R v Huisman & Shiells [1999] VSCA 170

Court of Appeal (Vic)|1999-10-21|Before: PHILLIPS, C.J., CHARLES and BUCHANAN, J.A.

CRIMINAL LAW - Trafficking in amphetamine - Circumstantial evidence - Whether sequential reasoning - Sufficient evidence to found conviction. SENTENCE - Manifest excess - Parity.

I have had the benefit of reading the judgment of Buchanan, J.A., in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

On 9 November 1998 the applicants and one Wiersema were arraigned in the County Court. Both applicants and Wiersema pleaded not guilty to one count of trafficking in a drug of dependence and Shiells pleaded guilty to three further counts of trafficking in a drug of dependence. On 4 December 1998 the applicants and Wiersema were found guilty of the contested counts. On 7 December 1998 Shiells pleaded guilty to a count of conspiracy to traffick in a drug of dependence and on the following day pleaded guilty to three summary offences arising from his possession of a .38 calibre pistol at the time of his arrest in respect of the drug offences.

On 11 December 1998 Huisman was sentenced to be imprisoned for a term of five years and six months. The sentencing judge directed that he serve a term of three years and three months' imprisonment before becoming eligible for parole. Wiersema was sentenced to be imprisoned for a term of three years and it was directed that he serve a minimum term of one year and six months before he was to be eligible for parole. On the same day Shiells was sentenced to be imprisoned for a term of seven years on one count of trafficking, for a term of three years on each of three counts of trafficking and for a total term of nine months on the charges relating to the pistol. Six months of one of the sentences imposed in respect of the pistol was cumulated upon the sentence of seven years' imprisonment, making a effective total term of seven years and six months' imprisonment. The sentencing judge fixed a term of five years before Shiells was to be eligible for parole. The maximum penalty for the offences of trafficking and for conspiracy to traffic in a drug of dependence was 15 years' imprisonment. The maximum term of imprisonment for two of the offences relating to the pistol was 12 months and for the other offence six months.

Huisman has appealed against his conviction while Shiells has appealed against his sentence.

The investigation which led to the charges against the applicants commenced in June 1994 when an employee of a chemical company, one Kingston, informed the police that Shiells had purchased quantities of ether, iodine crystals and hydrochloric acid in the period from April to June 1994. The police began following Shiells and observed him taking chemicals to factory premises in Bayswater where a business known as "Dorset Used Cars" was apparently conducted. Kingston gave evidence of further sales of chemicals to Shiells between June 1994 and January 1996. A forensic scientist gave evidence that the chemicals purchased by Shiells were ingredients in the manufacture of methylamphetamine. In February 1996 Shiells was referred by Kingston to a man said to be a broker in chemicals, but who was in fact an undercover Drug Squad officer, Detective Sergeant Strawhorn. Thereafter Shiells dealt with Strawhorn, who supplied him with chemicals until Shiells was arrested on 17 November 1996. Shiells told Strawhorn that others were involved in producing amphetamine from the chemicals which Shiells purchased and that Shiells organized the market for the product. In addition to supplying chemicals to Shiells, Strawhorn purchased amphetamines from Shiells.

Huisman was first connected by the police with Shiells in September 1995 when a car registered in his name was seen by a member of a police surveillance team at the Dorset Used Cars factory on a day on which Shiells delivered a drum of chemicals to the factory. Huisman was found to be a director of the company trading as Dorset Used Cars. Huisman lived in Nowra, New South Wales. He was the cousin of Wiersema who, the Crown alleged, acted as a contact between Huisman and Shiells.

The evidence led by the Crown consisted principally of Strawhorn's account of his transactions with Shiells, policemen describing surveillance of Shiells, and to a lesser extent Huisman, tapes of face-to-face and telephone conversations between Shiells and Strawhorn, tapes of telephone conversations between Shiells and Huisman, tapes of telephone conversations between Shiells and a number of persons to whom Shiells agreed to sell quantities of amphetamine and records of Huisman's mobile telephone calls which showed the places at which calls were made and received. The evidence covered the period from April 1994 to November 1996. Shiells was arrested on 17 November 1996. The premises of Dorset Used Cars were searched, revealing a quantity of amphetamine and cash. Huisman was arrested later the same day in New South Wales. The police searched Huisman's house and business premises, but found nothing connected with amphetamine or its production.

