Regina v A Rizzotto; Regina v A Calabria [1999] NSWSC 1368 (14 July 1999)

REGINA v. Antonio RIZZOTTO REGINA v. Antonio CALABRIA

60411/94 60408/94

22 May 1996

COURT OF CRIMINAL APPEAL

SMART J, ABADEE J, SIMPSON J

CATCHWORDS: ADMISSIBILITY OF HEARSAY EVIDENCE - REGARD HAD TO MATTERS NOT IN EVIDENCE - PHOTO IDENTIFICATION - ACCOMPLICE CORROBORATION - UNSAFE AND UNSATISFACTORY VERDICT - SENTENCES

EX TEMPORE/RESERVED:Reserved

ALLOWED/DISMISSED: Appeals against conviction dismissed. Sentences reduced.

HEADNOTE

A group of men took part in the cultivation of a large cannabis plantation in a remote and sparsely settled country area. There was identification evidence from two brothers (aged 17 and 15) who lived on the family station and saw those involved at meetings and inspections. There was ample opportunity for accurate observation. The tapes of the telephone conversations of the appellants provided telling evidence against them. The explanations were not credible.

As To Both Appellants

Evidence was led of the appellants at a meeting at the station being associated with a Ford utility. There was a dispute as to its colour. The utility was admitted into evidence, becoming an exhibit. It was seen by the jury on that day. The judge stated that the vehicle's relevance was its colour and at that stage declined to permit the jury to inspect its interior when they asked. During their deliberations the jury sent a message asking to see the utility. Arrangements were made for the utility to be brought to court by the son of the appellant Rizzotto. The sheriff's officer verified with the judge via his Associate that the jury could inspect any part of the vehicle and allowed the jury to do so. The sheriff's officer spoke with Rizzotto Jnr on returning the utility and was questioned by Rizzotto's counsel during an adjournment. Rizzotto Jnr and the solicitor's clerk said that the sheriff's officer had in substance stated that the jury had had a good look over the vehicle including under the hood which covered the tray. The sheriff's officer could not recollect what he had said or precisely what the jury had done.

Held: (1) The evidence as to what the sheriff's officer said to Mr Rizzotto Jnr and counsel was admissible;

(2) At least one of the jury probably looked inside the back of the utility;

(3) Although there had been an irregularity, this could not have affected the outcome of the trial.

As To Rizzotto

Identification - The police showed the elder brother a series of 20 photographs. They were a poor selection and included 6 photographs of the appellant Rizzotto. Many of the other photographs were of people markedly different from Rizzotto.

Held: The procedures adopted by the police were flawed and unfair. However, the elder brother's extensive observations of Rizzotto enabled him to identify Rizzotto accurately and the evidence should have been admitted.

The police showed the younger son the same photographs. Nearly 7 weeks later the younger son identified Rizzotto at an identification parade. In summing up the judge pointed out the problems which arose and left the critical issue of whether there had been a genuine identification to the jury. The younger son had been able to make an extended and accurate observation of Rizzotto.

HELD: The evidence of identification of the younger son was correctly admitted.

HELD

FURTHER: (1) The judge had sufficiently isolated the deficiencies in the identification evidence.

(2) The judge had not erred in admitting into evidence certain tape recordings of telephonic intercepts as evidence of common purpose.

(3) The verdict against Rizzotto was not unsafe and unsatisfactory.

As To Calabria

HELD: (1) The photographs of Calabria shown to the identification witnesses were legitimately obtained - his wife permitting the police to take them;

(2) The photographic identification was admissible and it was not unfair to admit it;

(3) The quality of the identification evidence was not poor and its probative value was not outweighed by its prejudicial effect;

(4) This was not a case where there should have been separate trials or where there had been an injustice arising out of the joint trial;

(5) The judge had correctly left it to the jury to decide whether the 15 year old brother was an accomplice and told the jury that the Crown had to negative that he was an accomplice. It was not appropriate for the judge to direct the jury that this brother was an accomplice. In any event, no prejudice or miscarriage arose from the judge leaving the issue to the jury. Further, the jury were directed that even if they were satisfied that the younger brother was not an accomplice they should still scrutinise his evidence most carefully;

(6) The directions as to corroboration were not weakened by the jury having to decide whether the younger brother was an accomplice. The judge's directions were adequate;

(7) The verdict was not unsafe and unsatisfactory.

Appeals against conviction dismissed.

Sentence Appeals

HELD: (1) There was an element of disproportion between the sentences imposed on the appellants and the co-offenders. While the criminality of the appellants was high there was a co-offender whose criminality appears to have been higher.

(2) The sentences were excessive and should be reduced to a minimum term of 5 years and an additional term of 31/2 years.

ORDERS

1. Each appeal against conviction is dismissed.

2. Leave to each appellant to appeal against sentence.

3. Each appeal against sentence is allowed. In lieu of the sentences imposed each appellant is sentenced to 81/2 years penal servitude comprising a minimum term of 5 years commencing on 14 July 1994 and ending on 13 July 1999 and an additional term of 31/2 years commencing on 14 July 1999.

JUDGMENT

SMART J: The appellants appeal against their conviction that between 1 October 1990 and 12 March 1991 at Cobar they knowingly took part in the cultivation of a number of prohibited plants (about 3940 cannabis plants) being not less than a commercial quantity. They seek leave to appeal against the severity of the sentence imposed upon each, namely, a minimum term of 61/2 years and an additional term of 31/2 years.

In about October 1990 Kevin Parker met with Frank Barbaro, Russell Clark and Joe Romeo in South Australia. It was proposed that, subject to suitability, a cannabis crop be grown at Mt Grenfell, a large sheep station in a remote area west of Cobar on which Parker lived with his wife and children.

A little later, Parker met with a group of men, including Barbaro and Romeo. A site for the growing of cannabis was selected. The Crown alleged that Antonio Calabria was present as one of the investors.

The site was ploughed and prepared for the sowing of seed. Irrigation pipes were installed and a number of men employed by or associated with the investors took up residence on the property to help cultivate the crop.

About 10 December 1990, or perhaps earlier, a plane flew overhead. This caused the workers associated with the investors to leave. Kevin Parker became alarmed. He enlisted the help of his two sons (Jody and Hayden) and Les Holmes who had worked for Parker until December 1990. Holmes' family still lived on Mt Grenfell station and he came back each weekend. The four men proceeded to pull up the poly piping and store it and other items about 500 metres from the crop site.

At a subsequent meeting attended by Parker, his sons and a group of men (the investors and their assistants) including the appellants Parker was told that the crop was to continue and to re-lay the irrigation system. The pipes were re-laid, the cultivation continued and the investors' workers returned to tend the crop.

Later in December, and probably between Christmas and New Year, Parker, his son Jody and Holmes pulled the pipes up again and loaded them onto a trailer. The cannabis plants had grown taller. Barbaro protested by telephone, insisting that the crop could not be stopped. A meeting was arranged at The Pines (a hill with three pine trees about 40 kms out of Cobar). It was attended by the three Parkers, some investors and assistants. Parker believed that the majority at the meeting accepted that the crop should be stopped and that he should destroy the plants. The following day Barbaro telephoned and said that the crop could not be stopped and that if Parker did not agree to go ahead with it Barbaro would telephone the police, tell them where the crop was and Parker would be caught with the lot of it. Barbaro said that they were coming back. Parker told Barbaro that he did not want them back. About 4 am the following morning Barbaro, Ralph Esposito, Rocco Rizzotto and two or three other people arrived at the Station. Parker, Jody Parker, Ralph, Rocco and a man called Old Fred helped to re-lay the pipes.

About 9 February 1991 Holmes reported the cultivation to the police. He continued to live at the property so that the police could make enquiries and identify and arrest all those involved. Holmes was also asked to watch what was going on and to report to the police.

Jody Parker stated that in about late February 1991 he saw a number of men (including two men subsequently identified as the appellants) and a pale blue Ford XF utility parked outside a cabin used by the workers for the investors. This was near the house occupied by Holmes and his family. Jody later identified the utility from one police photograph.

On 11 March 1991 an appreciable number of policemen attended at Mt Grenfell Station and made a number of arrests. Police seized 3946 cannabis plants of various heights and maturity and recovered a bag of harvested cannabis.

Detective Clout stated that in late April 1991 he photographed a light blue Ford utility PEJ 892 in which Tony Rizzotto (not the appellant) arrived at a service station owned by the appellant Antonio Rizzotto. On 8 June 1994 the Detective saw that utility next to the Downing Centre Court complex. The vehicle was being driven by the appellant Rizzotto. The detective saw him alight from the vehicle and walk to the Court complex. He described the colour of the utility which he had seen near the Court complex as pale blue.

On 27 April 1991 the home of Antonio Rizzotto at Smithfield was searched. In a record of interview made that day he denied involvement in the crop but admitted that he had owned the utility PEJ 892 for about 21/2 years. He allowed his wife and children to drive the utility but never lent this utility to other people. His nephew, Rocco, who was on an extended visit to Australia had used the utility on a short local trip to a club near the appellant Rizzotto's home. Rocco had never borrowed the vehicle over-night. The appellant said that he had driven the utility to Griffith a number of times but not elsewhere in the country. Rizzotto denied that he had ever been to Cobar or Mt Grenfell Station or to meetings about a cannabis plantation. He travelled to Dubbo once to see Rocco when he went to court.

He knew an Antonio Calabria from Griffith. He agreed that some of the tapes of intercepted telephone calls were conversations between himself and Calabria, the co-accused.

On 30 April 1991 Hayden Parker identified the appellant Rizzotto in an identification parade. Kevin Parker did not.

The home of the appellant, Calabria, at Hanwood, near Griffith was also searched on 27 April 1991. The police took possession of some guns. To the police at his home he denied that he had ever been to Cobar or near Cobar. He said that he had not spoken to anyone named Rizzotto in Sydney for a long time. Sgt Dolan stated that he held numerous conversations with Calabria and that he spoke at length with his family in the Italian language. These conversations enabled the officer to identify Calabria's voice on some tapes of telephone calls.

After the search Calabria went to the police station. Constable Cahill stated that at about 11.50 am on 27 April 1991 Calabria was charged and allowed to go home. This was probably in relation to some gun offences. On 9 May 1991 the police interviewed the members of the Parker family. Jody Parker identified Calabria from some 10 photographs. Hayden Parker identified Calabria from some 12 photographs. On 10 May 1991 Kevin Parker was tentative, using the word "possibly". It was decided to charge Calabria. Later that day Calabria was arrested and charged as to the plantation. Calabria declined to be interviewed. The police gave evidence that Calabria's solicitor indicated by implication, that Calabria would not take part in an identification parade. This was challenged. Calabria denied that he had been asked to take part in such a parade.

Calabria and Rizzotto had known each other for about 25 years. Rizzotto had spoken to Calabria about his nephew, Rocco, who was visiting from Italy, fearing that the nephew may become involved in illegal conduct.

The Crown relied upon intercepted telephone conversations in the Calabrian dialect at the trial. There were conversations between Rocco and Rizzotto (and members of his family) some of which were guarded and some of which used euphemisms such as, "the broccoli have flowered". It was apparent that Rocco was working in a dry hot area and working hard physically.

Within a day or so of Rocco's arrest the Dubbo Police telephoned Rizzotto and advised that Rocco had been locked up for the crop at Cobar. When Rocco spoke to Rizzotto the latter asked Rocco if he alone had been arrested. On being told no, Rizzotto said that he understood.

Shortly after this, in a telephone conversation between Rizzotto, Calabria and a third person Rizzotto stated, "They got the shepherds" and that he had to go to Dubbo the following morning. There were further telephone conversations between Rizzotto and Calabria in guarded terms with elliptical references. There is a reference to a "big boss" and a "little boss" and of a trip to Melbourne, probably for the purpose of Rizzotto seeing one of the heads of the operation and to them (probably the police) not getting a particular man who had gone into hiding.

Calabria denied taking part in the cultivation of cannabis plants. He denied that he had ever visited Cobar or the plantation or worn a towelling hat. He said that he conducted a farm at Hanwood on which grapes, oranges and prunes were grown. He was assisted by his wife, three sons and a daughter. He supplied grapes to Rizzotto and they had discussed his collecting them.

Calabria said that he had spoken to Rizzotto about his nephew, Rocco. He knew Rocco was involved in something illegal but he did not know what it was. Rizzotto had referred to his nephew lacking brains.

The interpreter stated that in recounting what Rizzotto had said to Calabria, the latter had used two dialectal words. Their literal meaning was "they caught the shepherd". An idiomatic meaning may have been intended. Calabria said that he meant "stupid, his nephew might be get caught"(T804). The literal meaning was, however, singularly apt. Rizzotto called the barrister "big boss" and the solicitor "little boss".

Calabria denied that the taped telephone conversations related to the cannabis crop.

Character evidence was given by several witnesses. They attested to him being a hard worker, a good family man and trustworthy. He enjoyed a good reputation in the Griffith district.

An interpreter, Mr Molinara, advanced different meanings of some parts of the tapes. He tended to be less literal and more idiomatic. In some instances it was not easy to determine which meaning was intended and understood. I doubt if the differences were significant overall.

Rizzotto denied any involvement in growing marijuana. In a very short dock statement he said that he had never met the Parker family and that he had never been to Cobar except when he attended the court there. His nephew had stated that he was involved. Rizzotto was very concerned so he telephoned his friend Calabria.

Rizzotto believed that in talking about broccoli his nephew was trying to tell him not to worry because, "he was nearly over". A credible meaning was that the crop was nearly ready. Rizzotto stated that when the police telephoned he was very upset. He telephoned Calabria and told him, "the idiot, Pecorari been caught". Rizzotto continued, "The big boss is Mr Bellanto. The little boss is Mr Whitby".

Idiot was one of the colloquial meanings of 'pecorari' advanced by Mr Molinara.

Rizzotto did not refer to the utility in his dock statement.

The Crown's Approach To Proof

A great deal of time was spent at the trial on the identification evidence of Jody and Hayden. The appellants sought to demolish it or to persuade the jury that it could not be relied upon or that at least there was a reasonable doubt as to it.

From the conduct of the trial and the summing up it was clear to all that the Crown, apart from the identification evidence of the three Parkers, relied on the other circumstantial evidence as proving beyond reasonable doubt the involvement and guilt of Rizzotto and Calabria. The Crown relied on there being a large plantation of cannabis being sown and grown, the visits of groups of people (the investors) and representatives or employees of the investors working on the plantation. Those matters were convincingly established. The question was not whether there was a cultivation of cannabis plants but whether the appellants took part in it.

