Court of Appeal (WA)|2000-08-24|Before: Kennedy ACJ

Marchesano v The Queen [2000] WASCA 225 (24 August 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARCHESANO -v- THE QUEEN [2000] WASCA 225

Criminal law and procedure - Possession of methylamphetamine with intent to sell or supply - Whether police officer qualified to give evidence as to use of methylamphetamine and as to practice of mixing it with other substances prior to sale

Criminal law and procedure - Sentencing - Possession of methylamphetamine with intent to sell or supply - Sentence of 3-1/2 years' imprisonment with eligibility for parole not interfered with

Application for leave to appeal against conviction granted

Application for leave to appeal against sentence refused

Commissioner of Taxation (Cth) v ICI Australia Ltd [1972] HCA 75; (1972) 127 CLR 529

Eagles v Orth [1976] Qd R 313

English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415

Folkes v Chadd (1782) 3 Dougl 157; 99 ER 589

Hawkins v The Queen, unreported; CCA SCt of WA; Library No 970194; 1 May 1997

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Miles v The Queen (1997) 17 WAR 518

Paparone v The Queen [2000] WASCA 127

R v Gardner [1980] Qd R 531

R v Marinovich (1990) 46 A Crim R 282

R v Osenkowski (1982) 5 A Crim R 394

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

Transport Publishing Co Pty Ltd v Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111

Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996

Yager v R [1977] WAR 17

1 KENNEDY ACJ: I have had the benefit of reading in draft the reasons to be published by Wallwork J. For the reasons which his Honour gives, I agree that whilst an extension of time for applying for leave to appeal against conviction and leave to appeal against the conviction should both be granted, that appeal should be dismissed. I agree with his Honour's reasons for refusing the applicant's application for leave to appeal against his sentence. I am also in agreement with Parker J's additional observations.

2 WALLWORK J: These are reasons for judgment after the hearing of an appeal against conviction and an application for leave to appeal against sentence.

3 On 5 November 1999 the applicant was convicted after a trial of having had in his possession a quantity of methylamphetamine with intent to sell or supply it to another on 3 April 1998 at Perth Airport.

4 The sole ground of appeal against conviction is that it is said that the learned trial Judge erred in permitting a police officer to give evidence outside the areas of opinion for which he was qualified or had the appropriate expertise. It was said by counsel for the applicant that the detective had given evidence beyond his capabilities in relation to the way in which the relevant drugs could be used. Although it was not a ground of appeal, it was also complained that the defence had been prejudiced by the fact that proper notice had not been given in advance of what the detective was going to say.

5 A certificate from an approved analyst certified that the two relevant quantities of white powder had weighed 41.1 grams and 1.36 grams respectively. The methylamphetamine content of the powder was approximately 20 per cent.

6 It was complained that in opening the learned prosecutor had told the jury that the detective would say that before the powder was sold on the streets, it could have been quite easily mixed with substances such as glucodin in order to increase the overall amount. It was said that great exception was not taken to the opening by itself but that combined with the evidence which was later given, it had added to the damage done at the trial.

7 Counsel for the applicant said that the learned prosecutor had also said in opening that the detective would tell the jury that a street gram weighing .7 of a gram was enough for about four injections. The prosecutor had said:

"So using those figures you can see this 42 grams, if left uncut, not mixed up further with any substances, was worth a considerable amount; ... It was enough for about 250 injections. If it was broken down to a purity of 5 per cent and sold in these 'street gram' amounts, it was worth well over $20,000 and could be used for almost 1000 injections." (AB 38)

8 The police officer concerned said in evidence that he was attached to the organised crimes operations and to the clandestine laboratory investigation team. He had been with "the Drug Squad" on the day the applicant had been found with the drug. He had been a member of the Police Force for about 14 years and a detective for 7 years. He had been an investigator in the drug field for approximately 4 years. During his service as a police officer he had acquired knowledge regarding the manner in which illegal drugs are distributed and sold. That included knowledge of the drug methylamphetamine. He said that apart from the large number of inquiries and arrests he had made in relation to the manufacture, use and distribution of amphetamine, he had also completed accredited courses in Western Australia and in Queensland in relation to the manufacture of methylamphetamine or amphetamine. Those courses had involved reading literature on the subject. He was the current lecturer in Western Australia on clandestine laboratory investigation which subject dealt with the manufacture of amphetamine.

