Ellis v R

THE COURT: Blake Geoffrey Ellis (the applicant) applied for leave to appeal against the sentence imposed by a judge of the District Court (the sentencing judge) on 3 July 2012 for one count of manufacturing a large commercial quantity of 3,4-methylenedioxyamphetamine (MDA).

The offence is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for life and/or a fine of 5000 penalty units. There is also a standard non parole period of 15 years: s 33(3)(a) Drug Misuse and Trafficking Act; Div 1A of Pt 4 Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years, which was backdated to the date of the applicant’s arrest (10 May 2011). The sentence was said to reflect a 25 per cent discount for the utilitarian benefit flowing from the applicant's early plea of guilty.

The applicant sought leave to appeal on two grounds:

An extension of time to apply for leave to appeal was required. The Crown accepted that if the Court came to the view that there was a miscarriage of justice, an extension of time to grant leave to appeal should be granted. This undoubtedly was correct: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [30].

We have found merit in the first ground of appeal, with the result that the matter is to be remitted to the District Court pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) for rehearing. In those circumstances, an extension of time should be granted. Moreover, having regard to the applicant’s success on the first ground, it is unnecessary to determine the second ground.

The charge to which the applicant pleaded guilty alleged that 19.275 kilograms of MDA (the prescribed “large commercial quantity” is 500 grams) was manufactured at a property at Werris Creek (the Werris Creek property) between 24 November and 15 December 2010.

A 15 page "statement of facts" was tendered by the Crown in the sentence proceedings. There was no dispute about its contents, but a single paragraph at the end of the document identified three issues which remained in dispute.

The judge expressed concern during the sentence hearing and referred to this again in his reserved judgment, that the source of the information contained in the statement of facts was not apparent on its face. Why this was a concern in relation to facts which were not disputed is not apparent.

Where there is no dispute, it is preferable that a “statement of facts” actually states the facts rather than summarises the evidence, with it being left up to the judge to work out what the evidence establishes. Regrettably, the statement of facts in this case was a very poorly prepared document, comprising, in large part, a summary of evidence, not all in chronological order. It included a substantial amount of pedantic detail of no relevance. It was a document that may have tested the patience of any judge presiding in a busy court. However, based upon that document, the following facts may be discerned, at least as sufficient for present purposes.

There was a joint criminal enterprise involving the applicant and more than six other participants to manufacture MDA at the Werris Creek property between the dates mentioned above.

MDA is found in tablets that are sold as “Ecstasy”. That drug is supposed to contain 3,4 methylenedioxymethylamphetamine (MDMA), but is sometimes found to contain other components, including MDA.

The applicant and three of the participants in the enterprise had lived in the same area of Sydney and had known each other for years.

A number of the participants were involved in the acquisition of chemicals and laboratory equipment on about 21 or 22 November 2010 and on prior occasions. The acquisitions were financed by one of the applicant’s co-offenders, a Mr Yazdani.

In relation to the applicant, on 1 November 2010, he and another participant attended a large hardware store in Caringbah and purchased a substantial quantity of items for use in the manufacturing process. On 4 November 2010, he paid for and collected further items on special order from the same store.

On or about 2 November 2010, the applicant and another participant ordered a large quantity of hosing from an auto parts store, which was collected and paid for two days later.

The offenders involved in the acquisition of the materials on 21-22 November drove to a location in Yowie Bay where glassware items were transferred to a vehicle of which the applicant was an occupant. Various chemicals and equipment were stored at a property in the Nowra area in the ensuing day or so.

On 24 November 2010, one of the participants in the enterprise travelled to Werris Creek where he met with the owner of the Werris Creek property in the area and arranged for the use of a shed on the property in exchange for a promised payment of $50,000. Three vans arrived shortly after and were directed to the Werris Creek property by the owner of the property. The applicant was a passenger in one of the vans and, when they arrived at the property, he assisted with the unloading of chemicals and laboratory equipment.

