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Supreme Court of Victoria - Court of Appeal |
Last Updated: 12 December 2019
COURT OF APPEAL
S APCR 2018 0283
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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[2018] VCC 1997 (Judge Quin)
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CRIMINAL LAW – Appeal – Conviction – Trafficking in commercial quantity – Trafficking in drug of dependence – Whether verdicts unreasonable and cannot be supported having regard to evidence – Circumstantial Crown case – Whether sufficient evidence to prove applicant party to joint criminal enterprise – Evidence insufficient – Not open to jury to convict – Leave to appeal granted – Appeal allowed – Convictions on both charges set aside and substituted with verdicts of acquittal – Criminal Procedure Act 2009 s 276(1)(a), Crimes Act 1958 s 323(1)(c).
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr P J Smallwood with
Ms F Fox |
Stary Norton Halphen
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For the Respondent
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Mr J C J McWilliams
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Mr J Cain, Solicitor for Public Prosecutions
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1 I have had the advantage of reading in draft the reasons for judgment of T Forrest JA. I agree with the orders which his Honour proposes, for the reasons which he gives.
T FORREST JA:
3 The applicant was convicted in the County Court of one charge of trafficking in a commercial quantity of cannabis contrary to s 71AA of the Drugs, Poisons and Controlled Substance Act 1981 (‘the Act’), and one charge of trafficking in a drug of dependence contrary to s 71AC of the Act.
4 On 21 November 2018, she was sentenced as follows:
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Charge |
Offence |
Maximum |
Sentence |
Cumulation |
|---|---|---|---|---|
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1 |
Trafficking in a commercial quantity of a drug of dependence (cannabis) |
25 years’ imprisonment |
4 years’ Community Correction Order (‘CCO’) |
N/A |
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3 |
Trafficking in a drug of dependence (cannabis) |
15 years’ imprisonment |
4 years’ CCO |
N/A |
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Total effective sentence: |
4 years’ CCO with a special condition of 150 hours of unpaid community work |
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Non-parole period: |
N/A |
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Pre-sentence detention: |
N/A |
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Section 6AAA statement: |
N/A |
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Other relevant orders: |
Disposal order and forensic sample order |
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5 The applicant filed an application for leave to appeal against conviction containing the following ground:
Ground 1: The verdict is unreasonable or cannot be supported having regard to the evidence.
Legal principlesSection 276(1)(a) of the Criminal Procedure Act 2009
6 Section 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’) obliges this Court to allow an appeal against conviction if it considers that the jury’s verdict is ‘unreasonable or cannot be supported having regard to the evidence.’
7 An intermediate appellate court must undertake its own independent evaluation of the evidence to decide whether a jury must, as opposed to might, have entertained a doubt about the applicant’s guilt.[1] Setting aside a verdict is a serious step; one not to be undertaken lightly. The appellate court must take account of the jury’s advantage in having seen and heard the witnesses, and must not simply substitute its own verdict for that of the jury.[2]
8 In most cases, a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[3]
9 If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way to lead the court of criminal appeal to conclude, even after making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[4]
Trafficking
10 For each of the offences of trafficking in a commercial quantity (charge 1) and trafficking in a drug of dependence (charge 3), the prosecution must prove the following elements beyond reasonable doubt:
(a) that the accused intentionally trafficked or attempted to traffick in a particular substance (in this case, cannabis); and(b) that it was a ‘drug of dependence’ that the accused intentionally trafficked or attempted to traffick.
11 To prove the offence of trafficking in a commercial quantity of a drug of dependence (charge 1), the prosecution must also show that the accused intentionally trafficked, or attempted to traffick, in a quantity of drugs that was not less than a large commercial or commercial quantity.
12 At trial and in this appeal, submissions for the applicant focussed on whether she had been proved to have been complicit in the criminal enterprises alleged, rather than on whether those joint criminal enterprises had been established.
Statutory complicity
13 In the present appeal, the applicant was prosecuted on the basis that she was party to a joint criminal enterprise with other co-offenders. In charge 1, she was alleged to be a party to a joint criminal enterprise with her husband, Romano Falzon, and Max Corbell to traffick in not less than a commercial quantity of cannabis at Units 10A and 10B, Mansfield Avenue, Sunshine North. In charge 3, she was alleged to be a party to a joint criminal enterprise with Romano Falzon and Charlie Gusman to traffick cannabis at 8 Bryson Court, Sydenham.
14 In 2014, pt 11 div 1 of the Crimes Act 1958 (‘Crimes Act’) codified the relevant principles of complicity. Subsection 323(1)(c) provides that a person is ‘involved in the commission of an offence if the person intentionally assists, encourages or directs the commission of the offence’. This subsection replaced the common law relating to joint criminal enterprise, acting in concert and common purpose. In common law times, the elements of joint criminal enterprise were:
(a) that two or more people reached an agreement to pursue a joint criminal enterprise which remained in existence at the time that the offence was committed;(b) that the accused participated in that offence in some way;
(c) that in accordance with the agreement, one or more of the parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence; and
(d) that the accused had the state of mind required for the commission of the relevant offence at the time of entering the agreement.[5]
15 Under the statutory scheme set out in the above paragraph, a person will be involved in the commission of an offence where that person ‘enters into an agreement ... with another person to commit the offence’.[6]
16 In the applicant’s trial, her Honour directed the jury in the following terms as to these elements:
In order to find Susan Falzon guilty of committing each of the offences under consideration by a joint criminal enterprise, the prosecution must prove the following four elements:(1) that Susan Falzon made an agreement with other people to pursue a joint criminal enterprise, and that agreement remained in existence when the offence under consideration was committed;
(2) that Susan Falzon participated in the joint criminal enterprise in some way;
(3) that in accordance with that agreement, the parties to the agreement between them performed all of the acts necessary to commit the offence under consideration; and
(4) that the accused had the state of mind necessary to commit the offence under consideration at the time of entering the agreement.
17 No objection was taken to these directions, which incorporated the common law elements of complicity. The essence of this appeal was simply that the evidence, almost entirely undisputed, was insufficient to support inferences that the applicant was party to any joint criminal enterprise, or that she participated in any joint criminal enterprise in some way. Thus the applicant contended that the verdict was ‘unreasonable or cannot be supported having regard to the evidence’.
18 This Court has not yet considered whether proof of statutory complicity involves proof of all the common law elements of complicity, although Beale J, sitting in the Trial Division, has ruled that the common law elements have survived this codification.[7] As no objection was taken at the applicant’s trial to these directions, nor in this appeal, consideration of s 323(1)(c) is unnecessary. I note that the Criminal Charge Book, following Beale J’s ruling, has incorporated its effect into pt 5.2 of the book.
