R v Geary [2002] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION: R v Geary [2002] QCA 33

PARTIES: R v GEARY, Maxwell Patrick (applicant / appellant)

FILE NO/S: CA No 241 of 2001 / SC No 321 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: Supreme Court at Cairns

DELIVERED ON: 22 February 2002

DELIVERED AT: Brisbane

HEARING DATE: 8 February 2002

JUDGES: de Jersey CJ, McPherson and Williams JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: With respect to count 4 on the indictment, quash the conviction to the extent quashing the conviction with a circumstance of aggravation, but confirm the conviction for producing the dangerous drug Methylamphetamine;Appeal against convictions otherwise dismissed;Grant leave to appeal against sentence, set aside the sentence imposed with respect to the offences of trafficking in a dangerous drug and production of a dangerous drug, and in lieu thereof order that on the trafficking charge the appellant be sentenced to imprisonment for a period of 10 years, and on the production charge be sentenced to imprisonment for a period of 8 years. The sentences are to be served concurrently. There should be a declaration that a period of pre-sentence custody between 16 December 1999 and 22 December 1999 and between 10 August 2001 and 23 August 2001, a total of 19 days, be regarded as part satisfaction of that penalty.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – CULTIVATION - TRAFFICKING – OTHER MATTERS – whether the learned trial judge erred in accepting the indictment which alleged trafficking in various drugs listed in both Schedule 1 and Schedule 2 of the Drugs Misuse Act 1986 – whether the learned trial judge erred when addressing the jury when taking their verdict that it was sufficient to prove trafficking in any one of the drugs referred to in the charge. / CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – DRUG OFFENCES - where charges relate to both Schedule 1 and Schedule 2 drugs - whether need for a special verdict – Sentencing judge may rely on section 132C of the Evidence Act in order to determine which drugs were involved in the trafficking – where a “circumstance of aggravation” had to be charged in the indictment and specifically proven. / CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES – FINAL ADDRESS OF COUNSEL FOR CROWN - GENERALLY – whether a Crown Prosecutor may not in his final address to the jury deal with issues of credit including whether witnesses had possible motives to lie. / CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – SUMMING UP – whether learned trial judge erred in directing jury regarding the accused’s failure to call evidence when in fact witnesses were non-compellable – whether such a direction caused a miscarriage of justice / CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – PENALTIES – PRODUCING OR CULTIVATING – where circumstance of aggravation required evidence of the actual quantity of the drug to exceed the prescribed amount. / CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – consideration of R v Walton CA No 257 of 1989, R v Corrigan [2001] QCA 251, R v Everett [1999] QCA 14 as comparable sentences. The appellant was sentenced to imprisonment for a period of 10 years for trafficking in a dangerous drug and for a period of 8 years for the production of a dangerous drug with the sentences to be served concurrently. / Criminal Code (Qld) / Drugs Misuse Act 1986 (Qld) / Evidence Act 1977 (Qld) / R v Griffin CA No 171 of 1984, considered / Jones v Dunkel (1959) 101 CLR 298, distinguished / Palmer v The Queen (1998)193 CLR 1, distinguished / R v Antipas [1999] QCA 168;CA No 17 of 1999, 14 May 1999 / R v Boyd [2001] QCA 421; CA No 134, 3 October 2001, followed / R v Brennan [1998]] QCA 163; CA No 99 of 1998, 26 June 1998, followed / R v Buckland [1977] 2 NSWLR 452, followed / R v Corrigan [2001] QCA 251; CA No 272 of 2000, 29 June 2001, considered / R v Everett [1999] QCA 14; CA No 311 of 1998, 5 February 1999, considered / R v Festa [2001] 76 ALJR 291, considered / R v Jacobs [1998] 1 QdR 96, followed / R v Morrison [1999] 1 QdR 397, considered / R v P.L.K [1999] 3 VR 567, considered / R v Reddell [2001] QCA 515; CA No 286 of 2001, 16 November 2001, considered / R v Scott [2000] 112 A Crim R 543, followed / R v Uhrig Court of Criminal Appeal (NSW), No 60200 of 1996, 24 October 1996, considered / R v Walton CA No 257 of 1989, considered / R v Weatherall [2001] QCA 435; CA No 94 of 2001, 12 October 2001, followed / R v Zreika [2001] NSWCCA 57, followed / RPS v The Queen (2000) 199 CLR 620, followed

COUNSEL: T D Martin SC with G Lynham for the appellant / L J Clare for the respondent

SOLICITORS: Spina Kyle Waldon for the appellant / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with those reasons and with the orders his Honour proposes.

