Regina v Craig Laing [1999] NSWSC 1394 (21 September 1999)

REGINA v Craig LAING

60643/95

Thursday, 20 June 1996

COURT OF CRIMINAL APPEAL

PRIESTLEY JA, ABADEE J, LEVINE J

RESULT: Application for leave to appeal allowed; appeal allowed; judgment and verdict of acquittal entered.

JUDGMENT

PRIESTLEY JA: The appellant and his father, Warren John Laing, were tried on an indictment charging that they

"between 1 August 1992 and 23 June 1993, at Rugby ... New South Wales, did knowingly take part in the cultivation of not less than the commercial quantity of a prohibited plant, to wit, 440 cannabis plants."

On 22 September 1995 a District Court jury found both men guilty. The trial judge was his Honour Judge Luland QC. He convicted the appellant and his father. On 27 October 1995 he sentenced the appellant to a minimum term of two years imprisonment to commence on 22 September 1995 and to expire on 21 September 1997 and an additional term of two years to commence on 22 September 1997 and to expire on 21 September 1999. He sentenced the father to a slightly longer term. The father did not appeal against conviction, but did apply for leave to appeal against sentence. That application was heard by the Bench in the present appeal, immediately before the hearing of the present appeal. Judgment in the father's application was reserved until the conclusion of the present appeal.

The Crown case against the appellant was a circumstantial one. The one ground of his appeal against conviction was that the jury's verdict was unsafe and unsatisfactory. In the circumstances of the present case, that meant the appellant's submission was to the effect that "(a) reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence" (the words come from Knight v The Queen [1992] HCA 58; (1992) 175 CLR 479 at 503).

At the trial there were a number of matters which were not in dispute. On 23 June 1993 police executed a search warrant at a property near Rugby, which is not far from Crookwell. This property had been bought by Mr Warren Laing in May 1990 and transferred to the appellant on 17 June 1991 for one dollar. Mr Warren Laing and his wife remained in occupation until early 1993, in Mr Laing's case until 8 March 1993. There was no-one present at the homestead on the property on 23 June 1993. The police forced entry and in the homestead found pieces of cannabis leaf on the floor, two brown paper bags containing cannabis seeds and strings hanging from ceiling beams for the hanging and drying of cannabis leaf. In a bedroom a book called "Marijuana Grower's Guide" was found. It was a book of 330 pages. A fingerprint of the appellant was found on three of the pages in positions indicating, according to the expert witness, that the finger was not being used in the way a reader uses a finger to hold or turn a page. A fourth fingerprint was found on the book which was not that of either the appellant or his father. In outbuildings traces of cannabis leaf as well as fertiliser and plant hormone were found. The property was described as "very large" and as being very poor agricultural land.

Police searching the property came to a creek from which a diesel pump was connected to pipelines leading to six areas where cannabis plants had been harvested. 440 plant stems and root systems were counted. These areas were capable of irrigation by a sprinkler system fed from the pipelines from the creek.

The evidence at the trial was such that the jury were bound to find that the Crown had proved beyond reasonable doubt that part of the indictment which alleged that not less than the commercial quantity of a prohibited plant, to wit, 440 cannabis plants, had been cultivated on the property.

The real issues in the trial were whether the Crown had proved beyond reasonable doubt that (i) Mr Warren Laing and (ii) the appellant had knowingly taken part in that cultivation.

On 23 June 1993 police had executed another search warrant at the appellant's home at Toukley. It is not clear whether he was then arrested on the cultivation charge the subject of this appeal. The court was not referred to any evidence of his having had any conversation with any police officers on this occasion. What does appear is that on 11 August 1993 a detective met the appellant by arrangement at Goulburn Police Station. He had a solicitor with him who advised him not to answer any questions. He took that advice. It appears that he did not at any stage make any statement to the police.

At the trial, he made an unsworn statement. In the course of this statement he said some things about which there is apparently no issue. He had been living at Toukley, about six hours drive from the property at Rugby at all relevant times. He had been renovating his own home during the period in which, on the Crown case, the cannabis plants were being cultivated. He said that he had helped his father in 1990 and 1991 to pull down some old houses at the Rugby property and then up until about 1992 building the house which had been searched by the police.