The evidence
19 It is convenient to consider the evidence led against the applicant as falling into one or other of four broad categories:
(a) properties:
(i) 10A and 10B Mansfield Avenue, Sunshine North;
(ii) 8 Bryson Court, Sydenham;
(b) surveillance;
The evidence at 10A and 10B Mansfield Avenue, Sunshine North
20 On 17 December 2015, investigators executed search warrants at these two units. Unit 10A was solely owned by Max Corbell; Unit 10B was solely owned by Marilou Corbell (Max Corbell’s wife). Police found or observed the following:
(a) The strong smell of cannabis emanating from both units.(b) Each unit contained several rooms in which sophisticated hydroponic lighting and reticulation systems were being used to grow cannabis plants.
(c) The units both appeared to be devoted to a ‘sole purpose’ cannabis growing industry. There were limited signs that any person was residing in either unit.
(e) In Unit 10B, police seized:
(f) Thus 92 cannabis plants weighing a total of 34.781 kilograms, with dry cannabis of 49.6 grams, were located at the two Sunshine North units.
Surveillance at the Sunshine North units
21 Police conducted intermittent surveillance at these units from 29 July 2013:
The evidence at 8 Bryson Court, Sydenham
22 On 4 January 2013, Romano Falzon and Charlie Gusman became registered proprietors of this property. On 17 December 2013, police found or observed the following:
Surveillance at 8 Bryson Court, Sydenham
23 Police conducted intermittent surveillance at 8 Bryson Court, Sydenham from 15 August 2013 until 17 December 2013. In summary, they observed the following:
Searches
24 In addition to the searches carried out at the cultivation houses in Sunshine North and Sydenham, police searched the applicant’s marital home at 5 Kendall Street, Essendon. Romano and Susan Falzon were the owners and occupiers of the property. They were present at the time of the search. Relevantly, police located the following:
25 On 17 December 2013, police executed a search warrant at 25 Cedar Drive, Maribyrnong. This was Max Corbell’s residential address. Relevantly, police located a bunch of four keys, two of which were the keys to the front doors of the two Sunshine North units.
26 Australian Tax Office records released to police demonstrated that both Romano Falzon and the applicant declared little income for the financial years of 2011/2012, 2012/2013 and 2013/2014.[9]
The applicant’s record of interview
27 On 17 December 2013, the applicant was arrested and interviewed. I consider it necessary to reproduce the more significant exchanges in order to convey some flavour of the applicant’s admissions and exculpatory statements.
Q 3: ... I intend to interview you in relation to cultivating and trafficking in a commercial quantity of cannabis. Before continuing, I must inform you that you do not have to say anything but anything you say or do may be given in evidence. Do you understand that?A: Yes.
...
Q 22: ... And did — who answered the door?
A: I did.
Q 23: O.K. Did they introduce themselves, the members, or - - -
A: They just said they were police.
Q 24: Yeah, O.K. And what happened after that?
A: They searched the home.
...
Q 29: In relation to the — they searched the house.
A: They were just looking for money, they said - - -
Q 30: O.K. And - - -
A: - - - and they did mention that they found drugs - - -
Q 31: O.K.
A: - - - but I didn’t see it.
Q 32: Yep. What can you tell me about the drugs and money?
A: Not much at all, not - - -
Q 33: Well, what do you mean by ‘not much’?
A: I don’t know what you want me to say.
Q 34: Well, I — I don’t want you to say — I mean, it’s up to you what you say.
A: Mm.
Q 35: I — I can’t tell you what to say, that’s all. Do you know how the drugs or the money’s come about being in your house?
A: No.
Q 36: When you say drugs, what are you referring to as in drugs?
A: Marijuana.
Q 37: O.K., yeah. So you know — yeah, know it’s marijuana. Have you — do you know marijuana as different names, cannabis and things like that?
A: Mm.
Q 38: Yeah, O.K. Do you know where any of these — where that may have been located, the marijuana?
A: No.
Q 39: The cash, do you know where that may have been located?
A: That was where, at — at my home?
Q 40: Yeah, yeah.
A: No.
Q 41: O.K.
A: I had my little — I had $3,000 put away. That’s mine — my savings.
Q 42: Yep.
A: I knew where that was.
Q 43: And was that taken?
A: Yes.
Q 44: O.K. Where was that taken from?
A: I have it in my bathroom.
...
Q 51: Are you aware, obviously there’s been — so you’ve said that the cars, the — the cash. Are you aware of cash in separate areas?
A: No.
Q 52: If I said there was a substantial amount of cash under the staircase, what would you say to that?
A: That — well, they showed it to me and I’d never seen it before — didn’t even know it was there.
Q 53: After obviously you’ve seen it, do you have an understanding of the — a rough estimate of what may have been in there?
A: No idea.
Q 54: If I said there was in the vicinity of $100,000 in that bundle, what would you say to that?
A: You’re lying.
Q 55: No, I’m not.
A: There really was?
Q 56: Yeah. I believe that — and, well, Romy[10] — this is - basically, Romy said that it was about $100,000 there and it was, I think 15, 20 in other locations.
A: Nah.
Q 57: Can you explain any of that?
A: I didn’t even know it was there.
...
Q 62: Are you involved in selling the drugs?
A: No, definitely not.
Q 63: O.K. ... We’ve executed several warrants today - - -
A: Mm.
Q 64: - - - obviously one of them being your house. What other houses do you own?
A: I don’t own any other houses.
Q 65: Well, between yourself and/or Romy?
A: I don’t know. I don’t have any other houses.
Q 66: Right. If I said Romy part owns another house, what would you say to that?
A: I’d be shocked.
Q 67: And if I said you’ve been at this other house, what would you say to that?
A: Yeah, which house?
Q 68: In Sydenham.
A: It’s his friend’s place.
Q 69: Romy owns it. Do you know a man called Charlie Gusman?
A: Yes.
Q 70: What can you tell me about Charlie?
A: It’s Romy’s friend.
Q 71: He owns it with Charlie Gusman, that and others.
A: Other homes?
Q 72: Yes. If you’re telling the truth, obviously you don’t know your husband that well, I don’t know. You’re — she’s convincing me anyway.
A: I don’t know.
Q 73: Yeah, O.K. I — I’m not saying you do or don’t know, you know, I — I don’t, you know — I’m not a — I’m in your head ... so I can’t — can’t really judge that, but — so you’ve no knowledge of other property or properties that your husband owns.
A: What’s that?