McPHERSON JA: I agree with the reasons of Williams JA for dismissing this appeal against conviction. I also agree with the order proposed by his Honour for disposing of the application for leave to appeal against sentence.

WILLIAMS JA: The appellant stood trial in the Supreme Court at Cairns on 4 charges as follows:

between the first day of January 1996 and the 17th day of December 1999 at Mission Beach and elsewhere . . . [he] carried on the business of unlawfully trafficking in the dangerous drug Cannabis Sativa, Methylamphetamine, Lysergide and Tetrahydrocannabinol;

between the first day of September 1998 and the 20th day of November 1998 and Mission Beach and elsewhere . . . [he] unlawfully produced the dangerous drug Methylamphetamine, and the quantity of the said dangerous drug exceeded 2 grams;

on the 5th day of April 1999 at Miriwinni . . . [he] unlawfully had possession of the dangerous drug Methylamphetamine and that the quantity of the said dangerous drug exceeded 2 grams;

on the day unknown between 24th day of May 1998 and the 7th day of January 1999 at Mission Beach . . . [he] unlawfully had possession of the dangerous drug Lysergide and the quantity of the said dangerous drug exceeded 0.004 grams.

It should also be noted that he was jointly tried with one Glindemann who was charged (1) with unlawful trafficking in Cannabis Sativa, (2) with unlawful trafficking in Cannabis Sativa, Methylamphetamine and Tetrahydrocannabinol and (3) jointly with the appellant with respect to the production charge set out in paragraph (ii) above. After addresses had been completed and immediately before the summing-up commenced a nolle prosequi was entered with respect to the production charge against Glindemann. The jury returned verdicts of not-guilty with respect to each of the trafficking charges against that accused.

So far as the appellant was concerned he was convicted of the charges set out in (i) and (ii), but acquitted of the other two charges. When taking the verdict on the trafficking charge the Associate questioned the jury as follows:

“How do you find the accused, Maxwell Patrick Geary, guilty or not guilty of the offence of count 1 that between the first day of January 1996 and the 17th of December 1999 he carried on the business of unlawfully trafficking in a dangerous drug?.”

The response from the jury was “guilty”.

The notice of appeal as filed specified four grounds of appeal but they were abandoned at the outset of the hearing; with leave of the court, the following grounds were substituted:

“1.The learned trial judge erred, in the circumstances of the case, when he allowed count 1 to go to the jury in the form that it did. [count 1 is that alleged in (i) above.]

The learned trial judge erred, when, in the circumstances of the case, he directed the jury that it was sufficient for the prosecution to prove trafficking in any one of the drugs referred to in count 1.

The learned trial judge erred by failing to take a special verdict from the jury.

The learned Crown Prosecutor erred when he made submissions to the jury which invited them to ask why witnesses would falsely implicate the appellant.

The learned trial judge erred when he failed to correct the submission referred to in ground 4, above.

The learned trial judge erred in allowing count 4 to go to the jury in the form that it did, and in the directions which were given on this count. [count 4 is that alleged in (ii) above.]

That the sentence is manifestly excessive.

The learned trial judge erred in giving a Jones v Dunkel direction against the appellant for his failure to call three witnesses in his defence.

The learned trial judge’s directions in relation to the appellant’s failure to call witnesses in his defence were erroneous, confusing and incomplete.”

Grounds 1, 2 and 3 essentially raise the same issue and can be dealt with together.

The trafficking charge was based on s 5 of the Drugs Misuse Act 1986. That section provides that a “person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime”. The maximum penalty for that offence varies according to the type of drug or drugs involved in the trafficking. If the dangerous drug is a thing specified in Schedule 1 the maximum penalty is 25 years imprisonment, if the dangerous drug is a thing specified in Schedule 2 the maximum penalty is 20 years imprisonment, and if the dangerous drug is a thing specified in Schedule 2A the maximum penalty is 5 years imprisonment. This Court in R v Jacobs [1998] 1 QdR 96 held that an indictment was not bad for duplicity, or otherwise defective in law, because it alleged trafficking in a variety of drugs some of which were things specified in Schedule 1 and others things specified in Schedule 2. That was the case here; at the relevant time Lysergide was listed in Schedule 1 and the other drugs in Schedule 2. Given the reasoning in Jacobs the learned trial judge did not err in allowing the trafficking charge to go to the jury in the form it was expressed in the indictment.