9 It was submitted that although the detective had spoken of his involvement in the manufacture of amphetamines and his lecturing, he had given the jury information with respect to the number of injections and the amount of drugs which a person could use. It was suggested that this did not fall within his area of expertise. It was said that the expertise concerning which he had given evidence, could not be broad enough to allow him to give evidence concerning the number of injections which could be obtained from a certain amount of drugs. It was said that he had gone further in his evidence and given evidence concerning the quantity of drugs which a heavy user would use. He had talked about a heavy user using an amount of drugs on a daily basis and the number of injections which could be obtained from the amount of drug available. It was also complained that the detective had given evidence that a glucose type substance (glucodin) was used to increase the volume of the amphetamine. It was submitted that the detective did not have the experience to talk about substances which could be added to the drug.

"Normally we locate glucodin. It is mixed with the amphetamine to drop the purity and increase the volume of amphetamine."

11 It was also complained that the detective had given evidence that:

"To get the purity down to about 5 per cent you would cut it approximately four more times so you would have about 168 grams. [That was from the 42 grams]. Normally, if we work on .1 per gram without even looking at .7 as a street gram, you would have 10 injections per gram, so you would have approximately 1680 injections." (My words in brackets)

12 The detective also said that if the 42 grams was not cut down to about 5 per cent, there would be enough for around 250 injections.

13 Counsel for the applicant complained that there had been no evidence upon which the detective could base his calculations concerning the approximately 1680 injections. It was said that at the end of the day that type of evidence was a matter for a toxicologist.

14 In my view the detective was giving evidence of what in his experience, people were doing on the streets and how they were using the drug. He was not giving expert evidence concerning the chemical nature of the drug. He was saying that he had been in the Drug Squad for about 4 years and he knew what people were doing on the streets.

15 Counsel for the applicant submitted that the detective had not said where he had obtained his knowledge that people used 10 injections per gram; that "it was just plucked out of the air". That the jury had been left with an impression that there had been a large amount of drugs in the applicant's possession which could be broken down to a total number of approximately 1680 injections.

16 It had been put to the detective in cross-examination that although he had said that a heavy user could use approximately up to a gram a day, different people have different tolerance levels. The detective said: "Yes, that is correct." It was then put to him: "And some would use a lot more than that?" The detective answered: "I wouldn't say a lot more but, yes they could use more."

17 It was also said for the applicant that other evidence of the detective which gave concern was his evidence that:

"From my experience a heavy user would use about a point or maybe .2 of a gram four times a day. So a heavy user would use about a street gram or a gram per day, I believe."

18 It was said for the applicant that the detective's expertise or knowledge did not go far enough to allow him to give that evidence and that that evidence should have been led from a properly qualified person who deals with drug users.

19 It was conceded that the detective had some knowledge and that it had not been tested extensively under cross examination. However, it was said that his knowledge concerned the manufacture of amphetamine and was that of a detective. It did not go far enough to give him the ability to talk about the day to day use of heavy users on the streets. Also that his evidence about the glucodin was evidence which was better given by a chemist or somebody able to give evidence of the substance used in the breakdown of the mixture.

20 The applicant had said in evidence that he did not dispute the evidence of the detective, but he believed that the detective only knew one side of the matter. The applicant said he had been a heavy user of drugs. He said that the detective "was just saying stuff that he doesn't really know about, you know. He doesn't know what people have." The applicant said that on some days a person might only use 2 grams and on some days he might use 6 grams: "You just keep shoving it in your arm." When it was put to him that what he was saying was total nonsense, he answered: "You should get a drug person here that works in counselling and ...."

21 In Anderson v The Queen (1992) 64 A Crim R 312 at 324 Olsson J said:

"As is pointed out by the learned author P Gillies, 'Law of Evidence in Australia' (2nd Edition 1991), at pp 377 to 379, whilst the classic field of expertise is that which relates to an organised branch of knowledge which is identifiable as a discipline in the social or physical sciences, fields of expertise, for the purposes of the law of evidence, are not so confined. A person may be viewed as relevantly being an expert in an area of skill or knowledge by virtue of nothing more than his or her practical experience in a field which may not necessarily have been reduced to organised, documented knowledge. (See also P Gillies, 'What is a Relevant Field of Expertise?' (1986) 60 ALJ 597 at 601."

"The courts have, in any event, long held that (as in Weal v Bottom) a person may be classified as having relevant expert status by virtue of formal training, or through mere practical experience or informal study in appropriate circumstances ... the credentials required depend fundamentally on the field of expertise in question. The basic principle involved is that the person must, through knowledge, however acquired, have reliable knowledge and/or skill reaching beyond that in the possession of the trier of fact (generally see the comments of Young J in his article headed 'Quasi experts', contained in (1992) ALJ 379.)"