Q 74: You — do you — do you — do you have any knowledge of any other - - -
A: No.
Q 75: - - - properties your husband owns?
A: We only have — well, we have in the past.
...
Q 93: ... What’s your — I’m sorry, I’ve just lost my train of thought a little bit. So you say you know Charlie — you know Charlie Gusman.
A: Yes.
Q 94: And, sorry, who — who did you think owned that house out at Sydenham then — the friend?
A: I just thought it was their friend - - -
Q 95: With - - -
A: - - - a friend.
Q 96: Do you know a — do you know who this friend might be?
A: No.
Q 97: O.K. Have you been to that house before?
A: Yes.
Q 98: I’m — when — when was this, do you think?
(NO AUDIBLE REPLY)
Q 99: If I said it was several occasions over the last couple of months - - -
A: Yeah.
Q 100: - - - what would you say to that?
A: Yeah.
Q 101: O.K. What was the purpose of your - - -
A: I just - - -
Q 102: - - - visit?
A: - - - tidied up the house a little bit.
Q 103: What do you mean by tidying up the house a little bit?
A: Well, there’s a back section and I tidied up these boxes stored there.
Q 104: Is this in - - -
A: Have you been there?
Q 105: I didn’t — so, I did not go to the house — that house - - -
A: Well, there was - - -
Q 106: - - - today, no.
A: - - - there was a - - -
Q 107: A back section, do you - - -
A: - - - a friend - - -
Q 108: - - - mean like rooms or - - -
A: No.
Q 109: - - - like a verandah.
A: A verandah - - -
Q 110: O.K., yep.
A: - - - and there’s boxes stored so I was just tidying up all them
- - -
Q 111: Yep.
A: - - - and I tidied up the kitchen and the lounge area.
Q 112: When was this?
A: Do you know what, I — I don’t know time. It’s just maybe a couple of times a couple of months ago.
Q 113: O.K. Did you take anything away from the house at that time?
A: Rubbish.
Q 114: And what was the rubbish in?
A: A plastic bag.
Q 115: O.K.
A: Yeah, and I had — because I was dusty, I — I didn’t wanna — I had gloves on.
Q 116: What sort of gloves?
A: Disposable gloves.
Q 117: O.K. Do you know a — do you know another gentleman by the name of Max Corbell?
A: Yes.
Q 118: How do you know Max?
A: It’s Romy’s friend also.
...
Q 130: Yeah, yep. The power at Bryson Court, Sydenham, whose name’s that in?
A: I have no idea.
Q 131: If I said it was in your name, what would you say to that?
A: It can’t be in my name.
Q 132: I think it can be.
A: It’s not in my name. I would know.
Q 133: How would you know?
A: Well, wouldn’t I get a bill?
Q 134: Not if it’s sent to — not if it’s sent to Bryson Court, Sydenham.
A: I have no idea, I’m sorry.
Q 135: O.K. When you’ve gone there, what rooms of the house did you go into?
A: The lounge - - -
Q 136: Yeah, I think you said the lounge - - -
A: - - - the kitchen and - - -
Q 137: - - - kitchen and - - -
A: - - - yep, and the - - -
Q 138: - - - an area - - -
A: - - - the dining area - - -
Q 139: - - - out the back.
A: - - - and there’s a back patio thing.
Q 140: Yep. Who else was there on that occasion?
A: There was Charlie - - -
Q 141: Yep.
A: - - - Romy and I.
Q 142: What — and what was Charlie and Romy doing when you were there cleaning?
A: The — mowing the lawn.
Q 143: Charlie was - - -
A: Yep.
Q 144: - - - or Romy?
A: Both, they were outside doing the outside and I was on the inside.
Q 145: Does that seem a little odd to you?
A: In what - - -
Q 146: You be - - -
A: - - - way?
Q 147: - - - you be all — the three of youse and — and as I said, Romy owns that house with Gusman that you’re just there mowing the lawns, that you think it’s — you — you — you allege that it — the house just is — belongs - - -
A: No, it’s not weird ‘cause - - -
Q 148: - - - that you — you - - -
A: - - - he just said - - -
Q 149: - - - allege that - - -
A: - - - he’s doing a — that’s his handyman, that’s his job.
Q 150: But you’ve said that the house belongs to someone else.
A: I didn’t know — I don’t know who.
Q 151: But you — you said it belonged to one of Romy’s friends.
A: Yeah.
...
Q 153: Did you - - -
A: He went away - - -
Q 154: - - - did you see this - - -
A: - - - he - - -
Q 155: - - - other person?
A: No, ‘cause he said he went away.
Q 156: O.K. Do you know where he said he went away to?
A: No.
Q 157: No, that’s all right. When you were there did you notice any — did you notice cannabis plants there, or marijuana plants?
A: At — at Sydenham?
Q 158: Yes.
A: No.
Q 159: O.K. I put it to you that you were there and you were tending to the cannabis plants in — and you were in the back rooms of the house.
A: You’re saying that to me?
Q 160: Yes.
A: Well, you can believe whatever you like.
...
Q 171: Yep. If I said that you — that you’ve attended out there on the 4th of September, would that date seem about right to you?
A: I wouldn’t have a clue, I’m sorry.
Q 172: Right. That’s probably about three or four months ago now. How many bags did you take out on that occasion?
A: I don’t know.
Q 173: Do you know what you’ve done with the bags?
A: No.
Q 174: Did you put ‘em in the bin out the front of the house or - - -
A: I could not tell you. I don’t know. I don’t ... you do things but you’re not — I dunno, I don’t store it in my memory, you just do things, I don’t know.
...
Q 177: I — I put it to you, on the 4th of September of this year you’ve attended that address as with the people, as you’ve said, with — you were driving your Mazda, ZOB-350, and you were there for quite a number of hours with — with Gusman and your husband and you’ve assisted with the harvesting of a crop there and you’ve transported two bags of harvested cannabis back to your house in Essendon.
A: Nah.
Q 178: Nah. O.K. How many times do you think you’ve been there in the last — I dunno — when was the last — sorry, I’ll requestion that. When do you think the first time you may have been out to this address in Sydenham?
A: I couldn’t tell you.
Q 179: Years, months?
A: No, probably months.
Q 180: Half a year, six months, or there - - -
A: Yeah - - -
Q 181: - - - roughly - - -
A: - - - probably - - -
Q 182: - - - roughly, or something - - -
A: Yeah.
Q 183: - - - like that? O.K. Have you ever, ever seen anyone else there?
A: No.
Q 184: - - - like, other than the people that we’ve spoken of?
A: Seen there — Charlie and — no, just Charlie and Romy.