Jacobs was a conviction consequent upon a plea of guilty, but it can make no difference that the conviction in question was after a trial. (cf R v Antipas, CA 17 of 1999). As already noted the basic offence is trafficking in a dangerous drug, and the offence is committed regardless of the particular schedule in which the drug is specified and regardless of the variety of drugs involved. (Note also s 57(a) of the Drugs Misuse Act.) It follows that the question which was addressed to the jury when taking their verdict on the trafficking count was not inappropriate.

Given the definition of the offence and the reasoning in Jacobs it was not inappropriate for the learned trial judge to direct the jury that it was sufficient for the prosecution to prove trafficking in any one of the drugs referred to in the charge.

Counsel for the appellant sought to rely on the decision of the Court of Criminal Appeal in Griffin (CA 171 of 1984, 16 November 1984) where the court was concerned with a conviction for cultivation of marihuana where the cultivation had taken place in three separate lots, two large and one small. The jury was instructed that satisfaction that the accused cultivated the small lot was sufficient to justify a conviction. In the circumstances it was held that sentence should have been imposed on the basis of cultivation of the small lot only. Nothing in that case suggests that the verdict here should be quashed; however the decision does afford some guidance as to the proper approach to sentencing.

Of course, it is important to know what drugs were involved in the trafficking when it comes to sentence; as noted above the maximum penalty varies according to the specific dangerous drug involved. It is thus obvious that problems can arise where it is alleged that a variety of drugs were involved, some specified in Schedule 1, and some in Schedule 2. The problem is not an unfamiliar one to judges presiding at criminal trials; a similar problem arises, for example, where a jury returns a verdict of manslaughter which could be based either on an absence of intent to kill or on proven provocation. The difficulty confronting a judge in that situation and the ways the problem may be overcome are discussed in R v Morrison [1999] 1 QdR 397.

In some situations such as this it may well be appropriate for the court to take a special verdict pursuant to s 624 of the Criminal Code. However, this is not a situation where the trial has miscarried because such a verdict was not taken. No counsel asked that a special verdict in fact be taken.

Section 132C of the Evidence Act 1977 now provides for the fact finding procedure on sentencing. Relevantly that statutory provision provides that, where an allegation of fact is not admitted or is challenged, the sentencing judge “may act on the allegation if the judge . . . is satisfied on the balance of probabilities that the allegation is true.” The provision also provides that the degree of satisfaction varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Where appropriate, recourse could be had to that statutory provision in order to determine what dangerous drugs were involved in the trafficking. (cf R v Reddell [2001] QCA 515).

The prosecution case against the appellant on the trafficking charge was based almost entirely on the evidence of six indemnified witnesses who were buying or otherwise obtaining the drugs in question from the appellant. Most, if not all, of them were drug addicted. Whilst their evidence required careful scrutiny by the jury, there was, if their evidence was accepted, a substantial body of evidence capable of supporting a conviction at least on the basis that cannabis and Methylamphetamine were involved. The evidence of trafficking in Lysergide came from the witnesses Devlin, Hood and Brooks. The evidence from those three witnesses also provided the essential, if not the sole, evidence against the appellant of the commission of the offence alleged in the indictment of possessing Lysergide. As the jury acquitted on that count the reality is that the jury must also have had at least a reasonable doubt that the appellant was trafficking in Lysergide.

The Director of Public Prosecutions conceded that trafficking in Lysergide was a “circumstance of aggravation” as defined in s 1 of the Code (a circumstance rendering an offender liable to greater punishment) and therefore had to be charged in the indictment and specifically proved if it was to be relied upon. It was therefore conceded that, as the verdict here only related to trafficking in unspecified drugs (where on the evidence Schedule 1 and/or Schedule 2 drugs could have been involved) the appellant was not convicted of the relevant circumstance of aggravation, and that in consequence he had to be sentenced “for trafficking simpliciter”. I take that to mean that the respondent conceded the appellant should have been sentenced for an offence carrying as the maximum penalty 20 years imprisonment.