The explanations of what the appellants had said were not credible. The contents of the tapes pointed to their knowledge of what was happening and their involvement. Further Rizzotto and Calabria had lied and the lies included their recent contact and their relationship. The explanation given of the sale of grapes by Calabria to Rizzotto was less than convincing.

Without the identification evidence of Jody and Hayden the Crown case was not as strong. Some reasonable juries may not have regarded the Crown evidence as sufficiently strong without it. Others may have taken a different view. Part of that identification evidence included Jody associating Calabria and Rizzotto with the light blue Ford utility at the plantation. The Crown contended that the identification evidence of Jody and Hayden Parker as to both appellants was cogent. Parker could not identify Rizzotto and his identification of Calabria was tentative and insufficient.

The appellants at the trial and on appeal insisted that without the identification evidence no conviction could be supported and that the identification evidence was so deficient that it did not advance the Crown case against either of them.

Impermissible Use By Jury Of Utility

Both appellants complained that the trial judge erred in allowing the jury to have access to the tray of the utility while considering their verdicts when he had previously limited examination to observation of the external colour of the utility.

The utility was not a critical piece of evidence at the trial but it was a fact relevant to a fact in issue. While it was capable of corroborating the evidence of Jody in one respect, it was subject to limitations.

Hayden gave no evidence as to the utility. At the trial Jody stated that in about mid February 1991 he went to the log cabin on his motor bike. There were people inside talking. He did not go in immediately but stayed outside. He took particular notice of a light blue Ford utility saying, "It was an XF ford ute, it had a black torno (Tarpo) cover on it, it had a roo bar and ... little square Navarra spotlights" (T252).

Jody said that when he went into the log cabin he saw amongst others, Old Frank (Calabria) and the person he identified outside Dubbo Court (Rizzotto). They drove from the log cabin to the new shearing shed and stopped. Jody did not see them put the Honda fire fighter and pump in the back of the utility but the next day the pump was gone. Ralph said to him that they had taken it. He identified the utility as that shown in Ex26 being a photo of parts of 3 vehicles taken outside Dubbo Court House. About the front and 1/2 of the utility's body were visible. That vehicle bore the number plate PEJ 892. Jody said that Old Frank was driving in the utility (T253). As to the man at Dubbo Court House (Rizzotto) Jody said he definitely saw him at the log cabin but he may not have seen him in the utility (T262).

The important point was that the appellants were together at the log cabin. They were there in connection with the plantation. The utility was of lesser importance although it was owned by Rizzotto and helped to provide a further connection between the appellants.

Jody's evidence had a history. About 13 March 1991 Jody told the police during their investigations that he had seen a blue Ford utility at the plantation (probably at the log cabin). At the trial he remembered the first letters of the registration number but he had not included those in a statement. (T263)

On 10 April 1991 Jody described the utility to Det Beaufils as a light blue Ford ute driven by the older Frank. Jody may have stated that the colour was light blue earlier. Det Beaufils showed Jody Parker a photograph of three vehicles. The middle vehicle was Ford utility PEJ 892. It had a bull (or roo) bar and spotlights. Jody had recognised these. He remembered the square shape of the spotlights with the yellow sticker on them and seeing the vehicle at the homestead (T722).

Thereafter Jody described the vehicle by reference to these characteristics and the number. He told Det Beaufils that the inside of the tray was scratched when he looked into it and that it had a black tarpaulin over the top of the tray. (T722)

There is nothing unusual about scratches on the tray of the utility. With any utility which has been regularly used for a year or more it would be surprising if there were no scratches.

Both Jody and Det Beaufils acknowledged that Ford utilities were common and that there must be many blue Ford utilities in Australia. It was not uncommon for utilities to have roo bars and spotlights. Ford utility PEJ 892 was described by other witnesses as being white or off white. It was registered as being white in colour.

It was seen by the jury under artificial and in natural light. The photograph of the utility taken at Dubbo Court in March 1991 and that taken on 27 April 1991 in the south western suburbs have different hues.

Det Beaufils stated that when he saw the vehicle on 27 April 1991 it was light blue. A photograph (ex 28) of the vehicle (and another vehicle) taken on that day showed that the vehicle was light blue in colour.

The evidence of Jody Parker was subject to much challenge. Part of the challenge was based on the colour of the car. The jury were told that if they were satisfied beyond reasonable doubt that Jody Parker sighted the light blue Ford utility at the Station that could be used as corroboration as it was not disputed that the appellant, Rizzotto, owned it (SU 197). At T871, immediately after Rizzotto made his unsworn statement, his counsel tendered "car PEJ 892". It was admitted without objection and marked Exhibit R5. The judge placed no restriction on the use to which it could be put. The judge told the jury that he would have the vehicle brought down into the basement of the Downing Centre so that they could see it under artificial light, that then they could see it up at the Darlinghurst Court complex in the natural light and that the vehicle would be available for them to look at up until the trial concluded.

In the absence of the jury the judge stated that at the completion of the view he proposed to release the vehicle as it was Mr Rizzotto's means of transport.

The judge, the parties and their legal representatives adjourned and reconvened in the basement car park. The utility was placed in a position approved by all parties. The judge returned to Court and instructed the jury that they were to be accompanied by two officers to the car park so that all of them could have "a good look at the vehicle". The officers were not there to answer questions. (T873)

The judge told the jury that after lunch the court would take some brief evidence and that the jury would then proceed to Darlinghurst to view the vehicle in daylight.

After lunch the judge stated (T874):

"I had a request from the jury to look inside the car and under the bonnet. I didn't allow that request. It seems to me that the issue here is the external appearance of the vehicle, nothing else, nothing more. Does everyone agree with that?"

The transcript records "Counsel indicated they did".

An experienced photographer gave evidence as to how a white car can look blue and vice versa. It may be due to the colour mix when the negative is being developed or to slight under exposure when the photograph is being taken.

The judge told the jury that the exhibits would be made available for them to look at prior to counsel addressing so that they would be familiar with them. The judge continued (T880):

"I did receive a request from you to look at the interior of the vehicle and under the hood of the vehicle. As I understand it, the evidence in this case relates to the external appearance of that car. I do not think there is any need to look under the hood or interior. That is the only observation I want to make at this stage. If there is a reason that you want to do something by all means write me a note and let me know and I will discuss it with counsel and we will come to an answer in regard to that matter.

I will make arrangements for a bus to transport you to an area where you can view this vehicle in daylight and that will be done as soon as possible. After you have seen the vehicle to your satisfaction you will then be brought back. You can indicate to the officers that you have satisfied your every need and you will be brought back to the jury room. You can continue looking at the exhibits if you want to or you can disperse, it is entirely a matter for you. Then tomorrow morning you can continue looking at all the exhibits and take as long as you like to look at them. The motor vehicle will be available to you at any time if you want another look at it, it certainly can be arranged to look at in the area where you viewed it earlier today quite easily."

The transcript continues "(view of exhibit R5)".

During the Summing Up (SU 325 & elsewhere) the judge referred to the dispute as to the colour of the vehicle. He mentioned that some of the photographs showed it as white and some as blue or light blue. The judge left it to the jury to say whether it was a vehicle which could be perceived as blue. The judge reminded the jury that the defence contended that the vehicle was a white one and provided no support for the evidence of Jody Parker that he saw the utility at the Station. Jody said that the utility he saw was blue or light blue. The judge reminded the jury that the appellant contended that Jody Parker was wrong about the vehicle and wrong when he said that Rizzotto and Calabria were at the station. The judge referred in detail to the arguments of the Crown and those of Rizzotto, Calabria and Prochilo (a co-accused) about the colour of the utility and whether it was at Mt Grenfell Station as alleged by Jody Parker.

After the appellants had been convicted and during the sentence proceedings on the following day (14 July 1994) counsel for Rizzotto referred to the utility being delivered to the court on the previous day by Rizzotto Jnr for inspection by the jury and the son being asked by the Sheriff's Officer to check the vehicle as the jury had asked to see the back of the utility which was covered. Counsel expressed the fear that the jury may have looked to see whether the inside of the tray was scratched. Three years had elapsed since the incident. The judge responded:

"What a jury does with an exhibit is for it to determine and how your client's son got that information I do not know. He should never have got it. Anyhow they did it, what do you want?"

This exchange occurred

"BELLANTO: Your Honour's clear indication, as I understood it, was the purpose of the tender and the only way the jury could use the tender was to determine the colour of the vehicle from outside, looking at the vehicle from the outside.

HIS HONOUR: That is not my understanding, once an exhibit is tendered, it is tendered. The car was locked and a specific request was made to look in it and having discussed that with counsel I did not allow it..."

The judge refused Counsel's request to cross examine the sheriff's officer and to determine the facts. Counsel enquired of the judge whether he had received a request from the jury. The judge refused to discuss that matter or what the jury did or did not do.

Mr B.J.Ahern, a law clerk, instructing Counsel for Rizzotto, has sworn that during their deliberations the jury informed the Court that they wished to view the ford utility (Ex R5) owned by Rizzotto and that the trial judge informed counsel and those instructing them of this request and, in the absence of objection from counsel indicated that with the co-operation of Rizzotto's son and a sheriff's officer he proposed to permit the jury to view the exhibit (the utility) within the precincts of the court.

Mr Ahern has further sworn "that counsel raised no objection to the jury request provided that the judge's previous direction that the vehicle remain locked and secured be adhered to". If this be correct it would be odd for the judge to cause the sheriff's officer to be told by his Associate that the jury could look anywhere they wished on the vehicle.

The transcript records that the jury retired on 12 July 1994 to consider their verdict. An absent juror who had met with an accident the previous night was discharged. The transcript of 13 July 1994 shows that this caused some delay and that the jury retired again at 10.43 am on 13 July 1994 and that the jury returned with their verdicts at 3.55 pm that day. The transcript which this Court has makes no reference to the jury's request or the arrangements made. Perhaps the matter was dealt with in Chambers. If it was dealt with in Court perhaps there was no short-hand writer or sound operator or nobody thought that it was necessary to record some minor administrative arrangements.

The appellant's son, Tony, brought the utility back to the Court complex for the jury to look at it again. This was probably on 13 July 1994.

Mr R.A.Brown, a sheriff's officer at the trial, remembered that a vehicle was involved and thought that there were a number of views of the vehicle, including an inspection during the course of the jury's deliberations about mid morning. It was Mr Brown's recollection that the Court had not re-convened when the jury's request to inspect the utility was received.

Mr Brown said that prior to the view he asked the judge's associate whether the jury could look anywhere they wished. She went to the judge. Upon her return she said that the jury could look wherever they wished. Mr Brown said that he was inexperienced. It was his first long trial. He wanted to make sure that he knew what was to happen when he went down to the utility. He did not remember a request from the jury to look in the back tray. He did not think that a request from the jury had led him to speak to the judge's associate but he could not be sure about this.

Mr Brown said that by arrangement, the appellant's son drove the vehicle to the top of the ramp and handed it over to the sheriff. The vehicle was checked and driven down into the basement. The jury were brought down to view it. Mr Brown was present. He believed the vehicle was a utility and that when it was brought down there was a cover over the back of the tray. Mr Brown had a vague recollection of the view. He was unable to say whether the jury or any juror looked under the cover. He could not recall looking under the cover himself.

Mr Brown could not recall whether the jury's viewing of the vehicle was to be done in circumstances where the vehicle was to remain locked.

After the jury's verdict Mr Rizzotto Jnr was given permission to collect his father's vehicle. It was driven to the top of the ramp. Mr Brown asked Mr Rizzotto Jnr to check the vehicle before he drove away to ensure that it was safe and that everything was secure. Mr Brown could not recall his exact words. He did not recall telling Mr Rizzotto Jnr to "have a look in the back to make sure everything is as it was because the jury had a look".

Mr Rizzotto Jnr said that after 4.00 pm on 13 July 1994 the sheriff's officer said, "When you pick up the vehicle have a look in the back to make sure everything is as it was because the Jury had a look".

Mr Ahern said that about 11.15 am on 14 July 1994 during the morning tea adjournment Mr Bellanto spoke with the sheriff's officer. Obviously, Mr Bellanto had received information from Messrs Ahern and Rizzotto Jnr and desired to confirm what had happened. Mr Ahern swore that the sheriff's officer, probably in response to Mr Bellanto, informed him that after the jury had completed their inspection of the vehicle on Wednesday 13 July 1994 he requested Mr Rizzotto Jnr to inspect the loading tray of the vehicle because the jury requested access to it during their inspection.

Mr Ahern swore that Mr Bellanto replied that he understood that the jury was not permitted to look into the vehicle and that the officer responded, "I checked it with his Honour first - I spoke to his Honour's Associate who said she would check it with his Honour and then she said it was okay".

At the hearing before this court the Crown objected to the admissibility of the evidence of Messrs Ahern and Rizzotto Jnr so far as they purported to relate what Mr Brown had said. It also objected to the narration in summary form that Counsel raised no objections to the jury's request.

The Crown contended that the evidence of Messrs Ahern and Rizzotto Jnr was hearsay. Even if it were not technically hearsay it was only evidence that Mr Brown had made statements in the terms alleged. This material did not constitute evidence of the truth of the facts. It was not evidence that the jury had looked under the cover and into the tray nor that the jury had had regard to any scratches or drawn any conclusions.

In the ordinary course the evidence of Mr Brown as the officer in charge would have been determinative of what the jury had or had not done. His recollection was far from complete. When counsel sought to investigate the matter when it was fresh in everyone's mind the judge refused to allow counsel to pursue the matter, probably for three reasons. The judge had remarked "Anyhow they did it." This suggests that he was aware that the jury had looked under the cover of the utility at the tray. Second, he regarded the jury's deliberations and what they did with an exhibit during those deliberations as sacrosanct. Third, once an exhibit was tendered the jury could look all over the exhibit in the absence of some limitation.

While there is always room for error I would find it difficult not to accept that the sheriff's officer had uttered the substance of the remarks attributed to him by Mr Ahern. Mr Bellanto QC was present at and probably conducted the interview with Mr Brown. He took the matter up with the judge at an early point of time. He pressed the conversation upon us.

The Court admitted the evidence to which objections had been taken and stated that it would give its reasons later. The Crown did not lead any evidence in reply or seek to cross examine either Mr Ahern or Mr Rizzotto Jnr.