Q 185: Anyone like — any other older people?
A: Nuh. I’m just trying to think.
Q 186: No, that’s all right, take your time.
A: Nuh, I’d been lying if I said - - -
Q 187: Mm.
A: - - - I don’t know.
Q 188: No, that’s all right. And so you think it may have been six months ago when you’ve been there.
A: Yep.
Q 189: How many times like, really roughly, how many times do you think you’ve been there in the last six months then?
A: Maybe twice.
Q 190: Do you know when those — when those — so, O.K., one was that time that you’ve said - - -
A: Yep.
Q 191: - - - when — when Charlie and Romy were there.
A: Yep.
Q 192: Do you know who was there on the — on this other occasion?
A: I’m not sure if their — they’ve got another friend, Paul - - -
Q 193: Paul Ward.
A: - - - Paul Ward. I think that’s his surname, I’m not too sure.
Q 194: O.K.
A: I only know him as Paul.
Q 195: O.K. And he was there, was he?
A: I think so.
Q 196: O. K. Why would do you know understanding of him being there?
A: Well, he’s both their friend so - - -
...
Q 211: Do you know where Charlie lives?
A: Yeah, in Williamstown.
Q 212: How often — how often — well — sorry — have you ever been to his house?
A: Yeah.
Q 213: When was the last time you went there?
A: Oh God, maybe before he went overseas.
Q 214: When did he go overseas?
A: Um - - -
Q 125: Three weeks ago?
A: Yeah.
Q 126: Yeah. Thailand?
A: Yep, yeah, he went to Thailand but I don’t know if that — if I went that — don’t know.
...
Q 240: ... And Max Corbell, obviously you — you know - - -
A: Yeah, I know Max.
Q 241: - - - him.
A: Yeah.
Q 242: Do you visit him as - - -
A: Yes.
Q 243: - - - as well? Where — where do you visit him?
A: In Sunshine - - -
Q 244: At - - -
A: - - - at his — his home.
Q 245: Which house is his in Sunshine?
A: What do you mean which one?
Q 246: Do — do you know — or do you - - -
A: I don’t know the address.
...
Q 258: Which home have you been to then?
A: The one in the back.
Q 259: O.K. And when — how often have you been there?
A: Not very often.
Q 260: Do you know when the — the first time may have been when you’ve gone there, or what — or it — was it years or months?
A: Months.
Q 261: Months. Six months or more or less?
A: Probably six months.
Q 262: O.K. What — why did — sorry — and how many times have you been there, do you think, roughly?
A: I wouldn’t have a clue.
Q 263: 10, or more than 10 or less than 10?
A: Six times - - -
Q 264: O.K.
A: I dunno.
Q 265: Do you know why you’ve gone there? Do — sorry — can you recall why you’ve gone there?
A: To visit Max.
Q 266: Can you describe the house for me at all when — the layout, how — when you’ve gone inside? Can you, like, think back - - -
A: There's - - -
Q 267: - - - and remember, like, the — from the door, you go in the door and things that are on your right and your left and that?
A: There’s a lounge, there’s the lounge, there’s a kitchen and then you walk through a laundry to get to the toilet.
Q 268: Laundry is out the back, is it?
A: Yep.
Q 269: O.K. Did you notice anything in the house?
A: Like?
Q 270: Like hydro, growing cannabis and things like that?
A: Few things, like — what do you call them - - -
Q 271: Like fans or filters or - - -
A: - - - yeah, tubs and stuff sitting on the lounge-room floor.
Q 272: O.K. I put it to you that you’ve — you’ve attended that address on several occasions in the last six months or more and also assisted in the cultivating of cannabis at that address as well and — and the front unit.
A: I go to visit Max.
Q 273: Well, it’s — it’s like the address in Sydenham. You’ve said that you’ve gone there but no knowledge of, you know, things growing there as well. There’s — there’s been several rooms set up in that house as well cultivating cannabis. Were you aware of that?
A: No.
Q 274: But you say you have some knowledge or you may have seen things at the house in — at Corbell’s. O.K. And you’ve said you may have been there six times. Is that right?
A: Yep.
Q 275: Yep, O.K.
A: I just mind my business.
Q 276: O.K. And how many times have — have you been to Gusman’s in the - - -
A: I dunno .
Q 277: How — how long — sorry — what — how long have you known Charlie for, years?
A: Yeah.
Q 278: How many times do you reckon you — or how often would you visit him?
A: Just whenever we’ve got spare time, you know, Romy will say - - -
Q 279: Every week or couple of weeks or - - -
A: Couple of — maybe months, yeah.
Q 280: O.K. And if I said that you’ve gone there and assisted with the cultivating of cannabis at that address, what would you say?
A: Nah.
Q 281: You — you’ve gone to all these different addresses that I’ve described, and you agree going there, and they’re all growing drugs, but you’ve just - - -
A: That doesn’t mean I have a part in it.
Q 282: Well, you’ve got, you know, like, hundred — $120,000 of cash at your house - - -
A: I did - - -
Q 283: - - - you’ve got drugs in your house - - -
A: - - - not know about that, I’m sorry.
Q 284: Well, yeah - - -
A: You know, I just like a bit of company now and again so I go and just be with them but it doesn’t mean that I’m actually assisting.
Q 285: Yeah. I put it to you that you are and you’re also selling the drugs.
A: I swear to you I’m not.
...
Q 303: O.K. Romy said that he’s purchased the house out at Bryson Court, Sydenham, for $320,000 I think, or thereabouts. How do you think he’s come up with the money for that?
A: Didn’t even know he had it, so how would I know?
Q 304: O. K. And the $120,000 found around the house?
A: I didn’t know it was there.
...
Q 332: - - - gone, yeah. I think the guys took a Chev out of the — out of your garage too. What can you tell me about that car?
A: He bought that off a friend of ours.
Q 333: O.K. Do you know the friend’s name?
A: Gary.
Q 334: Do you know his - - -
A: Gary Belford.
Q 335: O.K. Do you know how much that was paid — how much — you know, how much was that worth?
A: I don’t know. I just know that Gary and Romy made an agreement and Romy used to pay him off.
Q 336: O.K. If I said it was in the vicinity of $55,000, what would you say to that?
A: Don’t know. I don’t know what it was worth or what he paid.
Q 337: Yep.
A: They’d made an agreement.
Q 338: That’s a fairly big expense for an — I don’t know, for someone, you know - - -
A: To me, it looks like an old car, so I don’t know - - -
Q 339: He’s — he’s - - -
A: - - - whether it’d be that - - -
Q 340: - - - he’s — he’s purchased, you know, a house worth $300,000, he’s got 100-odd thousand under the — under steps and he’s got another car worth 50-odd thousand and you’re denying any knowledge of any of this.