The real problem in this case arises because on sentencing the appellant the learned trial judge began his remarks by stating that the appellant had been found guilty by the jury of “trafficking in a number of drugs”. He then went on to say: “I accept that you were involved in the supply of Cannabis Sativa, Methylamphetamine, and Lysergide. . . . the important trafficking activity related to the supply in large quantities of the drug, Methylamphetamine. I accept that you were involved in the supply of that drug through 1998, and that towards the end of that year you have managed to have obtained supplies of a superior quality of that drug.” The observations with respect to the trafficking in Methylamphetamine were in accordance with the preponderance of the prosecution evidence.

At no stage did the learned trial judge advert to the consequences of the finding of not guilty on the charge of possessing Lysergide, nor did he advert to the conviction being for trafficking in unspecified dangerous drugs. It therefore appears to be the case that the appellant was sentenced on a wrong basis, namely that the circumstance of aggravation that a Schedule 1 drug had been involved in the trafficking was established by the jury verdict. It follows that the sentence imposed must at least be reviewed. Further consideration will be given to that later.

There is nothing in grounds 1, 2 and 3 requiring the trafficking conviction to be quashed.

I now to grounds 4 and 5 of the amended grounds of appeal.

As already noted the substantial evidence against the appellant came from indemnified witnesses who had been associated in some way with the appellant in his drug related activities. It was accepted that the defence mounted, not surprisingly, a detailed, strong attack on the credibility of those witnesses.

The following extracts from the address to the jury by counsel on behalf of the appellant indicate the nature of the attack directed at those witnesses:

“And you might think the case for the prosecution is dependent almost entirely on the evidence of the six indemnified witnesses – the big six, we might call them. . . . at the end of the day you might think whether or not you find him guilty of those offences is dependent on whether or not you accept their evidence. . . . Now, it wouldn’t come as any great surprise to you that my ultimate submission to you will be that in respect of all the charges, you simply would not be satisfied, on the nature of the evidence that has been placed before you and on the quality of that evidence, that Mr Geary is guilty of any of the offences. . . . The purpose, as I say, of a closing address is to persuade you to adopt a particular view. . . . When you compare it to the evidence of all these indemnified witnesses – these witnesses, you might think, have got every reason to lie, every reason to make up these allegations – and compare it with the other evidence that, as I indicate, I suggest to you, members of the jury, you may be more confident in accepting, that it just doesn’t stand up. . . . Because ultimately my submission to you will be that assessing the six witnesses for the Crown, you could not be satisfied beyond reasonable doubt that they were telling you the truth about anything other than their name. . . . So they were accomplices in this sense . . . that it has been the experience of courts in the past that evidence of accomplices is frequently unreliable; that in that case, you must approach their evidence with great scrutiny, you must approach it with great care. . . . in addition to that, of course, they are indemnified witnesses. . . . in other words, it might be what you call a ‘get out of gaol free card’. . . . So you might think that was a rather powerful inducement, a rather powerful reason for all these witnesses to start implicating people. . . . See really, that’s what it comes down to, members of the jury, that the effect of an indemnity gives witnesses such as these six that you heard here a very powerful reason, a very powerful inducement, to implicate people such as Pat Geary . . . . . . . . I’ve already covered with you the allegations on the whole are unspecified and, as I have suggested to you, very difficult to defend. That’s all they’ve had to do, that’s all they’ve had to do. They’ve got their indemnities, they’ve got their ‘get out of gaol free’ cards; get on with their lives, live up to their side of the bargain. You might think they’ve all got reasons to lie. If they had not implicated Mr Geary, they would not have been given indemnities, you might think, or letters of comfort.”

As one would expect the Crown Prosecutor responded to those contentions in his address to the jury; indeed, I would go so far as to say he would have been failing in his duty if he did not do so. It is not necessary to set out the whole of his response; the passage to which counsel for the appellant has taken exception in grounds 4 and 5 is the following:

“Ladies and gentleman, you might also want to ponder this issue. Why would it be necessary for any one of those witnesses to falsely implicate the man Pat Geary? You’ve heard their evidence. You’ve heard them mention a number of other people they were engaged in drug activity with. It would seem to be the case that they did involve or implicate other persons in drug trafficking. Why would it then be necessary for them to go to that extra step – that extra very long step of – falsely accusing a man who was not involved in drug dealing?

You see, members of the jury, people can do some strange things, but people rarely do things without a good reason.”