Some of the occupants of the vans then left, while others remained, including the applicant. The statement of facts included that “it was during the next three weeks that the men manufactured a large commercial quantity of … MDA”, but it was later noted that the applicant's involvement in the process was a matter of dispute.

A photographic identification procedure with the owner of the property revealed that the applicant (and others) had been at the Werris Creek property from 24 November to 15 December 2010, but it was not asserted that the applicant had been there every day in this period. It was accepted by the Crown that he had, at least, been away in Sydney on 3-4 December.

On the morning of 15 December 2010, the offender and other participants packed up chemicals, equipment and the finished drug and left the property. The offender had travelled from Sydney very early that morning in his father's van and arrived back in Sydney that evening. The owner of the property found that a small amount of equipment had been left behind.

In the afternoon of 15 December, a van containing two of the applicant's co-participants in the enterprise was pulled over by a police officer at Quirindi for a random breath test. The officer’s suspicions were aroused and he searched the van. He found laboratory equipment and arrested the men for possession of implements used in the manufacture of prohibited drugs. Specialist police attended the following day and an examination of the items seized detected chemicals relevant to the manufacture of MDA and MDMA. A further examination of the van uncovered 16 vacuum sealed plastic bags of powder which, upon later analysis, was found to be 19.275 kg of MDA.

Subsequent examination and analysis established that various items recovered from the van had been used in the manufacture of MDA. The applicant's fingerprints were on some of them.

The applicant and another participant in the enterprise, Mr Freeman, were travelling back to Sydney at the time of the arrests at Quirindi. They met with Mr Yazdani and another participant at a hotel in Darling Harbour. They asked Mr Yazdani for money to enable them to leave the country immediately.

The following day (16 December), the applicant, Mr Freeman and others met with Mr Yazdani at the latter's apartment at Elizabeth Bay. The NSW Crime Commission had the premises under surveillance. The applicant and Mr Freeman were given money by Mr Yazdani and they immediately went to the airport and, paying cash for tickets, boarded a flight to Hong Kong. They subsequently travelled to Bangkok.

Various items were seized from Mr Yazdani's apartment a few days later, including a reaction flask, upon which was found material containing a DNA profile consistent with being the applicant’s.

Police did not locate the site of the manufacturing process at Werris Creek until March 2011. A search uncovered items associated with the manufacture of MDA, as well as detecting fingerprints and DNA profiles of various participants. The applicant’s fingerprints or DNA profile were found on a toaster, cigarette butts (including in a room where the manufacturing was carried out) and a remote control device.

The applicant returned to Australia on 18 January 2011. He was arrested on 10 May 2011.

After summarising the evidence from which the foregoing has been derived, the statement of facts concluded with a summary dealing with the following matters:

The statement of facts concluded by setting out the matters that remained in dispute:

Early in the sentence proceedings, there was a discussion between the sentencing judge and the solicitor for the applicant, Mr Goold, concerning the role that the applicant played in the manufacture of the MDA. The solicitor said that the applicant’s “role was as a transporter and a purchaser of goods” and he was not, “in the vernacular, the cook or participating in assisting in the chemical process that produced the prohibited drug”. He also said that evidence would be drawn from the applicant as to his contemplated profit from the enterprise. The following exchange then took place:

It can be seen from that exchange that there was at least an early indication to the sentencing judge of reluctance by the applicant to identify his co-offenders.

The Crown called a police officer, Detective Senior Constable Gary Adams. During the course of his evidence, a photograph was tendered. The photograph was said to have been taken on 16 December 2010 at a property at Elizabeth Bay where Mr Yazdani was said to be residing. Notations on the photograph identified two of the persons shown as the applicant and Mr Yazdani. The Crown did not attempt to lead evidence from Detective Adams identifying the four other persons in the photograph.

Detective Adams also gave evidence that Mr Yazdani was the financier of the enterprise the subject of the charges and that the applicant was a long-time associate of Mr Freeman.

It was not challenged in the cross-examination of Detective Adams that the applicant and Mr Yazdani were two of the persons who appeared in the photograph.