A: No, I know — I know about the car.
Q 341: So you know the car - - -
A: Yeah.
Q 342: - - - but you — you — you - - -
A: I know — and he - - -
Q 343: - - -- you deny knowledge of - - -
A: - - - I — no, I’m - - -
Q 344: - - - of — of its value.
A: - - - not denying, I’m just saying I don’t know what the value was.
Q 345: Yeah, yeah - - -
A: - - - because what your husband tells you and what your husband does is two different things.
...
Q 359: Mm’hm, O.K. And you mentioned before about Romy having a business.
A: Yes, he’s a - - -
Q 360: Yep.
A: - - - handyman.
Q 361: O.K. What was the name of the business?
A: Flash.
Q 362: Just Flash?
A: Flash’s Handyman Service.
Q 363: O.K. And do you have anything to do with the business?
A: Yeah.
Q 364: Yep. What’s your involvement with the business?
A: I just do his bookwork, like - - -
Q 365: O.K. So you — you would say you have a good idea of what money is coming in - - -
A: Yeah.
Q 366: - - - from the business. What sort of weekly — what — what kind of money is coming in through the business?
A: I dunno, there’d be around $6,000 a month, a bit more, bit less, just - - -
Q 367: Yep.
A: - - - depends what he’s got on.
Q 368: And that’s profit?
A: Pretty - - -
Q 369: That’s - - -
A: - - - yeah, pretty - - -
Q 370: - - - that’s what’s he - - -
A: - - - not profit, just, you know - - -
Q 371: Mm’hm.
A: - - - brings in the money, I bank it - - -
Q 372: Mm’hm.
A: - - - and — yeah.
Q 373: O.K. And is it just him working at the moment - - -
A: Sometimes he gets - - -
Q 374: - - - in his business or - - -
A: - - - a bit of helping hand - - -
Q 375: Mm’hm.
A: - - - you know, but not — not anybody on a wage, if that’s what you mean.
Q 376: Mm’hm. And just in relation to yourself, do you work - - -
A: Yes.
Q 377: - - - as well? Yep. What sorta work do you do?
A: I do holistic counselling.
Q 378: O.K. And is that just people come to your house or - - -
A: Yeah.
Q 379: Yeah. And how — how busy are you at - - -
A: Yeah, pretty good.
Q 380: - - - the moment? Yep. What — what would you sort of charge, or what do you earn, sorta thing?
A: Dunno, probably — never even calculated to tell you the truth dunno, the same, $5,000 a month or something.
Q 381: O.K. And in relation to the Sydenham house - - -
A: Mm’hm.
Q 382: - - - who asked you to clean that house?
A: Romy.
Q 383: Romy. And what — what did he ask you to do at the house?
A: The kitchen - - -
Q 384: Yep.
A: - - - and just the general living area - - -
Q 385: O.K.
A: - - - and out the back — like I said, there were boxes - - -
Q 386: Mm’hm.
A: - - - and just to tidy up.
Q 387: Yep. What about the rooms, that sorta thing. Did he say anything about those?
A: No.
Q 388: O.K. Is that a normal thing to be asked to go and clean?
A: Yeah, I — ‘cause I used to do that all the time.
Q 389: O.K.
A: Yep.
Q 390: How often do you do that at the moment - - -
A: Not — not a great deal - - -
Q 391: Mm’hm.
A: - - - but, yeah, whenever he asks me I go and tidy up because sometimes even with his handyman stuff, we’ll go and do — I’ll give him a hand.
...
Q 394: - - - and you’ve seen the pots in the lounge room - - -
A: Mm.
Q 395: - - - what did you think about that when you’ve seen that?
A: Yeah, I sort of got a fair idea but I don’t say.
Q 396: Mm’hm. What did you think? When you say a ‘fair idea’, what did you think that meant when you saw the pots?
A: Well, you just, you know — you just — you assume something’s going on - - -
Q 397: Mm’hm.
A: - - - but I don’t say anything.
Q 398: O.K. Why would you think that about Max just from seeing the pots?
A: What’s that?
Q 399: Why would you think that about Max?
A: No, like, you have a thought and then you — like you said, mentioned his age, and then you just shrug it off and you just think - - -
Q 400: Mm’hm.
A:. ‘Nuh’.
Q 401: Did you ever see anything when you were there that made you assume that’s what was going on there?
A: I can’t - - -
Q 402: It would’ve smelt a bit strange, the place, wouldn’t it?
A: Yeah, sometimes. Yeah, sometimes, yeah.
Q 403: Could you smell anything when you were at the Sydenham house?
A: No.
...
Q 490: But you — you’ve mentioned to us earlier that you’ve — you have no knowledge of cannabis being at Bryson Court, Sydenham, no knowledge of cannabis being at Charlie’s house, and you suspect there might’ve been something happening at Mansfield Avenue. I put it to you that you have been to all — clearly you have been to all these houses - - -
A: Yeah, I have.
Q 491: - - - you’ve admitted — you’ve admitted to that, but you’ve been assisting your husband in the cultivating of — of cannabis at these each of these addresses.
A: I haven’t been helping.
Q 492: O.K. And once that cannabis has been harvested — you’ve also been involved in the harvesting, and then assisted him with the on-selling of it and that’s how you’ve purchased all these properties and got that substantial amount of cash at home and the — the excessive amount of money spent on cars in the last couple of years. What do you say to that?
A: I have no idea where the money came from in our home and I have no idea where — how he purchased a home.
...
Q 518: Do you wish to say anything in answer to the charges?
A: Well, I — I don’t understand if I’m not — if — how can I be charged with those things?
Q 519: Each of these houses that we’ve — we’ve spoken of, you’ve been seen to go — seen going to them on a regular basis - - -
A: Mm.
Q 520: - - - you’ve admitted going them — to them on a somewhat irregular — regular - - -
A: But that doesn’t mean you’re - - -
Q 521: - - - basis.
A: - - - you’re doing anything wrong.
Q 522: Well - - -
A: That’s a - - -
Q 523: - - - yeah - - -
A: - - - your perception.
Q 524: - - - but you’ve — and you — and you’ve been seen coming out of the houses with bags of what we believe is cannabis, and there’s been cannabis seized from your house, your home address. I know you’ve denied any knowledge of that but I — I find that a little bit hard to believe - - -
A: I — well, that’s — that’s - - -
Q 525: - - - you know, and — and that’s — that’ll be up to a - - -
A: - - - that’s up to you.
