Regina v Salvatore Mammone [1999] NSWSC 1412 (19 December 1999)

REGINA v Salvatore MAMMONE

60345/96

16 May 1997

IN THE COURT OF CRIMINAL APPEAL

PRIESTLEY JA, GROVE J, HULME J

CATCHWORDS: Criminal law - knowingly taking part in cultivation of prohibited plant - circumstantial case.

RESULT: Appeal dismissed.

CRIMINAL LAW - KNOWINGLY TAKING PART IN CULTIVATION OF PROHIBITED PLANT - CIRCUMSTANTIAL CASE - On appeal against conviction: the appellant argued: (1) the jury's verdict was unsafe and unsatisfactory; and, (2) prejudicial evidence had been wrongly admitted at trial. Held: (1) On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; and, (2) the appellant's objection to the admissibility of certain evidence failed.

ORDER

Appeal against conviction dismissed.

JUDGMENT

PRIESTLEY JA:

Introduction.

On 20 June 1996 a District Court jury found Mr Salvatore Mammone guilty of having between 1 June 1991 and 18 December 1991 knowingly taken part, at Appin, in the cultivation of the prohibited plant cannabis in not less than the large commercial quantity applicable to prohibited plants. The trial judge, his Honour Judge Kinchington QC, convicted Mr Mammone and on 19 August 1996 sentenced him to a minimum term of imprisonment of three and a half years commencing on 20 June 1996 and expiring on 19 December 1999, and an additional term of fourteen months imprisonment.

Mr Mammone appealed against his conviction and sought leave to appeal against his sentence.

The cannabis was cultivated on a property known as Lot 1, Appin Road (which I will call the property).

Some time shortly after 7 pm on 17 December 1991 there was an explosion and a fire on the property. According to evidence given at the trial by Mr E. Firlayis, he returned to Australia from overseas on 2 December 1991 and before 17 December visited the property in order to see members of his family then living there. His three brothers were then at the property. One of these was badly burnt in the fire on 17 December 1991.

Immediately after the fire police officers went to the property and found that more than 1,000 cannabis plants had been grown there and that immediately before the explosion and the considerable fire which followed there had apparently been an attempt to burn much of the cannabis which at that time remained on the property.

Mr E. Firlayis also gave evidence that one of his brothers, Ali, served two and a half years gaol for having grown the marijuana on the property, Kemal (the one who was burnt) was sentenced to 500 community hours, and the remaining brother, Unal, was given a bond.

The fact that the three Firlayis brothers were engaged in the cultivation of cannabis at the property between the dates in respect of which the appellant was also charged was not disputed at the appellant's trial. Nor was it disputed that the quantity cultivated was not less than the large commercial quantity applicable to prohibited plants.

The principal issue at the trial. As the trial unfolded, the substantial matter the prosecution had to prove beyond reasonable doubt was that the appellant had knowingly taken part in the undisputed cultivation of the cannabis. There was no direct evidence of this. The prosecution relied upon a circumstantial case.

The issue of the appellant's knowledge was further narrowed by the stance he took at the trial. In an unsworn statement to the jury he said that he had met Ali Firlayis (whom he knew as Michael Finlay) early in 1991 and had come to an arrangement with him that he (Mr Firlayis) would cultivate the property at Lot 1 Appin Road as a market garden and supply the appellant's restaurant at Campbelltown with vegetables from it free of charge in return for the help the appellant would give to Mr Firlayis in establishing what the appellant described as "a legitimate business farm".

What the appellant said about the principal issue. In his unsworn statement, the appellant acknowledged that he had done a number of things in helping Mr Firlayis establish the farm and had often visited the property. He said that all of his actions and his visits were connected with the arrangement he had made with Mr Firlayis to help him in the establishment of the legitimate vegetable farm, as they had agreed. He said he had not known of the cannabis cultivation until the night of 17 December 1991; Mr Ali Firlayis then came to his restaurant and asked him to go to the hospital with him; Mr Firlayis then said to him "We were growing marijuana on the property"; the appellant said he had replied "How can you do that to me?" and added the comment that he said this

"because the first thing that went through my mind was all the things that I have done for them and everything was related to me because everywhere that I went everyone knew that I wanted these particular things for Appin, that everyone knew that this was what I was doing."

The appeal against conviction.

In the appeal against conviction, counsel for the appellant relied on two grounds. The first was that the jury's verdict was unsafe and unsatisfactory and the second that certain evidence had been wrongly admitted and was prejudicial to the appellant. I do not think the evidence was wrongly admitted and in dealing first with the unsafe and unsatisfactory ground I will mention that evidence on the basis that it was properly before the jury. I will explain the reasons for my opinion about the evidence after I have dealt with the unsafe and unsatisfactory ground.

