Court of Appeal (Qld)|2007-03-30|Before: McMurdo P, Helman J and Philippides J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Helman J and Philippides J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– IMPROPER ADMISSION OR REJECTION OFEVIDENCE – where evidence wasadmitted in relation to a firearm, ammunition and the erection of a fence on theappellant'sproperty – whether the evidence was admissible – whetherthe admission of that evidence had prejudicial consequencesthat resulted in amiscarriage of justiceCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE–CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL– IMPROPER ADMISSION OR REJECTION OFEVIDENCE – where the trialjudge ruled that there was a case for the appellant to answer on the offence ofproducing methylamphetamine
– whether there was sufficient evidence
capable of supporting a guilty verdict
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL
– MISDIRECTION AND NON-DIRECTION –
GENERALLY – whether the
trial judge gave adequate directions about the prosecutor's closing address
– whether the prosecutor's
closing address caused a miscarriage of
justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
–
APPLICATIONS TO REDUCE SENTENCE – where regard was had to the necessity to
place witnesses in a protection program
– where regard was had to the
appellant's offending behaviour as being associated with fortification of his
home, the presence
of weaponry and membership of the Rebels Motorcycle Club
– where a sentence of ten years was imposed – whether sentence
was
manifestly excessive
Criminal Code 1899 (Qld), s 7(1)(d), s 668E(1), s
668E(1A)
Penalties and Sentences Act 1992 (Qld), s 161B, s 9(4)
Doney v The Queen [1990] HCA 51
(1990) 171 CLR 207, applied
Driscoll v The
Queen [1977] HCA 43
(1977) 137 CLR 517, distinguished
Festa v The Queen (2001)
208 CLR 593, distinguished
MFA v The Queen [2002] HCA 53
(2002) 213 CLR 606,
applied
Carr v The Queen [2000] TASSC 183
(2000) 117 ACrimR 272, distinguished
R
v Geary [2002] QCA 33
[2003] 1 Qd R 64, followed
R v Martin [2002] QCA 443
(2002) 134 ACrim R
568, distinguished
R v O'Connor [2002]
QCA 467
CA No 224 of 2002, 1 November 2002, followed
R v Rowe [2006]
QCA 379
CA No 40 of 2006, 29 September 2006, distinguished
R v
Swaffield (1998) 192 CLR 159, cited
R v Witherspoon [2003]
QCA 58
CA No 366 of 2002, 19 February 2003, followed
Thompson and
Wran v The Queen [1968] HCA 21
(1968) 117 CLR 313, distinguished
Weiss v The
Queen [2005] HCA 81
(2005) 224 CLR 300, applied
Judgment (154 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where evidence was admitted in relation to a firearm, ammunition and the erection of a fence on the appellant's property - whether the evidence was admissible - whether the admission of that evidence had prejudicial consequences that resulted in a miscarriage of justice
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - where the trial judge ruled that there was a case for the appellant to answer on the offence of producing methylamphetamine - whether there was sufficient evidence capable of supporting a guilty verdict
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - MISDIRECTION AND NON-DIRECTION - GENERALLY - whether the trial judge gave adequate directions about the prosecutor's closing address - whether the prosecutor's closing address caused a miscarriage of justice
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPLICATIONS TO REDUCE SENTENCE - where regard was had to the necessity to place witnesses in a protection program - where regard was had to the appellant's offending behaviour as being associated with fortification of his home, the presence of weaponry and membership of the Rebels Motorcycle Club - where a sentence of ten years was imposed - whether sentence was manifestly excessive
[5]
Criminal Code 1899 (Qld), s 7(1)(d), s 668E(1), s 668E(1A)
O'Reilly Stevens Bovey Lawyers for the appellant/applicant
[21]
Director of Public Prosecutions (Queensland) for the respondent
[22]
[1] MCMURDO P: After a 10 day trial in the Cairns Supreme Court, the appellant, Mr Fischer, was convicted of trafficking in methylamphetamine on a date unknown between 1 January 2000 and 9 February 2002 at Cairns and elsewhere (count 1), production of methylamphetamine with the circumstance of aggravation that the quantity exceeded two grams on a date unknown between 1 January 2000 and 16 June 2000 at East Trinity (count 2) and production of methylamphetamine on a date unknown between 16 February 2000 and 9 February 2002 at Cairns (count 3). He was sentenced to 10 years imprisonment in respect of the first count and to lesser concurrent terms of imprisonment in respect of the remaining two counts. This trial followed an earlier trial where the jury were unable to reach a verdict. He appeals against his conviction on seven grounds and also applies for leave to appeal against his sentence.
[23]
[2] Before turning to the many grounds of appeal, it is useful to refer to the evidence at trial. The prosecution case on counts 1 and 3 turned on the evidence of indemnified accomplices, Steven Willis and Peter Higgins. The prosecution case on count 2 turned on the finding of property in June 2000 on Mr Fischer's premises in partially cleared bushland at Lot 7 Pine Creek Road, East Trinity.
[24]
[3] Police officer Dowie, together with three other police officers, searched Mr Fischer's East Trinity premises on 15 June 2000. To the left of the top of the driveway was a dwelling house occupied by Mr Fischer, his partner and her child. It was partly enclosed by a two metre high chain wire fence topped with four strands of barbed wire. Mr Fischer's then landlord, Mr Page, agreed that when he visited the property in March 2000 he noticed for the first time the security fence around the house.
[25]
[4] To the right of the driveway was a shed with some open and some enclosed sections and another structure referred to as a donga. Police found some filter paper in a garden bed near the donga. The paper was later found to contain 1.506 grams of pure methylamphetamine. The scientific evidence was that, for that quantity of methylamphetamine to be in the filter paper, a much greater quantity of the drug had passed through it.
[26]
[5] Inside the donga were three cook tops, at least one of which was found to contain traces of methylamphetamine. Underneath a large wooden box police found a folder containing "Uncle Fester's Complete Guide to Amphetamines Production". In a stainless steel Coca-Cola keg containing a detergent mixture police found a number of laboratory-type glassware items which connected to a stainless steel reaction vessel and attachment found later that day under a culvert running under the driveway. Various items of chemical glassware were found inside a PVC cylinder in a hollow under a tree in bushland around the corner from the donga.
[27]
[6] A container of red substance later identified as red phosphorous was found near the door to the shed, as were other chemicals (caustic soda, hydrochloric acid, acetone, phosphoric acid and iodine) all of which had the potential for use in making methylamphetamine. Scientific evidence established that the red phosphorous had been used in the process of producing methylamphetamine and suggested that it had been used for this purpose comparatively recently. It could be re-used in future production. Caustic soda and hydrochloric acid were often used domestically; acetone and phosphoric acid had common trade uses; iodine and red phosphorous were less commonly used domestically or in trades.