As Lord Wilberforce observed in Ratten v. The Queen 1972 AC 378 at 387 a question of hearsay only arises when the words spoken are relied on 'testimonially', ie, as establishing some fact narrated by the words. That situation is to be distinguished from the case where the speaking of the words is itself relevant.

In Walton v. The Queen [1989] HCA 9; 166 CLR 283 at 288 Mason CJ said:

"The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue ..."

and

"Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made."

Evidence of the officer's knowledge of the extent of the jury's inspection, he being either the only officer or possibly one of two officers apart from the jury who knew what happened, would be a fact relevant to a fact in issue. There is no doubt that the jury inspected the utility during their deliberations. The question is whether the jury inspected the back tray under the cover. We are dealing with a declaration of extremely recent past memory.

In Ratten at 389 Lord Wilberforce, delivering the advice of the Judicial Committee, said:

"The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognized and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. ... As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it."

His Lordship continued at 391:

"... there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

The sheriff's officer had no reason to concoct what he said to Mr Tony Rizzotto. It was a natural comment flowing from what he had recently seen and in an area where he had responsibility. The officer also had no reason to concoct what he said to Mr Bellanto but that statement was made a day later. The officer appears to have given a straight forward reply to the enquiry addressed to him while the case was still pending. He had checked with the judge via his associate and had no reason to feel apprehensive. The extreme unlikelihood of concoction on the part of the sheriff's officer is a factor favouring the admission of the statements made by the officer. There was probably time on both occasions for concoction but no reason for concoction by the officer. Mr Rizzotto Jnr had reason to concoct a story. However, he was available to be examined and cross examined in Court. It was a pity that the officer's recollection had faded.

A further approach would be to treat the officer's statements as part of the circumstances to be taken into account: Walton v. The Queen at 303 and 305. It becomes a question of what inference should be drawn from the whole of the circumstances including the statements.

In The Queen v. Benz & Anor [1989] HCA 64; 168 CLR 110 Mason CJ at 118 and Deane J at 121 alluded to the need for re-examination of the hearsay rule and the recognition in some judgments in Walton of the need for greater flexibility in the application of the hearsay rule. The question was not argued in that case. At 143 Gaudron and McHugh JJ stated that there was much to be said for the view that the rationale of the exceptions to the rule which prohibits the admission of hearsay evidence is that evidence falling within the exceptions has a high degree of reliability and can be acted upon safely. Their Honours continued at 144:

"If this is the rationale of the exceptions to the hearsay rule then notwithstanding the decision in Myers v. DPP 1965 AC 1001, a strong case can be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability."

Their Honours saw that as a principle of admissibility constituting a general exception to the hearsay rule. It is a stimulating approach.

In Pollitt v. The Queen [1992] HCA 35; 174 CLR 558 the Crown case was that, pursuant to a financial arrangement with Dennis Allen (the instigator), Pollitt was to murder a nominated man but made a mistake as to that man's identity and murdered the victim instead. Mrs Berry said that later on the morning of the newsflash about the shooting she and Mr Berry were visiting Allen. Allen described the shooting as one of mistaken identity. Later that day or perhaps early the next morning the Berrys' were present when Allen received a telephone call during which he became angry and said to the caller, "You get the rest of the money when you do the job properly". A little later Allen told the Berrys' that he had been speaking to "Ray" and that "he had given him a job to do and he had stuffed it up". Allen also said, "I have already given him 5000, he expects me to give him another five for something he hasn't done". Mrs Berry knew Pollitt as Ray.

The Court held that what was said by the instigator (Allen) in the telephone conversation was admissible, that Mrs Berry's evidence of the instigator's statement that he had been speaking to the accused was admissible and that the wife's evidence as to each of the instigator's statements that he had given the accused money and he had 'stuffed it up' and that he had already given the accused $5000 and that he wanted another $5000 for something he hadn't done, was inadmissible.

As 565 Mason CJ remarked that there were statements in Walton which supported a less than rigid application of the hearsay rule. Mason CJ at 566 thought that the case for relaxing the hearsay rule should prevail. Brennan J discussed the question of the admissibility of hearsay evidence at some length. At 577-8 he stated that subject to the exceptions to the hearsay rule, "...evidence of an out-of-court statement tendered to prove the truth of some fact asserted by the maker of the statement, expressly or impliedly, is prima facie inadmissible. But where the making of a statement in particular terms is capable, in conjunction with evidence of other facts and considered in the light of common experience, of founding an inference that a relevant fact exists, evidence of the making of the statement is admissible as original evidence of the relevant fact". That is the position in the present case.

At 582 Brennan J noted the views of Deane J in Walton. Brennan J regarded Walton as a decision governing the admissibility of hearsay evidence under the res gestae exception and one which should continue to do so.

At 594 Deane J pointed out that the general rule against the admissibility of hearsay statements was a judge made rule which was clearly subject to exceptions or qualifications. His Honour agreed with these observations of Lord Pearce, dissenting, in Myers at 1034:

"My Lords, the evidence whose admission is the ground of complaint was fair, clear, reliable and sensible. The question is whether the court was bound by a technical rule to exclude it. No one doubts that the general exclusion of hearsay evidence, subject to exceptions permitted where common sense and the pursuit of truth demand it, is an important and valuable principle. But it is a disservice to that general principle if the courts limit the necessary exceptions so rigidly that the general rule creates a frequent and unnecessary injustice."

and continued at 594-5:

"In my view, it is permissible and desirable that this Court, as the final appellate court of the nation, recognizes a new exception to or qualification of the hearsay rule when changing circumstances throw up an identified category of case in which it is plain that the inflexible application of the rule would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve."

Dawson and Gaudron JJ decided Pollitt on another point. They found it unnecessary to consider whether there should be a "telephone" exception to the rule against hearsay. They had some difficulty in extracting any principle upon which such an exception could be based.

Toohey J agreed that the hearsay rule should not be applied inflexibly. He thought that the remarks made after the telephone conversation as to its contents fell outside any permissible flexibility. They were much more open to concoction than re-active remarks made during a telephone conversation. McHugh J, at 621, referred to the earlier statement of Gaudron J and himself in Benz that a strong case could be made for developing and applying the common law rules of evidence by reference to the principle that hearsay evidence will be admitted when it appears to have a high degree of reliability. McHugh J stated "the exception should be confined to categories of ordinary social and business conversations where there is no real ground for concluding that the identification was fabricated or fictitious".

The justices were acutely conscious of the history of the hearsay rule and the development of the exceptions. That history is summarised in Lord Reid's speech in Myer at 1019-1021. He acknowledged that over the centuries exceptions had been developed but he thought that by the end of the last century the principles had been settled ("stereotyped"). Lord Reid thought that it was for the Legislature, after a wide ranging review, to consider the position.

The justices in Pollitt, while accepting that the hearsay rule should not be applied in a rigid way, were concerned about finding some satisfactory principle on which to base an exception. The general statement of principle by Deane J provides a useful starting point as does the statement in the joint judgment of Gaudron & McHugh JJ. In Pollitt there was a slight enlargement of the exception. One further slight enlargement may depend upon the reliability of the material, a very low risk of concoction and the rejection of the hearsay material in the circumstances confronting common sense. Another and perhaps virtually the only other exception may depend upon there being circumstances establishing the occurrence of the substantive event (the inspection by the jury of the vehicle) and the likelihood of a comment as to the occurrence, one being made shortly after the event, the listeners recalling it clearly, and the observing officer's recollection fading.

The new Evidence Act may well dispense with the need to tackle some of the problems. That is not a matter to be pursued in these reasons.

The present situation is unusual. The matter requiring resolution is not what materials may be taken into account in determining the guilt or innocence of the accused. The point requiring resolution is what happened during the jury's deliberations when they inspected the utility? Restraint is required when entering into such a delicate and confidential area. I understand the judge's reluctance to venture into this area after the jury had returned its verdict and during the sentencing proceedings. It is unnecessary to determine what action, if any, he could have taken. At that stage it may be a matter that is better left for this Court.

Questions having been raised as a result of the statements of the officer it is in the public interest and those of the parties to know whether the jury had access to materials that had not been admitted into evidence and what use, if any, they made of them.

If the officer's recollection had not been defective the Court would not be faced with the present unhappy situation.

I conclude that the statements made by the officer to both Mr Rizzotto Jnr and Messrs Bellanto and Ahern were admissible. They formed part of the circumstances to be taken into account. In amplification, I would hold, following Brennan J in Pollitt at 577-578, that the making of the statements in the terms alleged, in conjunction with the jury having inspected the vehicle during their deliberations, the judge having permitted them to inspect the whole of the vehicle, and the jury earlier having indicated a desire to do so, leads, in the light of common experience, to the inference that the jury did inspect the tray. Common experience includes the curiosity factor.

If I am wrong I would regard this case as one which calls for a slight addition to the exceptions to the hearsay rule. To reject the evidence would, in the circumstances, confound common sense.

It was for these reasons that I participated in the decision to admit the evidence in question.

Since argument concluded the High Court in Bannon v The Queen, [1995] HCA 27; 70 ALJR 25 held that it was there unnecessary to decide whether the exceptions to the hearsay rule should be extended. The court sounded a cautious note about further exceptions.

Given the combination of circumstances, the statements of the officer should be admitted on the basis that they go to the knowledge of the officer when the events occurred. They are also admissible on the basis of their being made spontaneously while the officer was involved. They form part of the circumstances from which an inference could be drawn. If I am wrong in the views which I have taken I would, if necessary, be minded to expand the exceptions to the hearsay rule.

I summarise the position thus:

(a) The utility was tendered as an exhibit by Rizzotto primarily to establish its colour. Rizzotto could not control the use to which the exhibit was put. The judge did not, on admitting the vehicle, state any restriction on the use to which the vehicle could be put. It was evident that it was a ford utility and that it had a bull bar and spotlights. From its appearance the jury may have been able to assess whether it was distinctive. It was for the jury to decide whether the different colour descriptions (blue, light blue or off white or white) were of any consequence.

(b) A little later the judge refused the jury's request to look at the interior and under the hood of the vehicle and told them that the evidence related to the vehicle's external appearance. At that point the judge appeared to impose a restriction on the use which could be made of the vehicle. He invited them to send a note if they had any further requests or wished to take some course of action as to the vehicle. He told them that the vehicle would be available at any time if they wished to see it.

(c) While the jury was considering their verdict they sent a message to the judge that they wished to see the vehicle. The judge appears to have advised the legal representatives of the parties of the jury's request. Although it is not clear I would infer that the judge probably saw the legal representatives of the parties in chambers. Apparently there is no record of what occurred. As the judge had previously ruled that the jury could see the utility at any time, it remained to make some simple arrangements.

(d) Arrangements were made for the vehicle to be brought into the Court complex by Mr Rizzotto Jnr and made available for inspection by the jury.

(e) In the meantime the sheriff's officer, knowing what had previously happened and being inexperienced checked with the judge's associate as to what the jury could inspect. He was told that the jury could look wherever they wished.

(f) It is improbable that in answer to a query from the sheriff's officer, the judge would have conveyed via his Associate that the jury could look where they wished and yet seemingly acquiesced in a submission from counsel for the accused that the jury were not to look inside the vehicle or under the hood.

(g) Counsel and the parties would have understood from the judge's earlier rulings that what was relevant was the vehicle's external appearance.

(h) I do not accept the suggestion that the jury sent a message to the judge asking to look under the cover at the tray or all through the vehicle. Nor do I accept that suggestion that the judge sent a message back to the jury and that neither the request nor the reply were disclosed to the parties. I think that the events and their sequence is as summarised.

(i) One and possibly more of the jurors may well have looked under the cover and into the tray of the utility.

(j) No evidence was led on behalf of the appellants as to the condition of the tray or what the jury might have seen. Mr Rizzotto Jnr would appear to have been in a position to give that evidence. This is unusual given the elaborate preparations and arguments on appeal.

While no evidence may be led of a jury's deliberations, evidence may be given of a material irregularity in the trial, sometimes described as relating to "extrinsic matters." : R v. Minarowska, CCA, unreported, 23 October 1995 per Gleeson CJ at 12-13. Material irregularities include that prejudicial material of an evidentiary nature not admitted on the trial was sent into the jury room and was available to be considered by them. Recent examples include documents produced on subpoena, witness statements and documents considered on a voir dire. : R v. Rinaldi (1993) 30 NSWLR 605. It need not be documentary. It is impermissible for a jury bailiff to suggest to a jury that an accused had previous convictions. : R v. Brandon (1969) 53 Cr App R 466.

The first question is whether there was a material irregularity. This question, which covers the issues of an irregularity and materiality, sometimes tends to merge with the next question.

Once it is concluded that there was a material irregularity two inter-related questions or perhaps a composite question arises. Is the court satisfied that the irregularity did not affect the verdicts of the jury and that they would have returned the same verdict if the irregularity had not occurred? The Crown case may be very strong and it may not be possible to discern a plausible defence case. The irregularity although material may not be of much consequence overall.

While the facts in Stead v State Government Insurance Commission [1986] HCA 54; 1986 161 CLR 141 were very different there are significant reminders of principle. At 145-146 the court pointed out that it is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact and that this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony at the trial.

At 147 the court said:

"All the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome."

The same principle applies where there has been a material irregularity. Indeed it was called in aid where a judge had taken into account material in documents which had not been admitted into evidence. : Hofstee v. GIO of NSW, Court of Appeal, unreported, 21 August 1995.

As the car was an exhibit the jury was entitled to look at it and examine it to the extent of the use permitted by the judge in his rulings in open Court. Despite the judge's comments during the sentencing proceedings (as previously quoted) he told the jury that he had refused their request to look under the vehicle's hood as the evidence related to the vehicle's external colour.

There has been an irregularity in that none of the jury should have looked inside the tray of the utility. I would not draw the inference that in doing so it affected the verdicts or may have done so. The inference I would draw is that one or more jurors made a reasonably thorough inspection of the vehicle. With a conventional Ford utility the tarpaulin would cover some of the paintwork along the top of the sides of the utility.

The appellants argued that the jury must have been looking for something when one or more looked under the cover and inside the tray. counsel suggested that the jury must have been looking for the scratches which Jody claimed to have seen.

Counsel suggested that if the jury had observed scratches in the tray they could have regarded them as supporting the evidence of Jody. If they had observed no scratches they could have regarded that as affecting the reliability of Jody's evidence.

As earlier mentioned there was no evidence as to the condition of the tray at the time of the jury's deliberations. The accused relied on Det Beaufils' evidence that Jody had stated that the inside of the tray was scratched when he looked into it and that it had a black tarpaulin over the top of the tray.

