R v Kelly [2005] QCA 103

Court of Appeal (Qld)|2005-04-15|Before: McPherson, Jerrard and Keane JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made.

Director of Public Prosecutions (Queensland) for the respondent

[2] The charges of supplying laid against Kelly related to dates at almost weekly intervals during a period of three months from 21 April 2001 to 20 July 2001. The person supplied in each case was the same individual, who is sufficiently designated here by the name she used of Shelley. All of the acts of supplying save two took place at the Park Ridge Tavern where Shelley and Coss were in the habit of meeting. The prosecution case was that Kelly was the ultimate supplier to or principal of Coss, the latter being the go-between who was remunerated by Kelly on a sales commission basis; and that this procedure was devised in order to conceal Kelly's role in the illegal transactions.

[3] What Coss and Kelly did not know was that Shelley was a senior constable of police acting throughout as an undercover operative. She had a concealed tape recorder which she activated to record conversations which took place in person at the Tavern with Coss or Kelly or both, and on occasions when Coss telephoned Kelly at his mobile number, which was identified and later matched against telephone records of calls to that number. She also made notes shortly afterwards of what had happened and what was said in the course of these transactions, and at the trial she used the notes to refresh her memory. In addition, police surveillance was conducted by video taping or logging the travel of three identified motor vehicles that were seen being driven by Coss to or from the area where he or Kelly lived, on a number of occasions with Kelly as passenger in the vehicle.

[4] The practice followed by Coss was to deliver the drugs to Shelley in the car park adjoining the Tavern or other place where they met. Most of the time this happened after she had made a call asking him to supply her with drugs, for which she paid when the transaction took place. On some occasions, when by inference Coss did not have drugs with him at the time, he telephoned Kelly, then travelled to Kelly's place, picked up the drug and returned to the Tavern to sell it to Shelley. With some variation in detail, this happened for example on 27 April 2001 (count 5), 5 May (count 6), 11 May (count 7), 19 May (count 8), 29 May (count 10) and 23 June (count 13); but not it seems on 30 June (count 14: ex 42), when the transaction was in the end not completed after Shelley said she did not have the money, a fact which Coss then reported to Kelly. In that instance, the Crown was relying on the extended definition of "supply" in s 4 of the Drugs Misuse Act 1986 to constitute the offence. Conversely, there was one occasion on 19 June when Coss was trying to sell drugs to Shelley but was unable to do so because, as it emerged later, Kelly had cut off supplies to him.

[5] As part of the stratagem of concealing his part in those transactions, Kelly avoided being present when the sale to Shelley in fact took place, which usually happened in a car in the car park. However, on at least six of the ten occasions charged as supplying, Kelly was present at the Tavern or other venue; and on 30 June he was present although the transaction was not completed because of Shelley's asserted inability to pay for it. Two of the other occasions (27 April: count 5; and 29 May: count 10), when Kelly did not personally appear at the venue, were ones on which the sale was carried through only after Coss, having received Shelley's call, travelled to Kelly's place inferentially to pick up supplies of the drug to sell to Shelley. She had first met Kelly on 21 April, which was the occasion of the second sale to her, after which she accompanied Coss to the Tavern, where she was introduced to Kelly. He at once asked her, "Did he fix you up?", and both Coss and Shelley agreed that everything was "sweet".

[6] The prosecution case was that Coss and Kelly were engaged in carrying out an agreement amounting to an unlawful conspiracy to supply Shelley with amphetamines. For this purpose it would not matter whether Kelly was, as the Crown alleged, the principal supplier and Coss was his agent, or whether Coss and Kelly were partners or even independent contractors who joined in the process of supplying charged in counts 4 to 8, 10 and 12 to 15 of the indictment. In any of those events, they were each participants in and parties to the sales to Shelley and so liable as principal offenders either under s 7(1) of the Code or by force of the extended meaning of "supply" given to that expression in s 4 of the Drugs Misuse Act 1986. The question for the jury at the trial was whether, despite the precautions taken to distance him from the sales, Kelly was proved to be a party to those transactions, which were the original evidence or res gestae relied on by the Crown to establish Kelly's part in the conspiracy to supply amphetamines to Shelley.