[28]
[7] Police found a hole in the wall in the dining area of Mr Fischer's home covered by a print of Native Americans. In the hole was an SKS assault rifle and two magazines loaded with at least some bullets. In a kitchen drawer, police found a cloth bag holding a considerable quantity of ammunition capable of use in the rifle. Police found documents about ephedrine and pseudoephedrine extraction on the kitchen bench. Scientific evidence established that pseudoephedrine or ephedrine are the basic chemicals used in the production of methylamphetamine. Police also found a clip seal bag in the kitchen freezer containing 6.823 grams of damp off-white crystalline material which was later analysed as containing 2.34 grams of pseudoephedrine, capable of producing less than two grams of methylamphetamine. Outside the house near a rocky embankment police found two green army ammunition containers holding glassware and a thermometer all of which were capable of being used in the production of methylamphetamine.
[29]
[8] The state of the donga at the time of the police search suggested that it had been occupied in the recent past. Mr Page recalled seeing people other than Mr Fischer, his partner and her child in the donga when he visited the property from time to time, but he did not know whether they were living there. He noticed the donga was being used by people. Mr Fischer had difficulty in paying his rent from time to time.
[30]
[9] This summarises the evidence relied on by the prosecution to establish count 2 with which Mr Fischer was charged in June 2000.
[31]
[10] The prosecution case on count 3 turned entirely on the evidence of Steven Willis, a former friend of Mr Fischer since 1996 or 1997 when Mr Fischer's place of business was burnt down. Willis was associated with Mr Fischer in the Rebels Motorcycle Club. Mr Fischer was president of the club. Willis was not a member but kept company with Mr Fischer at the club house. Willis gave evidence that he saw Mr Fischer cook methylamphetamine in his house at East Trinity when he returned to live with Mr Fischer there in August 2000. He helped Mr Fischer by popping Sudafed tablets out of their packets and washing up the dishes. This was the evidence in respect of count 3.
[32]
[11] On 27 November 2000, when Willis was home alone and asleep, the East Trinity premises burned down.
[33]
[12] The prosecution case on count 1 (trafficking) turned on the evidence of Willis and Peter Higgins and also incorporated the evidence on counts 2 and 3. Willis gave the following evidence. He fell out with Mr Fischer after Willis alleged Mr Fischer was responsible for a violent assault causing him to be hospitalised for five days in February 2004. Police visited Willis in hospital. He gave them information about Mr Fischer's involvement in methylamphetamine trafficking. Initially he falsely told police he was assaulted by multiple assailants even though Mr Fischer was responsible. This was because he was scared of Mr Fischer and his power. He told police he saw Mr Fischer cooking methylamphetamine on a number of occasions after the incident constituting count 3. Mr Fischer stored the drugs in a hole in the wall behind a print of Native Americans. Mr Fischer continued to cook methylamphetamine at other premises after the Pine Creek Road premises were destroyed by fire. Mr Fischer told him he was selling methylamphetamine. Willis was present at the club house on one occasion when some methylamphetamine was brought in and used with Tally-ho cigarette papers to make "speed bombs", one of which he was given. He also claimed that Mr Fischer gave him "speed bombs" at the club house.
[34]
[13] In cross-examination he agreed he had abused steroids in the past. This had made him suffer panic attacks and become violent and paranoid. He had used the family names of his mother's three husbands: Willis, Bredl and Shepherd. He had prior convictions for drug offences. In May 2001 police found some speed in premises occupied by Mr Fischer and another Rebels Motorcycle Club member, Russel Genje. Although it was not his, Willis pleaded guilty to the resulting charge because they "stood over him". He had a conviction for home invasion which involved threatening violence to a woman, but he denied his guilt.
[35]
[14] Higgins gave the following evidence. He was a nominee member of the Rebels Motorcycle Club. He met Mr Fischer in 1997. Willis as well as Mr Fischer supplied him with methylamphetamine at the club house. Mr Fischer admitted to him that he was a "speed cook" and that he had made over half a million dollars from manufacturing methylamphetamine. Mr Fischer boasted that whenever he needed money he would go bush and "do a cook". Higgins gave a statement to police implicating Mr Fischer on 17 October 2002 after Higgins's motorcycle went missing and he suspected that Mr Fischer and his associates, Wayne Miller and Russel Genje, were responsible. When he reported the motorcycle stolen to a police officer in the Drug Squad whom he knew and had confidence in, the police told him that if he provided information on Mr Fischer they would help him find his motorcycle.
[36]
[15] In cross-examination, he admitted having convictions for unlawful damage, possession of drugs and shoplifting. After he had provided information about Mr Fischer to police he received death threats and as a result he sent SMS text messages to associates of Mr Fischer. Examples included a text message of 29 August 2003: "Just pay your bills and my memory could get real bad."; and text messages of 23 October 2003: "My indemnity came today. I can finally put you where I (sic) belong"; "You know what indemnity means dickhead. I can admit to crimes and will not be charged unlike those who supplied me with the big amounts of whiz like you and Kerry. Get it yet"; "I will take your bike since you cannot afford to pay me."; and "If I don't hear from you soon I assume you won't pay. Good luck."
[37]
[16] Both Willis and Higgins received indemnities against prosecution for the crimes admitted by them in respect of "any civil or criminal proceedings under the laws of Queensland other than proceedings in respect of the falsity of any evidence [they] may give."
[38]
[17] Mr Fischer gave the following evidence. He had been a recreational user of "speed" for about ten years but he was not addicted and not involved in its supply or manufacture. He denied any knowledge of the items of equipment, located outside his home and in and near the shed and the donga, which appeared to have been used to produce methylamphetamine. He was aware of some of the domestic chemicals stored in the shed which could have been used to make methylamphetamine but he claimed that he used these either in his work or domestically and only for innocent purposes. He explained that the quantity of pseudoephedrine which police found in the freezer in his kitchen was an "ECA stack" containing an equal mix of pseudoephedrine, caffeine and aspirin. He made and used this on advice from a health expert to assist with water retention problems arising from his use of steroids for body building. He made the "stack" from sudafed, aspirin and guarana. During the period preceding the police search of his premises in June 2000, Steve Walton, Steven Willis and Graham Nemo stayed in the donga.
[39]
[18] Whilst he was living at East Trinity he erected a six foot high fence with barbed wire around two sides of the house perimeter. A dated photograph suggested the fence had been erected prior to 1998, before the period alleged in any of the counts in the indictment. He agreed that with that fence and the natural fall of the land the house was well defended. He hid the rifle in a pre-existing hole in the wall which he enlarged and covered with a print, not to defend any illegal methylamphetamine operation, but to defend himself from a rival motor cycle club, the Bandidos, who had attacked him in the past.
[40]
[19] In cross-examination he agreed that he had drug-related convictions; he would not seek assistance from the police to defend himself; and that it was not uncommon in the circles he moved in for people to use violence to sort out their difficulties.
[41]
[20] In re-examination he said that the fence was erected some time prior to 1998 after the panel shop he shared with two other men was "arsoned and there was shooting that happened in - where we got shot at ... [by] a lad out of another club in January 1997." This demonstrated to him that the police did not care about his safety or the safety of those who lived with him. He obtained the rifle and ammunition for protection after he was shot at and severely beaten by 13 Bandidos.