The applicant was called to give evidence. Shortly after the commencement of his evidence in chief, the following exchange occurred:

It was not disputed that the document to which Mr Goold was referring was a Police report relating to a report of malicious damage to a motor vehicle owned by the applicant’s mother, which occurred on 20 January 2012, and a report of a note in the applicant’s parents’ letterbox stating, “If B talks you’re next bitch”. At the hearing of this application, the Crown accepted that it was open to infer that Mr Goold attempted to show this document to the sentencing judge in support of the fact that the applicant had genuine concern for his family.

The exchange continued as follows:

Following this exchange, the solicitor for the applicant sought leave to obtain instructions from his client. The following day, the applicant sought and was granted leave to withdraw his evidence.

It is only necessary to deal with the remarks on sentence so far as they relate to the first ground of appeal.

In his remarks on sentence, the sentencing judge referred to the refusal by the applicant to give evidence. He described the applicant’s failure to give evidence which identified particular persons involved as “somewhat absurd, given that the particular people in question were already identified in the facts”. If that was the case, one might ask rhetorically why the sentencing judge found it necessary to ask the question which led to the exchange to which we have referred above.

The sentencing judge also said that when he was on the verge of directing the appellant to answer questions, the appellant said that he had fears for his safety. The sentencing judge said that “[t]he reason for this was not made clear”, although the sentencing judge did state that he was mindful of the police report to which we have referred in par [37] above.

His Honour made the following remarks in respect of the failure by the applicant to give evidence:

Mr Haynes (sometimes referred to as MH by the sentencing judge) was one of the applicant’s co-offenders. The reference to him giving evidence without being required to disclose any particular details was a reference to the fact that the judge who sentenced Mr Haynes rejected questions asked of him in cross-examination concerning the identity of his co-offenders.

The sentencing judge referred to a number of areas where, in the absence of evidence from the applicant, he could not accept submissions favourable to him, both in relation to the objective seriousness of the offence and the applicant’s subjective circumstances.

The sentencing judge found that the applicant was present (at the Werris Creek property) for a number of days to contribute to the process of manufacture. The applicant pointed out that one of the issues on which his solicitor indicated he would give evidence was his involvement in the manufacturing process and particularly the fact that the applicant’s asthma prevented him from taking any active part in the process.

The sentencing judge referred to the evidence given by Mr Haynes at his sentencing hearing concerning the extent of his involvement and pointed out that similar details were not available for “positive conclusion” in relation to the applicant. The sentencing judge noted that it was accepted that Mr Haynes “performed fairly menial tasks”, which was presumably the “positive conclusion” to which he was referring. The sentencing judge also emphasised the absence of evidence from the applicant in the following passage:

In that context, the ultimate conclusion of the sentencing judge was that the applicant had a greater involvement in the enterprise than Mr Haynes and must have a higher starting point for his sentence than Mr Haynes.

The sentencing judge also commented on the absence of evidence in dealing with the applicant’s motive for committing the offence and the applicant’s subjective circumstances. It was submitted on behalf of the applicant that he was motivated to commit the crime to financially assist his parents, who were in dire financial circumstances. The sentencing judge rejected this submission, stating that in the absence of evidence from the applicant and details of what he was to receive, it was “not possible to conclude that the commission of the crime was for altruistic reasons”. In dealing with the consultant psychiatrist’s report which was tendered, he noted that most of the psychiatrist’s conclusions were based on untested evidence.

The applicant submitted that the sentencing judge’s intervention during his evidence forced him to choose between identifying the other persons in the photograph and putting his family at risk of harm, or refusing to do so, thereby facing other adverse consequences. He submitted that it was unfair for him to be put in that position.