Other parts of his statement which must not have been accepted by the jury were that he had spent no time at the Rugby property in 1993, except for 16 March 1993, when he drove his mother there to pick up some belongings and took her back to Campbelltown where she was then living and then went further on back to his own home at Toukley, all on the same day. He said he had no knowledge of the crop or any knowledge of anyone doing anything to the crop. He produced a number of receipts which later went into evidence showing the purchase of building materials in late 1992 and the first half of 1993 for the renovation of his Toukley house. He added that after his last child was born in April 1992, apart from the 16 March 1993 visit, he had only been to the property on two or three occasions, each time with his wife and children.

In his summing-up to the jury, the trial judge said that the Crown case against the appellant was that the appellant actively participated in the cultivation of the crop. He said the Crown sought to establish this case as follows.

First, a connection was shown between the property and the appellant by his ownership of it; next the Crown relied on the fact that the property had been "secured". That is, there was evidence that the entrance to the property was padlocked and that the house was locked. This state of affairs was an indication that the persons who had access to the house, and there was no dispute but that this included the appellant, must have had an involvement with the cultivation. There was also evidence of dogs within the property, which made visitors apprehensive; next the Crown relied on evidence said to show that the house had been lived in either at or shortly before the time of the search. Then it was argued that evidence showed that the appellant had been in the area at relevant times. In particular the evidence of the owner of a hardware store at Crookwell was relied on; finally, the Crown relied on the fingerprints on the "Marijuana Grower's Guide" as showing a connection between the appellant and marijuana.

In the course of the summing-up, after the trial judge had put the Crown's case against the appellant to the jury on the basis I have summarised, there was an interruption in which some discussion took place between his Honour and counsel about the way the case was being left to the jury. The Crown raised no question with the trial judge about the way he had so far summarised the Crown's case against the appellant. His Honour then noted that the Crown case "is clearly that it is these two that were involved in the cultivation and you are relying upon those facts I have put to them and that is it". He added that it was the defence case there may have been access to the property by others who "may have been responsible for the cultivation and that these two had nothing to do with it at all".

The importance of these observations is that no doubt was left that the Crown was asking the jury to accept as proved beyond reasonable doubt actual participation in the cultivation (as distinct from the harvesting) of the crop. His Honour's way of stating what the accused were saying was adequate for the purpose he had in hand at the time when he was making the observation, but it would be more accurate to say that each accused was saying that he had had nothing to do with the cultivation. In particular so far as concerns the appellant, he said nothing about his father one way or the other; he was saying simply he had had nothing to do with the cultivation and knew nothing about it.

The case against the father was clearly stronger than that against the appellant, in that it would have been open to the jury to accept that it was during the father's actual occupancy of the property (which was undisputed) that at least some part of the cultivation must have been going on. In regard to the appellant however, taking the evidence at its highest against him, the connection between him and the property (in the sense of his being there) was much more shadowy. The only firm evidence of his being in the area at times that may have been relevant to cultivation was consistent with what he said about the limited number of occasions he visited the property.

The evidence given by the hardware store proprietor at Crookwell which appears to have been relied on heavily by the Crown, as it was in the argument before us, when the whole of it is looked at, does not seem to me to be of any particular assistance to the Crown. In his evidence in chief, the witness said that he had sold some goods in the second half of 1992 to the appellant which the jury would have been entitled to think were to be used in constructing the irrigation system later found connected to the six planted areas. However, in cross-examination his evidence became much vaguer and he eventually agreed that the date of selling the goods may have been 1991. This takes the transaction so far away from the period alleged by the Crown to have been that in which the irrigation set up was being constructed (which the Crown was contending was in the late part of 1992) as to deprive the evidence of most of its significance.

It seems to me, taking the Crown case as it was put against the appellant at the trial at its highest, and assuming the jury accepted nothing said by the appellant or the witnesses called in his case, nevertheless, the Crown case can not be said to have excluded the reasonable possibility that, for example, the appellant's father, in residence on the property, did the cultivation alone, or, as he was not physically strong (which to some extent at least appears to have been common ground at the trial) with the help of a person or persons other than the appellant. The various features of the case relied upon by the Crown are certainly such as to excite suspicion in a reasonable mind about the part the appellant may have played in the cultivation of the cannabis crop, but do not seem to me to rise to the level of proof that he did so, particularly when looked at from the circumstantial evidence standpoint, required by the law, of asking whether the evidence is consistent with a reasonable possibility that some person other than the person charged was responsible for the offence alleged against him.