[42]
[21] Mr Christopher Peters also gave evidence for the defence. He was a friend of Mr Fischer. He said that in the period leading up to February 2001 Willis regularly stayed at Peters's home. Willis asked him to purchase Sudafed and offered to pay Peters double the purchase price. He asked Peters to keep this confidential from Mr Fischer.
[43]
Was the evidence of the finding of the firearm and ammunition at the appellant's home admissible?
[44]
[22] The first ground of appeal is that the trial judge erred in admitting evidence of the finding of the rifle and ammunition secreted in Mr Fischer's premises.
[45]
[23] Mr Fischer's counsel unsuccessfully objected to the admission of this evidence at trial. The judge considered the evidence went beyond mere propensity to illegal activity; it was capable of supporting an inference that the gun and ammunition was to be used to protect an illegal activity, namely methylamphetamine production and might fairly be described as "tools of trade". The judge considered the evidence was admissible and though prejudicial had sufficient probative value to warrant the exercise of his discretion in allowing it to be led.
[46]
[24] Mr Fischer, through his counsel, Mr Henry SC, contends that there was no evidence that Mr Fischer used this or any other firearm in association with any illicit drug activity. There was no evidence that on any occasion he was required to defend any illicit drug activity. There was no evidence that a hidden firearm and ammunition are invariably the tools of trade of methylamphetamine producers. The evidence of the finding of the rifle and ammunition was highly prejudicial and of no probative value. It should not have been admitted.
[47]
[25] Mr M J Copley for the respondent contends as follows. The prosecution case on count 2 was wholly circumstantial. The essential question was first whether methylamphetamine had been produced at the property at the time alleged and, if so, whether Mr Fischer had been involved in that production. Items associated with the manufacturing of methylamphetamine were found in the shed, donga and in external areas of Mr Fischer's premises. The presence of a hidden weapon and ammunition in close proximity to pseudoephedrine and instructions about extracting that drug, a precursor chemical in the production of methylamphetamine, was a fact which could lead to an inference that Mr Fischer had produced methylamphetamine at the property. Methylamphetamine is an illegal drug and those who produce, deal or traffick in it are necessarily more likely to have weapons to protect their illegal property because they cannot call on the assistance of the police service to uphold their possessory rights over the drugs. The presence of the weapon in his property was relevant to rebut Mr Fischer's contention that he had not produced methylamphetamine at the property. There was no evidence that Mr Fischer's possession of the rifle and ammunition was against the law and therefore propensity was not an issue.
[48]
[26] Mr Fischer's case was not that the equipment found on his premises was not used for producing methylamphetamine. It was that he had no knowledge of any manufacturing of methylamphetamine on his premises and no involvement in it; as the equipment was hidden, unassembled and mobile, others who visited the donga may have used the equipment to manufacture methylamphetamine without his knowledge or help, either there or elsewhere.
[49]
[27] The evidence of the finding of the rifle and ammunition on Mr Fischer's premises was not that type of circumstantial evidence admissible as relevant to identification of the perpetrator of an offence as, for example, where the weapon or a similar weapon had been used in the commission of a robbery: cf Thompson and Wran v The Queen,[1]Driscoll v The Queen,[2]Festa v The Queen[3] and R v Rowe.[4] The evidence, nevertheless, had some probative value and was relevant. As Mr Copley points out, the hidden rifle and ammunition when combined with the other circumstantial evidence was capable of supporting the inference contended for by the prosecution, that Mr Fischer had produced methylamphetamine before June 2000 and was trafficking in it within the period charged in count 1. Those in the business of producing and trafficking in methylamphetamine cannot call on lawful means to protect their illegal drugs and profits made from their business. The presence of the rifle and ammunition, hidden but quickly accessible, was capable of showing he had the means to protect the illegal drugs he produced and the proceeds from his trafficking. It was also relevant in this way as being capable of rebutting Mr Fischer's claim that he knew nothing about any methylamphetamine production on his property. Although the distinction is a fine one, it went beyond mere propensity evidence.
[50]
[28] The evidence of the rifle and ammunition was prejudicial but, as explained in the preceding paragraph, it had some probative value. Much of the other evidence in the case was also unavoidably prejudicial, for example, Mr Fischer's involvement in the Rebels Motorcycle Club and his association with prosecution witnesses of questionable character, Willis and Higgins. The judge appreciated this and warned the jury early in his directions to put aside feelings of sympathy or prejudice, specifically mentioning the Rebels Motorcycle Club. His Honour told the jury that they "must be especially careful not to allow any sense of ill-will to deflect [them] from the calm, rational assessment of the evidence which is relevant to each charge." His Honour was not compelled to exclude the relevant evidence of the finding of the rifle and ammunition pursuant to the judicial discretion discussed in R v Swaffield.[5] This ground of appeal fails.
[51]
Did the judge err in admitting the evidence of Mr Page as to the erection of the fence on Mr Fischer's premises?
[52]
[29] Mr Henry's next contention is that the primary judge erred in admitting Mr Page's evidence that he noticed for the first time the security fence around Mr Fischer's premises when he visited the property in March 2000.
[53]
[30] As noted earlier, the prosecution case particularly in respect of count 2 turned on the finding of items used or capable of being used in the production of methylamphetamine secreted in various positions around Mr Fischer's premises and surrounding bushland property. Photographs of those items, the areas where they were found and Mr Fischer's premises properly formed a part of the prosecution case. The two metre high chain mesh security fence topped with four rows of barbed wire was depicted in those photographs. Defence counsel did not object to the tendering of those photographs at trial.
[54]
[31] At the time Mr Page's evidence was led, the prosecution were not in possession of evidence later led by the defence which suggested the fence had been erected before 1998 and therefore before the time period alleged in each count. The correctness of the admissibility of the evidence must be judged, not with hindsight in the light of subsequent defence evidence, but in the context of the evidence known to the prosecution and before the judge at the time of the ruling. The evidence was then plainly relevant because, like the evidence of the secreted rifle and ammunition, it was circumstantial evidence that Mr Fischer's efforts at securing his residence were consistent with someone participating in the production and trafficking of methylamphetamine who needed to protect that illegal operation without reliance on the lawful police service. Trials are often moving feasts. Mr Fischer was later able to call evidence to show that the fence was probably erected a year or more before the period alleged in the charges, a significant point in his favour. The judge specifically brought this defence evidence to the jury's attention and his Honour's re-directions on this issue are set out later in these reasons.[6] The judge rightly concluded that the evidence of Mr Page was, in the light of the evidence then before his Honour, a part of the factual circumstantial matrix which should have been before the jury. This was so even if the fence was erected before the commission of the offences; it still provided a secure barrier during the period of the offending. This ground of appeal also fails.
[55]
Did the admission of the evidence relating to the rifle, ammunition and fence have prejudicial consequences resulting in a miscarriage of justice?
[56]
[32] Mr Henry contends that the prejudicial consequences of the admission of the evidence relating to the rifle and ammunition and fence caused Mr Fischer to adduce evidence at trial which he would not otherwise have given and a miscarriage of justice has arisen, especially in the light of the prosecutor's contention in his closing address to the jury.