Counsel submitted that if the jury had relied on any scratches or their absence in any way when they inspected the utility in July 1994 they were wrong to do so. There could have been changes between February 1991 and 13 July 1994. Counsel submitted that it was sufficient if there was a reasonable possibility that the jury had examined the tray for scratch marks and relied upon what they saw.

The jury, indeed any jury, would have appreciated that scratches in the trays of utilities are common, that they were viewing the utility over three years after Jody had claimed to have seen it and that any scratches which may have been there in July 1994 (and there is no evidence that there were any at that time) may not have been there in about February 1991. Scratches in the tray in 1991 may not have been there in July 1994. It is important not to underestimate the jury's ability, reasoning, power and common sense. There is no reasonable possibility that the jury approached the question of the scratches (if any at July 1994) in the manner suggested by the appellants.

The irregularity was not material in that it could not be regarded as a reasonable possibility that the jury looking at the tray would prejudice the appellants and affect them adversely.

There is an alternative approach which may be preferable. The irregularity could be classed as a material irregularity because the jury had looked at a portion of the vehicle not encompassed by the judge's earlier ruling (that is, inside the tray).

While possible, it is unlikely that the sheriff's officer misunderstood what he was told via the Associate. Again this involves the jury incorrectly seeing the tray.

However the matter is approached, I do not think that the jury (or one or more of them) viewing the tray had any bearing on the outcome of the trial.

There is no reason to suppose that the jury did not consider the question of the colour of the vehicle and the evidence given in that regard. It was for them to decide whether the differences were important and whether they were satisfied that, even if there was a mistake in perceptions or recollection as to the colour of Rizzotto's utility, it was at the plantation in February 1991. The issue was whether the appellants were at the meeting on that occasion.

It is my opinion that by reason of what occurred the appellants were not deprived of the possibility of a successful outcome.

This challenge to the verdicts fails.

Identification Evidence - Jody Parker

Rizzotto complained that in admitting (over objection) evidence of photographic identification of him by Jody Parker the judge erred.

Rizzotto (whose name was then unknown to Jody) was described by Jody as being of Italian descent, about 55, 5'6" and mainly bald on the top of the head. He had no particular distinguishing feature or characteristic.

On 13 March 1991 Det Beaufils, in interviewing Jody at Mt Grenfell Station, showed him 20 photographs. The judge described them as mostly amateur type snapshots. It seems that the photographs were snaps taken at a distance outside Dubbo Court House of Rizzotto and people going to or coming from the Court. There was some noticeable disparity in the appearance and in the ages of the persons shown. One snapshot appeared to be of a local solicitor.

About ten of the photographs were of people who did not appear to be Italian and others did not fit the general description. In other words, the men in 14 of the photos bore little resemblance to Rizzotto. In six of the photos Rizzotto either appeared alone or with another person. When Jody looked through the photographs he noticed that there was more than one photograph of the same person. He was also told by the police that they believed that the suspect was amongst the photographs.

The judge noted that in two of the six photographs slightly different clothing was worn and that Jody identified the accused in all six photographs. Initially, Jody had some doubts about the man in two of these photographs but by looking at the other four photographs about which he had no doubts he confirmed his identification of the appellant Rizzotto in those two photographs. The judge thought that it would be difficult for anyone who did not know Rizzotto to say with any degree of certainty that all six related to the same person.

The judge held that Jody had ample opportunity to become familiar with the appearance of some of the men involved in the cultivation of the plantation, that Jody was in a position to identify some of those men and that he identified Rizzotto as one of the men involved in the plantation. Obviously, Jody would be able to identify those who worked on the property, for example, the three shepherds. So an important question was the extent of the observation of Rizzotto by Jody.

He thought that Rizzotto was among the men who attended the meeting behind the quarry but he was not sure and had some doubt. At a later meeting which Jody thought took place in December 1990 at the crop site Jody saw Rizzotto. Jody recalled Rizzotto shifting the sprinklers out further to ensure that the plants on the edge of the patch received water. Jody recalled that Rizzotto was interested in the SKK rifle which Hayden had and wanted one for himself. (Calabria also apparently wanted one). Jody's father agreed to go and buy two SKK rifles. This meeting must have lasted for some time.

Jody said that at the subsequent meeting at The Pines he saw Rizzotto. That man was involved in a discussion with Jody's father and others about some missing money. Jody estimated that the meeting took about two or three hours.

There was a fourth occasion on which Jody said he saw Rizzotto. That was in about February 1991 at the log cabin. He also saw the utility and Calabria drive it.

In cross examination Jody agreed that in his first statement to the police which was lengthy and made on 11 March 1991 he did not mention Rizzotto (the man in the photograph at Dubbo). He let the police know that he had further information and they came to see him at the family home on 13 March 1991.

Jody agreed that in his interview of 13 March 1991 he nominated two occasions on which he had seen Rizzotto and said, "I think I saw him in a blue Ford ute". Jody said that he definitely saw Rizzotto at the log cabin. Jody also thought that he saw Rizzotto in the vehicle but he had some doubt about that. He said that he did mention in his interview that he had seen Rizzotto at the Pines (Question & Answer 20) but he did not mention seeing him at the quarry.

The evidence of Jody Parker established that he saw Rizzotto on at least three occasions and probably on a fourth occasion, that is, at the quarry. They were not fleeting glimpses. Jody had a good opportunity to observe Rizzotto over substantial periods.

Rizzotto submitted that the judge should have rejected the tender of the 20 photographs shown to Jody by Beaufils and Jody's identification of Rizzotto as one of the men involved in the production and intended sale of the crop.

Rizzotto relied on the adoption by Gibbs CJ in Alexander v. The Queen [1981] HCA 17; 145 CLR 395 at 403 of the remarks of Richmond P in Reg. v. Russell 1977 2 NZLR 20 at 28 that "only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person".

At 431 Mason J wrote that this observation was designed to ensure that the police acted with propriety, it was not a statement of law.

In Alexander it was accepted by all justices that it was acceptable for the police in the investigation and detection phase to show witnesses a group of photographs and for any identification so made to be given in evidence.

Stephen J at 417 wrote that the cases disclosed that when photo identification is used after the detection process is over that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who has been involved in that photo - identification. The police will in such a case already know, at the time of the photo-identification, the identity of the "wanted man".

Mason J, with whom Aickin J agreed said at 431:

"... And I should have thought it essential to the efficient investigation and detection of crime that the police should continue to be at liberty to ask a potential witness to make an identification from photographs, even though they have a particular suspect in mind. In cases of serious crime it would unduly hamper police investigations if they were compelled to disclose to a suspect that he was under suspicion by requesting him to participate in an identification parade."

Murphy J at 436 expressed views similar to those of Stephen J.

Rizzotto submitted that as at 13 March 1991 he was a suspected person. For some weeks police had been monitoring his residential telephone service. Mr Holmes had gone to the police about 9 February 1991. The police had made a series of arrests on 11 March 1991. Rizzotto probably attended at Dubbo Court on either 12 or 13 March 1991. The police took their photos. They probably believed that Rizzotto may be involved in the cultivation but could not prove it at that stage. Det Beaufils agreed that Rizzotto was a suspect. It is unlikely that the police would have had a translation of the tapes by the time they saw Jody on 13 March 1991. Rizzotto was not arrested until about 27 April 1991. The police may also have hoped to obtain some useful material by continuing to intercept the telephone calls to and from Rizzotto's home. Any identification parade would see that source dry up.

I prefer the approach adopted by Mason J. I doubt if it could be said that as at 13 March 1991 the investigative and detection processes had been completed. The judge did not deal with this point in his reasons although it was taken in the written submissions before him but not as fully as before this court. The judge made a general reference to Alexander.

Rizzotto submitted that no satisfactory reason had been advanced for an identification parade not being held. I disagree. As at 13 March 1991 the police were in the middle of their investigations. They were trying to identify and locate all those who may be involved and to ascertain what role they may have played and what evidence existed. There were obvious difficulties in relation to those who were not on the site. The police spent some six weeks pursuing their enquiries before searching the premises of the appellants and arresting them.

Rizzotto submitted that the judge failed to properly consider the relatively low probative value of the photo-identification and its substantial prejudicial effect. The judge did not specifically advert to this point in his reasons although the point was taken in the written submissions placed before the judge. The photographs used by Det Beaufils and the procedures he employed were flawed and unsatisfactory. I have earlier mentioned the excessive number of photographs of Rizzotto among the bundle and that the men in most of the remaining photos did not look like Rizzotto and that Jody was looking for a balding Italian aged about 55 who was not distinctive. Jody understood that a photograph of the suspect was amongst the bundle. Given what Jody was looking for and the bundle of photographs handed to Jody there was a good chance that he would select those of Rizzotto.

The judge said:

"While it could be said that it is unfortunate that six of the twenty photos were of the accused Rizzotto I am satisfied that the showing of them to Jody Parker in the way in which they were shown to him did not constitute or create any unfairness to the accused."

From my earlier discussion it will be apparent that I am unable to agree with this conclusion.

The Crown correctly submitted, applying R v. A.J.Munro, CCA, unreported 30 June 1994 at 6-7, that the first question was whether the judge's exercise of discretion was attended by such error as to warrant intervention. The Crown submitted that no identifiable error could be found and that the judge's exercise of his discretion was not so clearly wrong as to warrant the conclusion that the judge's process of reasoning must have been affected by some undisclosed error.

As earlier indicated the judge did not deal with a number of matters and it was not open to say that the process was not unfair. Jody was 17, worried about his own position, the trouble he could face and anxious to co-operate.

The key to the judge's approach was the ample opportunity Jody had to observe Rizzotto on at least three occasions, the observations Jody made and his positive identification of Rizzotto. The judge was also impressed that Jody was able to nominate all six photographs of Rizzotto from the bundle.

In Alexander at 402-403 Gibbs CJ stated that as a matter of law evidence of an identification made out of Court by the use of photographs is admissible but a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. The Chief Justice continued that it would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

Mason J at 430 said:

"... the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence .... The approach taken in the Australian cases ... accords with what this Court said in Davies and Cody v. The King [1937] HCA 27; (57 CLR 170 at 180-181) when it pointed out - that "in each case the question must be, not whether the identification has been conducted with propriety and fairness, but whether upon the whole evidence as it in fact existed when it came to be laid before the jury, and having full regard to the treatment of the matter at the trial, the actual verdict ought not to stand because a miscarriage of the kind described occurred".

His Honour concluded:

"... we would be best advised to adhere to the approach ... in Davies and Cody by giving attention to the whole of the evidence and the treatment of the matter at the trial and deciding whether a miscarriage has occurred whereby the conviction cannot safely stand."

Notwithstanding the flawed and unfair procedures followed by Det Beaufils the evidence of Jody had considerable probative value if accepted. He had seen Rizzotto for extended periods. Jody had absorbed what Rizzotto looked like and had a picture of him in his (Jody's) mind. His observations enabled him to identify Rizzotto. This was the view of the judge. The probative value far outweighed any prejudicial effect.

The errors made by the judge did not affect his view of the critical issue that Jody was reliably able to identify Rizzotto, having seen him for extended periods.

As there were errors I have looked at the matter afresh and, allowing fully for the defects mentioned, I would have admitted the challenged evidence.

This photo-identification was correctly admitted.

Identification Evidence - Hayden Parker

Rizzotto submitted that there was a miscarriage of justice in that Hayden Parker was shown six colour photographs of Rizzotto by the police prior to the Identification Parade. Rizzotto submitted that the investigative and detection processes had passed by that stage.

The judge was asked to exclude evidence of Hayden Parker and others as to identifying Rizzotto at the Identification Parade. This matter was dealt with on the voir dire prior to the start of the trial. Amongst other materials, the judge had evidence given by Hayden Parker at the committal proceedings. The judge was not satisfied that when Hayden said he had seen photographs before he attended the line up (30 April 1991) Hayden was acknowledging that he had seen a photograph of Rizzotto. The judge held that from the other evidence it did not seem that he was shown such a photograph prior to the line up.

In cross examination at the trial Hayden said that he was at the homestead on 13 March 1991 when the police interviewed his brother and that the police showed him some photographs. After being shown exhibits 1A and 1B, being the 20 photos shown to Jody, Hayden confirmed that they were the photos which he had been shown.

Beaufils gave no evidence at the trial of showing these 20 photographs to Hayden and he was not asked. The other officer present on 13 March 1991 at the homestead was not called - presumably no one thought that this was necessary.

Counsel for Rizzotto submitted that the evidentiary position had changed and required re-consideration of the earlier ruling. He submitted that the evidence which had been admitted as to the identification parade should not go before the jury. The identification was tainted and would taint the proceedings and any verdict.

The judge specifically and correctly left it to the jury to decide whether Hayden was shown any photographs of Rizzotto prior to the identification parade. After reminding the jury of Hayden's evidence the judge pointed out that Hayden had not been asked any questions as to what he had observed about the photographs. Counsel did not pursue with Hayden the effect of having seen the photographs on 13 March 1991 on his identification on 30 April. There is no material as to how long Hayden spent looking at the photographs. He did not remember that there was more than one photograph of Rizzotto. At SU 227 the judge said:

"Was this a genuine identification of the accused in the sense that resulted from a recollection by Hayden Parker of any person or of him seeing the accused at the plantation in the circumstances that he indicated to you during the course of his evidence? Or was it an identification by him of a person he had seen in a photograph some time before or was it just guess work on his part?"

At SU 250-251 the judge put the competing arguments and reminded the jury that the onus was on the Crown to prove beyond reasonable doubt that Hayden made a proper identification of Rizzotto.

As at 13 March 1991 the police were carrying out their investigations. The showing of photographs does not necessarily make the identification parade evidence inadmissible. It did not do so in the present case: Alexander at 400, 417-418 and 430-431.

The evidence of Hayden showed that he had observed Rizzotto over a period on the occasion of the sale and purchase of the rifle and should have been and was able to identify him.

Kevin Parker was unable to identify Rizzotto at the identification parade but that does not mean that the identification of either of his sons was suspect.

The judge did not err in admitting the evidence of the identification parade.

Isolating The Deficiencies

Rizzotto submitted that the judge erred in failing to identify and isolate for the jury the specific deficiencies as to Exhibits 1A and 1B (the six photos of Rizzotto and the 14 photographs of others outside Dubbo Court House) and in failing to warn the jury that in the specific circumstances it would be dangerous to rely on such evidence.