The charge of conspiracy to traffick in methylamphetamine brought against Shiells arose from conversations between Shiells and one Darryl Burton between August and November 1996 in the course of which they discussed plans for Burton to establish a laboratory to manufacture amphetamine with chemicals to be supplied by Shiells. It was the Crown's contention that Shiells was dissatisfied with Huisman as manufacturer and sought to transfer his business to Burton.

There was no direct evidence of delivery of any chemicals by Shiells to Huisman or indeed any other person. Nor was there any direct evidence of Huisman engaging in the production of any amphetamine. The Crown case against Huisman depended upon the conclusion to be drawn from the visits paid by Huisman to Melbourne when delivery of the chemicals were made to Shiells, his meetings with Shiells, the picture of the manufacturer of the amphetamine or cook, as he was called, painted by Shiells to Strawhorn, and the terms of Huisman's telephone conversations with Shiells.

The principal submission made on behalf of Huisman was that, in the absence of direct evidence of the receipt of chemicals or the production of amphetamine by Huisman, the circumstances proved by the Crown did not permit the conclusion to be drawn that he trafficked in amphetamine. Counsel for Huisman characterized as "indispensable links in the chain of inferential reasoning necessary to prove guilt" the facts that the applicant received chemicals from Shiells, manufactured methylamphetamine with the chemicals and supplied Shiells with methylamphetamine. As a corollary it was submitted that the trial judge erred in failing to direct the jury that the applicant was not guilty unless the jury were satisfied that the facts said to be indispensable links in the chain of inferential reasoning were proved beyond reasonable doubt. It was also submitted that the verdict was unsafe and unsatisfactory in that the absence of direct evidence of the so-called indispensable links in a chain meant that the jury could not have been satisfied of existence of the links to the requisite standard and could not rationally have excluded the hypothesis that the links did not exist.

The trial judge told the jury that there were two types of circumstantial evidence. He said:

"In the first the facts upon which the conclusion is based has formed, as it were, a chain. The chain consists of both facts and of inferences from facts, leading to the conclusion of guilt. In such a case the conclusion can only be as strong as the chain upon which it depends, and the chain, of course, is only as strong as its weakest link.

The second type of circumstantial evidence which the Crown relies on here in this case consists of events, facts, or circumstances isolated from each other in the sense that they do not form a chain of reasoning, but rather fit together like the pieces of a jigsaw puzzle to make a picture - if you like a mosaic. In such a case the strength of the proof does not depend upon any particular piece of the puzzle, but upon the clarity of the picture when the pieces are properly assembled. You may even have a sufficiently certain picture without using all the pieces, or while entertaining doubts as to whether some pieces are from this puzzle or another one.

In a case such as this you should examine the assemblage of the pieces with care to see that enough of them exist and that they could only be assembled to paint the picture of guilt. If they can be assembled to paint some other picture, you will have a reasonable doubt about the existence of the guilty one. So it is that in any kind of circumstantial evidence case the test which must ultimately be applied consistently with the requirement of proof beyond reasonable doubt is this. Does this evidence exclude every other reasonable explanation but that of guilt?"

At the heart of the applicant's appeal lies the contention that the receipt by the applicant of the chemicals purchased by Shiells, the applicant's use of the chemicals to manufacture methylamphetamine and the applicant's supply of methylamphetamine to Shiells constituted links in a chain, each of which was to be independently established beyond reasonable doubt. In my view the contention confuses facts founding sequential reasoning with facts that are indispensable to the proof of guilt in that they are facts which must have existed for the applicant to be guilty of the crime charged.