"If I may say so with respect the net situation was accurately summed up in the joint judgment of Malcolm CJ and Kennedy J in Marinovich (1990) 46 A Crim R 282 at 301 where they had this to say:

'In our opinion the evidence of police officers based on their accumulated experience combining personal observation with information received concerning characteristics, prices, packaging, terminology and availability of heroin by comparison with other illicit drugs was relevant and admissible. Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observations. Expert evidence about such matters necessarily involves some hearsay evidence. It would be quite artificial and place an unnecessary restraint on prosecution and police work to limit such evidence to those who had been involved in undercover work in the illicit drug market. With respect, for those reasons we are not prepared to follow Gardner. In the end it must be a matter of weight, but I do not consider that the mere fact that the experience relied upon includes both personal observation and experience, as well as information received through intelligence reports or from informants, means that an attempt has to be made to isolate the two areas of knowledge so as to establish the admissibility of evidence based on the one source and exclude evidence based on the other'."

24 In the present case the learned trial Judge commented in his summing up, on the relevant evidence of the police officer. He said that the police officer was there:

"... it is said, as an expert witness, someone to whom, the Crown says, you can listen to and have regard to in the nature of the opinions that he gave. Well, courts are able to hear evidence from experts, as we say, giving opinion evidence. That evidence is given on a variety of bases and you have heard that mentioned in this particular case and you are able to give effective weight to it if you so decide to do. However in relation to the evidence of opinion given by expert witnesses it is a matter for you to determine, having regard to the total evidence, the weight which you are going to give to the evidence of the expert or the evidence of opinion. I am not suggesting one way or another how you should find in relation to the evidence given by the police officer or the accused, who gave some evidence as to the matters which had been commented on by way of opinion from the police officer. All I am saying to you is that you are able to rely upon opinion evidence, but you must look at it and you must make your own decision about whether in the light of all the circumstances you are going to accept and rely upon the opinion on certain matters, one, more, all of them, or not. That is a matter entirely for you."

25 In this case, in my opinion, the learned Judge's comments accorded with the reasons in the authorities to which I have referred. Although in this case the witness could have been qualified in greater detail before he gave his evidence, it is not suggested that anything he said in his evidence was wrong and he was not comprehensively cross-examined on his expert evidence.

26 In my view the ground of appeal is not sustained.

27 I would extend the time and grant leave to appeal, but would dismiss the appeal against conviction.

Application for leave to appeal against sentence

28 Having been convicted, the applicant, after submissions had been made on his behalf, was sentenced to 3-1/2 years imprisonment with eligibility for parole. His sentence was ordered to date from 5 November 1999.

29 On the hearing of the application for leave to appeal it was said that the sentence was manifestly excessive having regard to the circumstances of the case and matters particular to the applicant.

30 It was put to the Court that the applicant had been badly injured in a traffic accident in 1995 and that he had suffered brain damage, as well as other injuries, including the loss of the lower part of his right leg, the sight in his right eye and the hearing in his right ear. He had had to attend upon psychiatrists following the accident. He had suffered from chronic pain, general anxiety and panic attacks. It was said that he had used amphetamines after his accident to help him with his depression and pain. His marriage had broken up in late 1997.

31 Complaint was made that when the learned Judge was sentencing the applicant, he had said:

"I have to also take into account that this was a matter which you defended and there was no question of any remorse by you for the commission of the offence with which you were ultimately found guilty."

32 It was submitted that this was contrary to what the applicant had said after the trial which was:

"Your Honour, on this particular occasion I accept what is happening and that and I am sorry about things the way they - sorry to my wife and that for doing this to them and that."

"Pretty well my whole life sort of went down the tube there and I have been sort of getting it together and now I want to try and get my wife back ...."

34 It was said that these statements were an exclamation of remorse and that they had not been taken into account in sentencing.

35 It was also suggested that the learned Judge had not placed enough weight on the particular circumstances of the applicant in relation to his injuries and the depression which he had suffered due to his accident and his dependence upon amphetamines.

36 In the course of his sentencing remarks, the learned Judge said:

"Some matters could be said to assist you in this regard in relation to the question of suspension: your medical condition; the fact that you were dependant on amphetamines for some time after your motor vehicle accident; the fact that you are attempting to rehabilitate yourself and in particular relating to the drug use; that your wife, from whom you are separated, still supports you to a degree. On the other hand you have a prior relevant record including a conviction for cultivation of cannabis with intent, for which you were sentenced to a term of imprisonment for 2 years and 10 months in 1990. Next, the amount of amphetamine was considerable with a high potential street value, which I have already dealt with. The drug is an extremely dangerous drug and is having, without any doubt, a devastating effect on our population, especially amongst young people."

37 It was further submitted for the applicant that the report of Dr Mulholland had indicated that the applicant would have used some of the amphetamines in his possession; that he had done that since 1995. He had given evidence at the trial that he would have used the lot of them. However, that had not been accepted by the jury.