Between SU pp.131 and 158 the judge summarised in considerable detail the evidence of Jody Parker. At SU 136 the judge summarised what occurred when Jody was shown 20 photographs and Mr Bellanto's attack upon it for unfairness. At SU 143-147 the judge summarised Jody's evidence in cross examination as to the photographs and that summary exposed the weaknesses in that evidence.

At SU 222-228 the judge listed the general considerations which the jury should take into account when considering identification evidence, for example, whether the person identified was a stranger, what opportunity for accurate observation existed, the features of the person allegedly identified, whether the person was amongst a group of persons, the time the witness had to observe the person and the period between the initial observation(s) and a later identification, etc. As to Hayden Parker's identification of Rizzotto the jury were directed to consider whether Hayden had previously seen any photographs of Rizzotto and whether that affected Hayden in his observations at the identification parade. As earlier mentioned the jury at SU 227 was directed to consider whether there was a genuine identification of Rizzotto by Hayden at the identification parade.

At SU 245-250 the judge again returned to the subject and dealt with the disadvantages of photo-identification and explained that it was inferior to an identification parade. The jury was in effect asked to consider how long each of the meetings took and whether that bore upon the opportunity for observation and how long elapsed between the time the witness last observed the appellants (or one of them) and saw the photographs. The judge reminded the jury of the challenge to Hayden's identification at the identification parade because he had previously been shown a number of photographs of Rizzotto. At SU 372-373 the judge summarised the attack of Mr Bellanto upon the identification by Jody and Hayden. Both were flawed and he detailed the reasons advanced by Mr Bellanto.

Mr Bellanto accepted that the judge summarised the evidence and the major points counsel made in cross examination and his many criticisms of the identification procedures, the evidence and its weaknesses. However Mr Bellanto's complaint is that the judge's directions fell short of the required standard as set out in Domican v. The Queen [1992] HCA 13; 173 CLR 555 at 561-562:

"... the judge must warn the jury as to the dangers of convicting on [identification evidence] where its reliability is disputed. ... The warning must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of the [identification] evidence in the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weakness in the identification evidence'. Reference to counsel's argument is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as under-mining the reliability of the identification evidence."

Domican was applied by this Court in R v. Heuston, CCA, unreported 20 June 1995. At p.12 Hunt CJ at CL pointed out that in Domican the High Court had not held that the jury have to be given to understand that the judge agrees that the identification evidence was in fact weakened by the particular matters to which attention is being drawn. The judge's obligation is to warn the jury as to the dangers inherent in identification evidence and to tell them that they are bound to take the particular matters to which attention is drawn into consideration in evaluating the identification evidence because those matters may reasonably be regarded as undermining the reliability of the identification evidence.

At p.3 of my reasons in Heuston I set out my understanding of the principles in Domican.

There may be a number of respects in which the identification evidence may be strongly and rightly criticised. Nevertheless, the jury may be satisfied that the identification has been proved beyond reasonable doubt. For example, the witness may have had an extended opportunity to observe the accused on a number of occasions so that an impression of the accused (along with his features) became implanted in the witness' consciousness.

The judge stated (SU 221) that the history of the criminal law indicated very clearly that any evidence of personal identification of a person as being one of those involved in a particular criminal activity should be tried with very considerable caution as that history demonstrated that mistakes in identification had often been made. He warned the jury that no matter how confident a witness or witnesses may appear to be, they should scrutinize such identification evidence most carefully. He stated that even a number of witnesses may be wrong (SU 222). The judge told the jury that bearing in mind all the circumstances, the considerations earlier mentioned and any question of identification, they should carefully evaluate the evidence of alleged identification and that such evidence should be treated with very considerable caution. He added it may be both honest and correct, on the other hand it may be honest and wrong. In re-iteration, he said ..."identification evidence is evidence that must be closely scrutinised by you at all times" (SU 228-228A). At SU 244 (after the intervening weekend) the judge reminded the jury that they should be very cautious in acting upon any identification evidence placed before them; honest and reliable witnesses can be persuasive but mistaken.

The judge (SU 245) highlighted that an identification parade was a better means of identification than using photographs and the difficulties with photographs. He reminded the jury that the estimates of Mr Parker of the length of the various meetings was less than that of his sons. He reminded the jury that the period of observation and the distances from which the observations were made and the quality of the photographs were important in evaluating the identification evidence.

When the various parts of the judge's summing up dealing with identification are considered in their totality it emerges that the jury received extensive warnings as to the difficulties with identification evidence and the need to scrutinize it "most carefully" and treat it with caution. The judge referred to the relevant problems with the identification evidence in the present case. He referred to the importance of the jury assessing the opportunities for observation by the various witnesses. That was crucial in the present case. The judge effectively told the jury to consider the weaknesses which were isolated, the opportunities for accurate observation, the time lapses and to approach the identification evidence with very considerable caution. They were told to evaluate the position carefully and decide whether they had any problems with the identification evidence and whether they were satisfied beyond reasonable doubt on the identifications.

The directions given were adequate. This ground of appeal is not made out.

Admission Of Tapes

Rizzotto contended that the judge erred in admitting into evidence tape recordings of telephonic intercepts (exhibit 34, tapes 312 & 441; exhibit 34A, tapes 55 & 1165; exhibit 35, tapes 496, 525, 637 (or 647) & 783; and exhibit 1D, tapes 515, 518 & 636) as evidence of common purpose.

Some of the tapes (55, 312, 1165 and 441) were admitted against all accused at the trial and the remainder were admitted against Rizzotto. Some of the remainder were admitted against Calabria. These were tapes of conversations between the two men and their homes.

The judgment given reveals that the judge was aware of the approach which he should take and the principles to be applied. This is also reflected in the way he separated the tapes and the basis on which various tapes were admitted. Further, there is no error apparent in the way in which the judge applied the principles.

In Tripodi v. The Queen [1961] HCA 22; 104 CLR 1 at 7 Dixon CJ, Fullagar and Windeyer JJ said:

"When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case."

By the time the tapes were tendered the court had heard the evidence of Mr Parker, Jody and Hayden. That evidence was eloquent of a group of men acting in preconcert as to the cultivation of a large drug crop. If accepted, it also established that Rizzotto and Calabria were acting in preconcert and were part of the group.

The judge did not err in admitting the tapes. This challenge fails.

Alleged Unsafe And Unsatisfactory Verdict

Rizzotto submitted that the verdict was unsafe and unsatisfactory. It was contended that the evidence of Jody Parker lacked probative value and was unreliable. The reasons included that Detective Beaufils in his evidence (T678/679 and T720-721) said that on 10 April 1991 he showed Jody Parker, a photograph of the Ford utility. On the same occasion he also showed Jody about 32 photographs of people. Detective Beaufils was explicit that he showed Jody only one photograph of a vehicle. He believed that the principle of showing a witness a series of photographs related to the identification of people not objects. Jody believed he was shown more than one photograph of vehicles. He was not sure how many. This was based on his belief that the police always showed him a number of photographs.

Rizzotto relied on the comments of Jody when shown some recent photographs of the utility. Jody thought that the position of the sticker on the roo bar had been altered. Jody said that if it was the same vehicle it had been painted white or the utility was a lot older. He commented that the stickers on the lights were a lot duller in some of the photos. Jody thought that some photos did not appear to be of the same vehicle. The prosecution case was that the vehicle remained the same colour. Reliance was also placed on the position of the signatures on the reverse side of the photographs in Ex 1A and 1B. Rizzotto also relied on the defects earlier noted in relation to the identification evidence of Jody and the inspection of the utility.

Rizzotto further submitted that the evidence of Hayden Parker lacked probative value and was unreliable. His father attended the same identification parade but failed to identify the appellant, that parade was held over three months after the rifle incident and the showing of photographs to Hayden Parker by the police some time prior to the parade. Counsel referred the court to a number of articles on identification problems and drew attention to the problem when a person falls into an ethnic or cultural group.

All the matters were strenuously covered in the evidence and the addresses of counsel. The summing up also dealt with them. I have made my own independent assessment of the evidence. There was ample opportunity for extended observation of Rizzotto. If this had been a case of fleeting glimpses or a short period of observation such as a couple of minutes I may well have taken a different view. There was also other evidence. I do not regard the matters upon which Rizzotto relied as being of great moment.

There was more than enough evidence of sufficient quality upon which the jury could safely convict.

Conclusion

The trial judge in his remarks on sentence said that he had no hesitation in accepting Jody Parker as "a most impressive, reliable and honest witness."

The judge also said:

I have no doubt that the circumstantial evidence tendered in these proceedings was the most telling factor in this case so far as you were both concerned because in the case of a co-accused by the name of Rocco Prochilo, the jury found him not guilty even though the direct identification evidence against him was of a similar nature to that tendered against the two of you, while the circumstantial evidence tendered against him was nowhere near as strong as that relied upon by the Crown against the two of you."

I agree with the thrust of the judge's remarks. The circumstantial evidence against Prochilo was not nearly as strong as that against the appellants. Against them it was powerful and difficult to explain away on any realistic basis.

The trial was a lengthy and difficult one in which the judge took considerable pains with his rulings and summing up. I have given close consideration to Rizzotto's challenges. No miscarriage of justice has occurred. His appeal should be dismissed.

Calabria's Appeal

Impermissible Use Of Utility - (Ground 3)

The material relating to this ground is set out earlier. There was a major challenge to the evidence of Jody Parker that the utility of Rizzotto was on Mt Grenfell Station in February 1991 and was being driven by Calabria. I would make the same findings and reach the same conclusions on this point as earlier stated.

Reception Of Photographic Identification Evidence Of Calabria

Calabria complained that the judge erred in admitting evidence of photographic identification by each of the three Parkers.

On 10 May 1991 the police showed Parker 9 photographs from which he nominated a photograph of Calabria as one of the 4 or 5 people who had attended at Mr Grenfell Station to see if there was a site suitable for growing a marijuana crop. He was the man in the terry towelling hat. (T166) Parker and these visitors or investors got into the one vehicle and drove around the property looking for a suitable site. It would have taken a little time. At New Mountain Paddock Jody and Hayden joined them. They moved through Pig's Paddock to Creek Paddock where they discussed what was going to happen. They were at the property for 1 to 11/2 hours. He thought that person was also present at the meeting at the gravel pit. Parker said that the man (Calabria) was present at the meeting at the Pines with others. (T181) This was the last time he saw that person.

Parker had recorded on the back of the photo he nominated "Possibly the man that wore towelling hat that came to property." Parker agreed that on the occasions he saw the man nominated in the photograph he (Parker) had little to do with that man.

On 9 May 1991 Det Beaufils showed Jody 10 photographs and he nominated a photograph of a man he knew as Old Frank as being one of the investors. (T239/240) It was a photograph of Calabria. He met the investors on their inspection of the property and selection of a site for the intended crop (T241). Jody saw Old Frank at the gravel pit and, it seems, at the crop site immediately after that. (T245)

Jody said that Old Frank was also present on an occasion in about early December 1990. (T247) This appears to be the occasion of the rifle incident. Jody stated that Old Frank was at the Pines. Jody also saw Old Frank at the log cabin on Mt Grenfell Station. That was the occasion on which he saw the utility.

On 9 May 1991 the police showed Hayden Parker twelve photographs and he nominated a photograph of a man who was Calabria. He knew the man as Old Frank and one of the investors. He was one of a small group of people gathered at Quartz Hill dam. His father spoke with them and drove them around the property. Hayden followed them for about half an hour as they looked at different places on the station.

Hayden recalled an occasion on which a number of people unloaded his father's semi-trailer. Old Frank was one of the men helping. A little later he went to the log cabin and saw the men who had previously been at the truck. Subsequently he saw the men at the Creek Paddock, ploughing.

Hayden also attended at the gravel pit (or quarry) and saw the same group of men and a few others. Later they attended at Creek Paddock on the station. Around this period he sold his rifle at the crop site.

He was cross examined extensively about omissions from his earlier statement and the pressures which he was under. He readily admitted that he was under much pressure. He was worried about his own situation and that of his family and gave the police as much assistance as he could.

Obtaining Photos Of Calabria

Calabria contended that the photographs of him shown to each of the Parkers were unlawfully and improperly obtained when seized from Calabria's home purportedly pursuant to a search warrant.

A search warrant was obtained to search Calabria's premises and it was executed about 7.45 a.m. on 27 April 1991 by Sgt Dolan and other police officers. The search warrant permitted searching for and holding:

"Reference books and documents relating to the cultivation of cannabis, pumps and irrigation equipment, pump used for the cultivation of cannabis."

Det Longford took the view, relying on the word "documents" that this authorised her to remove photographs of Calabria and other household members from a family photo album. She believed that they may assist in identifying some of those involved in the cultivation of the cannabis crop at Cobar. The matter does not rest there. She gave evidence that she asked Mrs Calabria if she could take them and that Mrs Calabria gave her permission to do so. There was evidence to the contrary from Mrs Calabria and supporting evidence from Calabria and a sister-in-law. There was evidence that Mrs Calabria did not speak English, even though she had been in Australia for 32 years and her children spoke English and Italian. Her husband spoke a reasonable amount of English. Mrs Calabria claimed that she did not become aware that the photographs had been taken until some later date. The judge considered the evidence and was satisfied that he could safely act on the evidence of Det Longford as to what occurred and he preferred her evidence. The judge was not impressed by the evidence of Mrs Calabria and he did not accept her evidence that she was unaware that the photos were taken and that she did not consent to the police officer taking those photographs.

My examination of the evidence in question leads me to the view that the evidence of Det Longford was cogent and that of Mrs Calabria was not, even making all proper allowances for her being in the strange environment of a court room and using an interpreter. The evidence of Calabria and the sister-in-law went to secondary matters. The judge had the advantage of seeing all the witnesses. The findings which he made were well open to him and there is no basis for disturbing them.

The judge held that Det Longford took the photos because she believed that they would be of assistance to the police in identifying those involved in the cultivation of the cannabis crop at Cobar and that she was entitled to take them pursuant to the Search Warrants Act and that their taking was within the principles in George v. Rockett (1990) 170 CLR 102 at 119/120. The judge also held that Mrs Calabria knew and consented to the police officer taking the photographs. This finding disposes of the argument that the photos were unlawfully and improperly obtained.

Calabria contended that the evidence should also be rejected on the ground that the best evidence as to the obtaining of the photographs was not led at the committal proceedings. The magistrate discharged Calabria, an ex officio indictment was filed and the best evidence was led on the voir dire. That evidence was accepted. This is not a sufficient basis for rejecting the photographs collected from Mrs Calabria and the evidence based upon them.