[57]
[33] In making this submission Mr Henry emphasises the following. The effect of the evidence set out above was inherently prejudicial. Because of its admission, Mr Fischer was obliged when giving evidence to explain why he had the ammunition and rifle hidden in his home and why he had erected the fence. The reason was to protect himself after he had been shot at and assaulted by members of the Bandidos Motorcycle Club who had also burnt down his work premises. This explanation had the taint of lawlessness and violence about it and compounded the prejudice already incurred by the admission of the evidence.
[58]
[34] Mr Henry further emphasises the additional prejudicial consequences arising from the prosecutor's improper argument in his closing jury address:
[59]
"... He'd set up his house like a fortress. Six foot high fence with barbed wire on top. My learned friend says, 'Well, that's from some time before.' We've got no way of knowing how long this has been going on for. The only evidence we have is in accordance with the dates. We've got no way of knowing how long this has been going on for.
Got a rifle and a hole in the wall. ... He has to defend his illegal operation himself, because as he himself said, 'Bikies don't involve the police. They sort things out themselves with violence if necessary.' And you heard about his previous conviction for the knuckledusters.
This is a man who sorts things out for himself. ..."
[60]
[35] Mr Fischer chose to give evidence and subject himself to cross-examination. Once he did so, his personality and lifestyle was inevitably before the jury. Even had he chosen not to give evidence, the testimony of his former associates, Willis and Higgins, in the prosecution case, the photographs of his home and property and the finding there of a disassembled, secreted methylamphetamine production laboratory did not suggest he was a pillar of the establishment. Because of the conduct of his case which attacked the character of Willis and Higgins, it was likely, regardless of the subject evidence, that he would be cross-examined about his prior convictions.[7] and his attack of Willis and Higgins. The fact that he chose to give exculpatory evidence portraying him, as his counsel now submits, with a "taint of lawlessness and violence", does not amount to a miscarriage of justice.
[61]
[36] As to Mr Henry's complaint about the prosecutor's remarks, the primary judge in his re-directions to the jury corrected the improper suggestions in these terms:
[62]
"Now finally, I meant to deal with a matter raised by [the prosecutor] in his address to you, which was to the effect that because the high wire fence was erected in 1998, if you accept the photo, that might indicate that some illegal activity was going on in that earlier period. That would not be a permissible inference to draw. It is not based on any reason or logic. It is simply an unfounded assertion and it must be ignored."
[63]
[37] This direction, given with the authority of the judge, neutralised any potential inflammatory or improper effect of the prosecutor's objectionable submission to the jury.[8]
[64]
[38] The prosecutor emphasised in his address to the jury that Mr Fischer was the:
[65]
"... The president of the Rebels bikie club. Not some poor flunky no, these crazy unknown people [those who Mr Fischer claimed were responsible for methylamphetamine production-related items found on his property] choose to do all of this at the houses of a man who is a president of a bikie club. Who had at his call, not only his SKK rifle, but the rest of the Rebels. His brothers in Townsville, at the other chapter there. Hard men, men who sort things out with violence, rather than involve the police. These unknown people must have had a death wish."
[66]
[39] As I have noted earlier,[9] the judge instructed the jury to dismiss all feelings of prejudice or ill-will arising from reference to the Rebels Motorcycle Club. His Honour also directed them to avoid propensity reasoning in respect of Mr Fischer's admission that he had committed drug offences in the past or that he may have assaulted Willis; they must consider all the facts they accept and ask whether they were satisfied of Mr Fischer's guilt on each count beyond reasonable doubt. The judge did not, however, particularly warn against propensity reasoning in respect of the evidence relating to the rifle, ammunition and fence.
[67]
[40] Mr Henry did not ask for a re-direction on the use to be made of the evidence of the rifle, ammunition and fence but noted that the prosecutor "may seek some further direction in relation to the rifle and fence ... They're obviously areas I objected to strenuously and it might be safer if there's some further careful direction about both of those, which may well be the subject for submissions for my learned friend."
[68]
[41] The prosecutor did indeed seek such a re-direction stating:
[69]
"In my submission, your Honour might also direct the jury that they shouldn't reason from - there's - there's quite a bit of evidence that's come out in the trial from which they shouldn't then reason, 'Well, that means he's guilty of trafficking'. That is, the fence.
...
They can't just immediately leap, 'Well, he's got a barbed wire fence around his house, he must be guilty of trafficking.' Similarly, - the - these - these are circumstantial aspects.
...
... Similarly, the rifle, they can't just reason he's a person of bad character, so he must be engaged in production. Similarly, the fact of his cooking hash oil. They can't just reason that means he's a - he's a cook of other substances.
Similarly, his - his drug use and his criminal history, that shouldn't immediately leap from those items to saying that that means he's a person of bad character. And also it - it really has come out quite extensively in this trial the issue of the violence towards Willis. Now, were they to conclude, indeed - and - and I should say that was raised by my learned friend, not by the Crown - should they conclude, 'Well, he was, in fact the person who assaulted Willis.' Again, they shouldn't then just leap to the conclusion that he's involved in - in trafficking ---- ...
...
---- or production of drugs.
Perhaps a recognition bringing all of those ----
HIS HONOUR: Yes, together.
PROSECUTOR: ----- items together so the jury are in no uncertainty that they can't make these leaps from his previous character, that he's a person of bad character who might then engage himself in these other activities."
[70]
[42] His Honour indicated his acceptance of that submission and gave the subsequent general direction about propensity evidence[10] and the re-direction set out above.[11] His Honour did not, however, specifically refer to the danger of propensity reasoning in respect of the evidence of the rifle, ammunition and fence. At the conclusion of those re-directions, his Honour acceded to defence counsel's request for a further re-direction to correct a factual error. The prosecutor added:
[71]
"If your Honour is going to bring them back - I wasn't going to ask for this -----
...
---- direction, but could your Honour also tell them that the rifle also falls into that same category as the prior convictions and things like that. That shouldn't just lead, because of his possession of the rifle, to that conclusion as well."
[72]
[43] Unfortunately his Honour did not accede to that request. When evidence, which is relevant but also shows criminal propensity, is led at trial a judge should explain to the jury the limited use that can be made of that evidence: Thompson and Wran v The Queen.[12] The judge gave some general directions about propensity evidence but without relating those directions specifically to this evidence. One difficulty for the judge in trying to ensure a fair trial in this case was that, in context, the evidence of the rifle, ammunition and fence, whilst relevant, constituted only a minor part of the circumstantial factual matrix relied on by the prosecution to establish its case. A specific propensity warning in respect of those items of evidence may have given them a greater emphasis than was objectively warranted. No doubt that was why Mr Henry, an experienced defence counsel, in his many applications for re-directions did not ask for that re-direction.
[73]
[44] Although it would have been prudent to have given the directions now claimed by Mr Henry to be necessary, I am not persuaded that their absence amounted to an error of law in the circumstances of this case. The judge's directions made it plain in general terms that propensity reasoning must be avoided so that the jury must have understood that it was impermissible to reason that Mr Fischer was guilty of the offences charged simply because he was in possession of the ammunition, the secreted rifle and had a security fence around his premises. In my view this ground of appeal also fails.