38 It was not suggested that there had been a causal link between the applicant's medical condition and the crime of which he was convicted, except to the extent that he intended to use some of the drugs. However, it was noted that he did have an amphetamine dependency habit and it was submitted that he would have used some of the drug for himself.

39 The applicant was found in possession of over 20 times the presumptive amount. It was found in a torch. He had scales for weighing the drug. It was submitted for the DPP, that there had been no evidence put before the learned Judge that the applicant would have been in any way less responsible than a normal person would have been for the offence.

40 The written submissions for the DPP make the point that in Bellissimo v The Queen (1996) 84 A Crim R 465 the offender had had 20.8 grams of the drug at 6 per cent purity and the Court of Criminal Appeal upheld a sentence of 5 years and 10 months imprisonment for possession of the amphetamine with intent to sell or supply. Further that in Sikaloski v The Queen [2000] WASCA 63 the Court of Criminal Appeal reduced a sentence of 6 years imprisonment to one of 4 years and 6 months imprisonment where an offender had provided a great deal of assistance to the authorities and had had 54.9 grams of the drug at 7 to 9 per cent purity.

41 It was submitted that in the decision of Darwell v The Queen (1997) 94 A Crim R 35, this Court had held that amphetamines should be regarded as in the same category as heroin in the hierarchy of prohibited drugs. It was also said that matters personal to an offender will often play a secondary role to questions of general deterrence in the sentencing process for offences of this kind - Darwell v The Queen at 39 - 40; Bellissimo v The Queen at 469 and 471; R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 at 18.

42 In my view, in accord with the decided cases, and taking into account all matters personal to the applicant, it could not be said that the sentence in this case was in any way excessive. Indeed, it may be seen to be very much at the lower end of what might be thought an appropriate sentence given the circumstances of this offence and this offender. The maximum penalty for such an offence is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both. This was a most serious offence.

43 In my opinion the application for leave to appeal against sentence should be refused.

44 PARKER J: I have had the advantage of reading in draft the reasons for decision now published by Wallwork J. I agree with the orders proposed by his Honour and his reasons for decision. I would only add the following observations.

45 The sole question with respect to the appeal against conviction is the admissibility of passages of the evidence of a detective. The objection is that the detective had not been shown to be sufficiently and appropriately qualified as an "expert" for aspects of his evidence to have been admitted. Except in one respect, no objection to the admissibility of this evidence was made during the trial even though the applicant was represented by experienced counsel.

46 The detective had some 14 years police experience, 4 of which were as an investigator in the drug field. Wallwork J has noted the effect of the evidence as to the practical field experience of the detective in drug matters. His Honour has also summarised the evidence as to the particular expertise the detective had developed in relation to the manufacture of methylamphetamine.

47 The joint decision of Malcolm CJ and Kennedy J in Marinovich v R (1990) 46 A Crim R 282 at 301 considered the admissibility of the evidence of police officers in this context based on their accumulated experience which often combines personal observation with information received. As was observed by their Honours

"Such evidence is in the nature of expert evidence although it may also involve factual evidence of personal experience and observations. Expert evidence in such matter necessarily involves some hearsay evidence."

Their Honours went on to observe that the admissibility of such evidence did not require an attempt to isolate knowledge founded in personal observation and experience from information received through intelligence reports or from informants.

48 The submissions before us failed to have due regard to the length and general nature of the detective's experience in the illicit drugs field. Instead, they sought to focus on the detective's particular expertise as though it were his sole area of expertise. In my view the existence of one or more particular areas of expertise in this field of illicit drugs does not deny the more general knowledge and expertise which may be derived from several years experience as an investigator in the illicit drugs field. It is this general knowledge and expertise which was considered in Marinovich v R.

49 In the present case, while the detective's special expertise was in the clandestine laboratory manufacture of methylamphetamine, there was in my view a sufficient foundation for the trial Judge to accept the expertise of the detective with respect to the aspects of the illicit dealing in and use of methylamphetamine which are the subject of the evidence which is now in contention.

50 At trial, the sole objection to the admissibility of any of the evidence which is now the subject of contention was as to the substances which might normally be mixed with amphetamine to break down its strength or purity. It was the evidence that a glucose-type base substance is normally used and that it is usual for the police to find that "Glucodin" is used in this context. This objection was not upheld. As Wallwork J has observed this evidence was founded in the detective's experience of what is occurring at street level, rather than chemical analysis. I respectfully agree with his Honour that this evidence was properly admitted.

Marchesano v The Queen [2000] WASCA 225

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Judgment (90 paragraphs)

Marchesano v The Queen [2000] WASCA 225 (24 August 2000)

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Cases Cited (6)