One matter relied upon heavily by the Crown both at the trial and in the appeal was the presence of a fingerprint of the appellant on three leaves of the "Marijuana Grower's Guide". Taken by itself, that evidence establishes that at some time the appellant handled the book and, probably did so while at the property. The evidence thus places the appellant at the property, something which he in any event did not dispute. Rejection of his explanation that he was only there on a very limited number of innocent occasions, does not supply any evidence as to how often he was there.

A further aspect of the evidence about the book is that, besides the appellant's three fingerprints, it bore one other which was sufficiently clear to enable examination of it. The examination showed that it was not a fingerprint of either the appellant or his father. It is thus evidence that some other person was present at the property, which is consistent with the alternative explanation which, in the appeal, the appellant relies on as being one both reasonable and not excluded by the Crown in its case.

I agree with the submission made on behalf of the appellant that the Crown case did not justify the jury's verdict against the appellant. It seems to me that this is not a case where the jury's advantage in seeing and hearing the evidence resolves the doubt that I have experienced upon a consideration of the case against the appellant. For my part, having reviewed the Crown case I have what seems to me to be a reasonable doubt that the Crown established its case to the necessary level.

In the appeal, the Crown forcefully pressed the same features of the case as those enumerated by the trial judge in his summing-up as justifying the jury verdict. Indeed, there was some elaboration and expansion of the features in ways that do not appear to have been drawn to the jury's attention. None of these seems to me however to take the matter any further in regard to the exclusion of the reasonable possibility that, for example, someone other than the appellant helped Mr Warren Laing in cultivation of the cannabis plants. In particular, the Crown relied in the appeal on a submission based on Exhibit F, tendered in the appellant's case at the trial. This was a form of chronology listing incidents and items of evidence showing the appellant's continuous residence in Toukley and designed to support his unsworn assertion that he had made the very limited, innocent, visits to the property claimed in his statement.

Counsel referred to what were said to be two significant gaps in this chronology, one from 23 October 1992 to 15 December 1992 and the other from 23 April 1993 to 2 June 1993. It was then submitted that these gaps could be related to periods when it was likely that particular attention was required on the property to cultivation of the cannabis plants, and that the lack of any explanation by the appellant of these gaps was a matter to be taken into significant account against him.

Leaving aside the fact that there is no sign I can see in the trial papers of this matter having been raised in the trial, it does not seem to me to take the Crown case any further. The evidence concerning when the plants in question were likely to have been planted, and harvested, was very vague. There was no way the jury could fix any particular date as that of the harvesting. The evidence probably supported the conclusion that the whole operation from the getting of the irrigation system into working order through to the harvesting of the plants took place between late September 1992 and some unspecified date before 23 June 1993, but the expert witnesses who tried to give assistance about the dating of the events agreed that there were difficulties in being at all precise within those outer boundaries. There were other problems with the precision of their evidence related to the incomplete data they had to work with in forming their opinions.

Despite the best efforts of counsel for the Crown in the appeal, I do not think he has been able to elevate the Crown case against the appellant from the level of suspicion to that of the requisite proof.

My opinion therefore is that the appellant's appeal should be upheld, his conviction quashed and the jury verdict set aside. The case is not one in my opinion appropriate for the ordering of a new trial. A judgment and verdict of acquittal should be entered.

When sentencing the appellant Luland DCJ noted that he was then serving a sentence of two years periodic detention imposed on 21 June 1994 pursuant to s 24(2) of the Periodic Detention of Prisoners Act 1981. He cancelled that order. His intention was that the balance of that sentence should be subsumed into the custodial sentence which he then imposed.

In view of the fact that the appellant has been in custody since 27 October 1995 and in my opinion there should be no new trial in regard to the matter the court is now dealing with, I do not think the appellant should be required to serve any further portion of the sentence of two years periodic detention.

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

LEVINE J: I agree with Priestley JA.