Analysis
28 Recently, the High Court reminded us that in this type of appeal, it is necessary to assess the case as a whole: ‘a circumstantial case cannot be considered in a piecemeal fashion.’[11] Whilst each individual piece of evidence must be scrutinised critically, the united force of the evidence will be the ultimate determinant of guilt or otherwise. Put another way, while a piece of evidence, considered alone, may appear innocuous or perhaps devastating, considered with other pieces of evidence, it may take on an entirely different character.
29 In this case, in my view, I am at relatively little disadvantage, as compared to the jury, in conducting an independent evaluation of the evidence. That is because of the nature of this appeal. The applicant contended that the totality of the evidence, taken at its highest for the respondent, is insufficient to support the guilty inferences necessary for conviction. No issue is taken with reliability or the credibility of the evidence. The contention made by the applicant is therefore that the jury’s verdict cannot be supported, having regard to the evidence.[12] The respondent contended simply that the evidence, considered as a whole, was sufficient to support the guilty inferences and there was no miscarriage of justice. The jury was not ‘bound to acquit’.
30 I consider it is clear that there was a joint criminal enterprise between at least Romano Falzon and Max Corbell to traffick in not less than a commercial quantity of cannabis at Units 10A and 10B Mansfield Avenue, Sunshine North. I consider it equally clear that there was a joint criminal enterprise between at least Romano Falzon and Charlie Gusman to traffick cannabis at 8 Bryson Court, Sydenham. These conclusions were not disputed on this appeal, and are readily available from the evidence that we have reviewed. In particular, the following circumstantial evidence supports these conclusions:
(a) 10A and 10B Mansfield Avenue, Sunshine North:
(b) 5 Kendall Street, Essendon:
(c) 25 Cedar Drive, Maribyrnong:
(d) 8 Bryson Court, Sydenham:
31 This is not a review of all of the evidence available in support of the existence of these two joint criminal enterprises, but it is sufficient to demonstrate beyond reasonable doubt their existence. I shall now examine the evidence that is said to place the applicant into these joint criminal enterprises. As I have said in paragraph 19 of these reasons, this evidence can be divided into four general categories: evidence located at the Sunshine North and Sydenham properties, surveillance evidence, searches at the properties (including at the applicant’s marital home in Essendon) and the applicant’s police interview.
32 The effect of the applicant’s denials in her police interview was that whatever the co-accused were up to, she was no part of it; she ‘minded [her] own business’.[13] I have concluded that the applicant knew what was happening at the grow houses. I have viewed the videos of the grow houses and they, at least as at December 2013, were obviously used for cultivating cannabis and inferentially, had been for some time. A total of seven grow rooms in the two Sunshine North units were filled, often to near capacity, with plants of varying maturity, but the oldest of which were about 17 weeks old. Although it is not entirely clear from the interview, I understand the applicant’s admissions about seeing pots in the lounge room, that the place sometimes smelt ‘a bit strange’ and having a ‘fair idea’ as to what was going on, in fact, related to the Sunshine North units.[14] I am less certain as to whether she knew that marijuana was being cultivated at Sydenham, but I am prepared to assume that she did for the purposes of this analysis. At its highest for the prosecution, the evidence was that the applicant had visited the Sydenham property twice in six months and the Sunshine North properties six times over the same period.[15]
33 I have some doubts about the applicant’s purported reasons for visiting these houses, although I consider her explanations are not completely implausible:
You know, I just like a bit of company now and again so I go and just be with them but it doesn’t mean that I’m actually assisting.[16]
34 I have considered the observations made by the police surveillance team at the Sydenham property on 4 September 2013. It will be recalled that the applicant was seen to be carrying two full reusable plastic bags to her car before driving off and travelling to 5 Kendall Street, Essendon. In evidence, the bags were observed as being ‘two large oblong eco style bags, bulbous and one with a black and white trim, and one tan in colour’. In her record of interview, the applicant denied the unsupported accusation that the bags contained harvested cannabis and that her husband asked her to clean the Sydenham property.[17] She maintained that she tidied up boxes stored in a back verandah section of the house, and cleaned the kitchen and lounge area.[18] She stated that she took rubbish away in a plastic bag, wore disposable gloves, and this occurred ‘a couple of months ago’.[19] There is no direct evidence of what was in the plastic bags, despite the confident assertions to the contrary in the record of interview. Why someone would remove rubbish to a remote location, and not simply place it in a convenient rubbish bin at the Sunshine North properties is problematic for the applicant. It is conceivable that there were no convenient rubbish bins at the Sunshine North properties on 4 September 2013, or that there was no one living there to put bins out or bring them in, or that she wished to reuse the boxes referred to in her record of interview. It may be that there was something more sinister in the bags, such as harvested cannabis or discarded stalks. Considered alone, any conclusion, even of a tentative nature, would involve unacceptable conjecture. The fact that the applicant was seen leaving the Sydenham property carrying these bags is, however, a fact in the circumstantial matrix of facts that form the prosecution case.
35 The applicant admitted to knowledge of $3,000 only of the money found at her residential home in Essendon. It will be recalled that $120,800 in cash was seized. None of these sums were obvious by their presence and of the $117,800 balance, the applicant said simply, ‘I didn’t know it was there.’[20] This cash was discovered in a cupboard under the stairs, in a box in a double cupboard in the ensuite bathroom, and in a side drawer of a work bench in the garage. Considered alone, I am unable to conclude that the applicant knew of the presence of this cash, in the house she jointly occupied with a man who clearly did know of its presence. Again, its presence in the applicant’s house is a fact in the prosecution’s circumstantial case.
36 Similarly, the bags and the container of cannabis were found in a locked cabinet in the garage at the Essendon house. The applicant denied knowledge of it and, again considered alone, I am unable to conclude that the applicant did know of its presence. I have reached the same position about the ‘Co-Co Feed Programs’ found in a drawer of the work bench in the garage, and the ANZ envelope containing bank statements in Romano Falzon and Charlie Gusman’s names, which was found in an Esky on top of a fridge in the garage. It will be recalled that a ‘bum bag’ containing Romano Falzon’s personal effects was found in the garage, along with a set of keys which opened the two Sunshine North units.
37 Two black garbage bags containing black tubing and watering pipes were located on a shelf in the garage. This tubing and the pipes were identical to tubing and pipes used in the grow houses. By their respective descriptions, these two black garbage bags cannot be the black and white, or tan, ‘bulbous’, ‘oblong eco bags’ observed being carried by the applicant on 4 September 2013. By themselves, I am unable to conclude that the applicant knew of the contents of these black plastic garbage bags, although I think it is likely that she knew of their external presence in the garage. All of these pieces of evidence are components of the prosecution’s circumstantial case, and must be considered along with every other piece of evidence that forms part of the case. Only then is ‘piecemeal reasoning’ avoided.