[74]
[45] If I am wrong and the omission to give a specific warning about the danger of propensity reasoning in respect of this evidence amounted to an error of law, for the reasons I state later I am satisfied no miscarriage of justice has resulted.[13]
[75]
Did the judge err in ruling at the close of the prosecution evidence that there was a case to answer on count 2?
[76]
[46] As I apprehended Mr Henry's submission, made only in his written outline of argument and not repeated in his oral submissions, it is that the judge should have acceded to his submission at the close of the prosecution case, that the evidence was not capable of establishing that the items found at Mr Fischer's premises in June 2000 were used in the production of methylamphetamine in the time frame nominated in the indictment (between 1 January and 16 June 2000) as distinct from some earlier occasion. He further contended that the evidence was not capable of establishing that the methylamphetamine had been produced at Mr Fischer's East Trinity property rather than at some other location.
[77]
[47] The judge was obliged to leave the case to the jury if there was evidence, even tenuous or inherently weak or vague evidence, which was capable of supporting a verdict of guilty: Doney v The Queen.[14]
[78]
[48] The prosecution evidence set out earlier in these reasons in respect of count 2 was well capable of allowing a properly instructed jury to infer beyond reasonable doubt that the offence was committed within the alleged time frame. The scientific evidence as to the condition of the red phosphorous was consistent with reasonably recent production of methylamphetamine, and so was consistent with the time frame alleged in count 2. The jury were also entitled to conclude that the presence of all the items on Mr Fischer's isolated, well-defended property, where the necessary power and water were readily available, was sufficient to negative the fanciful hypothesis that some unknown producer of the methylamphetamine other than Mr Fischer (whether Willis or someone else) moved the equipment elsewhere to use it. Why would this person go to the effort of moving the large quantity of equipment when much of it was susceptible to breakage and there would be an additional risk of detection during any move to some other location. The equipment was already at Mr Fischer's premises, an isolated, well-defended location with accessible water and power.
[79]
[49] Mr Henry does not contend that the verdict on count 2 was unreasonable or cannot be supported having regard to the evidence (s 668E(1) Criminal Code). The jury were plainly entitled to reject Mr Fischer's exculpatory testimony and to draw the inferences beyond reasonable doubt from the circumstantial facts established by the prosecution that he produced methylamphetamine at his East Trinity property shortly before 16 June 2000: MFA v The Queen.[15] This ground of appeal also fails.
[80]
Did the judge give adequate directions about Mr Fischer's nomination of the names of those using his premises who may have been responsible for the production of methylamphetamine?
[81]
[50] Mr Henry contends the judge erred in suggesting to the jury that Mr Fischer could have provided the names of those using his premises who had the opportunity to manufacture methylamphetamine and this error was not corrected by subsequent directions.
[82]
[51] The primary judge correctly stated to the jury that the defence case did not challenge that the equipment was found on Mr Fischer's premises or that the ingredients and waste products all indicated that methylamphetamine was in fact produced; Mr Fischer's case was that the production was by "persons unknown and unbeknownst" to Mr Fischer.
[83]
[52] His Honour reminded the jury that during the time period alleged in count 2 the only people residing on the premises were Mr Fischer, his partner and her child. Mr Fischer gave evidence that no-one had lived in the donga since January or February 2000 but that it was used as a drop-in centre for people with whom he was acquainted. His Honour read to the jury extracts from Mr Fischer's evidence and then gave the following directions:
[84]
"You might think that [Mr Fischer] would know or at least have the means of finding out the names of the persons who - from the club who was visiting his residence. No names have been put forward to the Court or to the police to permit any investigation of activities of any other persons there using or hiding the equipment which was found to be contaminated with the drug.
Of course, there's no obligation on Mr Fischer to do so. As I've mentioned previously, the onus is on the prosecution to prove the case. Mr Fischer, like you and I, have the right to remain silent. I raise that point in the context of the argument put forward that the police were derelict in their duty in failing to take a DNA sample of an item such as the toothbrush to find out who was in the donga.
Even if this did result in identifying the user of the toothbrush it would only mean that the person was present at the donga at some stage. It does not necessarily involve that person with the chemicals or the equipment, but your position is that you have to act on the evidence which is before you and the conclusions you draw from that evidence." (errors in the original)
[85]
[53] Defence counsel in his application for re-directions submitted that the suggestion that Mr Fischer had some obligation to provide names of potential suspects was wrong: Petty and Maiden v The Queen.[16] Defence counsel also reminded the judge that Mr Fischer had put forward names in his evidence at both this trial and the first trial. The prosecutor supported a re-direction affirming Mr Fischer's right to silence and reminding the jury that there was no obligation on Mr Fischer to provide names or other information.
[86]
"... The first is when I mentioned about the criticism of the police officers in not obtaining a DNA sample, and I commented that that lack may have only meant that another person who had been there might have been identified, it would not necessarily result in showing that that person was involved in drug production. I further commented that the defendant had admitted that the persons who attended were acquaintances or club members and that he would either know or be able to find out who they were. I commented to you that he did not identify the persons to the police or to the Court.
That was to suggest that the criticism of the investigation, I put it as high as saying that there was a suggestion of dereliction of duty. ...
I mentioned then that there was no obligation on an accused to make a statement. I mentioned to you that the defendant, like you or I, have a right to remain silent when asked a question. Now that is a fundamental principle, and nothing you might think I said must detract from the exercise by Mr Fischer of that right. What I said was not intended to do that, it was simply to point to the fact that no disadvantage flowed from the criticism that Mr Henry justifiably raised.
I did, however, mention that Mr Fischer did not give the names of the persons to police, or to the Court. In saying that I was partly in error, as it turns out. But I am reminded that in addition to mentioning the name Steven Walton, he also referred to others - ... - namely Steven Willis and Graham Nemo. But beyond that he was never asked by the Prosecutor to provide any names of other persons he might have known.
So I want to be sure that are you left with the impression that he was not in any way obliged to give names to the police. The right to silence is a right that's enjoyed by each of us, and the exercise of that right carries no adverse connotation." (errors in the original)
[87]
[55] Following that re-direction the jury could have been in no doubt that Mr Fischer was under no obligation to provide any information to the police and that no adverse inference could be drawn from his exercise of the right to silence. The judge's re-direction adequately remedied any earlier misdirection. This ground of appeal also fails.
[88]
Did the trial judge err in directing the jury that they could convict Mr Fischer if they were satisfied that he either used the items himself or directed others to use them in the production of methylamphetamine?
[89]
[56] Mr Henry contends the judge erred in directing the jury that they could convict if Mr Fischer directed others to produce methylamphetamine.
[90]
[57] The prosecution case was that Mr Fischer used the equipment found during the June 2000 police raid to produce methylamphetamine not that he directed others to do so (cf s 7(1)(d) Criminal Code). The judge's directions to the jury included the following:
[91]
"... to find Mr Fischer guilty of this offence [count 2], the prosecution must satisfy you beyond reasonable doubt that the only conclusion you can come to, taking into account all the background evidence and the circumstances as you find them to be, is that it was Mr Fischer who used the equipment found during the raid and used it to produce methylamphetamine, used it himself or directed others to use it." (my emphasis)
[92]
[58] Because of the emphasised words, Mr Henry asked the judge for a re-direction; the prosecution case was solely that Mr Fischer was himself the user of the items in producing the methylamphetamine the subject of count 2. The judge accepted the prosecutor's contention that in respect of count 2 the evidence supported a conviction regardless of whether Mr Fischer himself used the items to produce methylamphetamine or others did it at his direction. His Honour did not give any re-direction.