The contention of the appellant is that it was impermissible for the Crown Prosecutor to invite the jury to consider that “course of reasoning”. In his submission the quoted observations from the address of the Crown Prosecutor infringed the principle recognised in the decision of the High Court in Palmer v The Queen [1998] 193 CLR 1.

In my view the decision in Palmer is clearly distinguishable. The court there held that, during a trial for an offence of a sexual nature against a child, it was not permissible for the prosecutor to ask the accused in cross-examination whether he could suggest any reason why the complainant would invent allegations against him. An accused person’s belief as to what may be motivating the complainant could hardly be relevant to any issue at the trial, though in his dissenting judgment McHugh J forcibly pointed out the significance of a motive to lie in trials such as that. It is sufficient, though, for present purposes, to say that in the majority judgment (Brennan CJ, Gaudron and Gummow JJ) there is nothing said to suggest that a Crown Prosecutor may not in his final address to the jury deal with issues of credit, including making submissions with respect to whether or not a witness had a possible motive to lie. It is only in the reasons for judgment of Kirby J that one finds any support for the appellant’s contention in this case. At 43 he said:

“Neither by questions nor submissions, nor by judicial directions may it be suggested that an accused’s denial is undermined, and an accuser’s accusation strengthened, by the obvious fact that the accused has an interest in acquittal. The forbidden imputation about the accused’s motive to lie to secure acquittal has, as its counterpart, a prohibition on the investigation of the motivation, if known, of the accuser to lie, realising as the accuser must that this could result in the accused’s conviction and punishment.”

I can find no support in other authorities for that proposition if, as it appears, it extends to counsel’s addresses to a jury. It would be absurd, in my view, if defence counsel was entitled to brand crown witnesses as liars and the law not permit the prosecutor to explore the issue as to what motivation those witnesses might have to lie.

In that regard it should be noted that in Palmer the majority referred at 9-10 to passages from the judgment of Hunt CJ at CL in Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996) and in particular the following passage:

“What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case.”

That is also the position adopted now in Victoria: see R v P.L.K. [1999] 3 V.R. 567 at 572, 573 and 581.

In my view it was perfectly proper for the Crown Prosecutor to address the jury in the way in which he did. There was, in consequence, no requirement for the learned trial judge to correct anything that the Crown Prosecutor said in that regard.

It follows that grounds 4 and 5 have not been made out.

I turn now to grounds 8 and 9 of the amended grounds of appeal.

The appellant himself gave evidence denying any involvement in the drug trade, but no other evidence was called as part of his case. Against that background the learned trial judge made the following statements in the course of his summing up:

“In making an evaluation of Geary’s evidence you may also consider whether there were witnesses who might have been called on to support his version although you cannot speculate upon what the witnesses might have said.

To use the failure of Geary to call witnesses you would have to be satisfied first of all that there was a witness who – who saw or who heard some of the events of which the accused Geary has spoken. Secondly, you would need to know that the witness is available to give evidence in the sense that the witness’s absence has not been satisfactorily explained.

If you were satisfied about those two matters, (a) there was a witness who could say something useful and that the absence of the person has not been explained, you may infer that the witness’s evidence would not help Geary. And this, in turn, may lead you to attach less weight than you otherwise would to his evidence.

Even if you are satisfied about the availability of witnesses and the lack of explanation for a witness’s absence you are not bound to draw any inference adverse to Mr Geary.

It is really a matter of taking a commonsense view about the matter. Mr Geary’s wife may have given some relevant evidence about whether Ms Adam’s evidence is correct. She said she got the drugs from Mr Geary’s wife. She might have been able to give evidence about whether there was drugs in the house or in the shop. The witness Kennedy was present at the time the vehicle was apprehended on that Easter Monday, so was Mr Candow. . . . Again, Mr Geary gave evidence he didn’t know Kennedy’s whereabouts at the moment and he did not think Candow . . . would be willing to give evidence . . . of that matter.

The point of raising this is it’s a matter for you what commonsense view you take of the failure to call that evidence.”

It is conceded by counsel for the respondent that (it would appear unknown to the learned trial judge at the time) Kennedy and Candow had been charged with possession of Methylamphetamine on Easter Monday; that is the same possession charge the appellant was facing. In the circumstances neither of those persons was a compellable witness and each was entitled to claim privilege against incrimination. It is not unreasonable to assume that if either or both were called by either prosecution or defence at trial each would have put his own interest first and tended to deflect from himself any involvement in an offence.