The unsafe and unsatisfactory ground. This ground succeeds in cases where a Court of Criminal Appeal is satisfied that a reasonable jury, properly instructed, ought not to have been satisfied beyond reasonable doubt of the guilt of the appellant: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v The Queen [1987] HCA 25; (1987) 163 CLR 54. Whether the court is so satisfied depends upon an independent assessment by the court of the evidence which was before the jury: Chamberlain at 534, Morris at 463, Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at 443, 4542 and 461. The court's assessment must be of the nature, quality, reliability and credibility of the evidence: Morris at 461 and 473, Chidiac at 443 and 461. In its assessment of the evidence, the court is not to usurp the function of the jury and disturb a verdict merely because it disagrees with the jury's conclusion: Chamberlain at 534, Morris at 462: and must also bear in mind the advantage of the jury in hearing and seeing the witnesses: Chidiac at 462. In most cases a doubt experienced by an appellate court will be one which a jury should have experienced: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494. In some cases the advantage which the jury had in seeing and hearing the evidence will resolve a doubt experienced by an appellate court, but except in such cases it will usually be the appellate court's duty to conclude that the doubt it has is one which a reasonable jury ought also to have had: M v The Queen at 494. The ultimate question is always whether the court thinks on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 495.

At pp 18 to 22 of the transcript of 12 June 1996 of the trial judge's summing-up, he listed the principal circumstances relied upon by the Crown as pointing to the appellant having taken part in the cultivation of the cannabis at the property. These were:

* his principal role in arranging for the property to be leased to Michael Finlay and his wife for a term of twelve months beginning on 1 June 1991, at a rent of $1,170 per month, with the requirements of a rental bond of $1,080 and with a continuation clause providing that at the end of the term the tenant could stay in the residential premises at the same rent or one increased in accordance with the Residential Tenancies Act 1987 unless or until the agreement was ended in accordance with that Act;

* the borrowing of a tractor in May or June 1991 for the purpose of ploughing up the land;

* his hiring of equipment from various hirers in July and August 1991 for use in preparation of the land on the property; his ordering of and payment for concrete which was used for the footings in which five greenhouses (for which $63,000 was paid in cash) were secured. (The cannabis was subsequently grown in four of these five greenhouses.)

* that in August 1991 he was with one of the Firlayis brothers when some of the hired equipment already mentioned was picked up;

* his regular visits to the property;

* the finding in the appellant's possession of three custom made metal boxes identical to a fourth custom made metal box found on the property;

* the appellant's admission (made formally in the course of the trial) that on 15 November 1991 in the company of another male he had gone to the premises of Mr Parsons to pick up a number of polyurethane boxes of the same kind as white boxes found on the property on 18 December 1991 or shortly afterwards, in some of which traces of cannabis were found;

* that no punnets of the kind usual in commercial marketing of small cocktail tomatoes (which the appellant had said he understood were being grown) were found on the property;

* the part played by the appellant in the obtaining of the tenancy of a property at Wedderburn by Mr Firlayis in which cannabis was found;

* the fact that, on the evidence, the Firlayis brothers had no funds;

* the use by the Firlayis brothers of a station sedan RZI-481 which the appellant had purchased from his brother-in-law on 9 October 1991;

* the association between the appellant and at least one of the Firlayis brothers in the latter part of 1991 when the Wedderburn lease was negotiated;

* the going to the hospital to visit the injured Firlayis brother on the night of the fire;

* the appellant's presence with one of the Firlayis brothers at one of the hiring companies in September 1991;

* the use by the Firlayis brothers of the appellant's mobile phone number and his restaurant phone number as reference points for tradespeople or others dealing with them in regard to the purchase or hire of items used on the property;

* the lack of any documentation showing the existence of any legitimate business relationship between the Firlayis brothers and the appellant;

* the appellant's urgent need for large sums of money during 1991;

* the fact that when Detective Walsh, after the fire and the discovery of the cannabis, asked the appellant about his association with the Firlayis brothers, he said that he only introduced him to the agents for the lessors, an understatement of the true position so great as to be without doubt a lie, as the appellant recognised in his unsworn statement at the trial.

The foregoing circumstances seem to me to make a strong circumstantial case. They might, just barely, support the contention made for the appellant at the trial and again in the appeal that although they show a very close association with the Firlayis brothers and their activities on the property, they do not exclude the possible hypothesis that the appellant believed, as he later claimed, that all the activities were legitimate market gardening activities and that he neither knew of nor had any part in the activity of cultivating the cannabis. For myself, I would think that, if it were necessary to decide on the circumstances already set out, taking them together with what flows from the rejection by the jury of the appellant's unsworn statement, they were sufficient to enable the jury reasonably to come to the conclusions that no hypothesis consistent with the appellant's explanation was reasonably open and that they were satisfied beyond reasonable doubt that the appellant had knowingly taken part in the cultivation. When however some of the items already mentioned are looked at in more detail and a matter not yet mentioned is taken into account, it seems to me that it would have been quite unreasonable for the jury to have thought any hypothesis was available consistent with the appellant's innocence.

