the instant offence. Thus the defendant was erroneously prejudiced by the references to his prior convictions. Accordingly, the conviction was quashed.

71. Reynolds JA observed, (at 274) -

In my opinion, viewed objectively, the circumstances of this hearing give rise to a reasonable suspicion that it may not have been impartial and unbiased, and for this reason the conviction ought not to be allowed to stand.

72. Samuels JA referred to the "general rule" that prior convictions are not admissible before verdict (at 286) -

It is not open to argue that the averment of a prior conviction in an information is unlikely to influence the magistrate. That may well be so; and is a relevant consideration upon the question whether a conviction should be set aside in a particular case (such as the present) where the existing practice has been followed. But such an argument cannot plausibly be used to sustain a general practice which is inherently susceptible of creating prejudice and which, therefore, makes most relevant the aphorism about justice being seen to be done.

73. That error (admitting proof of the prior convictions), so affected the Magistrates Court proceedings that they should be set aside.

74. Mahoney JA noted that the prosecutor had not only referred to prior convictions in the information, but had also sought to support his case by cross-examination on that topic (at 294) -

I am conscious that, if it be not wrong to refer to the prior offence in the information, there is a practical danger that the magistrate will come to know of the allegation of the prior offence prior to the determination ... the fact that the prior offence is referred to in the process of determining guilt qua the subsequent offence is apt to have a real effect upon the confidence of a person charged in the objectivity of the administration of justice in his case.

75. Of course, it is trite to say that whereas a jury can be isolated from the unfair prejudice arising from inadmissible evidence, a tribunal of fact without a jury cannot be. A judge or magistrate hearing such prejudicial material should not assume that he or she is immune from the unfairness that may arise, or appear to arise, from the revelation of inadmissible prejudicial material.

76. In the present case, the prejudicial material was disclosed to all parties (cf Griekspoor v Scott (2000) 23 WAR 530) and neither party was favoured over the other (cf. McEwin v Johns [1921] SASR 7, where there had been private consultations with the informant). Further, the learned Magistrate did not admit the prejudicial material into evidence; indeed her Worship stated that she would disregard it. The issue, as stated many times (for example, per Hill J in Klewer v Dutch (2000) 99 FCR 217, 228) is whether a fair minded observer, properly informed, would believe that the Magistrate might not be able to bring a fair and unprejudiced mind to bear on the resolution of the relevant issues. There may be a subsidiary question there as to whether the conduct of the prosecutor called for more explicit condemnation than her Worship offered.

77. It is apparent that the appellant had denied that he had used the hydroponic equipment passed on to Mr Mileski to grow cannabis for supply. Whilst the prosecutor could challenge that statement, it was impermissible, without more, to do so by reference to convictions for selling cannabis in 1999.

78. Her Worship heard argument on that point and then, correctly in my respectful opinion, rejected the prosecutor's plea to be allowed to pursue that line of questioning. Her Worship decided to proceed with the hearing confident that she could put the matter out of her mind.

79. It was certainly open to her Worship to have aborted the hearing; it might have been preferable to do so if the appellant had insisted upon it, with costs against the prosecution. However, the prosecutor's allegation of prior offences of a similar nature to the present matter was openly canvassed. There was no private communication, and the prosecutor's request to pursue the allegation was firmly rebuffed.

80. Certainly, the appellant's counsel did not resile from his complaint that inadmissible material had been raised without notice or leave. However, he did not put to her Worship that the fairness of the hearing was irreparably compromised; that is now put on appeal.

81. It is not infrequent that magistrates and, more recently, judges on trials by judge alone, are asked to admit evidence that, if admitted, would be unfairly prejudicial to an accused person. To determine that question it is frequently necessary (if not invariably so) for the judge or magistrate to be told what the proposed prejudicial evidence is. Of course, there will be cases where a judge or magistrate will conclude that the disclosed information so prejudices the fair trial (or the appearance of a fair trial) that he or she cannot do other than abort the hearing and direct its continuance before another judge or magistrate. However, that cannot be the inevitable result; it would make it too easy for one party or another to "forum shop" by raising, as on a voir dire, prejudicial matter. I leave aside cases of express or implied waiver. It seems to me that a judge or magistrate has a discretionary decision to make in such circumstances.

82. Here, her Worship recognised that the prosecutor had placed her in a compromising position but, having refused to admit the evidence, addressed the question as to whether she could still fairly try the appellant. The learned Magistrate decided that she could put out of consideration the prejudicial material; certainly, her Worship gave no indication of taking it into account in convicting the appellant. It was not put to her Worship that she would be unable to disregard the material. Whilst it will be difficult to do so in many cases, it is primarily an issue for the discretion of the particular judicial officer concerned. There is no indication that her Worship's discretion miscarried.