It is immediately obvious in the light of those circumstances that no adverse inference could be drawn against the appellant from his failure to call either of those persons.

The position is much the same with respect to Mrs Geary. It was the prosecution which introduced evidence of Mrs Geary’s alleged involvement in the criminal activity of the appellant. It would be a reversal of onus to hold that an inference could be drawn against the appellant because he did not call his wife, who again was not a compellable witness and who could have claimed privilege against incrimination.

The High Court has held in RPS v The Queen (2000) 199 CLR 620, especially at 633 and 656, that the principle in Jones v Dunkel has no application in a criminal trial, certainly where the failure of an accused to call evidence is in question. As pointed out therein the operation of that principle with respect to an accused would seriously erode the presumption of innocence and the basic principle of the criminal law that it is for the prosecution to prove the charge beyond reasonable doubt. RPS was recently followed in this Court in R v Weatherall [2001] QCA 435. If further authority is needed reference can be made to R v Scott [2000] 112 ACrimR 543, R v Buckland [1977] 2 NSWLR 452, R v Zreika [2001] NSW CCA 57 and R v Brennan [1998] QCA 163.

Against that background I have come to the conclusion that the learned trial judge erred in directing the jury as he did. The question then becomes whether or not the misdirection occasioned a substantial miscarriage of justice or whether this would be an appropriate case in which to apply the proviso (s 668E of the Code). The scope of operation of the proviso has recently been reconsidered by the High Court on appeal from this Court in Festa [2001] 76 ALJR 291.

Any evidence which could have been given by Kennedy and Candow would only have related to the charge of possessing Methylamphetamine. The jury acquitted the appellant of that charge. It is therefore difficult to see how the direction in question could have adversely affected the appellant. It was submitted on behalf of the appellant that the direction impacted adversely against the appellant’s credit generally but that is not borne out by a consideration of the summing up as a whole. This was a relatively minor issue in the context of the summing up as a whole.

Much the same can be said of the directions in so far as they dealt with Mrs Geary. The evidence from Adams was that on one occasion the appellant left a message with her to get in touch with his wife. Adams did so, went to the appellant’s house, and Mrs Geary handed her a canister containing drugs. The appellant gave evidence that he knew the witness Adams but had nothing to do with her and never sold her drugs. The alleged involvement of Mrs Geary was but a very small issue in the totality of the trafficking case against the appellant.

On the basis that the directions in question were erroneous and misleading, I have come to the conclusion that nevertheless no substantial miscarriage of justice was occasioned thereby and that in the circumstances the proviso applies.

It follows that neither ground 8 nor ground 9 has been made out.

I now turn to ground 6 of the amended grounds of appeal which relates to the charge that the appellant produced Methylamphetamine.

The prosecution case did not establish actual production by the appellant, rather the evidence established an offence given the extended definition of “produce” found in s 4 of the Drugs Misuse Act. By that definition the doing of any act preparatory to or for the purpose of production is deemed to constitute production. Here the prosecution evidence was that the appellant provided the witnesses Quinlan and Hood with substantial sums of money to enable them to shop for Sudafed tablets throughout North Queensland. The amount of money involved, and the quantity of Sudafed actually purchased, was such that a substantial quantity of Methylamphetamine could have been produced. There was then evidence that substantial quantities of Methylamphetamine were supplied by the appellant to others. A chemist was also called by the prosecution to prove that a large amount of Methylamphetamine, well in excess of 2 grams, could have been produced from the amount of Sudafed acquired by the women.

These grounds do not challenge the conviction for the basic offence of producing Methylamphetamine. The question is whether or not there was evidence entitling the jury to find beyond reasonable doubt that a quantity in excess of 2 grams was produced by the appellant.

This Court in Boyd [2001] QCA 421 held that the relevant circumstance of aggravation could only be established where there was evidence that the actual quantity of the drug produced exceeded the prescribed amount. There, as here, the evidence indicated that if all went well with the production process more than 2 grams could have been produced, but there was no evidence as to what in fact had been produced.

In a case such as this the appellant may well have had alternative sources of supply of Methylamphetamine and one cannot necessarily infer from his being in possession of or trading in large quantities that he actually produced a quantity exceeding 2 grams. But, as observed in Boyd, possession of substances and things capable of producing a large quantity of Methylamphetamine indicates the degree of criminality involved in committing the basic offence of production. The maximum penalty for production without the circumstance of aggravation at the time was 15 years, and with the circumstance of aggravation 20 years.