The distinction between evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9, para.2497 as the distinction between links in a chain and strands in a cable. See Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 at 579 per Dawson, J. An example of evidence forming links in a chain in a case where the presence of the accused at the scene of a murder is in issue would be evidence that a hair was found on the body of the accused, evidence that the hair matched another hair and no other and evidence that the second hair came from the head of the accused. (Compare R. v. Van Beelen (1973) 4 S.A.S.R. 353 especially at 372.) If there is no other evidence bearing on the issue of the presence of the accused, then each fact in the chain must be established beyond reasonable doubt. The qualification that there be no other evidence bearing on the issue is critical. See R. v. Kotzmann [1999] VSCA 27 at [17] per Callaway, J.A. Cases involving a chain of sequential reasoning will be relatively rare.

The circumstances that Huisman received chemicals from Shiells, used the chemicals to manufacture amphetamine and supplied the product of the manufacture to Shiells were not links in a chain of sequential reasoning, but rather stages in the commission of the crime with which Huisman was charged. It was perhaps surprising that, despite the wealth of evidence of Shiells' activities, there was no direct evidence of the delivery of any chemicals to Huisman. While that consideration may have founded an argument to the jury that they should acquit the applicant, it was not a necessary bar to a finding of guilt. There were a large number of circumstances from which it could be inferred that Huisman participated in the enterprise of manufacturing amphetamine. In my opinion it was appropriate to use the metaphor of a jigsaw puzzle or mosaic to describe the process of using those circumstances to infer the guilt of the applicant. Counsel for Huisman agreed with the trial judge that counsel's argument could be summarized by saying "There is a big hole in the mosaic or jigsaw puzzle" which could only be filled by guesswork or speculation. I consider that it is incorrect to require that each of the stages identified by the applicant be independently proved beyond reasonable doubt. The trial judge defined the term "trafficking" and directed the jury that the Crown was required to prove beyond reasonable doubt that Huisman participated in trafficking. In my view that direction was sufficient.

When the Crown case is viewed as depending upon an accumulation of detail to found the inference that Huisman was the cook, for whom Shiells acted as the commissary and distributor of the cooked product, it was sufficiently strong to warrant the jury's verdict.

The description of the manufacturer of the amphetamine given by Shiells to Strawhorn fitted Huisman. Shiells told Strawhorn the cook, named John, came from "up there" and owned a shop. The evidence was properly admitted against Huisman: Tripodi v. R. [1961] HCA 22; (1961) 104 C.L.R. 1. Huisman lived in New South Wales and owned a shop. Shiells told Strawhorn the cook was going into hospital. Shortly afterwards Huisman spoke to Shiells about an operation to be performed on him in hospital. The evidence of Strawhorn, the telephone tapes and the surveillance fitted a pattern. Telephone conversations between Shiells and Huisman preceded and succeeded orders placed by Shiells with Strawhorn for chemicals. Huisman visited Melbourne soon after deliveries of chemicals were made to Shiells. Huisman visited premises connected to Shiells and Wiersema in Melbourne.

Taped telephone conversations between Shiells and Huisman disclosed the existence of commercial dealings between them in which Wiersema was also involved. By reason of the relationship between the terms of the taped conversations and other evidence of Shiells trafficking in amphetamine, the jury were entitled to conclude that the dealings the subject matter of the conversations concerned the manufacture of amphetamine from the chemicals supplied by Strawhorn. For example, in a telephone conversation between Shiells and Huisman on 23 October 1996 Shiells, in answer to the question "Did you want anything else?" said "No, no, I've still got, ah, one and three-quarters." Two days later Shiells told Strawhorn that business was very quiet. He had bought a little more than he should and he still had half of what he had bought. The number of points at which the conversations and transactions between Shiells and Strawhorn tied in with the conversations between Shiells and Huisman leave the listener in little doubt that they were all concerned in the same business. Accordingly Huisman's application must fail.