38 At trial, the prosecutor placed emphasis on the number of times the applicant had visited the grow houses: six times to the Sunshine North units and twice to the Sydenham house. He compared the number of these visits to the evidence relating to the co-accused. Romano Falzon was observed three times at the Sunshine North units and Max Corbell on four occasions:
Now by comparison to the six or so occasions that the accused admits going to that Mansfield Avenue address, Romano Falzon is sighted there on three occasions, 23 August 2013, 8 November 2013 and 29 November 2013, and Max Corbell ... [h]e was only seen at the premises on four occasions, 29 July 2013, 30 July 2013, 23 August 2013 and also 25 November 2013 ... But the accused, Susan Falzon, says she’s been at the property on six occasions compared with the others, Romano Falzon, three, and Max Corbell, four.
39 This, of course, is a false comparison. The six occasions attributable to the applicant came from her admissions in the police interview. She admitted that these visits occurred over a six-month period. As against this, the evidence of the visits by the co-accused came from very intermittent police surveillance. If the prosecutor was suggesting that the applicant was present at the Sunshine North units more often than her co-accused and that this was some evidence of her participation in the joint criminal enterprise, then I regard this comparative exercise as misconceived. The prosecutor conducted a similar exercise in relation to the Sydenham house:
Romano Falzon was sighted at the property driving a number of vehicles and on three occasions, he was sighted at the address on 23 August 2013, 8 November 2013 and 29 November 2013. So you’ve got the accused attending there a couple of times within the last six months. Romano Falzon, three occasions. Charlie Gusman, who is also alleged to be a party to the cultivations and trafficking at the Sydenham address, only seen on the one occasion.
40 This comparative exercise was also misconceived for the same reasons. The evidence of the applicant’s attendance at the grow houses stands to be considered along with all the other circumstantial evidence in the case, but it gains nothing by this flawed comparative exercise.
41 At trial, the prosecutor also emphasised, on several occasions, the number of times cars registered in the applicant’s name were observed by police. The Toyota vehicle, the Ford vehicle and the Mazda vehicle were all registered in the applicant’s name, and all were observed at or near the grow houses. The prosecutor emphasised that the Toyota vehicle (with registration FLAAASH) was seen, for example, at the Sydenham property on three occasions and the Ford vehicle (with registration FLP 166) was seen on six occasions:
There were also occasions when the cars that are registered in Susan Falzon’s name are observed at the Sydenham address. FLAASH, F-L-A-A-S-H, was seen on 23 August 2013, 26 November 2013, 29 November 2013 and FLP 166 was observed there on 15 August 2013, 23 August 2013, 8 November 2013, 26 November 2013, 29 November 2013 as well and on 29 November 2013, Romano Falzon was seen as the sole occupant and driver of that registered car. So they’re the persons connected to this property where cannabis is being hydroponically grown in that period.
42 In a case where Romano Falzon is a co-accused and where the evidence is that he primarily drove the Toyota and Ford vehicles, there is no sting to this evidence in the case against the applicant. It is some evidence that Romano Falzon, the regular driver of those vehicles, was probably at the grow houses at the time those vehicles were sighted there. It does not advance the case against the applicant at all.
43 The prosecution relied on other pieces of circumstantial evidence. The tax returns demonstrate that both the applicant and her husband had relatively modest incomes over two relevant financial years. There is no explanation for the large sums of money located in the Essendon house, or Romano Falzon’s ownership of property with Gusman. The weight to be given to this apparent paradox depends, in the case against the applicant, on her knowledge of this enrichment. I have watched the police interview closely. In my view, the applicant’s apparent surprise at the sums of money found in the Essendon family home seemed genuine enough. Perhaps, more accurately, it was not obviously feigned or false. Similarly, the applicant seemed not to know the value of an antique classic car owned by her husband and kept in the family garage. I suspect this is not an unusual state of affairs.
44 Having eschewed piecemeal reasoning, it will be apparent that I have considered each of these circumstantial pieces of evidence individually and made some interim evaluation of them, often prefaced with the phrase ‘considered alone’. It is necessary to do this to explain my reasoning but it is not the ultimate reasoning process. I must then look at the united force of the evidence and measure it against the live issues in the case:
(a) Was it open to the jury to conclude beyond reasonable doubt that the applicant agreed with her husband and/or Max Corbell to pursue the joint criminal enterprise alleged to have occurred at the Sunshine North units?(b) If so, was it open to the jury to conclude beyond reasonable doubt that the applicant participated in that offence in some way?
(c) Was it open to the jury to conclude beyond reasonable doubt that the applicant agreed with her husband and/or Charlie Gusman to pursue the joint criminal enterprise alleged to have occurred at the Sydenham house?
(d) If so, was it open to the jury to conclude beyond reasonable doubt that the applicant participated in that offence in some way?
Conclusion
45 I would answer ‘no’ to each of the four questions in the preceding paragraph. In my view, the united force of the evidence, including the direct evidence of observations, the admissions (and exculpatory statements) made by the applicant and the circumstantial evidence found at the various locations, establish beyond reasonable doubt that the applicant must have known at the very least that the back unit (10B) of the Sunshine North properties was being used to cultivate hydroponic cannabis crops. She admitted as much, and the use being made of the back unit at the Sunshine North properties would have been apparent to even the most guileless visitor. As I have said, I am prepared to assume the applicant also knew that the Sydenham house was being used as a grow house, although I am not at all certain about this.
46 Accepting that the applicant was fixed with this knowledge, I am satisfied beyond reasonable doubt that the applicant must have known of the existence of the joint criminal enterprises that she is alleged to have joined. This conclusion flows readily from her visits to the grow houses over a period of months. If it was obvious what was occurring there, it must have been equally obvious who was involved in those enterprises. She admitted being at the Sydenham property at a time when Romano Falzon and Charlie Gusman were present. This was likely to be on 4 September 2013 when police surveillance observed their presence. Her car, the Mazda vehicle, was also observed near the Sunshine North units when Max Corbell was present and the Toyota vehicle, normally used by Romano Falzon, was present.