There is no doubt that the acquisition of extremely large quantities of Sudafed in the circumstances of this case indicated a high degree of criminality notwithstanding the evidence did not establish the circumstance of aggravation.

As was the case in Boyd, the conviction on this count should stand, but the circumstance of aggravation should be quashed.

The sentence of 12 years imprisonment imposed by the learned sentencing judge was with respect to both the trafficking charge and the production charge. For the reasons given above there were errors in the approach of the learned sentencing judge in that on the trafficking count he wrongly acted on the basis that Lysergide was involved, and on the production charge sentenced on the basis that the circumstance of aggravation had been properly established. Because of those considerations the sentence imposed should be set aside.

Given the above reasoning the appellant is to be sentenced for significant trafficking in a dangerous drug, mainly Methylamphetamine, and production of Methylamphetamine where the resources available to the appellant were capable of producing a substantial quantity of that drug.

This Court is in as good a position as the judge at first instance to impose sentence; remitting the matter to the original sentencing judge for reconsideration would involve an unnecessary waste of time and resources.

At the time of imposing the original sentence the following observations, which are still material, were made by the sentencing judge:

the principal trafficking activity was with respect to large quantities of Methylamphetamine over a lengthy period of time;

the appellant was aware of the addiction of those to whom he was a major supplier and was aware of the great harm that was being done to them;

the appellant controlled the operation of the manufacture of Methylamphetamine which operation was capable of producing significant quantities of that drug;

the appellant was motivated by capital gain;

the appellant continued carrying on the drug trade when he was on bail for other offences;

the appellant displayed a total disregard for the law;

the appellant had previous convictions in 1993, 1995, 1998 and 1999 for drug related offences.

On the evidence the appellant stood to be sentenced as a wholesaler of Methylamphetamine. He was also significantly involved in the production of large quantities of that drug.

The learned sentencing judge indicated that the case which gave him most guidance was the decision of the court of Criminal Appeal in Walton (CA 257 of 1989, judgment 20 November 1989). The court was there concerned with what was described as “a carefully researched and organised exercise in the production of amphetamine”. The trafficking charge was based on evidence that the accused personally organised the traffic in amphetamine and supplied it when in possession of it. The court considered a sentence in the range 14 to 15 years imprisonment was appropriate but that was reduced to 10 years imprisonment primarily because of the plea of guilty.

This Court in Corrigan [2001] QCA 251 reduced the sentence from 8 years imprisonment to 7 years imprisonment with parole after 3 years for offences of trafficking in Methylamphetamine and producing that drug. It should be noted that those sentences were cumulative on another sentence then being served.

This Court did not interfere with a sentence of 9 years imprisonment with eligibility for parole after serving 3 ½ years imposed in Everett (CA 311 of 1998, judgment 5 February 1999); that case involved selling Methylamphetamine over a 6 month period and significant sums of money were involved.

Taking into account those comparable sentences, and all that has been said in these reasons about the offences in question, I am of the opinion that a sentence of 10 years imprisonment was called for with respect to the trafficking with a concurrent sentence of 8 years for the production of Methylamphetamine. This was an instance of trafficking primarily in Methylamphetamine in substantial quantities over a lengthy period of time. The appellant was also involved in obtaining the ingredients necessary to produce significant quantities of that drug. The conduct was entirely for commercial gain and carried out in circumstances where the appellant knew, or ought to have known, of the harm his conduct was having on others. He showed no remorse because he continued committing the offence whilst on bail.

The declaration with respect to time spent in custody before sentence should stand.

The orders of the court should therefore be:

With respect to count 4 on the indictment, quash the conviction to the extent quashing the conviction with a circumstance of aggravation, but confirm the conviction for producing the dangerous drug Methylamphetamine;

Appeal against convictions otherwise dismissed;

Grant leave to appeal against sentence, set aside the sentence imposed with respect to the offences of trafficking in a dangerous drug and production of a dangerous drug, and in lieu thereof order that on the trafficking charge the appellant be sentenced to imprisonment for a period of 10 years, and on the production charge be sentenced to imprisonment for a period of 8 years. The sentences are to be served concurrently. There should be a declaration that a period of pre-sentence custody between 16 December 1999 and 22 December 1999 and between 10 August 2001 and 23 August 2001, a total of 19 days, be regarded as part satisfaction of that penalty.