[93]
[59] The prosecution case as opened was that Mr Fischer personally manufactured the methylamphetamine with the items found on his premises in the police raid. Mr Fischer's evidence and his case at trial was that he was not involved in any way in the production of methylamphetamine and that others without his knowledge must have used the items found in the June 2000 search of his premises for this purpose without his involvement.
[94]
[60] The prosecutor commenced his closing address to the jury in this way:
[95]
"Ladies and gentlemen of the jury, there is really only one issue in this trial, which, in my submission to you, if you decide it will help you reach your verdict, and that is: was the accused the speed cook or not? Was it he who was cooking speed at his houses, whether alone or with other people, doesn't really matter but was he involved in the speed cooking operation, I say that's the only real issue because if you find that he was indeed the cook, you will then have no real difficulty taking the next step, that is, that if he was cooking he was obviously then selling the speed for profit, making money off production, because people don't go through these lengths to produce speed for nothing. They do it for financial gain.
..."
[96]
[61] The prosecution concluded his address to the jury with:
[97]
"... The accused was a speed dealer and a speed cook and he's guilty of the offences with which he's charged."
[98]
[62] In the summing-up, the judge correctly stated the question in this way:
[99]
"... And then you ask yourself, is the defendant the person responsible [for producing methylamphetamine]? If you are not so satisfied, that is the end of the matter and you would [be] obliged to find Mr Fischer not guilty of that count 2. If you are satisfied, draw the conclusion that he produced the methylamphetamine, you would need to be satisfied of the other elements. The other elements are whether the production occurred in that six month period and where did it happen."
[100]
"You have to be satisfied, not only that Mr Fischer produced the drug, but you have to be satisfied of that beyond reasonable doubt. ..."
[101]
[64] The jury must have well understood that the case against Mr Fischer was that he personally manufactured methylamphetamine in the circumstances relied on as constituting counts 2 and 3. In any case, as Mr Copley points out, it is difficult to see how Mr Fischer's defence would have been conducted any differently if the prosecution case had been left on the alternate basis under s 7(1)(d) Criminal Code that he directed others to manufacture methylamphetamine for him. In this case, I am satisfied that the primary judge's uncorrected misstatement to the jury, that they could convict Mr Fischer if he directed others to use the equipment to produce methylamphetamine, has not caused any unfairness to Mr Fischer. It has not resulted in a miscarriage of justice: cf Carr v The Queen[17] and R v Martin.[18]
[102]
Did the judge err in not correcting the prosecutor's contention in his closing address that there was no reason why the accomplice witnesses would continue to give their incriminating account against the appellant?
[103]
[66] Mr Henry contends that a submission of the prosecutor in his closing address has caused a miscarried of justice.
[104]
[67] Mr Henry rightly emphasises the importance of the evidence of the informant accomplice witnesses, Willis and Higgins, in the prosecution case in respect of counts 1 and 3. Any conviction on count 1 turned upon the jury's acceptance of their evidence, and on count 3 the acceptance of Willis's evidence alone, as to the elements of each offence. The defence emphasised that the police dealings with Willis and Higgins preceding their incrimination of Mr Fischer were not transparent and questioned whether the process was tainted. Both had an obvious motive for falsely incriminating Mr Fischer and knew the police were looking for evidence incriminating him. In the course of their statements to police, they incriminated themselves in the commission of offences and, in return for giving evidence against Mr Fischer, received an undertaking that their evidence "will not be used in evidence against [them] in any civil or criminal proceedings under the laws of Queensland other than in proceedings in respect of the falsity of any evidence [they] may give."
[105]
[68] So as to fairly consider this ground of appeal, the portion of the prosecutor's address at the heart of it should be set out in full context:
[106]
"Well, you will be warned to scrutinise the evidence of Willis and Higgins carefully because they are accomplices. They - certainly with Willis, he helped in the cooks, and with Higgins, he obviously had some - he was obviously committing some offences by taking speed. So you look at their evidence carefully, but remember this. They would seem to have nothing easily identifiable to gain out of going to the police about this. They are - well, Higgins is a bikie, and Willis was the best mate of the accused.
You heard Higgins say he didn't like speaking to the police. Neither Willis nor Higgins were under any investigation by the police at the time. They weren't charged with anything. They had no deal to cut. The police didn't know anything about their involvement in speed use or speed production. They volunteered all that information themselves and they weren't indemnified then, when they said that.
They had nothing to gain, you might think, going to the police like that, unless, of course, you accept that they're honest about having their bike stolen and having been beaten up by the accused and if you believe them about those things, then, of course, they do have a motivation to go to the police because you accept that they're honest about those things. They had no reason to get involved with the police other than that they were telling the truth.
Why would they take the chance that they would get themselves into trouble with the bikie club? Why would Willis want revenge? Why would he be vengeful if there was nothing to get revenge about if he'd never been bashed? Is it the case that Willis hadn't been bashed? One [m]ight just makes all of this up for some unidentifiable reason about his best mate, gives the police five statements and over the following six years keeps on making it up, keeps on giving evidence. As you've heard, four times now he's given evidence. Two statements in February of - the 5th of February of 2002, one on the 7th of February, an interview on the 21st of February, a further statement on the 23rd of February, gives evidence on the 21st of August 2002, the 31st of March 2004, in February this year, and now.
Nine times he's either given evidence or provided a statement and all this time, four years now, maintaining this false allegation that the accused bashed him, maintaining this false allegation that the accused was a speed cook and a speed dealer, having never spoken to him again or seen him after the night he was bashed.
[107]
[69] Mr Henry submitted in his application to the judge for a re-direction that he had no complaint about the judge's warnings in relation to the informant witnesses but raised a concern about the prosecutor's emphasised comments (set out in the previous paragraph). He invited the judge to tell the jury that Willis and Higgins had a very clear reason to continue with false allegations, namely, that their indemnity would be at risk if they did not continue to make the allegations which the defence contended were false. The prosecutor contended that the judge's directions on the indemnity were clear. The judge observed that the indemnity had been read to the jury. He declined to give the re-direction sought.
[108]
[70] In context, the prosecutor's emphasised submission the subject of this ground of appeal was not a contention that there was no reason why the witnesses Willis and Higgins would continue to give their incriminating account. It was that there was no reason why they would have initially contacted police and made false allegations against Mr Fischer. The prosecutor's submission was not unfair. It did not require any re-direction or correction. The judge gave full and careful directions about the dangers of acting on the evidence of Willis and Higgins, the reasons for this danger, the need to approach the assessment of their evidence with caution and the need to scrutinise it carefully before acting on it. Later in the summing-up the judge repeated this warning. There is no suggestion these directions were inadequate. This ground of appeal also fails.
