R v Douglas [1994] QCA 267

Court of Appeal (Qld)|1994-07-19|Before: Fitzgerald P, McPherson J, Demack J

This is an appeal by David Robin Douglas against his conviction at a trial in the Circuit Court at Cairns of one count of carrying on a business of trafficking in cannabis sativa during 1991 and 1992, and three counts of supplying that drug on specific dates within that period. The appellant also seeks leave to appeal against the sentence of imprisonment for 5 years imposed for the trafficking offence.

The notice of appeal in the record contains some eight grounds of appeal against conviction, of which all but two were abandoned before the hearing. Of those two, ground 2 can be quickly disposed of. It complains of the failure of the trial judge to discharge the jury on the application of defence counsel on the fifth day of the trial. At that stage the prosecution case had closed and addresses were about to begin. Evidently it had only shortly before been discovered that earlier a prosecution witness named Gardner, who testified at the trial, had spoken to a woman who became a juror, having done so once before the trial began and once after it.

The other occasion on which something was said was after the appellant had been placed in the charge of the jury. As Gardner was leaving to go to town to have lunch that day, he saw the woman juror again, and said to her words to the effect "We're not allowed to talk any more".

Once the content of these conversations - if that is what they can be called - is known, it is not at all surprising that the trial judge should have rejected an application to discharge the jury under s.621. Having been informed of what had passed between Gardner and the juror, his Honour said that no fair-minded observer could entertain any doubt about the impartiality of the juror, or of the jury as a whole; and that there was no basis for suspicion that the jury would decide the case otherwise than by reference to the evidence.

To succeed on appeal against the decision of the trial judge not to discharge the jury, it would be necessary for the appellant to show not merely that the decision was wrong but also that it occasioned a miscarriage of justice. There is no basis for arriving at either conclusion. In disposing of the application as he did, his Honour applied the correct test : see R. v. Jackson & Le Gros (C.A. 330 & 331 of 1993); and he was plainly correct in holding that objectively no doubt could be fairly entertained about the impartiality of the juror in question or the jury as a whole arising out of what the witness Gardner had said to her.

Ground 2 thus affords no basis for upsetting the conviction.

Ground 5 complains of the admission, over objection at the trial, of the evidence of a witness named William James Clark to the effect that he saw the appellant with a firearm in his possession. It was submitted that the prejudicial impact of this evidence on the jury outweighed any probative value it might have had.

In his testimony at the trial Clark claimed that he was someone whom the appellant had recruited to sell marijuana on a profitsharing basis. When first introduced to him at Yarrabah in 1991, Clark said the appellant opened his brief case and he saw in it some bank notes, cannabis sticks, and a sawn off .22 rifle. It was specifically only this evidence that was the subject of ground 5, although on appeal the appellant's criticism was directed primarily at some further testimony from the same witness. Clark said that some time later the appellant gave him eight bags of marijuana to sell; however, when the police came after him, Clark panicked and threw them away. He was then in a quandary when the appellant explained what would happen if Clark did not pay him for the marijuana. The appellant said he would bash Clark's leg with a baseball bat, and that he would shoot him. With that encouragement, Clark gave the appellant some money and what is described in evidence as "$100 fishing".

It seems to us that the evidence objected to was properly admitted. It did not serve simply to prejudice the appellant but rather to substantiate the case for the Crown in a relevant respect. The appellant was charged with carrying on the business of trafficking in cannabis. It was therefore legitimate for the prosecution to prove how the business was conducted, including the means employed by the appellant to control or coerce those functioning as his sales representatives in the field, of whom Clark was one. Threats to kill or cripple them, using the gun seen in the brief case as a means of effectuating such threats, are fairly capable of being viewed as part of the system of business adopted by the appellant. It is not the kind of behaviour one would expect from someone who sold drugs only casually or intermittently and in an unplanned or unsystematic way. The evidence objected to was rightly admitted as tending to prove that what the appellant was doing possessed the hallmarks of a well organised illegal enterprise which it was evidently worth taking strong measures to protect.

In our view there is no substance in this or the other ground of appeal.

As regards sentence, it was submitted that imprisonment for five years for the trafficking offence was excessive. We think this is not borne out by a review of comparable sentences for the offence. In addition, the other three offences of supplying cannabis of which the appellant was also convicted here each attracted sentences of imprisonment for 18 months that were ordered to be served concurrently with the five year sentence.

Quite apart from that, there were other factors justifying a heavier sentence in this instance. The applicant is 29 years of age and has a not insubstantial criminal history, most of it in Victoria. Since 1985 he has sustained three separate convictions for handling stolen goods; as well as one conviction for burglary, one for theft, and one for unlawful possession of a motor vehicle. His record also refers to possession of a drug of dependence and of a restricted substance. More recently in Queensland he was convicted in February 1992 of possession of a dangerous drug and in March 1992 of assault occasioning bodily harm. There had been an earlier conviction in 1985 for assaulting police and being armed with an offensive weapon. Previous periods of imprisonment seem to have done little to deter him from re-offending.

His Honour was also influenced, in our view rightly, in adopting a serious view of those offences by his findings, which were not challenged on appeal, that the appellant made sales at Yarrabah, and that he sold not only to adults but to minors including high school children. The learned judge concluded that the appellant was selling as much of the drug as he could, and that, although his takings in the course of the business were not precisely identifiable, they amounted to "thousands of dollars".

In view of these matters it is not possible to regard a sentence of five years imprisonment as inappropriate.

The appeal against conviction should be dismissed. The application for leave to appeal against sentence should be refused.

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