In the course of their investigations police officers stopped the appellant while driving a red motor vehicle RVQ-846. On this occasion the police took possession of two of the four custom made metal boxes already referred to. They also found in the console of the motor vehicle a bundle of documents, which became Exhibit ABF at the trial. Nothing is known about these documents apart from what can be seen from them themselves and the fact that they were found in the appellant's possession. In his unsworn statement he made a slight reference to them which the jury were at liberty to (and obviously did) reject. The reference in any event did not explain them in any informative way. One of the documents was a receipt from the estate agent to whom the rent of the Appin property was paid, for the payment of $1,170 rent for the period from 1 November 1991 to 1 December 1991. It was dated 7 November 1991. The documents also included two Telecom phone bills. Each had been paid on 7 November 1991, the receipt stamp on each of Postal Services Campbelltown New South Wales being virtually identical. One account was in the appellant's name and the other in the name of Mr Michael Finlay. Another document was an account from one of the hiring companies for the hire of equipment used on the Appin property, the account being in the appellant's name and the statement date being 31 October 1991. Another document was a handwritten list of items under the heading "Sam", a name by which the appellant was usually known, a number of which items are identifiable as equipment used on the property for which the appellant paid. There are five items titled "Glasshouses" each for substantial amounts. Other sheets in the bundle had other names at the top also showing items and amounts referable to equipment used and money otherwise spent on the property. In the absence of any explanation from the appellant of the contents of these documents they certainly left open the reasonable inference that they were records of the contributions made by a number of different parties (including the appellant) to the cost of what was being done on the Appin property. They also support the inference that what was being done on the property was being done at very considerable expense. On one of the sheets under the heading "Sam" appears the item "Telecom" against an amount "389.29". The amount of the Telecom account in the name of Mr Michael Finlay already referred to as having been paid on 7 November 1991 at the same time as an account addressed to the appellant, was $388.29.

The appellant was of course not obliged to explain the documents; but, looked at simply as documents, in the light of the other facts incontestably known about what was happening on the Appin property, it seems to me it was fairly open to the jury to draw inferences from them of the kind I have, by no means exhaustively, indicated.

The jury were not obliged to accept what the appellant said in his unsworn statement; it is apparent from their verdict that they did not. Once they came to the conclusion, as they were reasonably entitled to do, that the appellant was not telling the truth, they were entitled to take that fact (not telling the truth) as one of the circumstances to be considered in deciding whether the hypothesis of the appellant's innocent connection with the property was one reasonably open. It seems to me that this feature of the case, in combination both with the undisputed facts and also the possession by the appellant, without plausible explanation, of documents linking him with a cooperative venture on the property much more consistent with the growing of cannabis than humbler and less remunerative vegetables, furnished a proper and persuasive basis for the jury's having concluded that it was beyond reasonable doubt that the appellant had participated in the cultivation of the cannabis.

The evidence ground. One of the matters listed by the trial judge amongst the principal circumstances relied upon by the Crown was the part played by the appellant in the obtaining of the tenancy of the property at Wedderburn by Mr Firlayis. It was not disputed that on 7 January 1992 police officers went to the Wedderburn property and found that a substantial marijuana packaging operation was in progress there. The submission for the appellant was that it was wrong for the trial judge "to admit evidence of the activities conducted by the Firlayis brothers" at the property.

The main points pertaining to the relevance of this evidence were the following facts proved at the trial: the purchase by the appellant on 9 October 1991 of the station sedan RZI-481, subsequently used by the Firlayis brothers on the Appin property; the picking up by the appellant in the company of another male of white polyurethane boxes, on 15 November 1991 from Mr Parsons and the taking them away in the station sedan RZI-481; the obtaining of a tenancy of Lot 8, Wedderburn Road, Wedderburn, some time during November 1991 by Mr A. Firlayis in the name of Watt; the active involvement of the appellant in the deception of the estate agent as to the tenant's name at the time when the tenancy was being obtained; the finding of traces of cannabis in the station sedan RZI-481 on 17 December 1991; the finding of cannabis at the Wedderburn property on 7 January 1992 and the finding at those premises at that time of a polyurethane box identified by Mr Parsons as being of the kind he had sold to the appellant on 9 October 1991.

It seems to me that this material is all relevant to the issue whether the association of the appellant with the Firlayis brothers at the Appin property was consistent with his not having knowingly taken part in the cultivation of cannabis on that property. On the evidence the jury were entitled to conclude that marijuana was being grown on the Appin property in November, it was being packaged on the Wedderburn property in early January, the appellant in November told lies to help the Firlayis brothers get the Wedderburn tenancy and there was a polyurethane box of the same kind as the appellant had picked up in company with a male in a car he made available to the Firlayis brothers and as were later found at the Appin property, connected with cannabis and as found at the Wedderburn property. Parts of this evidence may not have been strong, but all seem to me to have been relevant to the question of the degree of association between the appellant and the Firlayis brothers in regard to marijuana growing and to the question whether it could reasonably be supposed that the appellant's knowledge and activities relating to the Appin property did not include participation in the growing of the cannabis.

In my opinion the admissibility objection fails.

Conclusion.

I do not think either of the two grounds relied on by the appellant should succeed.

Although in the Notice of Appeal leave was sought to appeal against sentence, my understanding is that the proceedings were conducted as an appeal against conviction. The only order I propose therefore is that the appeal against conviction be dismissed.

GROVE J: I agree with Priestley JA.

HULME J: I agree with the Reasons of and orders proposed by Priestley JA.