The applicant submitted that in intervening in the manner referred to above, the sentencing judge crossed the line between excessive and unjudicial intervention and disclosure of matters of concern: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (Chow) at 606. He pointed to the fact that the intervention by the sentencing judge was at an early stage of the applicant’s evidence in chief and well before the commencement of cross-examination of the applicant. He pointed to the fact that the Crown did not ask Detective Adams to identify the persons in the photograph and submitted that there was a real doubt about the relevance of the identification evidence in any event. The applicant submitted that in those circumstances, there was a real doubt as to whether the Crown would cross-examine the applicant on that matter. He also submitted that the question asked by the sentencing judge was of doubtful relevance.

The applicant submitted that the early intervention by the sentencing judge gave rise to the appearance of unfair pre-judgment, referring in particular to that part of the remarks on sentence to which we have referred in par [43].

The applicant pointed to the fact that the effect of what occurred was that he was unable to give evidence as to the nature of his limited participation in the enterprise, the time of his “first active involvement” and his “motivation to involve himself in the offending”. Counsel for the applicant pointed to those portions of the remarks on sentence to which we have referred above in which the sentencing judge referred to evidentiary deficiencies in the applicant’s case, stating that what occurred deprived the applicant of the opportunity of remedying those deficiencies.

The Crown submitted that as the photograph was tendered without objection, it would have been surprising if someone did not ask the applicant to identify the persons appearing in it. However, at the hearing, the Crown accepted that, in light of the fact that the police officer was not asked to identify those persons, such identification was not a particularly important part of the Crown case.

The Crown submitted that what ultimately concerned the sentencing judge was not the identification of the persons in the photograph, but the statement by the applicant’s solicitor that his client did not intend to give evidence identifying other persons involved in the offence. The Crown submitted that the sentencing judge was entitled to proceed as he did and was entitled to require a witness to answer a question, unless there was a valid objection.

At the hearing, counsel for the Crown accepted that there was nothing available to contradict the inference that the applicant declined to answer questions because of a genuine concern for his family. She also agreed that if the Court came to the view that the applicant was prevented from properly presenting his case, there would be a miscarriage of justice.

There have been many cases in which appellate courts have warned of the risk to a fair trial resulting from excessive intrusion by a trial judge in adversarial proceedings. The dangers which have been said to result include the inability of a judge who has descended into the arena to properly assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. However, the ultimate question must always be whether the intervention was unjustifiable and resulted in a miscarriage of justice.

In Yuill v Yuill [1945] P 15 at 20, Lord Greene MR referred to the difficulty of the assessment of demeanour by a judge who descends into the arena and assumes the role of an advocate. His Lordship made the following remarks:

The position was considered by the England and Wales Court of Appeal in Jones v National Coal Board (1957) 2 QB 55. In that case, a judgment in favour of the respondent, in a claim brought against it for damages for personal injuries, was set aside and a new trial ordered on the basis that excessive interference by the trial judge in cross-examination led to a miscarriage of justice. Denning LJ who delivered the judgment of the Court made the following remarks at 63-65:

The complaint in that case was similar to the complaint made in the present case, namely, that the appellant was unable to properly present her case.

In Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517, in determining whether a trial judge should have intervened when the accused did not lead certain evidence, Barwick CJ described the role of the judge as follows:

In Galea v Galea (1990) 19 NSWLR 263 at 281-282, Kirby A-CJ, with whose reasons Meagher JA agreed, stated a series of principles concerning excessive judicial intervention. Of particular relevance are the following (at 281):

Chow involved an application of these principles to a sentencing hearing. Although the Crown had accepted a plea of guilty from the accused, the sentencing judge continued to question the prosecution in a manner indicating that he believed that the accused was guilty of a more serious offence. The sentencing judge sought and accepted the tender of committal depositions, over the accused’s objections, in regard to the more serious offence. The accused sought declaratory relief prior to the sentence being handed down. While the Court of Appeal found that a sentencing judge was entitled to seek further detail regarding the facts on which the accused was to be sentenced, the court held that the sentencing judge had exceeded the limits of proper judicial questioning and departed from neutrality, giving rise to a reasonable apprehension of bias. Kirby P stated at 608:

Similarly, in R v Capaldo [2015] SASCFC 56, the conduct of the sentencing judge in taking over the cross-examination of the offender was found to give rise to an apprehension of bias: see [14]-[15], [34]-[35].

Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case: Jones v National Coal Board. In R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38], Kourakis CJ stated three ways in which a judge’s intervention may be excessive and lead to miscarriage of justice:

Although we have considerable sympathy for the position in which the sentencing judge found himself, having regard to the unsatisfactory statement of facts presented to him, we are of the view that his intervention was unwarranted and deprived the applicant of the opportunity to properly present his case. This is for a number of reasons.

The first reason is the nature of the question which led to the exchange. The photograph in question was taken the day after the last day on which the offence was said to have been committed. The question was thus of doubtful relevance. The Crown did not ask Detective Adams to identify the persons in the photograph other than the applicant and Mr Yazdani.

The second reason is the timing of the question. The question was asked early on in the applicant’s examination in chief and well before any evidentiary issues between him and the Crown had crystallised. Further, it was asked in circumstances where the solicitor for the applicant had already informed the judge that the applicant would be reluctant to identify the other persons involved. In that context, it must be remembered that this Court, on more than one occasion, has indicated that there are good and valid reasons for drug offenders facing terms of imprisonment to be reluctant to identify their co-offenders: Pham v R [2010] NSWCCA 208 at [27]; R v Baleisuva [2004] NSWCCA 344 at [29]. It does not seem to us that the fact that the evidence may have been given in closed court necessarily alleviates the difficulty.

Third, and most important, is the reaction of the sentencing judge after the applicant had declined to answer the question. Without giving any consideration of the reason for the refusal, he suggested to the applicant that he was not prepared to tell the truth and that he could be in contempt of court if he declined to give evidence. The sentencing judge did not hear argument as to whether the applicant should be required to answer the question, but threatened the applicant with sanctions if he did not answer questions.

Fourth, in making the comment cited at par [36] above, “if you’re going to get in the witness box to give evidence about your role in this matter you’re going to tell me the whole truth and you’re going to tell me the whole story and not be selective about it because otherwise what’s the value of your evidence with respect? I ask that rhetorically of you, your counsel and the Crown Prosecutor” (emphasis added), the sentencing judge misapprehended his role. As was stated in Jones v National Coal Board and Ratten, it is not the function of the judge to perform an inquisitorial role, as distinct from adjudicating on issues raised by the parties, although the judge has an entitlement to seek clarification of matters raised in evidence.

Fifth, the police report regarding malicious damage to the motor vehicle and the threatening note were matters which the Crown conceded should have been considered.

Sixth, the refusal to entertain any submission as to the circumstances in which Mr Haynes was not required to give similar evidence before Judge Payne and instead making a slighting comment about a boat race.

It was these matters which caused the applicant to apply to be excused from giving further evidence. Whether or not that was a sensible course to adopt, it was understandable in all of the circumstances.

We have identified the areas where the sentencing judge referred to the absence of evidence in rejecting submissions made on behalf of the applicant (pars [45]-[49] above). The applicant was thus prejudiced in the sentencing proceedings. There was a miscarriage of justice.

We emphasise that this judgment is not to be taken as suggesting that a witness giving evidence in sentencing hearings has discretion as to whether to answer questions where the answer might prejudice the witness or his or her immediate family. The problem in the present case arises from the nature and timing of the questions asked and, more importantly, on the approach of the sentencing judge immediately following the applicant’s refusal to answer questions.

There remains the question of the appropriate form of relief. Neither party disputed that the Court’s power under s 6(3) of the Criminal Appeal Act was enlivened in circumstances where there was a miscarriage of justice in the sentence proceedings: R v Vachalec (1981) 1 NSWLR 351 at 353. As the Court is not in a position to resentence the applicant, it should exercise its power under s 12(2) of the Criminal Appeal Act to remit the sentence proceedings to the District Court for determination. It is appropriate in the present case that a direction be made that a judge other than the sentencing judge hear the proceedings: O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [33]-[34], [57]-[59].