[7] The acts including statements of one conspirator in performing their agreement are admissible against the other once reasonable evidence of the "preconcert" is adduced: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, at 7. Here, the evidence involving Kelly in the sales by Coss, of which I have given only a broad outline, plainly established beyond reasonable doubt that Kelly was a party to such an agreement. It was an issue for the jury to determine as a matter of inference from the proved facts. In doing so, they were entitled to act on the principle that the repetition of acts and occurrences is, as Dixon J said in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376:

"... often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved."

The fact to be proved here was that Kelly was the ultimate supplier of the amphetamines to Shelley. The frequency and the regularity of his presence or association with the sales by Coss and the attendant circumstances of those sales was sufficient to exclude as unreasonable any explanation except that he was personally interested in them himself as supplier to or principal of Coss. If there was any other explanation for his conduct, the jury were never told what it was. Kelly did not give evidence himself or put forward any hypothesis that was capable of accounting in an innocent way for his repeated presence at or near the scene of the sales by Coss to Shelley, or for the regularity of Coss's actions in telephoning or travelling to see him after receiving requests from Shelley to supply her with drugs. Apart from the other evidence against him, Kelly's actions in persistently distancing himself from the sales transactions themselves raised a compelling inference that he knew what was taking place between the other two.

[8] Of other evidence, there was a good deal. In most of the ten sales that were charged, the drugs were packaged in clip seal plastic bags that were not particularly distinctive. However, in the sales that took place on 5 and 19 May and 11 June (counts 6, 8 and 12), the drug was in each instance contained in sandwich bags printed with cartoon characters specific to a children's television program known as Nickelodeon Odeon. In the sale on 9 June (count 11) the drug was wrapped in a clip seal bag with a distinctive yellow and green strip on it. Unused bags of that kind were located at Kelly's premises when police searched it at the conclusion of the undercover operation. In respect of the sale on 20 July (count 15) Shelley paid Coss with a number of $100 bills, two of which that were identified by their serial numbers were later found in a wallet in Kelly's personal possession. On appeal, he suggested that they might have come to him from Coss when he assisted financially in acquiring a car. However, at the trial he gave no evidence to that effect, and no details of the date, amount or otherwise of the financial assistance was ever provided. Likewise, when Kelly arranged the purchase from Shelley of some Sudafed tablets, she was paid in money that included seven $100 notes with which she had paid for drugs bought from Coss on an earlier occasion. The Sudafed tablets were supplied in a secretly marked satchel which was later found at Kelly's premises.

[9] Leading up to the sale of the Sudafed tablets, there were several telephone conversations in which Kelly in effect broke cover by discussing the matter directly with Shelley. Similarly, when she interested him in acquiring from her some laboratory "glassware" (ex 22) which on 19 May she showed to Coss in the boot of her car at the car park, Kelly unexpectedly emerged from the Tavern and looked into the boot. He said "that's a ... condenser" and asked if she had a flask, "a round one, like that". When she asked Kelly what he was going to do with it, he said "Never you mind". The scene including Kelly's presence at the boot of the car was video-taped by police surveillance officers.

[10] The jury were entitled to reach the conclusion that the appellant was guilty of all of the ten counts of supplying methylamphetamine with which he was charged. The evidence against him, which occupied some 11 sitting days, was overwhelming and the prosecution case at trial was very thoroughly prepared and presented. Those ten counts of supplying also justified the verdict of guilty against the appellant on count 2 of carrying on the business of trafficking in methylamphetamine. The charge in count 1 of producing the drug was perhaps somewhat less clearly substantiated; but Kelly's purchase of a large quantity of Sudafed tablets cannot, in the absence of explanation, be interpreted in any way except that he intended to use them for the purpose of producing amphetamines. The evidence of his continuing interest in and knowledge of the laboratory "glassware" pointed in the same direction, as did his half-joking response, when asked if he did the "cooking", that he did everything at his place, "the cooking, cleaning, washing etc". It is, of course possible that Kelly was not producing his own drugs but obtaining them from someone else; but, if so, there is nothing that suggests it, and the evidence is fairly capable of being understood in the way contended for by the Crown.