[109]
[71] In my view Mr Fischer has been unsuccessful on the seven grounds of appeal raised, but in case I am wrong in respect of any of those grounds, it is appropriate in this case that I consider whether, under s 668E(1A) Criminal Code, the appeal should be dismissed despite any error because no substantial miscarriage of justice has actually occurred.
[110]
[72] I have reviewed the evidence summarised earlier in these reasons. Mr Fischer's exculpatory testimony was bold but unconvincing. The evidence of Willis and Higgins required careful scrutiny but, in combination with the finding and location of the dismantled methylamphetamine laboratory on Mr Fischer's premises in June 2000, it amounted to a convincing case against him on each count. The evidence on counts 1 and 2 was particularly strong. I am satisfied that the evidence establishes Mr Fischer's guilt on each count beyond reasonable doubt. It follows that, even if I am wrong and Mr Henry has established some significant error of law on the part of the primary judge, no substantial miscarriage of justice has occurred in the jury's return of the guilty verdict: Weiss v The Queen.[19] This is not a case where, despite my satisfaction as to Mr Fischer's guilt on each count, there has been a significant denial of procedural fairness requiring the allowing of the appeal and the ordering of a new trial.[20]
[111]
[73] It follows that the appeal against conviction must be dismissed.
[112]
The application for leave to appeal against sentence
[113]
[74] Mr Fischer's ten year sentence on count 1 automatically invoked under s 161B Penalties and Sentences Act 1992 (Qld) a declaration that he had been convicted of a serious violent offence. That has the effect that he must serve 80 per cent of that ten year sentence before becoming eligible to apply for parole. He contends his sentence was manifestly excessive; that the judge erred in having regard to the fact that Willis and Higgins had to be placed on a witness protection program; and that the judge erred in concluding and in having regard to the fact that Mr Fischer's offending behaviour was associated with the alleged fortification of his house, the presence of weaponry and his membership of the Rebels Motorcycle Club.
[114]
[75] Mr Fischer was aged between 31 and 34 at the time of the offences and 36 at sentence. He had some criminal history. The first relevant conviction was in 1992 when he was convicted and fined $600 on two counts of possession of a dangerous drug. In 1997 he was fined $225 without conviction for possession of a dangerous drug. Later that year he was convicted and fined $300 for possession of a weapon (knuckle duster) whilst not being the holder of a licence. In May 2000 he was convicted and fined $1,150 for weapons offences. In October 2000 he was convicted and fined for street offences (behaving in a disorderly manner and obscene language in a public place).
[115]
[76] Thirty-nine days of pre-sentence custody was declared as time already served under the sentence.
[116]
[77] The prosecutor emphasised that Mr Fischer had been released on bail in respect of count 2 in June 2000. He then fully re-equipped himself, continued to cook and traffick in methylamphetamine, committing count 3 and continuing to commit count 1 whilst on bail both for count 2 and his May 2000 weapons offences. His involvement in the present offences was commercial; he was not an addict but a recreational user. He was at the top of the chain in cooking and trafficking in methylamphetamine. His possession of the rifle and ammunition showed a preparedness to use violence to protect his business. He did not cooperate with the administration of justice. He took advantage of Willis's emotional and mental problems and involved him in the production of speed. He used his presidency of the Rebels Motorcycle Club to facilitate his cooking and trafficking in methylamphetamine. On his own admission, that club was prepared to sort out disputes by violence where necessary. He importuned Willis to plead guilty to an offence he did not commit. Mr Fischer's involvement in the business of trafficking was at a large scale. He boasted to Higgins that he had made $500,000 from it. He cooked at several locations in the Cairns area and he continued to do this after police initially stopped his operation. He was not working legitimately for much of the period of the trafficking and he lived off money received from his trafficking business. Higgins evidence was that Mr Fischer charged $250 a gram for the methylamphetamine so that he would have made between 25 to 250 grams per cook, producing an income of between $6,250 and $62,500 without "cutting" the drug produced. The street price was 20 to 30 per cent higher than this. Mr Fischer's $500,000 boast to Higgins was realistic. The prosecutor relied on a number of sentences said to be comparable, including R v Geary,[21] to support his submission that a sentence of between ten to 12 years imprisonment on count 1 was appropriate.
[117]
[78] Mr Henry set out details of Mr Fischer's background emphasising his solid work history, despite some significant physical problems. He tendered favourable work references on Mr Fischer's behalf. He submitted that Mr Fischer has been a loving and supportive partner and a good provider for her child who has a severe disability (Down's Syndrome). Mr Fischer had the support of his mother who attended the trial with him. There has been significant delay since Mr Fischer was charged with counts 1 and 3 in the determination of the charges. This has not been through any fault of his. He has ended his association with the Rebels Motorcycle Club and there is no suggestion of any ongoing lawlessness or criminal behaviour. There was no evidence that Mr Fischer had ever used the rifle in the drug trafficking business. Mr Henry submitted that this case involved a level of criminality less than in Geary and more akin to that in R v Witherspoon[22] and R v O'Connor.[23] Mr Henry submitted, as he does in this Court, that a sentence of seven and a half years to eight years imprisonment without a declaration under Pt 9APenalties and Sentences Act was the appropriate sentence on count 1 with lesser concurrent sentences on counts 2 and 3.
[118]
[79] The experienced trial judge adjourned for a time to consider his decision. In delivering his reasons before imposing sentence, his Honour noted that the drug was classified as a Schedule 1 drug in September 2000 but Mr Fischer must be sentenced on the basis of trafficking in and producing a Schedule 2 drug where the maximum penalty was 20 years imprisonment for trafficking and aggravated production and 15 years for production simpliciter (count 3). His Honour observed that:
[119]
"... [methylamphetamine's] harmful effects to users and to the community generally ... were well known at this time.
...
During the period of this criminal offending you were the President of the Cairns chapter of the Rebels Motorcycle Club. The connection of motorcycle clubs of this kind and this particular drug are featured in many cases coming before the Courts in Australia. Presumably, club membership provides a ready supply of persons who are prepared to engage in illegal activities surrounding this drug, and who can be disciplined for any breach of so-called honour codes by which secrecy is achieved.
In your case the drug was supplied to members of the club in Cairns, you involved other members of the club in the production of the drug, and I am satisfied that you used the witness Willis to cover your tracks when methylamphetamine was found at the Harvey Creek Road premises where you were residing."
[120]
[80] His Honour noted that scientist, Mr Vallely, opined that between 25 grams and 250 grams of pure methylamphetamine could have been produced from one process using the Pine Creek Road illegal laboratory. His Honour accepted Willis's evidence that Mr Fischer engaged in production on a regular basis after the equipment was seized by police in June 2000, probably on a monthly basis, although the quantities manufactured from that time were smaller than before. His Honour added:
[121]
"You undertook the activities initially at your residence at Pine Creek Road which I find that you had fortified by the erection of a high fence with barbed wire above it, where you had on hand firearms and ammunition of various kinds."