47 I reach this conclusion that the applicant knew of the existence of the joint criminal enterprises without taking into account the evidence of the cash and other items found at 5 Kendall Street, Essendon. After considering the totality of the evidence, I am not satisfied that the applicant knew of the cash, apart from the $3,000 she asserted was her property. I am also not satisfied that she knew of the other incriminating items at that address, aside from the external appearance of the black garbage bags. Even if I am mistaken about the applicant’s knowledge of these incriminating items, in combination, they demonstrate no more than that she knew of the existence of the joint criminal enterprises, in which her husband participated, and this is a conclusion which I have reached in any event.
48 It is one thing to prove that the applicant had knowledge of the joint criminal enterprises, but it is quite another to prove to the criminal standard that she joined those enterprises, or one or other of them, and participated in them in some way. I am not persuaded that the united force of the evidence establishes either of these propositions beyond reasonable doubt in relation to either of the joint criminal enterprises. More importantly, perhaps, I consider that it was not open to the jury to so find.
49 As I have said, I am not satisfied that the applicant knew of the money (save for the $3,000 found in her bathroom), the relatively small quantities of cannabis, the ANZ bank statement, the tubing and pipes, the ‘Co-Co Feed Programs’ or the significance of the keys found in the ‘bum bag’. If the applicant lived alone, or if there was some forensic evidence linking her to this otherwise incriminating evidence (for instance, a fingerprint or DNA), then the inferences available would certainly be different, but it must be borne steadily in mind that the applicant was cohabiting with an active participant in the two joint criminal enterprises. Evidence against Romano Falzon is not necessarily evidence against the applicant, and care must be taken when considering that evidence.
50 The absence of listening device or audio visual evidence from inside the grow houses or from inside 5 Kendall Street, Essendon means that the prosecution case as to participatory acts must be proved circumstantially. The prosecutor at trial argued that the only reason why the applicant would go to the Sunshine North units was to participate in the joint criminal enterprise in some way. He submitted that it was absurd to suggest (as the applicant did) that she would go there to visit Max Corbell, who was the advanced age of 65, who did not live there but lived in Maribyrnong, and at any event, was a friend of Romano Falzon and not the applicant. The prosecutor invited the jury to reject that innocent explanation. As I have said, I consider the applicant’s explanations about visiting the Sunshine North units (and the Sydenham property) to be unlikely but not completely implausible. Even if one rejected those explanations (which I am not prepared to do), in my view, the unexplained attendance over a period of about six months on a total of eight occasions by the applicant at the grow houses does not establish that she agreed to join the enterprises or that she participated in the criminal activity therein. Participation in a joint criminal enterprise requires an accused to take steps in furtherance of the criminal enterprise.[21] It is not sufficient for the prosecution to prove that an accused was merely party to an agreement reflecting a common purpose.[22] He or she must actually participate in the enterprise.
51 At no stage did the prosecutor nominate any particular mode of participation. He contended simply that the applicant must have participated. In my view, this contention went beyond legitimate inference, and invited conjecture or speculation.[23] The prosecutor eschewed the bold and unsupported assertion put by the investigator in the record of interview that the black garbage bags observed to be carried by the applicant on 4 September 2013 were full of harvested marijuana.
52 In summary, I have unresolved doubts about the sufficiency of the evidence adduced by the prosecution. I am not satisfied beyond reasonable doubt that the entirety of the evidence establishes that the applicant joined either of these joint criminal enterprises, or that she participated in them by taking steps in furtherance of the criminal enterprises. I consider that these are doubts that a reasonable jury should have held.
53 The independent evaluation that I have undertaken has revolved around largely undisputed evidence. I have concluded that the jury, acting appropriately, must have entertained a doubt about the applicant’s guilt. Given that the evidence is essentially undisputed and the prosecution case was predicated on the availability of guilty inferences said to arise from that undisputed evidence, I consider that any advantage that the jury may have had in seeing and hearing the evidence is marginal. It is, in my view, not capable of resolving the doubt that I experience.
Orders
54 I would grant leave to appeal on ground 1 and order that the appeal be allowed. I would further order that the impugned convictions be quashed, the sentences passed thereon be set aside and in lieu, judgment and verdicts of not guilty be entered on the record.
[1] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; Mejia v The Queen [2016] VSCA 296, [140]; Inia v The Queen [2017] VSCA 49, [53] (‘Inia’); Conolly (a pseudonym) v The Queen [2019] VSCA 125, [7].
[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); R v Haselhoff [1998] 4 VR 359; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329–330 [65]–[66] (‘Baden-Clay’).
[3] M [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); Inia [2017] VSCA 49, [53].
[4] M [1994] HCA 63; (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[5] R v Clarke [1986] VicRp 64; [1986] VR
643 (‘Clarke’); Johns v The Queen (1980) CLR 108;
Likiardopoulos v The Queen [2010] VSCA 344; (2010) 30 VR 654
(‘Likiardopoulos’); Smith v The Queen 
[2012] VSCA
5. 
[7] See R v Semaan (Ruling No 7) [2016] VSC 170.
[8] Most of the locations of the seized items were not described in written or oral submissions, but were listed in the Police Property Seizure Record, which formed Exhibit D in the trial proceedings.
[9] The applicant’s notice of assessment for the year ended 30 June 2013 showed that her taxable income was $6,154. Romano Falzon’s notice of assessment showed that his taxable income for the same financial year was $27,597. The applicant’s notice of assessment for the year ended 30 June 2014 showed that she returned $8,466 as her taxable income.
[10] A reference to Romano Falzon.
[11] Fennell v The Queen [2019] HCA 37, [82]; Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 324 [47], citing R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 638 [48]; Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535.
[12] CPA s 276(1)(a).
[13] Applicant’s record of interview, Q 275.
[14] Ibid Q 394–402.
[15] This evidence is derived from the answers to Q 189 and Q 263 in the record of interview. The applicant admitted to attending both addresses more than was actually observed by police surveillance.
[16] Applicant’s record of interview, Q 284.
[17] Ibid Q 381.
[18] Ibid Q 97–116.
[19] The interview was conducted on 17 December 2013.
[20] Applicant’s record of interview, Q 304.
[21] See Clarke [1986] VicRp 64; [1986] VR 643; R v Lao [2002] VSCA 157; (2002) 5 VR 129; Likiardopoulos [2010] VSCA 344; (2010) 30 VR 654; Arafan v The Queen (2010) 31 VR 82 (‘Arafan’).
[22] While evidence of an agreement may be enough to prove the crime of conspiracy to commit an offence, liability through joint criminal enterprise requires evidence that the accused actually participated in the enterprise: see Arafan (2010) 31 VR 82; Likiardopoulos [2010] VSCA 344; (2010) 30 VR 654; Clarke [1986] VicRp 64; [1986] VR 643.
[23] See R v Wannouch [2019] VSCA 97, [59].
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