Unfairness

Calabria further submitted that it was unfair to him to admit the photo-identification evidence. He claimed that Detectives Henry and Beaufils chose that method over an identification parade or parades when there was no impediment to conducting a parade.

Det Henry said that he spoke to the police who went to Calabria's house on 27 April 1991 and to Calabria's solicitor that afternoon. He became aware from police materials that while Calabria was prepared to be interviewed about the guns found in his house he was not prepared to be interviewed about the crop at Mt Grenfell Station. Det Henry said that it was implied and apparent that Calabria would not participate in an identification parade. Det Henry was aware that in relation to the line up arranged for Prochilo, his solicitor (who also acted for Calabria) would only permit Mr K Parker being asked to attempt the identification. He failed to identify Rizzotto at an earlier line up.

Believing that Calabria would not take part in a line-up Det Henry showed the photographs to the Parkers. They identified Calabria and thus his arrest and charging could now justifiably take place. Within a relatively short period a request was made to Calabria's solicitor for Calabria's attendance. Calabria attended and was charged. As the photographs had been shown to the Parkers Calabria was not asked to take part in a line-up. Det Henry still wanted to ask Calabria some questions and asked him if he wished to participate in an interview. Calabria declined.

Det Beaufils was not in charge of the investigation. As at 9 May 1991 as an investigator it was his intention to seek an identification parade with Calabria if available. Det Beaufils had arranged for the Parkers to come to Griffith.

During 9 May 1991 Det Beaufils was present during portions of conversation between Det Henry and the solicitor for Prochilo. Det Beaufils stated that he also spoke with the solicitor. After the identification parade involving Prochilo, Det Beaufils stated that he had a general recollection not a direct recollection, that the solicitor said words to the effect that Calabria was not going to participate in a line up and was not going to answer questions and that if the police had enough to charge Calabria they should do so. There was nothing in Det Beaufils statement about these matters but it did contain references to what happened on 10 May 1991 including Calabria's attendance at the police station and declining to take part in an interview.

The judge was satisfied having regard to the whole of the evidence and particularly that of Dets Henry and Beaufils that the police had satisfactorily explained why no identification parade was held as to Calabria on the Mt Grenfell Station crop. The judge appears to have accepted that the police were given to understand by Calabria's solicitor that Calabria would not participate in a line up or interview. The judge found that the procedure adopted was appropriate in the circumstances. Calabria challenged the judges' findings. There was no evidence from Calabria's solicitor refuting what had been attributed to him. The judges findings, were open on the evidence. If these findings are permissible it is difficult to see how there could be any successful challenge to the admission of that photo-identification. When the police prepared for and held an identification parade with Prochilo it is not easy to accept that they would not have done so for Calabria if he was prepared to take part. The judge was also of the view that the authorities established that the absence of an identification parade did not of itself make other identification evidence inadmissible. He referred to R v. Pearsall (1990) 49 A Crim R 429 at 442 where the Court of Criminal Appeal (per Hunt J) said:

"The mere absence of an identification parade does not of itself make the evidence inadmissible; its absence may affect the weight of the identification evidence, but it cannot make it relevant.

At 442 Hunt J discussed the exclusion of evidence on discretionary grounds. Would it result in a trial that was unfair to the accused. Had the reliability of the evidence been affected. The judge considered these matters and ruled that there would be no unfairness as so understood. There is no sufficient basis on which his discretionary decisions can be set aside.

At 444 Hunt J pointed out that the absence of an identification parade may, in some cases, mean that the weight to be afforded to the evidence of identification is so little that the trial judge is obliged to reject it, upon the basis that its probative value is outweighed by its prejudicial effect. That is not the present case where the identifiers had the opportunity of extended observation. Further, the judge accepted the explanation for not holding such a parade.

I have considered Calabria's complaints individually and as a whole. There was no relevant unfairness and the evidence was correctly admitted.

Quality Of Identification Evidence

Calabria submitted that the quality of the identification evidence was so poor that it lacked probity, or, its probative value was outweighed by its prejudicial effect. Calabria contended that the photographs were old and of poor quality and did not show height, temperament or personality. Each of the identifying witnesses was arrested on 11 March 1991. Hayden was never charged. Each looked at the photographs two months later. Each had been subjected to a number of records of interviews or making statements. They knew the value of helping the police and were under much pressure to engender favour with the police. Jody and Hayden were 17 and 15 respectively and believed they were in considerable trouble and could receive stern punishment. They were brought to Griffith by their mother to act as identifying witnesses. They were aware that their father had been brought to Griffith in custody for the same purpose.

Each of the Parkers probably felt under pressure to identify someone from the group of photographs viewed; they had been informed that the group of photographs contained a photograph or photographs of other people whom police believed (and probably said) were involved. Calabria complained that the procedures adopted by the police precluded any monitoring of them on his behalf.

Calabria relied on the police failing to seek identification from Leslie Roy Holmes, Judith Anne Holmes and Joan Elizabeth Parker whom it is claimed were just as well placed as the Parkers. On the materials it seems that the three witnesses mentioned may not have been quite as well placed as Jody and Hayden. They may not have made the same observations.

Calabria emphasised that Parker had stated that Calabria was "possibly" one of the investors - possibly the man in the towelling hat who came to the property. Calabria submitted Parker's partial and inadequate identification should not have been placed before the jury. Calabria complained that along with the positive identification given by Jody and Hayden a jury could never be adequately or effectively directed as to the dangers of relying upon the evidence of Parker.

This is to do less than justice to the understanding, skill and common sense of the jury. Juries deal with evidence similar to that of Parker frequently. Nor do I think that there was any danger of the jury running the evidence together.

Notwithstanding all the points made on Calabria's behalf there was no lack of probity. The probative value was not outweighed by the prejudicial effect. Each of the Parkers was under pressure. Parker resisted it in that he was unable to identify Rizzotto and his identification of Calabria was tentative. Jody and Hayden had had time to observe Calabria and it is not easy to accept that, because of that pressure and anxiety, they would have identified somebody whom they had not seen involved at the crop site and at meetings in the neighbourhood or that they would have been tempted to identify someone about whom they were not reasonably sure. Hayden was under lesser pressure.

The judge held, after inspecting the photographs, that they were unexceptional and while not of professional quality they clearly displayed the features of the persons depicted and although they were persons of different ages they were of persons of such overall similarity that in the judge's opinion the showing of them to the Parkers was by no means unfair to the accused. The judge relied on R v. Segar, unreported, CCA 9 February 1994.

The judge was satisfied from the evidentiary materials that each of the Parkers had ample opportunity to observe those involved in the crop cultivation and that their identification of Calabria as being one of those persons was sufficiently reliable for the jury to act upon it. In retrospect, it would have been better if the judge had distinguished the evidence of the sons from that of the father. The sons' evidence was sufficiently reliable for the jury to act upon it. The father's evidence was less persuasive and amounted to Calabria being possibly one of the investors.

The judge held correctly that it was appropriate for the identification evidence of all three witnesses to be placed before the jury.

Separate Trial

It appears from the trial judge's reasons of 31 May 1994 that Calabria sought a separate trial based on the assumption that certain tapes of telephone conversations might be admitted against Rizzotto and Prochilo but not against him. Calabria submitted that incurable prejudice would flow through onto him. The judge applied the correct principles and his exercise of discretion could not be successfully challenged. Further, the flow of events was not as counsel anticipated.

Counsel for Calabria reframed his submission. Counsel submitted that having regard to the evidence which was erroneously admitted at the joint trial it was unfair and that, in retrospect, there should have been separate trials. Counsel relied on a number of reasons.

Calabria supported the submission that the identification evidence of Jody and of Hayden as to Rizzotto should have been rejected. It was highly prejudicial and likely to persuade the jury to convict Rizzotto. At the joint trial evidence common to both was led in an attempt to prove separately that each was guilty. There was evidence of association and of guilty association, including the four intercepted telephone conversations between Rizzotto and Calabria, the evidence as to the utility, the length of their relationship (friends for 25 years) and the admission that he was in dialogue with Rizzotto before those telephone conversations and Calabria being alerted to Rizzotto's nephew being associated with some illicit crop.

Calabria submitted that the combined effect of all the evidence (both admissible and that which was admitted erroneously) would ensure Rizzotto's conviction and lead on to Calabria's conviction because their association would be seen as a guilty one. If the identification evidence had been excluded as contended the jury would have obtained a different perspective. The case against Rizzotto would be thin to non existent. The association between Rizzotto and Calabria would not appear to be a guilty one. The jury would not be tempted to say Rizzotto is guilty, Rizzotto and Calabria were closely associated and in this cultivation together and Calabria is guilty.

Calabria submitted that it would be unrealistic to expect a jury to separate out the evidence against each man. He claimed that there was a real risk that a jury which heard the Rizzotto evidence would let that colour its approach towards Calabria and automatically treat the association between Rizzotto and Calabria as a guilty one. There was a risk of the jury not being able to view that evidence objectively and realise that the association was capable of being an innocent one and that this was a reasonable possibility.

It was further submitted that the erroneous receipt of the Rizzotto identification evidence had the effect of shoring up the evidence of Jody and Hayden as against Calabria. Calabria attacked the reliability and credibility of Jody and Hayden. He submitted that their evidence against Calabria was strengthened by their evidence against Rizzotto. His nephew was found at the crop with a gun and there were other telephone conversations connecting Rizzotto to his nephew.

I have earlier indicated that the Rizzotto identification evidence was correctly admitted. However, the point as to separate trials still remains.

The identification exercises as to Rizzotto and Calabria differed both as to manner and point of time although in both instances photographs were used. The Griffith exercise was distinct. It would not be difficult for any jury to separate them.

Nor do I think it would be difficult for a jury to keep separate the tapes of conversations between Rizzotto and Calabria on the one hand and Rizzotto and Rocco, his nephew on the other hand.

There were differences which helped to keep the two cases separate in the jury's mind. Calabria was based a little out of Griffith and conducted a farm. Rizzotto was based in Sydney (Smithfield) and conducted a service station. His nephew was at Mt Grenfell station.

Both Rizzotto and Calabria challenged the reliability and credibility of Jody and Hayden. Both were alleged to be suspect witnesses because of their own actions and interests. Some of their observations of Rizzotto and Calabria occurred on the same occasions. On the identification issue where the key was the nature, extent and length of the observations of Jody and Hayden it was highly probable that the jury would be satisfied that they had seen both or neither. This was not a case where there was a risk of impermissible shoring up.

Viewed overall this was not a case where there should have been separate trials or where there has been an injustice arising out of the joint trial.

This ground of appeal fails.

Admission Of Tapes

Calabria in his grounds of appeal contended that the judge erred in admitting into evidence the tape recording and translation of intercepted telephone conversations (exhibit 34, tapes 312 and 341; exhibit 34A, tapes 55 and 1165; exhibit 35, tapes 496, 525, 637 (or 647) and 783 and exhibit 1D, tapes 515, 518, 636) as evidence of common purpose.

Counsel for Calabria did not press this ground. The reasons given in relation to Rizzotto's appeal as to a similar ground would apply.

Counsel for Calabria did not press the ground that the judge erred in his directions to the jury on the application of the doctrine of common purpose and on the complicity of the accused with each other and others in the commission of the offence. Nor did counsel for Calabria press the ground that the judge erred in failing to adequately direct the jury relating to the evidence of prior inconsistent statements of Parker, Jody and Hayden.

Accomplice

It was conceded by the Crown that Parker, Jody and Holmes were accomplices. The Crown contended that Hayden was not an accomplice whereas the accused contended that he was. Prochilo conceded that the question should be left to the jury.

Calabria complained that the judge erred by directing the jury that it was open to them to find that Hayden was not an accomplice of Calabria or Rizzotto and that if they so found it would not be dangerous for them to act upon his evidence alone and that as a matter of law it was not then necessary for them to look for corroboration.

Calabria submitted that it was beyond argument that Hayden was an accomplice and that the judge should have so directed them. He should not have canvassed the question and told the jury that if the Crown had negatived that Hayden was an accomplice, corroboration did not have to be sought.

In support of his submission Calabria relied on Hayden Parker admitting:

(a) he was interrogated (by formal record of interview) along with his father, Jody and others;

(b) he believed he was in a great deal of trouble and expected to face charges;

(c) he was in the company variously of his brother, his father and other workers and investors;

(d) he knew the nature of the investors' role what they were doing there;

(e) he was aware of the cannabis crop being grown and it being planted, tended and guarded;

(f) he sold his SKK rifle for cash to one of the investors who included Calabria, Rizzotto and Prochilo, they being present. Hayden told his father what was happening and of the desire by the men to purchase two further such rifles for use by other men and gave the moneys which he had received to his father.

Calabria submitted that it was established that Rocco Rizzotto thereafter carried one of these weapons around the property whilst working. He was seen carrying an SKK rifle around the property.

There was the general material of Hayden living and working on the station and seeing what was taking place, the meetings and the men tending the crop and speaking with them and the investors. Hayden seems to have been on the fringe of the meetings. He did not take part in them. He accompanied Mr Holmes when he took two of the workers into Cobar to make a telephone call. He saw the plane fly overhead and the reactions of the men and of his father. Hayden stated that he did not receive anything from the crop. He got on with chores around the house. Hayden did not give evidence of laying the pipes or tending the crop. He was present at meetings and observed what was happening on the property. He denied that he was working on the plantation or worked on it from time to time. He agreed that he did some things in respect of it. (This was not explored). Hayden agreed that apart from meetings, he was in the company of Fred (Calabria) on the plantation or on some other part of the property from time to time and spoke to him.

Parker said that Hayden helped to pull up the pipes and remove the irrigation equipment. Parker said that his son got dragged in by somebody else and that he asked his sons to destroy not to help. This led to a lively argument whether this was aiding or encouraging or participating in the cultivation of the plantation or the reverse.

At one stage during cross examination by counsel for Prochilo Parker stated that it could be said that he involved his sons in the cultivation of marijuana. No further details were elicited. This was the father's opinion.

The evidence of Jody as to Hayden's exact role is not of great help. It established Hayden's presence on the property and his presence at various times when conferences took place but not his participation.

The judge summarised the evidence of Parker, Jody and Hayden in considerable detail. The jury were fully seized of it.