FAILURE OF PROSECUTION TO PRESENT EXCULPATORY EVIDENCE

83. The complaint here relates to the fingerprint on the knife found on the premises in bedroom one. A photograph of a bottle of steroids was not presented in the prosecution case. The appellant's explanation for his fingerprints on the knife found on the premises was that he had used the knife to cut steroid tablets. The fingerprint on the blade was clearly consistent with that use; the presence of the steroid tablets was relevant to support that hypothesis. The prosecution was obliged to disclose the photograph; it was, however, disclosed, at least at the hearing. Had her Worship simply rejected the defence hypothesis as to the reason for the fingerprint on the knife as "fanciful", that would, in my view, have been a logically unsustainable conclusion. However, I cannot accept that construction of her Worship's reasoning process.

84. It is the presence of the knife that her Worship found incriminating not the explanation of the use to which it was put. Her Worship asked herself why, if the appellant had resorted to the house and expected to take a steroid tablet, would he have needed to take a knife there? The answer her Worship gave is that he needed to do that because he knew that the house was not being inhabited in any real sense. In turn, that supports, contrary to his assertion, the inference that the appellant knew the purpose for which the house was being used.

85. Her Worship's use of the evidence concerning the knife found on the premises does not indicate any error; also it was not unfairly introduced.

USE OF HANDWRITING SAMPLES

86. It is true that the prosecutor obtained handwriting samples from the appellant and Mr Mileski and made apparently optimistic assertions as to the authorship of Exhibit 3 as a result.

87. Insofar as Mr Morters suggested that her Worship could conclude that the appellant wrote Exhibit 3 (or some part of it), that submission was expressly and firmly rejected.

88. The prosecution's unsuccessful attempt to use that evidence has no relevance to the outcome of the case. It may have been otherwise had her Worship relied on the samples produced to find support for the prosecutor's hypothesis.

89. It would, I agree, have been an error for her Worship to have made any adverse finding against the appellant on the basis of his handwriting sample. However, her Worship did not do so; instead the learned Magistrate accepted Mr Mileski's evidence that he was the sole author of Exhibit 3.

90. I would only add that, had the prosecutor applied to call rebuttal evidence to establish the authorship of Exhibit 3 based on the samples, it would have been permissible to seek to obtain those samples in cross-examination. Further, R v Soma [2003] 212 CLR 299 would not have precluded leave being granted to put a case in reply. As it happens, no adverse inference followed from the handwriting samples taken during the evidence; hence this ground does not support the appellant's case.

CO-CONSPIRATOR'S RULE

91. The objection here is two-fold. First, it is suggested that her Worship impermissibly used Ms Tully's report of Mr Mileski's statements to her about "Ivan". Second, it is suggested that her Worship also impermissibly used the text of Exhibit 3 written by Mr Mileski as evidence implicating the appellant.

92. Counsel for the respondent concedes that, as against the appellant, the two statements are hearsay.

93. However, the prosecution submits that the learned Magistrate made no use of the statements made to Ms Tully referring to "Ivan".

94. Her Worship certainly relied on the document, Exhibit 3, stating that -

I would find the evidence proved (sic) even if that was not the case.

95. Nevertheless, such evidence may, in some circumstances, be admissible. That is not because there is some special rule applicable to alleged co-offenders. Rather, it is because, if there is (a) evidence (apart from the impugned evidence) that reasonably supports the contention that the parties were acting in concert; and (b) the impugned evidence is of statements or actions in the course or furtherance of the joint criminal enterprise (see Tripodi v R (1961) 104 CLR 1), then the evidence is admissible to support both that conclusion and the guilt of the other offender in respect of that criminal enterprise. That principle was affirmed in Ahern v R (1988) 165 CLR 87 (not 1998 as appears in her Worship's reasons). It rests on the assumption that each co-participant gives authority to the other (or others) to act and make declarations in furtherance of, or in the course of, their joint criminal enterprise. Those declarations and actions may then be used to support (or not) the contention that the parties were acting (relevantly) in concert.