[122]
[81] The judge observed that Mr Fischer's illegal activity continued after his arrest in June 2000 whilst he was on bail for count 2:
[123]
"Indeed, your activities in this period may not have been found out except for your falling out with Willis, who has since had to be placed on a protected witness program as also was another witness."
[124]
[82] His Honour noted that the delay in bringing this matter to trial was a matter entitling Mr Fischer to some consideration. During that time he had met the daily reporting conditions of his bail order and no doubt this caused him significant inconvenience. His Honour also took into account Mr Fischer's stable marital relationship and the care he had provided for his partner's child for over ten years. His Honour referred to Mr Fischer's work history and employer references. His Honour inferred that Mr Fischer sold the drug he produced for profit. His Honour considered that Witherspoon and O'Connor were less serious examples of drug trafficking and this case was closer to Geary. After noting Mr Fischer's criminal history and expressing concern at the level of criminal activity involved in these offences, the scale of production, its consequences and that Mr Fischer was a regular supplier of the drugs to others, the judge considered the sentencing range was between ten and 12 years imprisonment. His Honour reduced the sentence he would have otherwise imposed to ten years imprisonment because of the mitigating features. As noted, lesser concurrent sentences of nine years and eight years respectively were imposed for counts 2 and 3 and a declaration was made as to the time spent in pre-sentence custody.
[125]
[83] His Honour's reference to the placement of Willis and Higgins on a protected witness program does not seem to have been a significant factor in influencing his Honour's ultimate determination of the appropriate penalty. I am not persuaded that his Honour's reference to this was anything more than providing background detail and the flavour of the case. In any case, his Honour was entitled to give it some consideration in view of s 9(4)Penalties and Sentences Act especially sub-s (a), (b) and (k). The judge was also entitled to take into account Mr Fischer's secreted SKK assault rifle and ammunition and the fortification of Mr Fischer's house during the offending period, even though it seems this fortification was effected before the offending period, as supporting his Honour's conclusion that Mr Fischer was involved in the production and trafficking of methylamphetamine on a reasonably significant scale: see s 9(4), especially s 9(4)(d), (e) and (k). I am not persuaded his Honour placed any undue emphasis on these facts.
[126]
[84] The real question for determination in this case is whether the sentence on count 1 was manifestly excessive. In answering the question, it is useful to refer to the cases relied on by the parties as comparable. In O'Connor, the applicant was sentenced to seven and a half years imprisonment for trafficking in methylamphetamine. The trafficking involved eight counts of supplying more than 100 grams of powder containing 35 grams of pure methylamphetamine sold for a sum of $13,600. He was about 50 years old with no relevant prior criminal history and committed the offences for commercial gain. He was convicted after a trial. This Court described the sentence as well within range.
[127]
[85] In Witherspoon, the applicant, unlike Mr Fischer, pleaded guilty to trafficking in amphetamines and to a series of other drug-related offences which were particulars of the trafficking and also related to the drugs heroin, cocaine, lycergide, THC, morphine and MDMA. He pleaded guilty to five further counts of possession of property derived from or used in connection with drug offences and to a number of summary offences. The trafficking extended over 11 months. There was a smorgasbord of drugs but the quantities were relatively small. The largest amounts were 9.7 grams of methylamphetamine and 2.2 grams of heroin. The total cash found in his possession during various searches of his premises was over $75,000. He admitted selling drugs to a group of friends. He was sentenced to seven years and nine months imprisonment with a recommendation for post-prison community-based release after three years. The judge reduced the head sentence by three months to take into account a period spent in custody which could not be the subject of a declaration. Witherspoon had made significant efforts to rehabilitate himself. He had two previous appearances for drug offences and had convictions for offences of dishonesty. These offences were committed during the operational period of a two year suspended sentence for stealing as a servant and fraud. This Court did not consider the sentence was manifestly excessive, particularly as it was a global sentence for not only the trafficking and drug offences but also for a breach of the suspended sentence which was activated concurrently. The recommendation for parole adequately reflected the mitigating circumstances.
[128]
[86] In Geary, the applicant was convicted after a jury trial of unlawfully trafficking in cannabis, methylamphetamine, lycergide and THC and of unlawfully producing methylamphetamine in a quantity in excess of two grams, possession of methylamphetamine in excess of two grams and possession of lycergide in excess of .004 grams. He was sentenced to 12 years imprisonment in respect of the trafficking charge and the production charge with the circumstance of aggravation. The maximum penalty was, as in Mr Fischer's case, 20 years imprisonment. The trafficking concerned large quantities of methylamphetamine over a lengthy period of time (almost four years). Geary controlled the operation of the manufacture of methylamphetamine which was capable of producing significant quantities of the drug. He was motivated by financial gain. He continued carrying on the drug trade when he was on bail for other offences. He had previous convictions in 1993, 1995, 1998 and 1999 for drug-related offences. He was a wholesaler of methylamphetamine and was significantly involved in its large scale production. Because of some errors in the original sentencing judge's approach, this Court re-exercised its sentencing discretion and imposed ten years imprisonment for the offence of trafficking with a concurrent sentence of eight years for the offences of production of methylamphetamine with a circumstance of aggravation.
[129]
[87] Mr Fischer was a mature man with previous convictions for drug and weapons offences. The judge inferred, as he was entitled to do on the evidence at trial, that Mr Fischer was involved in the large scale manufacture and trafficking of methylamphetamine for commercial gain, more akin to the criminality reflected in Geary rather than Witherspoon or O'Connor. The trafficking occurred over a two year period. He did not cooperate with the administration of justice. He continued to offend whilst on bail. He showed no remorse. The delay in the determination of the case against him, his sound work history, good employment references, loyal support of his partner and her child, and lack of recent offending, were factors in his favour. As the primary judge recognised, it was necessary to sentence him on the basis that he had trafficked and produced a Schedule 2 drug so that the maximum penalty in respect of count 1 and 2 was 20 years imprisonment and in respect of count 3, 15 years imprisonment. The sentence imposed of ten years imprisonment on count 1 appropriately also reflects the criminality of counts 2 and 3. The sentence is supported by Geary as within the appropriate range, even taking into account the mitigating circumstances. The application for leave to appeal against sentence should be refused.
[130]
2. Application for leave to appeal against sentence refused.
[131]
[88] HELMAN J: I agree with the orders proposed by the President and with her reasons.
[132]
[89] PHILIPPIDES JA: I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused for the reasons given by McMurdo P.
What possible reason could he have to all of a sudden just make all of this up and then continue on with this false story to see his best friend, an innocent man, convicted, a man who did everything he could to help him?
You might think that Willis was telling the truth when he said that he just wanted out of that scene altogether, he didn't care what happened to him, as long as he lived through it. What a coincidence that Higgins just seems to make up the same false story about the bashing and the speed dealing. You know he actually was there for whatever happened. You know he did lie to the police, he says, because he was loyal to the accused then. He did lie to the police initially because he said he was asleep but on any version that's not the case. He actually was there for whatever happened.
Talking about two men, Higgins and Willis, who haven't seen each other for four years since the night of the assault, yet still making up this same pack of lies. Do you really believe that? " (errors in the original_; my emphasis_)