The judge explained to the jury that there was a dispute whether Hayden was an accomplice but not as to Holmes, Parker and Jody. The judge told the jury that it was necessary for the Crown to negative that Hayden was an accomplice and to do so beyond reasonable doubt. The judge explained (SU187A) that for the jury to classify Hayden as an accomplice they would have to be satisfied, firstly, that the crime of cultivating a commercial cannabis crop was being committed at Mt Grenfell Station between November 1990 and March 1991, secondly, that during that time Hayden was present and, thirdly, that he intentionally gave either aid or encouragement to those involved in the commission of the crime. The judge continued that there was no contest as to the first and second elements, there being ample evidence establishing these. The contest was as to the third element. The judge explained that the Crown contended that there was no evidence to establish that Hayden intentionally gave either aid or encouragement to those involved in the cultivation of the crop whereas the accused stated that the evidence did establish that Hayden aided and encouraged his brother, his father, Les Holmes and the other men whom he knew were working on the crop. He knew Rocco, Ralph and Tony and he was involved in the cultivation of the crop.

As to the rifle incident, the Crown contended that selling a rifle when prevailed upon to do so is not taking part in the cultivation. The appellant contended that the rifle was obviously being sold to enable the plantation to be guarded.

The judge referred the jury to the evidence which bore upon what Hayden did and said and whether he was an accomplice. The judge directed the jury to look at that evidence not in isolation but in the context of all the evidence of those who were there at the time and had given evidence in those proceedings. The judge reminded the jury that the Crown had to negative that Hayden was an accomplice. He also reminded them that the Crown said that it had negatived that Hayden was an accomplice and that the accused said it had not been negatived and that they would find Hayden was an accomplice in those circumstances.

It would have been clearer if the judge had told the jury that the Crown had to negative that Hayden was an accomplice and that this meant that if they had a reasonable doubt whether he was an accomplice they should proceed on the basis that Hayden was an accomplice. Alternatively, it could have been put that if the jury thought there was a reasonable possibility that Hayden was an accomplice they should proceed on that basis. However, I think that what the judge said suffices. He twice made the point that the Crown had to negative that Hayden was an accomplice. On a third occasion he referred to the jury being "satisfied that Hayden was not an accomplice". He isolated the point in dispute and related the law to the facts.

The judge explained the significance of a witness being an accomplice. He warned the jury that it was dangerous to convict a person on the uncorroborated evidence of an accomplice.

At SU195A the judge stated that if they determined that Hayden was an accomplice there was evidence capable of corroborating his evidence and that if they were satisfied that Hayden was not an accomplice then his evidence could be used by them to corroborate the evidence of Parker, Jody and Holmes.

Counsel for Calabria contended that the judge's directions were wrong and misleading with serious consequences. The jury were not entitled to use the evidence of Hayden as evidence corroborating each of Parker, Jody and Holmes. Further, the jury was invited to ignore the need to look for corroborative evidence of Hayden.

It was for the jury to decide what evidence of Parker, Jody, Hayden and Holmes should be accepted what should be rejected and what gave rise to a reasonable doubt. The same considerations apply to Calabria's evidence.

It was open to the jury to take the view that Hayden's presence was explained. The station was his home. A 15 year old boy would be curious if not fascinated by what was happening. However, a jury may have thought that the evidence, which lacked detail and depth fell far short of Hayden encouraging his father, his brother, Holmes or any of the others. Similarly they may have thought it fell far short of aiding. There was no evidence of Hayden helping with the crop or tending it. In the absence of real evidence of Hayden working on the plantation (and with evidence to the contrary) and with such evidence as existed being sparse and lacking cogency and detail and the difficulty of envisaging a 15 year old boy intentionally aiding and encouraging the experienced older men and there being little to no evidence of such aid and encouragement it was open to the jury to be satisfied beyond reasonable doubt that Hayden was not an accomplice. It was a question for the jury to decide. The judge was right to leave the issue to the jury.

In any event, it is hard to see how leaving that issue to the jury results in a miscarriage. If the evidence of Hayden being an accomplice was as strong as Calabria suggested, the jury would not have been satisfied beyond reasonable doubt that Hayden was not an accomplice. Nor do I think that leaving that issue would have distracted the jury. Juries are capable of deciding whether the Crown had negatived that Hayden was an accomplice and then, depending on that decision, moving on to the next stage. If they had decided that the Crown had not negatived that Hayden was an accomplice, the jury would then have further considered Hayden's evidence and any supporting or corroborative evidence. The judge made the position clear.

Calabria further complained that the judge's explanations of an accomplice were flawed and that he used a faulty mechanism by simply referring to the Crown's arguments and the accused's arguments. Calabria further complained that the jury would have gathered that the judge did not think Hayden was an accomplice. There was further complaint that the judge should have directed the jury as to aspects of the evidence to be considered in determining the issue.

These complaints do less than justice to the Summing Up. I have earlier indicated that the judge explained what an accomplice was and isolated the issue to be decided. He gave adequate references to the important evidence on the issue in dispute and read parts of it as requested by the accused. He summarised the competing arguments. The jury was left with a clear statement of the issue in dispute, the relevant principles and evidence and the competing arguments. The jury knew what they had to decide. The jury may have gathered that the judge was less than impressed with the cogency of some of the materials on which the accused relied. Those were difficulties in the evidence. The judge was careful to leave the issue to the jury to decide and his observations were well within permissible bounds.

The judge returned to the question whether Hayden was an accomplice at SU 237-239. Amongst other things he set out the accuseds' arguments that Hayden was an accomplice. The judge recapitulated the position. The judge told the jury that even if they were satisfied that Hayden was not an accomplice his position was different from those of the other non-accomplice witnesses. The judge referred to Hayden's close affinity with his father and his brother and stated that if the jury was satisfied that Hayden was not an accomplice they should still scrutinise his evidence most carefully before deciding whether to act upon it.

The relevant issues were put to the jury. They were warned that even if Hayden were not an accomplice his evidence still had to be scrutinised most carefully. The jury would have appreciated this as a matter of common sense and the judge's direction would have underlined the point.

There has been no error and no miscarriage of justice. This ground of appeal fails.

Corroboration

Calabria submitted that the judge failed to direct the jury adequately as to how they should approach the evidence capable of amounting to corroboration. Counsel submitted that if a witness is an accomplice the judge must remind the jury of the evidence capable of corroborating that witness' account. That evidence must be collected, described and reviewed. Counsel submitted:

"If it is a movable feast at the behest of an intervening determination by the jury he is never in the position to properly and forcefully direct the jury that such evidence is, will, or will not amount to corroboration."

In practice there are on occasions disputes whether a witness is an accomplice and they have to be resolved.

The witness may emphatically deny any involvement. He may say that he urged the accused not to do the prohibited acts. The accused or other witnesses may paint a picture of involvement or aiding or encouraging. The jury has to resolve the issue whether the Crown has negatived that the witness was an accomplice. If the Crown fails to do so, the jury considers the judge's directions as to corroboration.

The judge (SU194) explained that it was the experience of the Courts that the evidence of accomplices is often unreliable and that it was dangerous to convict a person on the evidence of an accomplice unless there was corroboration of that person's evidence. The judge stated several times that corroboration means evidence from other than the accomplice which they believe and which significantly confirms that the crime was committed and that the accused committed it.

The judge explained that he would identify the evidence which was capable of corroborating Parker, Jody and Holmes and if necessary, Hayden. The judge stated:

"I am required to tell you what material ... is capable of amounting to corroboration ...It will then be for you as judges of the facts to decide, first, if you accept that material and, secondly, if you do, whether you consider it does confirm the alleged accomplice's account in a material way by tending to show not simply that the offence was committed but that it was the accused who committed it."

Words to similar effect were used on other occasions in the summing up. The judge then identified the material which was capable of amounting to corroboration. He referred to tapes of the telephone intercepts and the Crown contention that they meant that each of the appellants were involved, the sale by Mr Osborne of an SKK rifle to Parker and Rocco Rizzotto being in possession of that rifle and the sighting by Jody of the light blue Ford utility if that had been established beyond reasonable doubt. The judge pointed out that the Crown also relied on the evidence of Hayden, if the jury concluded that he was not an accomplice. The judge stated that one accomplice could not corroborate the evidence of another accomplice.

The judge stated that the Crown relied on the lies allegedly told by Rizzotto as to his relationship with Calabria and the lie allegedly told by Calabria that he had not communicated with Rizzotto for a long time. The judge gave lengthy directions as to lies (SU199-203) and explained when lies could be used as corroboration.

The judge returned to corroboration at SU239. He repeated his general directions and reminded the jury of the evidence capable of amounting to corroboration. The judge summarised the arguments of the accused as to each of the pieces of evidence relied upon as capable of amounting to corroboration and why such pieces of evidence should not be regarded as amounting to corroboration. For example, the accused contended that the telephone conversations were innocent and established nothing.

In my opinion the judge dealt adequately with the issue of corroboration. He gave correct directions of law, he explained the position of Hayden, he referred sufficiently to the evidence capable of amounting to corroboration and how it could be used and he summarised the arguments of the Crown and the accused.

Calabria's complaints as to corroboration were linked in largely to the judge leaving it to the jury to decide whether Hayden was an accomplice. It was contended that this weakened the effect of the directions as to corroboration. I do not agree. From the extensive coverage of the topic the jury would have understood the dangers of convicting on the uncorroborated evidence of an accomplice and would have appreciated the need to consider carefully the pieces of evidence capable of amounting to corroboration. The jury would have also understood the special position in relation to Hayden.

Given the plantation, the relationship between Calabria and Rizzotto and that between the latter and his nephew, the tapes of the telephone conversations were less than helpful to the appellants and capable of being regarded as powerful corroboration.

This ground of appeal fails.

Alleged Unsafe And Unsatisfactory Verdict

Calabria submitted that the verdict was unsafe and unsatisfactory. He relied upon the arguments advanced on behalf of Rizzotto but making all necessary changes to make those arguments appropriate to Calabria's case.

Again, I have made my own independent assessment of the evidence.

Little weight should be put upon the identification evidence of Parker. That evidence would not sustain a conviction. Despite Jody and Hayden not being shown the photographs until 9 May 1991 and the limitations upon photographic identification each had considerable opportunities to observe Calabria for substantial periods. In, around and near the remote Mt Grenfell Station there were unlikely to be many people. There was not much room for confusion. Both sons would, however, have felt that they were under pressure to assist the authorities.

There was corroborative material apart from the utility which could be regarded as being of considerable weight. I would have attached little weight to the evidence about the utility given that only one photograph of it was shown. It is hard to explain away the terms of the telephone calls and the lies.

This was a hard fought trial in which every point was taken. Matters were generally covered in considerable detail.

There was ample evidence of quality on which a jury could safely convict. I would have been surprised if the jury had not convicted.

This ground of appeal fails.

The remaining grounds of appeal were not pressed. There was general reliance placed on the submissions made on behalf of Rizzotto.

This appeal should be dismissed.

Appeals Against Sentence

There was evidence that the value of the cannabis crop was of the order of $8 million. The judge did not proceed on this figure but he was satisfied that the crop was "worth a great deal of money measured in the millions of dollars." He found that a great portion of the crop had matured or was well on the way to maturing about 11 March 1991. Some of the crop had been harvested and placed in bags. Other plants were in the process of being harvested and dried prior to the leaf being stripped from the plants.

The judge made these further findings:

(a) Each of the appellants attended at the crop site on a number of occasions and played a significant role with others in making decisions as to the cultivation of that crop following its planning;

(b) Calabria was one of the persons involved in the selection of the crop site;

(c) Rizzotto was one of the first persons, if not the first person, to be advised by one of the labourers on the site that the crop had begun to mature and that he told Calabria "in order to make arrangements, it would seem to dispose of the crop following its harvest."

The appellants submitted that the judge erred in the process he used to arrive at the respective roles of the applicant and the other participants in the offence.

The materials established the active involvement of each of the appellants at the decision making level. Rizzotto's nephew kept Rizzotto appraised of the progress of the crop. Rizzotto was in touch with Calabria. The inference is that both were involved at least in the preliminary planning as to its disposal.

From the evidence of Parker it appears that Frank Barbaro was a powerful influence. He needed money and insisted that the crop proceed. His threat to tell the police about Parker and leave him responsible solely had its effect as did the attendance of the men early the following morning.

The judge found correctly that Rizzotto had attended at the site on not less than two occasions. The judge rejected submissions that Rizzotto's criminality was no greater than some of those who laboured on the site and much less than those more fully involved with the crop. The judge thought that Rizzotto intended to be fully involved in the distribution of the crop as it was harvested. The judge, who relied heavily on the telephone conversations, found that Rizzotto's criminality was of the highest order. While I would agree that Rizzotto's criminality was of a high order I would not assess it as being of the highest order on the evidence in this case. I doubt if it was as high as that of Barbaro.

Rizzotto was born on 17 September 1932. He was a family man with strong family ties. He had been in business on his own account for many years and was well regarded in his local general community and his local business community. For many years prior to the offence he had been a person of exemplary character. The judge disregarded some relatively minor matters which had occurred long ago and treated Rizzotto as entitled to a discount because of his previous good character. The judge was satisfied that this was an isolated offence and out of character and assumed that greed overcame Rizzotto. It was highly unlikely that he would involve himself in this type of criminal conduct again.

The judge accepted that Rizzotto had chronic health problems. He had been a diabetic since 1979 and this condition needed continuing control and the observation of a strict regime.

As to Calabria the judge accepted the evidence of Jody which he regarded highly. The judge found that Calabria was one of those who attended and selected the crop site and that he attended there on a number of occasions and participated with others in making decisions as to the cultivation of the crop. From the taped conversations the judge was satisfied that Calabria was about to become involved in the sale and distribution of the crop. The judge found that Calabria's criminality was of the highest order. I agree that it was high. Again I would query whether it was as high as that of Barbaro.

Calabria was born on 8 May 1938. He resided with his wife and three of his children on his farm. He had strong family ties. He had been an industrious and law abiding citizen. He was highly regarded by the general community and the farming community and prior to the offence was a person of exemplary character. He was entitled to a discount for his good character. It was an isolated offence and out of character. It was highly unlikely that he would ever offend again.

He had a chronic health problem. He was suffering from hypertension with mild diabetes and a chronic gastric ulcer with elevated uric acid. There were other minor problems which could be treated. Two of his children had physical and medical conditions which would make them dependent on his farm for their livelihood for the rest of their lives.

The judge was satisfied that the criminality of Rizzotto and Calabria was greater than that of any of the others involved. This finding was attacked and I will return to it.