96. Her Worship clearly formulated the correct test. Was the evidence, apart from the disputed hearsay evidence, reasonably supportive of joint criminal enterprise of the kind alleged? The appellant supplied to Mr Mileski equipment not only able to be used to grow cannabis, but which had previously been so used by him. The appellant visited the house at Deakin with frequency, brought a knife onto the premises to cut his steroid tablets and was a close friend of Mr Mileski. He supplied car parts to Mr Mileski which were used to aid the growth of the crop. It was a reasonable inference that the appellant knew of the growth of the crop and was aiding and abetting Mr Mileski to grow it; it may be unnecessary to require that he knew the number of plants under cultivation. But it is reasonable to suppose that an observer would infer that commercial exploitation of the crop was, in the circumstances, a real likelihood.

97. In my opinion, therefore, her Worship's decision to admit the evidence of the utterances to Ms Tully and Exhibit 3 was correct. In the circumstances, it was clearly a reasonable inference that, in each case "Ivan" was a reference to the appellant.

98. Exhibit 3 clearly supported an inference that the rent was being jointly paid.

CREDIBILITY OF ALEX MILESKI

99. It was clearly open to her Worship to have found that Mr Mileski was not an honest witness. His account of the purpose of the cultivation as being for his "own use", given the expense involved and his lack of other significant income, was clearly untenable. Of course, he may have intended to use some of the crop for his own purposes, but the absence of any cannabis smoking paraphernalia on the premises would cast considerable doubt even on the truth of that hypothesis. Either way, that explanation is not inconsistent with a co-existing intent to sell or supply.

100. In addition, given the admitted association between the appellant and Mr Mileski, it was open to her Worship to conclude that he would lie about the appellant's association with the crop.

101. The appellant's counsel is correct in submitting that disbelieving Mr Mileski does not establish a specific contrary proposition. However, if the evidence otherwise sufficiently inculpates the appellant, the production of false exculpatory evidence may support that adverse inference. It is no different to the use of lies or flight in support of proof of guilt (see for example, R v Chang (2003) 7 VR 236).

102. Therefore, it was open for her Worship not only to have rejected Mr Mileski's evidence, but also to have regarded his false exculpation of the appellant as supportive of an inference of the appellant's guilt. There is, therefore, no error disclosed in the admission of the disputed evidence. Neither is there an error in the limited use her Worship then made of that evidence.

DEFENCE REQUIRED TO MAKE FIRST SUBMISSIONS

103. The procedure that her Worship adopted was, at that time, prescribed by s 116 Magistrates Court Act 1930 ("the MC Act")-

The defendant or a legal practitioner representing the defendant may address the court after all the evidence for the informant and the evidence (if any) for the defendant and the informant in reply has been given and the informant or a legal practitioner representing the informant shall have a closing address.

104. Certainly, s 294(1), Crimes Act 1900 (ACT) gives the defence, "in a trial on indictment", the right of final address. There is, in s 294(2), a limited right of reply to the prosecution.

105. However, the possibility of unfairness arising from a literal application of s 116 of the MC Act is ameliorated by the practice of magistrates for as long as I can recall to grant a right of reply to defence counsel; that was done in this case. I acknowledge that had a right of reply been denied to the appellant, particularly where new matter was relied upon, be it argumentative or otherwise, there may well have been a breach of s 21 of the Human Rights Act 2004 (ACT) had it been applicable. Similarly, there may have been a breach of the general common law right, as recognised in Magna Carta 1215, to a fair trial.

106. There is no substance in this ground of complaint.

GENERAL

107. Even absent some specific error, the appellant contends that the learned Magistrate should not have found the offence proved.

108. Insofar as the finding depended on the credibility of the appellant, the assessment thereof is not really capable of challenge unless the finding is manifestly unsound (cf State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3, 3 February 1999.

109. A perusal of the transcript does not indicate any unfairness, injustice or other error in her Worship's conclusion that the appellant and Mr Mileski lacked credibility.

110. That notwithstanding, it is true to say that discarding the evidence from the appellant and Mr Mileski as untruthful does not, by itself enable a conclusion that the appellant participated in cultivating the cannabis. However, given that the appellant (a) provided a significant part of the equipment used in the cultivation; (b) must have known what Mr Mileski was doing; and, (c) according to Exhibit 3, was sharing expenses of the cultivation, a conclusion that he was guilty of the offence charged was not only open, it was clearly correct.

111. Indeed, to conclude that the appellant's participation may have been limited to providing money and equipment, with no expectation of profit, seems to me to be unduly charitable.

112. The appeal is dismissed. I will hear the parties as to consequential orders.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 22 July 2005

Counsel for the appellant: Mr S Whybrow

Solicitor for the appellant: Porters Lawyers

Counsel for the respondent: Ms J Whitbread

Solicitor for the respondent: Director of Public Prosecutions (ACT)

Date of hearing: 11 May 2005

Date of judgment: 22 July 2005