R v Harms [2000] QCA 419

Director of Public Prosecutions (Queensland) for the respondent

**[1] McPHERSON JA: The appellant was convicted after a trial in the Supreme Court of a single count of attempted murder, and was sentenced to imprisonment for nine years and six months.

[2] The evidence at trial disclosed that the appellant, assisted by one Laing, was a dealer in amphetamines from the appellant's house in East Ipswich, where the drugs were kept in a safe in his bedroom beside the bed under which he kept a sawnoff .22 calibre firearm. Laing and a woman named Cecily Stafford were also living in the house at that time. The evidence at trial revealed that the appellant was in charge of the drug transactions taking place there. He is a man who was 50 years of age at the time. Laing was 19 years old.

[3] Early in the morning of Sunday 15 February 1998 the appellant was at home in the house in the company of a number of drug users, of whom several gave evidence at the trial. One of those present was Norman Fisher, who was later to become the target of the attempted murder. At 6.00 am Fisher made a telephone call to the police to inquire about the safety of his mother. The fact that he had made a call to the police was communicated to Laing, who wrongly formed the impression that Fisher was a "dog" or police informant. Laing discussed Fisher's action with the appellant and recommended that Fisher be got rid of. The appellant agreed with this proposal and said it should be done at an old mine at Redbank Plains. In the appellant's presence, Laing took the gun from under the bed and loaded it.

[4] Laing drove off in a car he had stolen earlier on the Saturday night. To induce Fisher to come with him, he said he wanted the car cleaned of fingerprints and Fisher went with him in the car. The appellant arranged for Cecily Stafford to follow them in another car in order to collect Laing after he had shot Fisher. Her account was that the appellant had been very angry when he heard of Fisher's call to the police, and told her (Stafford) to follow the car in which Laing and Fisher were travelling, wait for a bang, and then drive Laing back to the house. She followed them in the car she was driving, but they travelled too fast for her to keep up with them.

[5] Laing took Fisher to the mine site, and told him to wipe the inside of the car. He was sitting in the front, when Laing shot him at close range intending to kill him. The bullet struck Fisher in the face fracturing his jaw and scattering teeth around the car. Laing fled the scene on foot. On the way back, he telephoned the appellant, who said he would come and pick him up, but he never did so. Fisher had meanwhile succeeded in finding someone to give him a lift back to the appellant's house. On his return, he found the appellant and others burning papers from the house.

[6] Eventually Laing also came back to the house, and the rifle was buried in the ground under or near a shed, where the police later found it. The appellant and Laing came together and concocted a story about Fisher having been shot by the owners of a drug crop. The appellant gave him $150.00. At the appellant's trial, Laing gave evidence for the Crown in which he recounted the events of that night and the early morning.

[7] Two grounds of appeal are relied on to set aside the conviction. Both relate to the admission of evidence at the trial. The first is that, in giving evidence for the prosecution, Stafford was asked in cross-examination about her testimony in chief at the trial that the appellant was engaged in drug dealing at the house. She was asked why she did not report or say anything about it. Her answer was that she had been told by the appellant that, if she ever said anything about it, he would kill her. Naturally enough, no objection to this evidence was taken by Mr Smid, who appeared for the appellant at trial and who asked the question leading to that answer. However, his Honour, after sending the jury out and hearing submissions, ruled that the evidence was inadmissible and he told the jury to ignore it. It is now submitted that the jury would not have been capable of doing so, and would have been fatally prejudiced by having heard that evidence.

[8] Contrary to his Honour's ruling, I am disposed to consider that the evidence was admissible. It disclosed an existing attitude or state of mind of the appellant toward those who informed on the activities in the house. If the threat ascribed to him by Stafford had been made against Fisher instead of to Stafford herself, it would plainly have been admissible against the appellant. As it was, it was evidence against the appellant of the fate likely to befall someone who betrayed his drug selling activities, and as such it was a circumstance on which the jury were entitled to act in concluding that the appellant was, for that and other reasons, a participant in a conspiracy with Laing to kill Fisher. On this view of it, his Honour's ruling was unduly favourable to the appellant. Quite apart from that, however, there is no reason at all to assume that the jury disregarded his Honour's direction to take no notice of that evidence.