The judge would have imposed sentences of 12 years had it not been for each's good character. The judge found that there were special circumstances comprising their health, their previous good character, they being unlikely to re-offend and their need for counselling and supervision for 31/2 years upon release.

Counsel for the appellants contended that the sentences imposed were disproportionate and excessive compared with those imposed upon the other offenders involved in the plantation.

The Crown has helpfully supplied the following schedule of sentences for the co-offenders.

It is to be noted that all pleaded guilty, albeit Barbaro's plea was after a Sentence Indication. The Crown's appeal against Barbaro's sentence was dismissed by this Court on 14 February 1995. This Court held that the sentence upon Barbaro was manifestly inadequate. The Court declined to intervene because of the combination of circumstances detailed on pages 11-13 of my judgment. A highly unusual position had arisen.

The Crown submitted that the sentences were not excessive in themselves nor disproportionate to the other sentences. It contended that there were three levels of criminality, ground level involving contributions of labour or property, that is, Kevin Parker, Rocco Rizzotto and Espositio; intermediate level, involving presence at initial and subsequent discussions including selection of crop site and some work, that is Barbaro and Romeo; and the higher level, that is, the higher executive level.

The lower sentence of Kevin Parker is due to his co-operation with the police, and giving evidence. Rocco Rizzotto and Esposito pleaded guilty to supply charges as well as cultivation charges. Romeo pleaded guilty to the lesser charge of cultivation of not more than 250 plants. He and Barbaro both had poor records.

The Crown relied on R v. Demaine, unreported, CCA, 23 March 1993. There were four offences of supplying cannabis leaf, one of which involved a commercial quantity slightly in excess of 66 kilograms. That carried a maximum penalty of 15 years. There was also an offence of cultivation of a large commercial quantity of cannabis plants which carried a maximum penalty of 20 years.

Premises were leased from which to market the drug in Sydney. $205,000 in cash was found in the prisoner's possession when much of the crop remained to be harvested and some of it was in the Sydney premises either awaiting sale or being prepared for sale. It was described as "a major exercise in professional crime." Large profits were intended.

The prisoner was 34 years old, had no prior convictions, pleaded guilty at the earliest stage, gave assistance to the police, was frank as to his own involvement and one of his motives may at least initially have been to obtain money for family members who were in need.

For the three offences of supplying a prohibited drug, Demaine was sentenced to a fixed term of 2 years. On the offence of supplying a commercial quantity of cannabis leaf and that of cultivating a large commercial quantity of cannabis plants he was sentenced on each charge to a minimum term of five years and an additional term of three years. All sentences were to be served concurrently. There were also forfeiture orders.

Demaine is a limited guide. Rizzotto and Calabria face no supply charges. Nor is there any evidence of either of them having received large amounts of cash. They hoped to receive substantial profits but they had not eventuated. The crop was destroyed. The prohibited drugs did not find their way into the community.

The subjective factors in each case were strong. Both Rizzotto and Calabria had been persons of good repute well regarded by their communities. Both men had been industrious and good family men. Their health and ages in 1994 (62 and 56) meant that gaol would be difficult.

I am unable to agree with the judge that their roles were greater than that of Barbaro. However, their criminality was high. Each was guilty of a very serious offence.

In my opinion there is an element of disproportion between the sentences imposed upon the appellants and those of the other offenders.

I have concluded that the sentences imposed were excessive. I agree with the judge that there were special circumstances and with his nomination of them. In my opinion each appellant should receive a sentence of 81/2 years, with a minimum term of 5 years and an additional term of 31/2 years.

I propose the following orders:

1. Each appeal against conviction is dismissed.

2. Leave to each appellant to appeal against sentence.

3. Each appeal against sentence is allowed. In lieu of the sentences imposed each appellant is sentenced to 81/2 years penal servitude comprising a minimum term of 5 years commencing on 14 July 1994 and ending on 13 July 1999 and an additional term of 31/2 years commencing on 14 July 1999.

ABADEE J: I agree with the reasons of Smart J and the orders that he proposes.

SIMPSON J: I have read in draft, and generally agree with, the judgement of Smart J, but wish to express my own views in relation to the grounds of appeal concerning the inspection of the Ford utility by the jury, and its impact, if any, upon the trial and verdicts.

The marijuana plantation was located on an isolated station in the far west of New South Wales. Both in his unsworn statement at trial and in his record of interview Rizzotto denied that he had ever been there. In his record of interview he told police that he was the owner of a Ford utility, registered number PEJ892, but that he never lent the vehicle (except on a couple of occasions for a short time to a nephew, and never overnight).

A witness, Jody Parker, identified the appellant Rizzotto as one of a group of people he had observed near the site of the plantation. The manner of this identification is the subject of a different ground of appeal. Jody Parker also identified a vehicle depicted in a photograph (exhibit 26), admittedly of Rizzotto's vehicle, as one he had seen at a log cabin on the property.

Particularly in the light of Rizzotto's denials that he or his vehicle had ever been to Cobar, or to the Mount Grenfell Station, evidence placing the utility in that location had the capacity to become a significant, though not overwhelmingly so, plank in the Crown's circumstantial case.

The challenge to Parker's identification of the vehicle was based upon his descriptions of the vehicle he had seen compared with what were asserted to be the real characteristics of Rizzotto's vehicle. In other words, by contrasting the descriptions given by him with Rizzotto's actual vehicle, doubt would be cast upon his evidence that the vehicle in the photograph was the vehicle he had seen at the site.

The first description of the vehicle given by Jody Parker was contained in a record of interview he made with the police on 11 March 1991. In that interview he described the utility as "blue" and "light blue", equipped with a roo bar and spot lights that had a yellow sticker on them. He said the inside of the tray was scratched when he looked in it, and the vehicle had a black tarpaulin on it. The description he gave in the trial was of "a light blue ford ute ...XF Ford ute, it had a black torno cover on it, it had a roo bar and spot lights... little square Navarra spot lights." In his evidence in the trial he made no mention of the scratches in the tray, but he did say, in cross examination, that he remembered the first three letters of the registration plate.

On behalf of Rizzotto it was contended that the vehicle depicted in the photograph exhibit 26 (his vehicle) was white, that his car was registered as white, and that other witnesses described it as white. It was not, therefore, the car that Parker had seen at the plantation. It was this that culminated in the tender of Rizzotto's vehicle itself, in order to enable the jury to decide for itself whether Parker's identification of the vehicle in the photograph as the vehicle he had seen at the log cabin could be accepted.

At all times it was the colour of the vehicle that attracted the attention of the parties. No cross-examination was directed to Parker's description of the other identifying features he had mentioned. So far as the scratch marks he said he had seen in the tray of the vehicle were concerned, the only evidence that he had mentioned them in his record of interview emerged in re-examination, not of Parker himself, but of the police officer who had interviewed him. That part of Parker's answer was led from the detective, but in no more than a passing reference. No application was made by any defence counsel further to cross examine either the detective, or Parker, on the subject, and the matter slipped into obscurity. No description of the location, extent or nature of the scratches was ever given.

This was a trial in which the evidence extended over twenty-nine days and produced almost 900 pages of transcript, forty Crown and sixteen defence exhibits. The evidence of scratching on the tray of the utility appears in one single line of that material, and was never agitated or explored by any counsel. It is not possible to say with certainty what matters were raised by counsel in their addresses, which appear to have been lengthy, but it is unlikely that scratch marks were raised. Scratching was not mentioned as an issue in the summing up, which itself occupied five days, and in which the trial judge referred in detail to most of the evidence.

In these circumstances, it seems scarcely credible that any member of the jury would have recalled, let alone focused upon, as a matter determinative of any issue, that single line in the evidence in which it was said that the tray of the utility observed by Jody Parker was scratched.

It is, in my view, necessary to have this clearly in mind in considering the remaining matters raised in these grounds of appeal. Precisely what occurred is not clear, but the narrative begins with the tender of Rizzotto's vehicle. That occurred at the conclusion of his extremely brief unsworn statement. It became exhibit R5. At that time no limitation was asked for or placed upon, the use the jury might make of the exhibit. What occurred immediately after that concerned the means by which the jury could have access to, and make their own observations of, the vehicle.

Arrangements were made for the jury to be taken to the basement car park of the Downing Centre where they could view the vehicle under artificial light. Arrangements were then made for the car, and the jury, to be taken to the Darlinghurst Court complex where they could observe it in natural light.

The trial judge directed the jury:

"Members of the jury, exhibit R5 has now been located in the car park area down underneath this complex. I propose to have the two officers who have been looking after you sworn to be viewers, so you will be under their jurisdiction, as it were, while you were looking at it. They are not there to answer any questions, they are there just to accompany you down there and ensure that you twelve can have a good look at the vehicle. After lunch I propose to have the vehicle taken up into an area where you can view the vehicle in daylight too because it is in a situation of artificial lighting at the moment. ... I don't know how long you will want to look at the vehicle, it is a matter for you. Rather than put any constraints upon you, after you have viewed the vehicle, probably it will be close to 4 o'clock anyway I would expect ... Officers, the court will now adjourn so you can take the jury to the area where the vehicle is located and show it to them in such time as they want." (emphasis added)

On the following page the transcript discloses that, in the absence of the jury the trial judge notified the parties in the following terms:

"I had a request from the jury to look inside the car and under the bonnet, I didn't allow that request. It seems to me that the issue here is the external appearance of the vehicle, nothing else, nothing more. Does everyone agree with that?"

This was followed by an indication that counsel agreed with the course taken by his Honour.

Later on the same day, after the case for the appellant Calabria and the Crown case in reply, his Honour addressed some remarks to the jury about what was then to occur. He added:

"I did receive a request from you to look at the interior of the vehicle and under the hood of the vehicle. As I understand it, the evidence in this case relates to the external appearance of that car. I do not think there is any need to look under the hood or interior. That is the only observation I want to make at this stage. If there is a reason that you want to do something by all means write me a note and let me know and I will discuss it with counsel and we will come to an answer in regard to that matter." (T880)

His Honour then advised the jury that the motor vehicle would be available to them at any time if they wanted to have another look at it.

The jury returned with verdicts of guilty on 13 July 1994. Following the short adjournment on that day senior counsel for Rizzotto brought to the attention of the judge information that had been communicated to him to the effect that during the course of their deliberations the jury had asked to inspect the tray of the vehicle and that they had been permitted to do so, but that neither their request nor its approval had been communicated to counsel. There followed an exchange between senior counsel and the judge, some of which has been extracted in the judgment of Smart J. Those exchanges do not, in terms, confirm that what occurred was as outlined by senior counsel. In this Court evidence was admitted to the effect that, during the course of their deliberations the jury had requested a further opportunity to view the vehicle and this opportunity was provided without opposition. This, no doubt, is a reference to the event that gave rise to the direction given at p.880 of the transcript, extracted above.

It is what next occurred that is unclear. The initial evidence, at least as far as this Court is concerned, appears in an affidavit sworn by Tony Paul Rizzotto, the son of the appellant Rizzotto, on 4 August 1994. Relevantly, he deposed that on 13 July 1994, following inspection of the vehicle by the jury a sheriff's officer said to him:

"When you pick up the vehicle have a look in the back to make sure everything is as it was because the jury had a look."

The clear suggestion was made that this had in fact happened, and had happened following communication with the trial judge through his associate, who conveyed the judge's approval to that course. But there was no direct evidence to this effect. At the hearing of the appeal the Crown produced the sheriff's officer, Robert Alan Brown. He said that he had communicated with the judge's associate prior to the view. His evidence was in the following terms:

"I asked the judge's associate whether the jury could look anywhere they wished and she - I understand that she checked with the judge and from his response via her, she said that they could look wherever they wished. I was not aware of any restrictions."

He was unable to say whether any member of the jury had in fact removed or looked under the tarpaulin or cover on the tray. Nor did he recall any such request from the jury. His only explanation for having queried the associate in the terms he did was his inexperience in long criminal trials and his wish to make sure that he knew what was to happen when he conducted the jury to where the vehicle was.

In my view, any communication between jury and judge concerning the trial, including evidentiary matters (as distinct from the kind of housekeeping matters about which juries sometimes communicate with the judge) must be brought to the attention of the parties. R v Yuill (1994) 34 NSWLR 179 at 190. For any such communication on an evidentiary matter to occur and not be conveyed to counsel is capable of constituting to an irregularity in the trial. That is not to say that this occurred in this trial. I do not think the evidence does establish that such a communication was made, but I am content to deal with these grounds of appeal on the assumption that some event of the king alleged occurred. I am, however, far from persuaded that any such request was for the purpose of examining the interior of the tray, or, even if it were, that the purpose of that examination was to search for scratch marks.

Whatever directions the jury had been given about the basis on which the vehicle had been admitted into evidence, once it became an exhibit, and subject only to specific limitations on its admission, they were entitled to make what use of it they considered appropriate. As I have said above, I consider it highly unlikely that any member of the jury saw the scratch marks as the, or an, issue. It is only necessary to ask: what would they have looked for? Large or small scratch marks? In what number? On what parts of the tray? Had they found scratch marks, how could they have used them to confirm or corroborate Parker's identification? A jury should not be treated as having no powers of reasoning of their own. Parker saw a (or the) utility at the station in about mid February 1991. The jury observed the utility on 27 June, and again on 13 July, 1994. They could hardly have overlooked the possibility that any damage which did appear to the tray of the utility had occurred in the intervening time. Nor could they have overlooked the use to which utilities are commonly put and the consequent likelihood of scratch marks in all, most, or at least some, such vehicles.

Further, it is not without relevance that, in this Court, there was no evidence to establish the actual condition of the tray as at the time of the inspections in 1994. For all this Court knows, there may have been no scratching at all, a result which would have led to an inference favourable to the accused. No reason was advanced why this Court should assume that inspection of the tray, if it occurred, would have revealed material damaging to the appellants' cases.

The test where an irregularity is shown to have occurred in a trial is as stated by Smart J. Can the court be satisfied that the irregularity did not affect the verdict, and that the jury would have returned the same verdicts if the irregularity had not occurred? (R v Marsland, unreported, Court of Criminal Appeal, 17 July 1991; R v Rudkowski, unreported, CCA, 15 December 1992; R v Domican No.3 (1990) 46 A Crim R 428; R v Lansdell, unreported CCA, 22 May 1995.)

I am not persuaded that any irregularity occurred, but if it did, I am quite satisfied that it did not affect the verdicts.

In other respects I agree with the reasons for, and the orders proposed by, Smart J.