The sole ground of Shiells' application for leave to appeal against his sentence is that the sentence is manifestly excessive. Shiells, who was unrepresented, in oral argument advanced the contentions that the sentencing judge erred in taking into account the price in sales to consumers of the amphetamine manufactured by Shiells, that there was a lack of parity between his sentence and others involved in the enterprise and that the sentencing judge failed to take into account the fact that Shiells had been led into the commission of the crime by Strawhorn. I have treated these matters as particulars of the ground that the sentence was manifestly excessive. Shiells also relied upon sentences imposed in other cases for like offences. Finally he relied upon his history and personal circumstances.

In my opinion the sentencing judge was entitled to have regard to the retail price of the drug in which Shiells dealt. His Honour apparently did not treat the retail price as the profit reaped by Shiells, but rather as a measure of the significance of the enterprise conducted by Shiells as far as the wider community was concerned. The applicant pointed out that in sentencing Burton and others, another judge spoke of the wholesale value of amphetamine, which is significantly less than the retail value. A sentencing judge can use either measure of value as long as the value is made relevant to the person being sentenced. In the present case it appears that the sentencing judge did appreciate that Shiells was not engaged in retail trade to a significant extent and saw the end price as a reflection of the impact of the drug on society.

While Shiells' sentence was greater than those meted out to Wiersema and Huisman, in my view the difference was justified by their respective roles in the undertaking and Shiells' much larger collection of prior convictions. Shiells was the orchestrator of the overall undertaking. He obtained the ingredients to be manufactured into methylamphetamine and received and disposed of the end product, whereas Huisman performed the tasks of the artisan who manufactured the drug and Wiersema acted as a link between Huisman and Shiells. Huisman had been convicted of 13 offences in three court appearances. The offences included assault, aggravated burglary, firearms offences and the possession and use of a drug of dependence. He did not serve any term of imprisonment save that in 1976 he was sentenced to be detained in a youth training centre for three months. Wiersema's only prior conviction was for being the owner of a dog which attacked. Shiells was convicted of some 128 offences in 15 court appearances between 1965 and 1993. The offences ranged from theft and obtaining property by deception to assault and possession of firearms and explosives. He was sentenced to terms of imprisonment on seven occasions. In my view the difference between the sentences was not such as to engender a justifiable sense of grievance. On the contrary, the difference properly reflects the respective roles and histories of Shiells, Huisman and Wiersema.

A large quantity of the chemicals in which Shiells dealt were obtained from Strawhorn, the undercover policeman. In my view, however, there was no element of entrapment of the applicant. Shiells embarked upon the enterprise without any encouragement. Strawhorn merely took over from Kingston the role of Shiells' supplier. Strawhorn also purchased processed amphetamine which Shiells was selling to others as well. The statement of Callaway, J.A. in R. v. Bernath [1997] 1 V.R. 271 at 277 is apposite. He said:

"This was not a case of the serpent's beguiling or a trap for the unwary innocent as opposed to a trap for the unwary criminal."

Shiells is 52 years of age. The volume and regular occurrence of his prior convictions betoken a life of crime. His father left home when Shiells was aged two years, and his mother died when he was nine years old. The applicant was brought up by his relations. Shiells married and has three adult children. His marriage has now ended and he has lost touch with his children. After leaving school at the age of 15 years the applicant was employed in a wool store, as a textile dyer, a plumber's labourer, a shipping clerk, an insurance clerk and insurance broker.

Shiells conducted his trafficking enterprise steadily over a considerable period of time, so that he was responsible for a significant quantity of a drug with considerable destructive force reaching the market. The sentence imposed upon Shiells is comparable to sentences imposed for like offences in R. v. Otene [1998] VSCA 92; R. v. Wyllie [1998] VSCA 123; R. v. Downing [1998] VSCA 122; and R. v. Maguire [1998] VSCA 124. In my opinion neither the circumstances of the crimes committed by Shiells nor his personal circumstances required that he be treated more leniently than those offenders so that it could be said that the exercise of the sentencing judge's discretion miscarried.

For the foregoing reasons I would dismiss the applications of both applicants.

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