[9] The other item of evidence complained of was Laing's testimony in the prosecution case at the trial that, on returning to the house, someone there had told him that "Colin" (i e the appellant) wanted the rifle to be hidden. That was why it was buried. No objection to this evidence was taken by counsel for the appellant; but, once again, the learned trial judge ruled it to be inadmissible and told the jury to put it out of their minds. It is not suggested that his Honour was wrong in doing so, and no application was made, either then or later, to discharge the jury. I am not persuaded that the admission of the evidence was fatal to the integrity of the trial having regard to the judge's direction to the jury to ignore it. The matter is one that fairly comes within the scope of the proviso that is now s 668E(1A) of the Criminal Code.

[10] Neither of these grounds is sufficient to justify setting aside the verdict or conviction. The evidence against the appellant, who gave evidence denying any connection with the drug selling activities at the house, was overwhelming.

[11] There was also an application for leave to appeal against sentence; but, at the hearing of the appeal, counsel for the appellant said that it would not be pursued.

[12] Both the appeal against conviction and the application for leave to appeal against sentence should be dismissed.

[13] DAVIES JA: I have had the advantage of reading the reasons for judgment of McPherson JA. I agree with him that this appeal must be dismissed and, with one reservation, with his Honour's reasons.

[14] In respect of each of the pieces of evidence the admission of which the appellant contended justified setting aside the verdict, the learned trial judge held it to be inadmissible and directed the jury, in the clearest terms, to put it out of their minds. Before this Court the respondent conceded that each of these pieces of evidence was inadmissible but contended nevertheless that there had been no substantial miscarriage of justice in consequence of what had occurred. In view of that concession and the fact that, in any event, this appeal must be dismissed, I would not be inclined to consider whether, contrary to his Honour's ruling, either of these pieces of evidence was admissible.

[15] This Court must proceed generally on the assumption that juries understand and follow directions given by trial judges: Gilbert v The Queen (2000) 74 ALJR 676 at [13], [31] and [32]. There is no reason why that general rule should not apply here. I agree with McPherson JA that otherwise the evidence against the appellant was overwhelming. Moreover the evidence the subject of this appeal added little to that overwhelming case and, as I have already mentioned, the learned trial judge's direction to ignore that evidence was in the clearest possible terms.

[16] MACKENZIE J: The essential facts of the matter are set out in the reasons for judgment of McPherson JA.

[17] Both grounds of appeal against conviction are concerned with evidence given by prosecution witnesses who were associates of the appellant. The background against which they gave their evidence was that the appellant was a person who dealt in drugs and that he was involved in a plan to kill the complainant who was mistakenly believed to be a police informant.

[18] The first piece of evidence complained of was given by Cecily Oerton-Stafford in cross-examination by the appellant's counsel. She replied, to a question why she had not reported or said anything about the accused dealing in drugs, that she had not done so because the appellant had told her he would kill her if she did so. The learned trial judge intervened and, after discussions with counsel, ruled that the evidence was inadmissible. He subsequently told the jury to ignore it.

[19] The prosecution was prepared to argue the appeal on the basis that the ruling was correct, notwithstanding that the contrary may be arguable. Even on the basis of the prosecution's concession, I am satisfied that there is no reason to apprehend that the jury may have disregarded the learned trial judge's explicit direction. Given the nature of the prosecution case, the evidence complained of did not in my opinion lead to a miscarriage of justice. (Maric v The Queen (1978) 20 ALR 513; R v Webb and Hay (1992) 59 SASR 563, 578; Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41).

[20] The second matter complained of concerns evidence that after Laing, the person who attempted to shoot the complainant dead, returned to the appellant's house, someone told him that the appellant wanted the firearm hidden. Since Laing did not identify the person who told him that, direct evidence could not be called of what the appellant said.

[21] The learned trial judge again intervened, and told the jury to put the evidence out of their minds as it was hearsay. It was submitted that his inclusion in that direction of the comment that it might be difficult to do so would have had the effect, contrary to the direction, of focussing the jury's attention on the evidence even more.

[22] While the evidence was inadmissible and had some prejudicial tendency, experienced counsel did not seek to have the jury discharged. The question then is whether there was no substantial miscarriage of justice even though the evidence went before the jury.

[23] In my opinion, the learned trial judge's direction was appropriate, and there is no reason to suppose that the jury ignored it. Given the nature of the prosecution case, I am satisfied that no miscarriage of justice occurred.

[24] The appeal against conviction should therefore be dismissed. Since the appellant's counsel indicated, with justification, that he would not argue that the sentence was manifestly excessive, the application for leave to appeal against sentence should also be refused.**