[11] The appeal against conviction, which simply asserts that the conviction is unsafe and unsatisfactory, should in my opinion be dismissed. As to sentence, I have already said that Kelly was sentenced to an effective term of imprisonment of eight years. In respect of the 10 counts of supplying, Kelly was responsible for providing 147.7 grams of powder containing 32.2 grams of pure methylamphetamine. The evidence suggests that the expectation was that it would be cut down and resold by Shelley. Coss was a user on a small scale, whereas Kelly's involvement was purely commercial. He made use of the services of Coss (who had only recently been released after a lengthy term in gaol) to promote his business and to distance himself from suspicion. The learned judge was satisfied that Kelly was the organising principal, while Coss was merely an "underling" who carried out Kelly's orders. There was ample material on which to base that conclusion.

[12] Before us, Kelly, who was 52 years old, complained that he had received eight years imprisonment, whereas Coss had received only five. The reason for this difference was made clear by her Honour in her sentencing remarks. She regarded Kelly very much as the dominant party, who received the lion's share of the payments made for the drugs. Both of them had lengthy criminal records. Kelly kept an unlicensed hand gun at his property from which the registration numbers had been erased. It was found ready for use and loaded with ammunition of a kind calculated to cause maximum injury to those against whom it was used. An extensive collection of ammunition for other varieties of firearms was also located. He had a small farm at Woodridge and appears to have been self-supporting, with no compelling reason to engage in drug activities.

[13] The reason why Coss's punishment was less than Kelly's was essentially because of his lesser role in the scheme of supplying the drugs. Her Honour said that Coss's participation would have justified a sentence of imprisonment of only about a year or so less than that imposed on Kelly; but, because of his plea of guilty, she was prepared to reduce it by a further period of two years. That is how the distinction in penalty between the two offenders came about. On that score there can therefore be no justifiable sense of grievance on Kelly's part about the difference in their respective sentences. He was the organiser, the supplier and the principal recipient of the proceeds.

[14] As to the head sentence itself, decisions of this Court in R v Everett [1999] QCA 514 (CA No 311 of 1998, 5 February 1999) and R v O'Connor [2002] QCA 467 (CA 224 No of 2002, 1 November 2002) sanction a range of 7 to 9 years imprisonment for offences of this kind and degree, and counsel for Kelly conceded that a sentence of 7 to 8 years was appropriate. The sentence in fact imposed was therefore within the range suggested by those decisions. The application for leave to appeal against sentence should accordingly be dismissed.

[15] I cannot part with this matter without expressing my admiration of the conduct of the senior constable of police who acted as the under cover agent over many months. It was plainly an exacting, unpleasant and dangerous duty, for the performance of which law-abiding members of the community have reason to be grateful to her.

[16] In my opinion, both the appeal against sentence and the application for leave to appeal against sentence should be dismissed.

[17] JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of McPherson JA, and the orders he proposes. I add that the evidence included a substantial number of recorded telephone conversations between the appellant and Shelley, and conversations recorded between Shelley and the appellant both in and outside the hotel where Mr Coss sold the drugs to Shelley. Those conversations revealed over time an increasingly frank acknowledgement by Mr Kelly that he was actually involved in supplying amphetamine, including to Shelley, and was interested in purchasing from her some of the glassware he was videotaped examining in the boot of her vehicle. He was also audio-taped by her during that examination, and in subsequent telephone calls made self identifying descriptions of the glassware he had seen, and in which he was interested, and the occasion of the inspection. He was also recorded discussing supplying amphetamine and its price, rebuking Shelley for having let Mr Coss know that Mr Kelly had supplied his telephone number to Shelley, and claiming to be producing the amphetamine.

[18] Those conversations revealed that he knew that the drugs Mr Coss had supplied to Shelley had been wrapped on occasions in the particular variety of sandwich bag described by McPherson JA; and he discussed with Shelley the total weight of drug and wrapping which she should have received from Mr Coss. Mr Kelly conceded generally in argument on the appeal that the statements attributed to him in those conversations demonstrated participation in supplying the drugs and a claimed production of them, but denied that he had been the speaker recorded. That denial was palpably false, because of the objective evidence that he was the person who examined the glassware in Shelley's boot; and a person with a similar voice telephoned from his number to speak with Shelley about that glassware, identifying it and the occasion of the examination, and then made arrangements about the sale of drugs.

[19] KEANE JA: I have had the advantage of reading the reasons of McPherson JA. I agree with those reasons, and with the orders proposed by his Honour.

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